The Gazette 1977

GAZETTE

OCTOBER 1977

Burke's

case also considered the internment procedure

in relation to Article 40.4.1, which guarantees the liberty

of the citizen "save in accordance with law". Gavan

Duffy J. interpreted this qualification by reference to Article

40.3.1, 2:

3.1 The State guarantees in its laws to respect and, as

far as possible, by its laws to defend and vindicate the

personal rights of the citizen

3.2 The State shall, in particular, by its laws protect as

best it may from unjust attack, and in the case of

injustice done, vindicate the life, person, good name

and property rights of every citizen.

He posited the view that the right could only be abrogated

in accordance with a law which respected the

fundamental right of the citizen to personal liberty,

defended and vindicated it as far as practicable, and

protected his person from unjust attack. A law for the

internment of a citizen, without charge or hearing, outside

the great protection of criminal jurisprudence and outside

even the special courts, for activities calculated to

prejudice the State

"does not respect his right to personal liberty and

does unjustly attack his person . . . (it) does not

defend his right to personal liberty as far as

practicable, first, because it does not bring him

before a real Court and again because there is no

impracticability in telling a suspect, before ordering

his internment, what is alleged against him . . ."

The Constitution, in Gavan Duffy J.'s estimation, solemnly

recognised the right to personal freedom as an essential

basis of the social structure of a society of free men, and

despite its emergency provisions, it secured personal

freedom as truly as did Magna Carta.

The majority of the Supreme Court per Sullivan C. J.

again differed with Gavan Duffy J. ip considering these

arguments. I referred earlier to opposing forces of

individual freedom and social order, and the Court in

1940 was prepared to subjugate the dignity and freedom

of the individual to the promotion of the common good, the

attainment and maintenance of social order. It delegated

to the Oireachtas the duty of determining the extent to

which the rights of any particular citizen, or class of

citizens, can properly be harmonised with the rights of the

citizens as a whole, and opted for a narrowly legalistic

interpretation of the phrase "in accordance with law":

" . . . it means in accordance with the law as it exists

at the time when the particular Article is invoked

and sought to be applied. In this Article (40.4.1), it

means the law as it exists when the legality of the

detention arises for determination. A person in

custody is detained in accordance with law if he is

detained in accordance with the provisions of a

statute duly passed by the Oireachtas; subject

always to the qualification that such provisions are

not repugnant to the Constitution or to any

provision thereof."

The Judges in the 1940 Supreme Court received their

legal education under the British system of parliamentary

sovereignty, and the concept of a judge interfering in the

duly-enacted legislation of Parliament must have seemed

intellectually repellent to them. Although the Judiciary

still concedes the prerogative of the Oireachtas to

164

circumscribe personal rights in time of national

emergency, they have developed an activist function in

determining and upholding rights at other times. There is

little doubt that the modern Supreme Court would

reproduce Gavan Duffy's reasoning in Burke's case to

strike down internment without trial as arranged in the

1940 Act, declaring it offensive to the constitutional

guarantees of personal liberty. A foreshadowing of such a

development appeared in the review under Article 26 of

the Emergency Powers Bill, 1976, when the Court

commented that statutes making such serious inroads on

civil liberty demanded very strict construction. Its

vigilance in scrutinizing legislation of this character

necessarily leads one to infer that the present Supreme

Court would unhesitantly strike down legislation

analogous to the 1940 model in terms of content and

manner of enactment. It is interesting to note that the

Court held that because of the exemption granted by

Article 28.3.3, emergency Bills referred to it by the

President under Article 26 were inescapable of being

struck down on the grounds of repugnancy to the

Constitution.

The European Court of Human Rights in the Lawless

Case examined the justifiability of the internment

measure. The existence of an emergency was held to have

been reasonably deduced by the Irish Government in the

circumstances, and what is relevant to internment is the

limiting of the derogation under Article 15 of the

Convention to the "extent justified by the exigencies of

the situation." The Special Criminal Courts or the more

extreme power in Article 38 (4) of the Constitution for

military tribunals in time of war or armed rebellion

constituted alternatives to internment. The Court took the

view that the ordinary, special or military courts would

not suffice to restore order, chiefly because of difficulties

encountered in the collation of evidence for convictions.

Possible sealing of the border was considered and

rejected. The Court undoubtedly made a subconscious

distinction between measures which were effective, a

category into which sealing of the border and in-

ternment both fitted, and measures which were justifiable,

a category including only internment. Sir Humphrey

Waldock believed that Special Criminal Courts might

have been effective, but conceded that the Irish

Government had a "margin of appreciation" in the

circumstances. Military courts were considered most

objectionable of all, and were for that reason excluded

from the hypothesis. The Court offered no explanation of

why the derogations from Article 6 resulting from the use

of military courts were worse than those from Article 5 of

the Convention consequent on internment. Furthermore,

it is not clear that sealing the border would have involved

derogation from any provision of the Convention despite

the view of the Court that it would have had extremely

serious repercussions on the population as a whole,

beyond the extent required by the exigencies of the

emergency, The Diplock Commission

considered the

similar choice open to the Government in Northern

Ireland when faced with the problem of securing

witnesses, between radically altering their judicial

procedures or continuing to use internment. In order to

preserve the reputation of the judiciary in a divided

community, their Report advised that no ordinary court

should derogate from the minimum standards of fair trial

codified in Article 6 of the European Convention.

In his book,

Taking Rights Seriously,

Prof. Ronald

Dworkin argues that a government "professing to

(concluded on p. 172)