Wednesday, 21 May 1941
Seanad Éireann Debate
Mr. M. Hayes: What we had here is the substitution in the Constitution for an Irish word of another word of narrower meaning. The word is “revenue” in English, and in Article 17 it appears to mean tax-revenue. I thought here it meant all kinds of revenue, but the Irish text certainly gives it a meaning which is narrower. The word “stáitchíos” would appear to mean taxes.
The Taoiseach: The position is that there is a general principle that the revenue should be put into the Central Fund. However, there may be exceptions to that. The revenues are sent in to the Central Fund, but we have, for instance, as an example, the fees of the Veterinary College. These fees do not come in directly. They are treated as Appropriations-in-Aid, I think. The general principle is that the tax revenue goes into the Central Fund, but there are certain proceeds which come in from the activities of a number of Departments, and they are put in as  a set-off to that Department before they go to the Central Fund. There is an example in the case of the Department of Agriculture. There is a sum voted for the Veterinary College, and there are set off against it the fees for students. There is another case in which all the revenue that comes in is not sent to the Central Fund. On the other hand, there are the fees from the Passport Office. That is not treated as an Appropriation-in-Aid to the Department of External Affairs, but as extra Exchequer receipts, and is sent in directly.
For example, suppose you have in one of the schools of the Department of Agriculture a certain amount of produce, which would be exhibited at some exhibition, and a certain sum of money might be secured for it. That sum of money does not, in practice, go directly to the Exchequer. It is used as an Appropriation-in-Aid for the use of the Department. The feeling is that the word “fagháltas” has a wider meaning than the interpretation which has been given to the other. In practice, what happens is that the proceeds of customs and excise and taxes of that sort go into the Central Fund, but not every receipt goes in directly to the Central Fund. Portion of it is set off against Departmental expenditure, and in the Estimate it appears as an Appropriation-in-Aid. That is the only case where it really does not go into the Central Fund; in the other case it goes in as an extra Exchequer receipt. For example, the whole of the expenses of the Passport Office are borne by the Department, and then the fees from the Passport Office are treated as extra Exchequer receipts. The real intention here was to use a word that would be of narrow interpretation similar to the word “revenue” in English. In the other cases, where the word “stáitchíos” is used, it was felt to be better to give the narrower sense. I think, on the whole, it gives a word in Irish, which corresponds to the more or less restricted meaning we have used it for elsewhere.
Mr. Fitzgerald: I wish to raise a question with regard to Article 17, sub-section  (2). The entity referred to seems to be the same. I may have taken the thing wrongly. I presume that moneys coming in from the Veterinary College are covered by the form of words “appropriation of revenue or other income”. It says “all revenues of the State from whatever source arising”. Is it a fact that Article 11 and Article 17, sub-section (2) relate to the same thing?
The Taoiseach: I do not know that we would be able to get complete agreement, because you have a general principle more or less with certain exceptions. The general principle is that the revenue of the State should be put into the Central Fund. The question is, are you to do that and insist that there should be no subtraction? It is really a question of book-keeping. If you want to insist on the principle that all moneys must come into the Central Fund you would have no such thing as Appropriations-in-Aid.
The Taoiseach: You can work on that system. That is the general system, but there are certain expenses which have in practice been treated as Appropriations-in-Aid. I think they have the same system in Britain, but I do not know very much about the system there. It is a matter of convenience in practice that some of these should be regarded as Departmental receipts, and that you should subtract these. It is a case of lessening the current amount of the Departmental expenses. For instance, take the case of an agricultural college. Say £10,000 came in and there was some £100,000 total expenses. There was £10,000 coming in as receipts. You have two ways in which that could be dealt with. You can get the £100,000 to appear in the Estimate as the expenses of the college and there would be no question of the receipts that come in. They would go into the Central Fund, but it would appear that the expenses of the college were £100,000, whereas if £10,000 came from the produce of the farm or something like that, they subtract  that as an Appropriation-in-Aid, and you see only £90,000 appearing as the expenses of the college. Which is the better way of presenting it to the public in order to present a clear picture of the expenses? That is what we are dealing with. If we want to see the cost of the Department of External Affairs to the country we can subtract from the apparent expenses, salaries, etc., anything the Department gets in as a result of its activities such as passport fees, etc. That can be done, but it is not done.
The practice is to put down the expenses of the Department of External Affairs as so much and then you may see in some note that there is an anticipation that a certain amount will be received in passport fees. It is not there and then subtracted. It does not really matter which of the two methods is adopted, but a practice has grown up which has been found satisfactory and we do not propose to alter it. The only question is what words you will use. Take the word “revenue” which has been used. The word “revenue”, if used in the broad sense, means everything that comes into the State, whether it be fees or the proceeds of a sale of agricultural produce. Are you going to take that as revenue? Apparently a narrower sense has been given to the word “revenue”, in some instances. In one case it means all that comes in and in the other case it means the net sum that comes in. This is necessary to make it accord with practice. It is merely an effort to make the English and the Irish meaning accord.
Mr. Fitzgerald: I quite agree that if we take it that some things are subtracted, then the word “revenue” normally refers only to the normal revenue of the State and does not include moneys received for lands or buildings The word “revenue” is used at two points in the Constitution. At one point the Article says: “All revenues of the State from whatever source arising”. If you are going to give a narrower meaning to the word “revenues”—this is in the form of a query—it means money from whatever source arising, whether from income-tax  or a tax on silk stockings. The Taoiseach has explained that as used in Article 11, the phrase, although it says: “all revenues of the State from whatever source arising” excludes such things as money received from passport fees. In the other Article we have the phrase: “The appropriation of revenue or other public money”. I understand the whole method of accounting in the Government, but if I take what the Taoiseach said then I shall read the English phrase “Appropriation of revenues or other public moneys” to mean any money whatever coming into the State. If I take the Taoiseach's interpretation then “all revenues of the State from whatever source arising” does not include a whole series of sums of money that come into the State. That is how I read the English. As to the meaning of “fagháltas” and “stát-chíos”, I can see there is a difference. It may well be that the Taoiseach has indicated the difference in the Irish which is not indicated in English. If what he says is correct then I presume I am right in saying that as far as Article 11 is concerned, it only refers to what in the narrow sense can be described as revenue, or does it refer to something which in quantity, source and variety, would be different to what is referred to in Article 17?
The Taoiseach: Article 11 says: “All revenues of the State from whatever source arising”. At first sight, you have the word “revenue” corresponding to the Irish “fagháltas”. Take revenue in the narrow sense. You can have revenues in the narrow sense from whatever source arising. There is no doubt you can use “revenue” in Article 11 in the narrow sense. You  then go on to Article 17, Section 2. Before I pass from Article 11, perhaps I should point out that there is the qualification “subject to such exceptions as may be provided by law” so that it is quite clear you are not bound in the Constitution. You can by legislation change that. In Article 17, Section 2, it is set out: “Dáil Eireann shall not pass any vote or resolution, and no law shall be enacted for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Eireann by a message from the Government signed by the Taoiseach”. Here it is “appropriation of revenue or other public moneys”.
