The Gazette 1977

GAZETTE

AUGUST/SEPTEMBER

national emergency that constitutional rights are most

exposed to violation, and yet their enforcement in such

times must depend ultimately on the goodwill of the

Executive, as here evinced by that Taoiseach. Continuing

his justification for a State of Emergency, he stressed that

the first duty of a democratic government is to protect the

lives of the citizens and to allow them to live and go about

their legitimate business in peace. In summarising his

argument, he encapsulates die

rationale

of emergency

legislation:

"The very existence in the Constitution of the

Article under which this Resolution (i.e. for a State

of Emergency) is moved, is evidence that there are

circumstances in which a democratic government

may be compelled to limit the exercise of individual

rights in the interests of protecting from attack the

ordered community of the State, without which

anarchy and armed repression would reign supreme

and the exercise of individual rights would be utterly

abolished."

Mr. Cosgrave's Parliamentary Secretary,

constitutional lawyer John Kelly, conceded that the

power of preventive arrest and questioning being

authorised under the Bill was very probably repugnant to

the Constitution, and to avoid the issue it was necessary

to withdraw that power from the process of constitutional

review. He pointed out that the other constitutional

safeguards (habeas corpus, the rule of law, the ordinary

system of trial, etc.) remained locked in place.

The purpose of examining constitutional rights and

their abnegation or partial abnegation in a climate of

national emergency, is to establish the

substratum

which rests the topic of internment and detention without

trial in Irish law. The

nexus

is recognised by the European

Convention on Human Rights, which concerns itself

primarily with the protection of those rights which are

today accepted as the basis of a democratic society, while

at the same time providing adequate safeguards to permit

the State to maintain and protect its democrtatic

institutions. We shall see that internment without trial

offends certain constitutional guarantees in the "Charter

of the People", and why it is nonetheless valid procedure

in an emergency environment. Essential to observe at this

juncture, however, is that the principal legislative

enactment under which internment without trial operated

in post-1937 Ireland was passed by the Oireachtas as

ordinary, permanent, peacetime legislation, and as the

consequence of a Supreme Court adjudication under

Article 26 of the Constitution, which allows the President

to refer certain Bills to the Court for a decision as to their

constitutionality, the Offences Against the State

(Amendment) Act, 1940, is armour-plated against

constitutional attack. That decision has been strongly

criticised, and it is unlikely that the modern Supreme

Court would repeat it. Nevertheless the circumstances

surrounding the enactment of the Offences Against the

State Acts 1939-40 provided the opportunity for

fascinating judicial examination of the problem of

internment without trial in Ireland.

From the foundation of the State, the internment

procedure has acquitted itself as a potent weapon against

perpetrators of political violence. In 1923, for example, it

was applied to prevent the Civil War breaking out afresh.

The 1939 legislation was introduced against the

background of a resumption of illegal activity by the

I.R.A., directed at undermining Mr. de Valera's policy of

136

neutrality and forcing Ireland into the war on the German

side. That legislation, amended in 1940, was reactivated

by proclamation in 1957 when the Government again

considered the organised life of the community to be

threatened by terrorist activities. Professor John Kelly,

writing in 1966, commented that the deployment of the

internment sanction

"during the last 45 years undoubtedly averted a

great deal of disorder, bloodshed and violence."

It is worth investigating the legislative designs which have

been drafted since 1922 to bring internment without trial

into play as executive policy. The Irish Free State

Constitution empowered the Oireachtas to enact

legislation for the preservation of public safety, and the

continuing necessity to do so illustrated how a newly-

created Constitution could be heavily strained by the

activities of those opposed to it and the severity of the

measures taken to deal with them. The Public Safety

(Emergency Powers) Act, 1923, by virtue of which

hundreds of Republicans were detained, provided under

S.l for the arrest and indefinite detention of a person

when a Minister of State was "satisfied" either that

reasonable grounds existed for suspecting that he was

concerned in certain scheduled offences, or that the public

safety was being endangered by his continued liberty. The

• Minister could also exercise his power on receipt of a

report that the detention of a named individual was "a

matter of military necessity". The validity of the Act was

challenged in

R (O'Connell) v Military Governor of Hare

Park Camp

but the Court refused to hold that the power

of detention it conferred was judicial, preferring to label it

by nature an arbitrary power conferred by the legislature

to meet a threatened danger to the State. The Court

deliberately emphasized the finite duration of the

instrument (initially six months) as one factor in its

favour, a clear contrast with the later Offences Against

the State Act, 1939, passed as permanent legislation and

acquiring constitutional impregnability for its internment

procedure in 1940. The Public Safety (Emergency

Powers) Act, 1926, was enacted in less volatile times, and

incorporated a power of arrest and indefinite detention

exercisable in a context of future emergency on the issue

of a proclamation by the Executive Council. A Minister

of State could set the process in motion whenever he was

satisfied that reasonable grounds existed for suspecting a

person of being or having been engaged in the

commission of scheduled offences. The 1926 Act is

analogous to the 1939 model in its intended permanence,

and remained operative until the latter became law. In the

meantime, a large apparatus of special executive powers

appeared in the Public Safety Act, 1927, passed following

the assassination of Kevin O'Higgins and in the

apprehension of further violence. The sweeping authority

for indefinite detention commonly granted in its

predecessors was excluded in the 1927 Act, which instead

contained a sequential mechanism permitting an absolute

maximum of three months' detention. It was repealed in

1928. Neither were any fresh powers of indefinite

detention written into the Constitution (Amendment No.

17) Act, 1931, interpolated into the Constitution in the

guise of a new article 2A and thus acquiring technical

validity at least. S.l4 provided for detention without

charge for up to 72 hours on suspected commission of

scheduled offences.

A new Constitution received the force of supreme law

in 1937, and also attempted to synthesize, on the one

hand, fundamental guarantees of rights and freedoms,