The Gazette 1977

OCTOBER- 1977

GAZETTE

justice" peculiarly inappropriate to it. He says:

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." 18 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 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". 163 "nothing except the inner consciousness of the Minister expressed in the written order for internment." 19

"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." 17 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