Mr. Fitzgerald: It is distinguished there, but the form of words englobes two things. Suppose by what is meant in the narrow sense, revenue, we get £10,000,000 a year, and suppose form these other heterogeneous sums, we get another £2,000,000 or a total of £12,000,000, what I want to know is, does Article 11 refer only to the £10,000,000, and does Article 17 refer to the £12,000,000?
The Taoiseach: It seems to me it refers in both cases to the narrow sense. It is a question of the kind of accounting carried out in the Department of Finance. I see no difficulty at all here in saying: “Dáil Eireann shall not pass any vote or resolution for the appropriation of revenue or other public moneys”. That means the net amount that comes in, revenue in the narrow sense.
The Taoiseach: The Senator's point is that if the word “revenue” is consistent with public moneys, there is no use in bringing in the latter phrase. If we were using revenue in the broad sense, there would be no meaning in “or other public moneys”, because revenue would be the complete receipts of every kind.
Mr. Fitzgerald: I am entirely at one  with the Taoiseach, but if you go back to Article 11 it says: “All revenue of the State from whatever source arising”. If the word “revenue” only refers to moneys that come in in a certain way, to the whole of the £10,000,000 to which I have already referred, then that Article 11 cannot englobe, incorporate or relate to the extra £2,000,000 received from heterogeneous sources. The other Article says: “the appropriation of revenue or other public moneys”.
That phrase adverts to other public moneys as well as revenue. Article 11 says “revenue” and if it means revenue in the narrow sense, well and good. That only refers to the difference of source as between a tax on tea and income-tax or death duties. But if Article 11 is intended, by enlarging words “of from whatever source arising”, to refer to the total sum that I previously indicated as £12,000,000, then I think that the word “revenue”, as used in one Article, is in one sense and, as used in another, is in another sense. Does the total sum in any given year referred to in Article 11 amount to a different sum from that referred to in Article 17? If it does, then the thing is quite clear; if not, it is misleading.
The Taoiseach: I am not going to say what the original intention was, but it is a fact now that they fit in quite clearly in the narrow sense. The only thing is that, in Article 11, the original intention was that it should be as broad as “fagháltas” in Irish, but it brings the English words into closer contact and gives the same significance to the word in Article 11  and Article 17. If we use it in the narrow sense, therefore in Irish we should use it in the narrow sense. Therefore there is no confusion.
Mr. Fitzgerald: I quite agree, but if the word “revenue” in both cases refers to the narrow meaning, it is not enlarged and made a greater sum by those additional words “from whatever source arising”. If revenue means the narrow thing, then no matter what source it arises from, it merely means the totality of that sum; it does not include the additional sums from the heterogeneous sources.
The Taoiseach: Yes, I find it very difficult to go back to the original but it is quite clear. When you read this first, it is quite possible for a person who does not know the accounting system in the State to read this Article 11 and think that every single sum of money in any way owed to the State, or which becomes the property of the State, would be put into the Central Fund. But in fact that is not done, and, therefore, you cannot make this correspond with the practice if you use that wide meaning. But you can have a variety of revenues in the narrow sense too, and it means that these net sums that come into the Central Fund, no matter where they come from, will have to be appropriated by law so as to prevent the Executive from playing round with the sums they receive, or using them for purposes not already sanctioned by Parliament. I am not saying what was the original meaning, because I would have to admit that if I read it at first sight without knowing the accounting system of the State I would be inclined to use “revenue” in the broad sense. “From whatever source arising” gave the impression of a broad sense, whereas, we find in practice, the phrases are quite consistent, but there was one flaw, the word “fagháltas” in Irish suggested the wider meaning of revenue, whereas, in fact, to be consistent, we would have to use the narrow word.
Mr. M. Hayes: The position is quite plain now, State revenue and State receipts are two different things. In this Constitution the word “receipts” is translated “fágháltas” and the translators availed of the amending Bill to keep the word “fágháltas”, including tax revenue, fees paid in veterinary colleges, and such things as money paid for State produce at shows, and they are using the word “cíos” or “stáitchíos”' in the narrow meaning of revenue. I think it is a good idea.
The Taoiseach: On reference No. 2. I do not know if it is necessary to explain it. The point there was that in the Constitution there was no provision made for the possibility of death occurring between the time the President was elected and the time he took office. This is only to make sure that if the President has been elected and should die in the intervening period between his election and his taking office, there should be a new election.
The Taoiseach: I do not know whether it is necessary to explain each of these. In the case of No. 3 there was a double thing to be corrected in regard to the Irish text. First of all, the Oireachtas was used in Irish, whereas it should be the two Houses, because the President is part of the Oireachtas, and he could not send a message to himself. The next thing is the word used for message. We want to suggest a message different from that intended. This was only a message. In the broad sense it might be a message on the radio, or a speech published, or he might come in person to the two Houses and address them. So they have used this word to give it a broad meaning. It is used occasionally as meaning “address”.
The Taoiseach: I would like to say this, as I did not say it before, that the translation staff were consulted before the final text was printed off. Representatives from the staff were there, and it only shows that no matter how careful you are, a mistake will slip through, and we are taking advantage of this opportunity to perfect it.
Mr. M. Hayes: On reference No. 7. I am sure this is not really relevant, because this is merely improving the Irish. What we are doing now does show that if the present vocational organisation commission makes certain recommendations they cannot override the provisions about the Seanad that we are making in this Constitution.
The Taoiseach: They cannot override it, but the Constitution is sufficiently wide to make it possible for them to fit any scheme likely to be evolved into it. This is only remedying an oversight. What happened was, there was an amendment in the Dáil with regard to the constitution of the Seanad and there was a reference in the original draft to a certain type of electorate and that phrase happened to stick on without any real reason for it.
Mr. Fitzgerald: There is a vocational commission sitting and it may or may not make a proposal for a council of corporations which, strictly speaking, should not have any political function whatever. If it does that I maintain that it would not be possible—taking what I call the ordinary intelligent idea of a vocational system whereby corporations meet in council—to have that when you have sub-divided the idea of corporations. The idea of corporations is that, as they are externally known, they have representatives and consist of both employer and worker, both labour and capital. Here, quite contrary  to the whole corporative idea, we abstract from the corporation labour, as a separate entity, whereas the whole idea is to create a unified entity from the two bodies.
