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." 4 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 on 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." 9 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 6 , 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,