The Gazette 1977

GAZETTE

OCTOBER 1977

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 22 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)

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 . . ." 20 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." 21 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