The Taoiseach: I do not think that that is so, either. Do not imagine that you are going to have a corporative organisation overnight. Unless you have a complete and absolute revolution, it is almost certain that you will come by easy stages to the corporative form of organisation and it will be all the better for that. Take, as an example, the agricultural industry. It is extremely difficult to see how that can be made into a corporative entity. It may happen that you will have a section of labour which you may wish to have represented and which may not easily fit into the corporate idea at all. A portion of our economic life may be made into corporate form and there may be an outside portion which may not be so made. This gives you an opportunity to have a proper balance. We cannot wait all the time for things to happen.
If there is a new organisation of the State, which would warrant a completely new House which would not fit in with this Constitution, there is a way of changing the Constitution. It might be as well that a big change of that sort would be referred to the people directly. It is a mistake to think that this is an absolutely rigid Constitution. It is not. We are not a tremendously big community. We have only about 3,000,000 people and one would like to avoid as much cost as possible, but, by referendum you can have the Constitution amended. Therefore, we need not hesitate to pass the Articles in the Constitution referring to the Seanad simply because a commission may suggest a type of corporative organisation which, if it did, would take a couple of years to bring about. In the meantime, State institutions must go on. This provision does not tie us up for all time.
Mr. Fitzgerald: I agree with the Taoiseach so far as he goes. If the Constitution laid down that, in such a body as we are, there should not be  representation of labour, it might be as harmful as if it were put in. Very often, you have the phrase: “The Dáil shall consist of representatives elected in such a manner as shall be prescribed by law.” I cannot see why this subsidiary detail in relation to the second House should be in the Constitution. In relation to the Dáil, you do not say that members shall be elected by constituencies one of which shall be Kildare-Carlow. You leave that to be settled by ordinary legislation. Once you decide that there shall be a second body, you can, if you like, lay down some general principle regarding it in the Constitution though, personally, I like to have as little as possible in a Constitution. To lay down that what, at one moment in our history, seems to be the most apt system shall be adopted and to give that the seal of permanency by incorporating it in the Constitution seems to me to be an unwise course. I do not say that we are going to be handicapped by that in a month or in a year, but I do feel that the Constitution should contain only what is necessary for continuity of government and for the protection of the rights of the human person. We are arbitrarily laying down a system here——
The Taoiseach: In reference 8, we are deleting the words “é bhreathnú mar breathnóchaí Bille a tionnscnóchaí i nDáil Eireann”, which seem too wide and might refer to discussion, and we are inserting words with a narrower meaning, as follows, “a mheas é bheith in a Bhille a tionnscnadh i nDáil Eireann”.
The Taoiseach: As regards reference 10, the intention was to make sure that the necessary number of days was  given to the President for the signing of a Bill. There was some dispute as to whether three clear days would be given or not. A Bill is presented to the President on a certain day. It was considered unwise to commence counting the period from the date on which the Bill was passed, because it might be passed on a Saturday and it might not be presented to the President until Monday. Time begins to run from the day on which it is presented. The President cannot sign before the fifth day and must sign not later than the seventh day. The purpose of that will be seen by reference to the Constitution. Time must be allowed to enable a petition to be presented These periods of time are chosen to give a sufficient period for consideration to the President and to allow things which might have to be done in the interval, by way of petition or otherwise, to be done.
Mr. Fitzgerald: In reference No. 11, we are repeating what has already been provided. In the event of a conflict between the text in the official and in the national language, the text in the national language is to prevail. I do think that that, from the sentimental point of view, is quite charming, but we ought to face up to facts. Here we are dealing with a divergence of opinion regarding the Irish and English texts. Take the way the Constitution was debated in the Dáil, and the way we are debating it here. There are men with what is called a very good knowledge of Irish in this House, but will anybody suggest that they gave to the matter in the Irish text the care and brought to bear on it the specialised learning, as one might say, in phraseology that is brought to bear upon the official text by the draftsmen?
The Government employs official draftsmen, who are not only lawyers, but who have specialised in law in the matter of drafting. You then bring along somebody with a good knowledge of Irish. I have at the moment men on each side of me with a good knowledge of Irish. These men also know the English language. I do not want to hurt their feelings when I say I think they know English not less well than  they know Irish. They know the subtleties, the distinctions of words and meaning of phrase in English not less well than they know those in Irish. Would it be suggested—now, I do not want anyone to take offence—that anybody here who has an excellent knowledge of Irish would be an appropriate person to employ as the official draftsman in English? Remember that he, whoever he is, does know English not less well than he knows Irish. He has at least as good a knowledge, but you do not employ him as a draftsman knowing that, in the phraseology of a legal document, you must aim at a very exact, precise and definite meaning. That definite meaning in legal documents is usually attained by the fact that you use words and phrase forms that—through long usage historically and by legal precedence—have been known to relate to just this precise condition and not to any variation of it to left or right. The English language —not by anything innate in it, but by the fact that over centuries it has been used for certain purposes, while the Irish language has not—is capable of that precision.
Can any Senator here say that one can express in Irish any exact and precise meaning as you usually can express it in English? I would not contest that, but I say that when he has done all that in regard to any legal complex matter and when I present what he has written to anybody who knows Irish as well as he does, No. 1 cannot guarantee to me that the form of words he has used must of necessity convey exactly the idea he wished to express to the other man. I do not say that the English text should remain for ever the appropriate one, but let us face facts.
Is there anybody in this country who has a more intimate knowledge of the Irish language than he himself, or a person of his ordinary education and standard, has of English? I do not believe it. Is it possible for anybody to have also that peculiar qualification in draftsmanship which is possessed by the Government draftsman? It is not, because the material is not there. The Government draftsman works upon the  fact that, generation after generation, laws have been enacted, considered, discussed and forms of words have been established as meaning one thing and not another.
The drafting of Bills in Irish is a very good work, because it may happen as time goes on—it can only be by time—that that precision would be possible. The Taoiseach said a while ago that it would be bad suddenly to switch off to a corporative system. It would also be bad suddenly to establish a strict definition of words in Irish. Normally, that definition is built up by historical usage. In drafting a Bill in Irish one has to ensure a certain uniformity. One has to establish the meaning of certain phrases, and one has to deal at the same time with an enormous amount of legislative ideas. At the present moment, we have not got that fixed phraseology in Irish, and I am pretty well prepared—though not completely prepared—to challenge anyone, with this document—the Constitution which I have in front of me—to say that what is written in Irish necessarily means exactly what it does mean to any person who has the best competent knowledge of Irish, without having read the English text.
You can employ the best draftsmen to draft a Bill in Irish, but they necessarily break new ground. They must, in an arbitrary way, decide that a certain form of words means this and not some other thing. That has been done already with other modern languages, but not with Irish. It may be that I am making a fuss about nothing. The case may not arise but, if you say that the Irish text is the text to be known to the law, you are creating an impossible position. It would be quite simple for two lawyers or two judges to declare contrary opinions, and both have the same amount of evidence.
