The Gazette 1977

GAZETTE

AUGUST/SEPTEMBER

Internment and Detention Without Trial in Irish Law by Brian F. Havel PRIZE COMPETITION FOR HUMAN RIGHTS ESSAY-U.C.D.

"An unjust law is itself a species of violence. Arrestfor its breach is more so." Mohandas K. Gandhi (1948) 1 Gandhi's maxim is a valuable point of orientation for this discussion. The operation of procedures of internment in Ireland is set against a well-established matrix of legal and social forces, the former referring principally to the purported supremacy of constitutional rights and freedoms, the latter to the urgency of defending the stability of the State against periodic outbreaks of politically-inspired violence which have persisted since 1922. Harmonisation of these conflicting forces is a difficult task for constitutional government, and the Irish experience of internment and detention without trial crystallizes the difficulty. Whether we have been guilty of applying "an unjust law" is a problem to be resolved by examination of empirical evidence. By the word "internment" is meant detention without trial of persons believed to be a danger to the State, but the terminology is not of great significance. Indeed, "internment" and "detention without Trial" have been used interchangeably in Irish law. For example, Part VI of the Offences Against the State Act, 1939, is headed "Powers of Internment", whereas Part II of the amended legislation in 1940, which substantially re-enacts Part VI with only minor verbal changes, is entitled "Powers of Detention". Interestingly, the legislative vocabulary of all relevant enactments since 1922, with the singh. exception of Part VI of the 1939 Act, nowhere includes the term "internment". Rather, "detention" is universally preferred, although semantically both words co-incide. It is true that "internment" may sound more offensive to popular sensibility. The supreme law in Ireland is the Constitution, a remarkable charter of governmental organisation and fundamental guarantee, including a specific right to personal liberty (Article 40.4.1). National constitutions in Western Europe recognise personal freedom as belonging to « nucleic group of constitutionally-guaranteed freedoms', also including the protection of the life of the individual, his family circle, his freedom of religion, thought and property, and collectively classified as civil or liberal rights. These codified rights and freedoms are vested with legal supremacy, and the legislator is subjected to judicial control in regard to their observance. The principle is to protect the freedom of the individual against the power of the State. Absolute rights are unknown, or virtually unknown, in democratic states, however, and therefore the scope of fundamental rights is delineated for purposes of law, in the Irish document by the pithy expression "save in accordance with law". The implications of that phraseology will be discussed later. For the moment, it suffices to remark that internment without trial breaches the right of personal liberty per se, but whether it does so "in accordance with law" is more problematical.

Constitutional government is something more than government according to the terms of a constitution—it is government according to rule, as opposed to arbitrary government. It is government limited by the terms of the Constitution, not government limited only by the desires and capacities of those who exercise power. The most damaging force which operates this concept of limited government is war, whatever its form in particular circumstances. Precisely when the exigencies of external and internal state security begin to assert themselves, constitutional law must grapple with a problem of worrisome intractability. The structural framework by which the Government was prevented from infringing individual rights during peacetime, must be sufficiently flexible to allow that same Government to defend those rights in time of conflict. To properly conduct affairs of State during national emergency, the Government will require full freedom of action. Constitutions recognise this almost inevitable consequence of war by incorporating specific provisions allowing unhampered freedom to the Executive in time of war of in defence of public safety. The Irish Constitution, in Article 28.3.3, withdraws every constitutional restraint from the Oireachtas "for the purpose of securing the public safety . . . in time of war or armed rebellion", and makes the determination of what is "time of war or armed rebellion" entirely a matter for the Oireachtas—or, in reality, for the Government. "Salus populi suprema lex" represents the activating principle behind emergency legislation, and by extension the sacrifice of individual liberty for the common good may be justified. The Emergency Powers Act, 1976, confers a power of limited detention (up to 7 days without charge) on certain officers of the police force. Mr. Lynch, then Leader of the Opposition, attacked the Bill in the Dail as sanctioning "a form of internment" 3 , and that possibility (which I shall leave without comment) justifies reference to the Dail debate on the Emergency Powers Bill, 1976, and in particular to the speech of that Taoiseach, Mr. Liam Cosgrave, which illustrated the circumstances which would motivate an Executive decision to suspend constitutional liberties under Article 28.3.3: "The Government believe that the extent of violent crime by irregular bodies and persons associated with such bodies, the new dimension added by the recent events (i.e. the murder of the British Ambassador and explosions at the Special Criminal Court) and the further threat to the institutions of the State implied by these events, constitute a national emergency affecting the vital interests of the State." 3 At this point, that Taoiseach stressed the resolve of his Government to proceed in accordance with law, and not to act in any arbitrary manner. The irony of the situation is striking. After all, it is precisely in conditions of 135