The Gazette 1977

GAZETTE

OCTOBER- 1977

justice" peculiarly inappropriate to it. He says:

"Even under this most stringent Act, a Minister of

State is empowered to detain a person only if of

opinion that he is

engaged

in activities which are

prejudicial to the preservation of the public peace

and order . . . the Minister is not empowered to act

because he is of opinion that a person if not

detained

will engage

in such activities."

As O Dalaigh CJ. remarks here, the procedure described

in the Act renders the citizen liable to indefinite detention

because of activities already embarked on, a feature in

total conflict with the guiding principle that preventive

justice, where it is permitted, should be solely concerned

with prevention and not with punishment. Thus it may be

concluded that although successive Governments have

pledged themselves to enforcing internment without trial

as a preventive measure, the inevitable and necessary

implication of S.4 of the Offences Against the State Act

1940 is that indefinite internment operates to punish

people for engaging in activities prejudicial to the security

of the State, and is in that sense wholly divorced from the

norms of our system of criminal justice.

The concept of preventive detention was disapproved

also by the European Court of Human Rights in the

Lawless Case,

1960, when it held that the applicant's

detention under S.4 of the 1940 Act did not comply with

the provisions of Article 5, paras. 1(c), 3 of the

Convention. By the terms of these provisions any person

about whom it can be "reasonably considered necessary

to prevent him committing an offence", can be arrested

only for the purpose of bringing him before the competent

legal authority and he is entitled to a trial within a

reasonable time. The Court rightly noted that a contrary

construction of these provisions would have sanctioned

the arrest and detention of any person "suspected of

harbouring an intent to commit an offence" for an

unlimited period on the strength merely of an executive

decision. By branding such a practice "repugnant to the

fundamental principles of the Convention", the European

Court proclaimed freedom from arbitrary detention a

bas ic pr inc iple of European public l aw.

The Government's decision to secure the passage of

the Offences Against the State Act, 1939, by ordinary

legislation enabled its constitutionality to be challenged in

the High Court in

Burke's case.

Gavan Duffy J.

emphasized that he was deciding a question of law: "I am

not concerned with policy". Examining the contention

that S.55 authorised the Executive to interfere in the

administration of justice (in contravention of Article

34.1), his method was to decide, firstly, whether the

Minister was acting judicially, and secondly, whether in

doing so, the Minister was administering justice. Gavan

Duffy J .'s analysis of the duty of the Minister pivoted on the

word "satisfied" as used in S.55. To have the right to

intern, he argued, the Minister had to be "satisfied" that a

person was in fact engaged in specific activities, and

having found against him on that issue of fact, to have the

right to intern, the Minister was required to consider

whether those activities were calculated to endanger the

security of the State, and be "satisfied" that they were.

By the Minister's dual determination of fact, right or

wrong, the person became a potential internee. Since to

act judicially meant to determine rights and liabilities

according to law upon the ascertainment of certain facts,

such that the determination rather than the fact

determined operates to impose liability or affect rights,

Gavan Duffy J. held that the Minister had been acting

judicially under S.55. This finding was not altered by the

Minister's discretion (if any) not to prosecute an offender.

To decide whether the section authorised the

administration of justice, the judge listed the implications

of S.55. He established that the activities contemplated in

S.55, if not otherwise unlawful, were made so by this Act,

under pain of internment, and that these activities sufficed

to make the subject-matter of Part VI one "which, by its

very nature, belongs to the domain of criminal

jurisdiction". Concluding that indefinite internment was

being applied as a punishment for engaging in these

activities, and that a decision for the arrest and detention

of a person under S.55 was equivalent to a judgment

against him for endangering the security of the State,

Gavan Duffy J. held that the authority conferred on a

Minister by S.55 was an authority, not merely to act

judicially, but to administer justice. Furthermore, it was

an authority to administer criminal justice and to

condemn an alleged offender without charge or hearing

and without the aid of a jury, thereby contravening

Article 38.1 which prohibits trial on any charge "save in

due course of law". Prof. Willoughby's principle of the

separation of powers was employed to affirm the

invalidity of S.55 having regard to the provisions of

A.34.1:

". . .the administration of justice is a peculiarly and

distinctly judicial function, which,from its essential

nature, does not fall within the executive power and

is not properly incidental to the performance of the

appropriate functions of the Executive;

consequently a law endowing a Minister of

State . . . with these powers is an invasion of the

judicial domain and as such is repugnant to the

Constitution."

The Judge cited Article 37, which forbids the conferring

of criminal jurisdiction on non-judicial officers, to confirm

and strengthen his opinion. The Constitution makes

exceptions for military law and Special Courts in time of

danger, but even then does not appear to contemplate

internment without trial, he maintained.

The amending legislation in 1940 was drafted to take

cognisance of Gavan Duffy J.'s decision, replacing the

condition whereby the Minister had to be "satisfied" by

one which merely required him to be "of opinion". The

Judge had himself recognised the acceptability of such a

substitution when he distinguished an earlier authority on

the basis that the statute impugned in the case involved

"nothing except the inner consciousness of the

Minister expressed in the written order for

internment."

That was the approach which commended itself to the

Supreme Court when it reviewed the amending Bill under

Article 26. It found that the only preliminary to the

exercise of his powers was for the Minister to form "an

opinion", and because in forming an opinion he was not

purporting to weigh evidence, but merely performing a

subjective function in his own mind, the validity of such

opinions could not be questioned in any Court. The

further contention that the Minister was administering

justice contrary to Article 34 was curtly dismissed as

"unsustainable".

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