Mr. Fitzgerald: Not to the same extent. Wherever they do, it is admitted that it is undesirable. It is obviated by the fact that, over generations, laws have been written in a given language with a precise and exact meaning for  different phrases. That has not been the case in Irish—not because of any inferiority, but because of a different historical experience in one language. I do not wish to prohibit the Irish text from ever being considered. However, we are passing a Bill in this House where the majority do not understand Irish.
It has previously been passed in the Dáil, where the majority do not understand Irish, and it will be discussed in the courts, where the majority of judges and lawyers do not understand Irish; and I do say that that is an unwise procedure. It has a sentimental appeal to people who love to talk about the Irish language, if not in Irish; but it is blind idealism when it takes the form of refusing to accept something which is a fact.
The Taoiseach: The Senator appears to be unwilling to recognise things which are facts. There has been a body of men devoted solely, for a period of 20 years, to this task of finding phraseology—words, for the most part—to enable the Irish language to express in a very definite form all the ideas we require to bring forward in Acts of Parliament. My own belief is that the Irish language is much more precise. English is generally of a vague character and lends itself to a variety of meanings. That is one of the reasons given by some critics of poetry, for example, in regard to English poetry. It is suggested that French is not so good because the language is not so vague and does not enable you to go off so easily into the vague realms which please some people in that respect. I think that, first of all, there must be a conflict. You have the two texts. You must have a conflict between the two and you will not have a conflict between the two unless the two are not capable of having the same precise meaning.
Mr. Fitzgerald: The Taoiseach says there will not be a conflict unless the two texts are not capable of having the same meaning. May I suggest a correction there—unless the two texts are capable of having different meanings? You cannot say you may have a  conflict when the two languages are not capable of having the same meaning; you can have a conflict when they are capable of having a different meaning.
The Taoiseach: I am not going into this with the subtlety of the Senator. What I say is there must be a conflict between the texts before a difficulty arises and, I would say, a conflict where the meaning in one cannot be reconciled with the meaning in the other. If that conflict arises, then the Irish text is to be taken as the determining text. There is a part of the statement which is quite true, and that is, that as the Dáil and Seanad are constituted at present, although there is quite a number who can read the two languages—I do not know the numbers so I cannot say definitely—it is possible that a majority in both are not competent to understand and satisfy themselves that there are expressed in Irish the ideas they want to have in the Constitution.
I suggested in the Dáil that in order to satisfy themselves there was no trick being played upon them in any way they should set up a small committee, a non-Party committee, of those who were competent to read the Irish language, so as to see whether the words that were written there expressed the idea or not; they would satisfy themselves that, in so far as it is possible for two texts of two languages to express identically the same thing, it was done. That suggestion was not carried out and I think for this reason, that it was felt that in case there was any attempt being made to put over, so to speak, in Irish something which was not conveyed in English, there were enough people of all the Parties who would immediately see such a thing and bring it to light. They were also probably affected by the assurance which I have that this text had been very carefully examined; first of all it evolved with Irish and English side by side being used as the medium for the expression of ideas, then when it was coming into the final stages we got representatives of the translation department precisely to see that the words that were used were consistent; that nothing was brought  in by amateur draftsmen which was contrary to the practice that had grown up and the words that had been used in the Acts of Parliament, so as to bring about uniformity in so far as it was possible. As a result of these assurances, the Dáil did not set up a special commission.
I do not know what action the Seanad is going to take, but the Dáil did not set up a commission. I would have welcomed it. I would have preferred it. I thought it was more in keeping with the general duty of the House in passing an Act which was being passed in both languages that that should be done. But I think if ever a beginning is to be made it is about time it should be made now. Remember, there has been preparation for doing this sort of work, 20 years of preparation, by a very competent body of people who have devoted themselves to this sort of work. There is also the fact that the English language is not a very precise language. You find from time to time when there is something you want to know accurately that there is ambiguity. I think in the Irish language you have not nearly as much ambiguity. If a layman is writing a will it is better for him to avoid the phraseology of the lawyers. He will probably put his foot in it if he attempts to adopt their phraseology. If you are writing a will you write it in simple language. The simpler language you use the better. That is what is happening here in Irish. There is very simple, direct language used. I think in the case particularly of a Constitution it is not the Parliamentary Draftsman you want. The Parliamentary Draftsman in this case agreed absolutely. In the original stage I put it to him that it was better that the Constitution should not be drafted by the Parliamentary Draftsman at all, and he agreed with me because, if it were drafted as an Act of Parliament, we would have to approach it in a different way.
The Constitution is intended to be given, as far as possible, in broad terms and in simple language, and I believe that for the Constitution here the Irish language, in the state we have reached for the drafting of Bills and so on and its application to law,  is just as fit to express ideas as the English language. The only difficulty we have is the difficulty that it is being passed by the two Houses, and there are members of the two Houses who do not know Irish and, therefore, it may be said that they are passing an Act without full knowledge of what they are doing. But most of us have been for a considerable time members of one House or the other, or both, and we all know there are many votes given in both Houses, unfortunately, by members who have not studied closely the text of the Bills that they are passing.
The Taoiseach: That is the position. Even though it is something that one naturally deplores, it is something that we have to take into account, and there is nothing so very exceptional being done here. But I would suggest, if the Seanad wants to do it, to set up a small committee to go over the Irish text and to examine it from that point of view. Remember, the fault is not that the Irish language is not capable of doing all this. I am certain it is. It is not that the Irish language, independently of this English text, has not the meanings that it will have when compared with the English text. It might be said that perhaps a person who has never read a law measure or any of the Acts might not agree with that, but if anybody who has been studying a translation of Acts of Parliament takes up that Constitution he will read it without any doubt without any reference to the English text. But if he has, as he will have, the English text at his side and if he does know the English language as well as the Irish language, then any difficulty he may have is simply a question of: Is this Irish phrase capable of the meaning which is attributed to it in the English phrase? I am assuring the House that the greatest care has been taken to see that that is so. The real fault is that the Houses are purporting to pass something which every member does not thoroughly understand. That  is a fault. It is a pity, but it is not a thing that happens in this case only because, as I say, it is happening in the case of English every day.
Peadar Mac Fhionnlaoich: Isé an rud a luaidh sé annso indiu agus do luaidh sé an lá fá dheire é arís, nach bhfuil na focla suidhte i nGaedhlig go díreach mar atá siad suidhte i mBéarla agus go bhfuil na focla so i mBéarla ag dul siar tamall fada i gcionn na ndlighthe. Tá sin fíor, ach is dlighthe gallda a rinne siad san agus má tá sinne ag teacht ar ais ar ár ndlighthe féin is ceart dúinn é chur in ár dteanga féin. Dubhairt an Seanadóir go mba chóir fanacht fiche bliain sul a gcuirimís ár ndligththe i nGaedhilg.
Peadar MacFhionnlaoich: B'fhéidir gur ag dul i ndísc a bheadh an teanga roimhe sin agus má táimid ar tí dul arais ar dhlighthe Gaedhalacha, dlighthe dúthchasacha don tír so, nach ceart dóinn iad do chur insan teangain dúthchasach? Níl aon chiall leis an méid seo. Níl ann ach ráiméis, agus dochar a dhéanamh don Ghaedhilg agus ba cheart dúinn é sin a thuigsint.
Sir John Keane: While not understanding very much about these details of the meaning of the Irish language, I take it that any conflict between the texts may be decided by the highest court in the land, the Supreme Court. What would happen if one or only a majority of that body understood only English?
The Taoiseach: They would have to get assistance, I dare say. In that case they would have to get experts in the language. That would be a problem for  them to solve. I imagine they would have to satisfy themselves by getting experts to come in and give evidence on oath, and so on.
Mr. M. Hayes: As to reference No 15, this amendment provides that when a matter relating to the Constitution comes before the Supreme Court, only one judgment shall be pronounced, and a dissenting judge shall not have power to express his views. Is there any argument in favour of that?
The Taoiseach: There are some. In the Dáil there were arguments on the opposite side. Apparently there are two schools of thought on this matter, as to whether in certain cases it is desirable that each judge should deliver his judgment separately, or that the judgment of the court as a whole only should be given. The reason for only one judgment is that it gives certainty. In that sense it is the judgment. It does not lead to canvassing and saying there was another view taken by another judge. For instance, in the Court of Criminal Appeal, the judgment is by a majority, and only one judgment is given. Supposing, for instance, a man is condemned to death, only one judgment is given and it prevents uncertainty. The object is to get a decision. If you had three or five judges, the chief function is still to get a decision, and if there is a decision in the Court of Criminal Appeal, there is only one decision in order that there should be certainty, and to avoid canvassing as to the different views of different judges. It is so in the law and in regard to questions in relation to the Constitution, whether an appeal is referred to the court of law by the President, or whether it comes to the Supreme Court as a matter of ordinary litigation, it is desirable that there should be a judgment, and that the judgment should be determined and fixed, and that we should not have canvassing going on as we had on a previous occasion, one person saying that a judge of the High Court has given his opinion that the law is unconstitutional, and then it was decided by the majority of the Supreme Court that it is constitutional. There would be counting of heads, and people saying  that the matter was not settled at all.
What you want in these cases is that there should be a definite decision. If that decision is such that the public interest does not appear to be served by it, legislation can be enacted to change it. If it appears not to correspond with the public interest the Constitution will have to be changed, but it is important that there should be a definite decision, and that we should have no canvassing and counting of heads as occurred in the other cases. That is the point of view from which we have acted. That is the basis —the definiteness and certainty of the decision. The opposite point of view was expressed in the Dáil, in which it was suggested that it was a pity that we should kill this canvassing and discussion that would go on if the opinions of the different judges were to be given. It was suggested that it would excite a great deal more interest in the Constitution and help to educate the people in regard to the nature of constitutional matters. We felt it was far more important that we should have a definite judgment, and that if there is to be education of the public it should be in another way. It was more important that there should be a definite decision. The point of view that this has been framed from is the point of view of those who hold that the best thing is to get a definite decision, and that once the decision is there the less canvassing there is about it, the more certainty there is, the better.
Mr. M. Hayes: Surely, sir, in a country such as this the position is that what we would like best would be that the public should be interested in our laws, and above all should be interested in a fundamental document like the Constitution. As they are a free people we are interested in our people being educated, and the best thing that could happen would be that they should have all the information that is available from the best sources with regard to their own laws. It is, I understand, desirable in the case of a Court of Criminal Appeal decision that the decision should be given  clearly, and that no dissenting judgment should be given, but in this case it may be a matter of comparative unimportance or a matter of great importance which does not involve death, and it seems to me much more desirable that we should have not only the decision but the reasons for the decision and dissenting judgments. I see very little reason for preventing dissenting judges from stating their views.
Those who would be interested, I am afraid they would be generally a minority of the public, in constitutional law and the progress and well-being of the Constitution of the State, should surely have available the views of the Supreme Court on matters of this kind. I think An Taoiseach is unintentionally clouding the issues when he said what we need is a clear and definite decision. It is quite possible to have a clear and definite decision, to have the reasons for it, and to make the law operative and, at the same time, to have what you always get from the judges a temperate statement of another point of view.
It would be a good thing, if only from the angle of education, if the people took an interest in politics. In spite of the abuse of politics that we hear in this country our greatest defect is that there is not enough interest taken in politics. I think it is fair to say that hardly anybody is interested in the Constitution. The education of the minority is very important. It very often happens that two judges reach the same decision, but reach it by different roads, and from the point of view of legal education, and not only of legal education but of political education, which perhaps is the rock upon which democracy has foundered, it would be a very good thing. It is very important that the people should have respect for their Constitution and their courts, and if legal decisions are given, and the reasons for them given to the people, it will, at least, help to make them interested in the Constitution.
It seems to me that informed discussion about such a matter as a Constitutional amendment or Bills that have passed through both Houses of the Oireachtas is a very desirable thing.  What the Taoiseach desires to prevent is something which unfortunately he cannot prevent and which nobody in his position can prevent. He wants to prevent people going around canvassing and saying: “Aye, you had three in favour of this, but you had two against it.” Is not the Taoiseach, who knows the country pretty well, aware that where judges pronounce a majority judgment, those who are against the measure which has been approved by the Supreme Court will go round saying, and saying very effectively: “I know so-and-so was against it, I know he thinks so-and-so.” Instead of having any effective counter to that kind of rumour, you will have complete silence. I think instead of preventing ignorant, prejudiced and perhaps passionate discussion, this kind of provision will rather help that sort of rumour-mongering at which most people—and I think particularly our own people—are rather adept. It is not a matter of vital importance but, at the same time, I think considering the system of government we have adopted it would be desirable that as much light as possible should be thrown on the proceedings of our Parliament and of our courts and on the reasons for which judicial decisions are arrived at. Remember we have, in fact, adopted the main body of English law and that law depends to a very large extent upon judicial decision. There is no reason why we should adopt certain parts of it and not adopt other parts which in themselves are good. I think the idea of looking at this from the viewpoint that we want a decision, and that we do not want anybody to canvass the reasons for the decision, is taking what may appear at first sight to be a practical view but which in reality is a very short-sighted view. I think the people's interests in our courts and our Constitution should be stimulated as much as possible. This is a step towards keeping them in ignorance and towards supporting rumour-mongering. I think the original provision was much better.
Mr. Fitzgerald: The Taoiseach spoke about canvassing in regard to the decision of the courts. I want to say that the courts in this instance will be deciding what is the law, and that is  something very different from what is a penal sanction applied to a given individual. Say that a question under Article 34 of the Constitution comes before the Supreme Court. The Taoiseach seems to suggest that if you have two judges giving one opinion, and three giving another opinion, there is a lack of finality. That is not the case. Suppose a majority of the court says that a particular law is something which all commonsense tells you it is not, what is the effect of the decision of the three? The effect of that decision is that the from of words in the Constitution means exactly what those three have said—in effect, these three in interpreting the law are making the law to mean that thing. Therefore, there is no fear of not getting a decision, provided you have an uneven number of judges, which you will have. I object to the suggestion that if two judges give it as their opinion that a certain thing means A, and three others give it as their opinion that it means B, there is no final decision that it does mean B., just as much as if full legislative force were possessed by these three judges. They are making law, by interpretation, if you like.
Say, again, that the Government brings in a Bill here and I or any other Senator, perhaps Senator Buckley, may get up and make an absolutely overwhelming case against the Government's proposal. It is then put to a vote and the “yes-men” go in and vote for the Government against him. I myself might be supporting him and feel very strongly on the point, but am I going, after the Bill is enacted, to say that all the arguments were against the Government, and that quite a large section voted against it? That is altogether irrelevant. The truth is that it is the law, and is binding upon me, and I am bound to obey it. It is absolutely final. No matter what I say here against a proposal of the Government, once it becomes the law I am bound to obey it. I object to the Taoiseach's suggestion that where two judges hold a contrary opinion, there is no finality about the decision. You might just as well say that if the Government propose a Bill here there should be no speeches against it  because people will be canvassing about it. To my mind, that is a wrong understanding of the situation.
Mr. MacDermot: I doubt whether there is any really adequate reason for this amendment. If I were in the Taoiseach's place I would hardly have thought it worth while to introduce it. On the other hand, I see no strong objection to it. The one point I want to make is that I believe it is mistaken psychology to say that the absence of the publication of dissentient judgments will kill interest in the Constitution. I happen to be one of those people who would read any judgments that would be published about the Constitution, but I think the man in the street, who you want to be more interested in the Constitution, would turn with a certain amount of aversion from reading accounts which included two or three judgments which tended to confuse him. He would be more likely to read one judgment that put the decision clearly.
The Taoiseach: There are two points of view on this, and it is very hard to surrender or give up the point of view. I am satisfied that on the whole it is better that it should be this way. I understand the point of view of those opposed to it. I did not, of course, say that reasons should not be given for the decision. Of course there will be. When a judge is summing up he will probably give reasons for his decision, not as his decision, but as the decision of the majority, and it is quite possible that in order to present the matter completely and fully he might also indicate in some from or other the various views and balance arrived at by his colleagues and by the majority. Of course, I know that the decision would be reached by the majority, but it is the acceptance of that by the people as a thing that is definite and fixed and not as something that could be held to have meant something else, that I am anxious about. Generally, about the question of education, that can be done in the court, if there is sufficient interest in it. It will be in the proceedings in court and I presume there will be lawyers on both sides presenting the various points of view and there will be an opportunity there for  the average person who wants to read about it.
But I think you will agree that, if we were able to frame a Constitution about which there could be no second opinion, which would be so simple in its phraseology and so definite that there could be no question of any divergence of views, that would be the ideal Constitution. If you want to have a lot of education about it, let us be vague and have cases in the courts every day and have a lot of intellectual exercise, but that would be very expensive and unsatisfactory from the point of view of the Constitution. As you cannot hope to get a document which will not give rise to a difference of opinion somewhere, let us go the nearest we can to it and try to get a definite decision, so that eventually it will be accepted by everybody as a definitely decided thing. I can only give the point of view, and those who take a different point of view will provide the second of the two schools, and then I am afraid there is no convincing one or the other. It is only a question of the decision which is best and we are presenting it in this form.
|“Ach má chítear don Uachtarán tráth ar bith tar éis dó dul i gComhairle leis an gComhairle Stáit moillneamh-réasunta do bheith á dhean- amh ag Tighthibh an Oireachtais, nó ag ceachtar aca, maidir le n-a dhearbhadh deireadh do bheith leis an staid phráinne sin, tig leis a thabh- airt go gcuirfear fá bhreith an phobaille reifreann an cheist sin an ann a thuill- eadh don staid phráinne sin nó nach eadh.”||“Provided that if it should at any time appear to the President after consulta- tion with the Council of State that there has been unreasonable delay on the part of the House of the Oireachtas, or either of them, in declaring such emergency terminated, he may cause to be submitted to the people by way of referendum the question whether such emergency shall be treated as having ceased to exist.”|
|“Ach má chítear don Uachtarán tráth ar bith tar éis dó dul i gcomhairle leis an gComhairle Stáit 1 ar bith tar éis dó dul i gcomhairle leis an gComhairle Stáit moill neamh-réasunta do bheith á dhean- amh ag Tighthibh an Oireachtais, nó ag ceachtar aca, maidir le n-a dhearbhadh deireadh do bheith leis an staid phráinne sin, tig leis a thabhairt go gcuirfear fá bhreith an phobaille reifreann an cheist sin an ann a thuill- eadh don staid phráinne sin nó nach eadh.”||“Provided that if it should at any time appear to the Presi- dent after consulta- tion with the Council of State that there has been unreasonable delay on the part of the Houses of the Oireachtas, or either of them, in declaring such emergency ter- minated, he may cause to be submitted to the people by way of referendum the question whether such emergency shall be treated as having ceased to exist.”|
The object is to provide some safeguard against any undue prolongation of the very extensive powers that are at present wielded by the Executive over the persons, the property, and even the minds of individual citizens. If the war were to come to an end to-morrow I, personally, would not be very apprehensive that the present Government would strive to continue the suspension of Constitutional guarantees for an unreasonable time. But the war may not end for years to come. And by the time it does end it is possible that those who are holding Ministerial office may have had their minds, to some extent, warped and corrupted by too long a tenure of absolute power, or it may even go on so long that there will be quite different people occupying the seats of the mighty in this country, from those who occupy them to-day. Furthermore, in this Bill, this eleventh-hour Bill for amending the Constitution, we are legislating for much more than the present moment. It is, unfortunately, only too likely that in the future there will be other wars and other emergencies, and we have a duty to posterity not to make it too easy to smother liberty. It is all very well to say that the decision in these things must be left to the elected representatives of the  people, and that they are the only ones to decide vital questions, and that nobody can ever “guard the guardians”; and I would certainly agree that sound instincts and traditions widely spread among the people about the essentials of freedom are worth more than any written Constitution.
Nevertheless, we have a written Constitution, and when you have a written Constitution, you naturally want to bring it into the fullest possible accord with your fundamental principles. The very fact of having such a Constitution shows that you think that something can be done even indirectly to “guard the guardians”, and I think there is no doubt that the shape of a nation's institutions can have an important effect upon the possibility of government by a majority Party becoming either a racket or a tyranny. Having, as we have, a Dáil, a Seanad and a President, and a legal Supreme Court with powers of interpretation, we have given ourselves a Constitution that can be described in the time-worn phrase as a Constitution of checks and balances. That has long been considered as one of the best safeguards against despotic rule, but a democratic majority can be as undesirably despotic as can an oligarchy or a tyranny. The difficulty always is to draw the line. If you overdo your checks you have frustration and impotence which lead in the end to conditions even more fatal to individual freedom than despotism is. I believe that that danger has been avoided in our Constitution, and it is the opposite danger, the danger of despotism, that is created by the suspension of constitutional guarantees. The proposal in my amendment is intended as a very mild sort of safeguard against despotism, and I do not think it has any tendency to create the danger of impotence leading on to anarchy.
The Taoiseach has spoken of the undesirability of a clash between the President and the Government on vital issues. No doubt clashes are always undesirable in themselves, but they may sometimes be the lesser of two evils. I agree that a deadlock is a thing that is fatal to the machinery of  Government, but a clash is not the same thing as a deadlock, and this amendment provides for the solution of any clash by means of reference to the people. If clashes are to be avoided at all costs there is no sense in having checks and balances at all. On the last day the Seanad met the Taoiseach said that one of the principal functions of the President was to act as a guardian of the Constitution for the people. I assume that that was not mere empty rhetoric and, if not, it necessarily implied, at any rate, the possibility of a clash. A watchdog that is kept gagged so that it cannot either bark or bite when burglars are reported in the neighbourhood is not really worth his keep and can serve no purpose except giving a false sense of security.
Party discipline in Ireland, whether for good or evil, is very rigid, and that is a fact that causes a special danger to freedom. Debates that take place behind closed doors at Party meetings often have more importance than open debates in the Dáil and Seanad; and it is significant that the travelling expenses of members attending such Party meetings are actually paid out of the public purse. The proceedings of Parliament have not so much deliberative character as I would like to see, and they may have even less as time goes on. Consequently the duty of the President to guard the Constitution for the people may some day become more onerous than it is at present. I suggest to the Seanad that the case of these immense emergency powers the Government are asking us to continue after the actual war is over is surely a case where the President should be given some degree of responsibility.
Sir John Keane: I do not think that there is any need for me to develop the arguments put forward in favour of the amendment. I am fully in favour of this proposal. When any body of men get used to despotic power, get used to getting things done by order and find that all the inconvenience attending upon Parliamentary debate can be thrust aside by special machinery, they are tempted  to continue to perpetuate the luxury of such a state of affairs. I do feel that some check on the lines suggested is necessary to the preservation of essential liberties in normal times.
The Taoiseach: I confess that I have a very open mind on this matter. There is, of course, the danger that, at a time of crisis, the body immediately responsible for the safety of the community and of the State would be deprived of those powers at a time when their deliberate opinion is that they were necessary to them. On the other hand, there is the danger that people who have got accustomed to using quick ways may, as suggested by the last Senator, be tempted to continue using them long after the real need has passed. I tried originally to get a solution by fixing a definite time—say six months or thereabouts— after the conflict had ceased, but you cannot indicate when the conflict has ceased. It might be that just seven months would be required instead of six. This suggestion of using the President is much better than any attempt to fix a period, such as six months. There is a danger inasmuch as the President has not direct and immediate responsibility for the safety of the State, though he has responsibility in regard to the Constitution. It will, of course, be argued that anybody who comes to the office of President will have experience of public affairs and will not arrive at a decision without consulting the Council of State, which is so constituted that it contains members of different Parties, men of wisdom in public affairs and men versed in the law. If his only thought was the safety of the community and if he were honestly coming to a sound opinion, after consulting the Council of State, he would have to approve of the continuance of the powers. In that case, there would not be any clash or, if there were, it would be the fault of the Administration. On the other hand, the Administration has the responsibility. If you have two bodies who are both interested in one thing only—the safety of the State and the community—and if they differ, the clash will have to be settled in the way indicated here—by  way of plebiscite. You are going to have a plebiscite taken in conditions of such a character that the Executive believes that even the Constitution should not operate. Is that a time in which a plebiscite can profitably be taken? Assuming for the moment that the Executive are acting in good faith, as the President is, the clash has to be settled at a time when, in the opinion of the Executive or Administration, there is such a danger to the State that the emergency powers which they have had during the war situation should be continued. It is very difficult to decide in this case.
I must say that I am leaning to accepting, not this particular amendment, but some modification of it. I know that those who think that anything like a rigid Constitution is a mistake will be definitely opposed to that. They will say: if you want to have good government, put responsibility in certain hands, hold them accountable and do not tie them up. If we were acting on that principle absolutely, we should have no Constitution other than the Legislature, supreme from day to day. We have not acted on that principle and it would, probably, be more in accord with the general spirit of our Constitution to accept an amendment such as that which the Senator has suggested. There is, however, one thing I should like to do if we accepted a modification of this amendment. In other cases, when legislation is sent to the people by way of referendum, the alternative of a general election is given to the Government.
Assuming that the Government in power was the only body with a majority in Parliament, and that a decision adverse to them was arrived at by the people, you would have a conflict. You would have the people responsible without the powers that they felt were necessary to do their work properly. You would have a clash between the policy expressed by the people and the policy which the majority of the members of the Parliament supported. I am afraid that that would quickly lead to an election afterwards. Why should we not, if we are to use this way of settling the matter, give the alternative of an election?
 Suppose, in the present crisis, there was a situation in which the majority of Parliament felt they were being so hampered that the safety of the State was actually involved. They might have to go to the people to get the strength and the powers necessary safely to steer the State through a crisis such as the present. If it happened that the President, acting in good faith, wanted to have the period of emergency ended, and the Government, with its knowledge and experience, was of opinion that it could not carry on in these circumstances, you would be obliged, if the people decided in favour of the President's point of view, to have an election, so that you might as well face an election in the first instance. If we are to accept this proposal, we shall, I think, have to provide for that. I am prepared to consider the matter if any strong body of opinion in the House supports the Senator's view, and, in that event, on Report Stage, I am prepared to bring in an amendment of the kind indicated. I think that we would have to bring in, side by side with this, the other suggestion that there could be the alternative of an election. In other words, if the President came to the decision—having heard the Council of State—that the period of the emergency should end, then the Government should have the choice of letting that matter be settled by a plebiscite within a certain time, or having an election within that time, and then a vote of Dáil Eireann. A definite time would have to be fixed. It is Dáil Eireann that would have to settle it after the election by a vote saying whether the period of emergency would continue. That should be effective in itself, no matter what view would be taken by the Second House.
In considering this, we must consider that there must be a joint resolution by both Houses, and that it is possible for one House to hold it up. If this had been moved definitely by the Opposition in the Dáil, I certainly would be prepared to meet it on the general lines I am suggesting. As it has passed through the Dáil, I am rather loth to change it, unless there is a strong opinion favouring it. I have not consulted my colleagues on this  matter at all, and would like to discuss it with them before the next meeting, if the change is to be introduced—and, in that case, I should like to be fortified with the views of other Senators.
Mr. Goulding: I do not know that I am very pleased with this amendment. I can see one difficulty about it. Let us take it that this were accepted and became part of the Constitution. The Administration in power at the time would, undoubtedly, be in touch with the affairs in the country much more than any individual. There is no doubt that some people—for their own reasons or to obtain certain Party advantage—would be anxious that the President should be compelled to take this action. I would feel rather sorry for the President at that time. Undoubtedly, we would be overwhelmed with resolutions, recommendations and letters from all over the country, calling on him to put this into force. If the country had expressed confidence in the Administration for the time being, it would be safer to leave the matter in their hands.
If interested parties took advantage of this point, it might lead to confusion. Interested parties would bring pressure to bear on the President and it might be the cause of confusion at a time when confusion might be very dangerous. Personally, while it might be desirable to have a check on the Administration, I think it is taking a rather pessimistic view of what the Administration in power might do. I am not very much opposed to it, but believe it may be more dangerous than good.
Mr. MacDermot: I venture to suggest to the Senator that discontent that can express itself constitutionally is much less dangerous than discontent that cannot. There is far more danger of explosion if we have a large number of people here who feel that the Oireachtas are abusing their position and that they have no Constitutional remedy or check upon them. It is almost inconceivable that anybody elected to the position of President would force a referendum or general election on the country at a moment  when it would palpably be dangerous to the very foundations of the State to hold one; but it is less inconceivable that some Government might hold office at some future date and some Parliament might exist—it has happened before in history—which wished to continue to keep the enormous powers over the individual that are given, by our present arrangements, to Government and to Parliament during the state of emergency. That seems to be far and away the more real danger of the two. For my part, I am quite content with the modification suggested by the Taoiseach, that it should be open to the Government to substitute a general election for a referendum. It seems to be perfectly reasonable, and I have no objection to raise to that.
As regards the suggestion that the President is not a person who is in touch with realities and the actual dangers of the times, I would say that, if he is not, he ought to be. I should think there was something wrong with our system of government if the Administration did not keep the President fully informed of all that was taking place—at any rate to the same extent as the British Government keep the British King informed. If they do not do that, I do not think they are treating the office of President with proper respect or taking the advantage they might take of the existence of such a functionary.
After all, the President is a man who can hold office for 14 years—two periods of seven years—and, in the course of that long term of office, he ought to acquire a great deal of valuable experience and—without of course any power to dictate the policy of the Government—he should be able to help them to mould their policy, by giving them the advantage of his experience of men and things. There may be several changes of Government during his period of office and, just as a wise king has often been of great help to the Government of the time in Great Britain, so a wise President who has been fully informed—as he should be—would be of considerable assistance to the Government in office here from time to time.
Mr. Fitzgerald: On the whole, I am against the amendment. So far as I have given any coherent thought to political matters, it seems to me that you must correlate power and responsibility. I objected always to this Referendum. A person who is responsible must decide what is to be done. For instance, when this amendment of the Constitution—the big one—was put to the people in 1937, what would have been the position of the then Administration, if they had obtained a majority to elect them as a Government and there had been a majority against them on that point—the Constitution— which was a fundamental one in their policy?
At the end of a period of conflict the Administration may be corrupt and may want to hold on to its job and all the rest of it. The only way of meeting that, I think, is by the situation we have in which we have a plurality of Houses—we have two at the moment— who by vote can get rid of that Administration. I cannot see a better way than that. If, although the war is ended, the Government judges that there is an emergency, that the very fabric of the State and the life of the State is still in danger then a referendum is put to the people. Senator MacDermot says that a President can be in office for 14 years. He then, if I may say so, goes on to assume that in such a position, the President being there for 14 years, a lot of new lads would come in as a Government. It is not fair to put responsibility for the life and well-being of the State on a multitude of people. That is the responsibility of the Government and its judgment must be adequated to a situation related to the well-being of the whole State. It is its responsibility. You put a referendum to the people. We know how they voted about this Constitution. Without reading the thing whatever, they will be led by the whim of the moment or whatever case happens to be made to them. You go and say, “Your Constitutional rights are withheld from you”; you make quite a good case on it and they vote accordingly. The only thing for a Government to do when that is done would be to have a general election.
 Therefore, the proper system would be that in such a case, the President can dissolve the two Houses of the Oireachtas and force a general election. That would involve an amendment in a totally different place.
There is no way of making absolute certainty in life. On the one hand, you can tie up the Administration so much that they can never do any act without having a general election or referendum. On the other hand, you can give them such power that if they are corrupt, if they have considerations other than the well-being of the State, they can use that power, not for the purpose for which it was given to them. You can only have a certain amount of reasonable control, and the idea of controlling them by referendum seems to me about the very worst possible system. It is giving the power to decide to a body of people, or to a multitude, who are not themselves responsible for the action going to be taken, and it seems to me, therefore, wrong.
There is one thing I would like to point out in relation to this. Senator MacDermot referred to the President being there for 14 years, and seemed to assume that because the normal life of Parliament is only five years, therefore the Government is always going to be new every five years. It is quite possible for the same Administration to be in power for 40 years. In regard to this substantive amendment that is being dealt with here—“and ‘time of war, or armed rebellion,’ includes such time after the termination of any such war....”, I wonder if in the drafting of that advertence was had to what was meant by the term “the termination of such war”? Everybody here knows, for instance, that Great Britain was at war with Turkey in the years of the last war, what is called the war from 1914 to 1918. If this applied to England in relation to the war with Turkey, what date, do you think, would have been “some time after the termination of such war”? Legally, the war between Great Britain and Turkey did not end until 1924. I do not know when the war between the United States and Turkey ended, or if it has ended. I do not think it had ended in 1927. As I read  the original thing, if we could put ourselves back to the position of 1914-18 and take what I may call the determining factor in the war between Great Britain and Turkey by the term here, “includes such time after the termination of any war, or any such armed conflict, as aforesaid”, strictly speaking, that time would have been a time after 1924 in relation to that.
As far as the present emergency is concerned, if the time period is going to be fixed by the termination of war, war is only terminated when the two countries formally make their peace treaty. As I say, the Treaty of Lausanne was made in 1924. The officials behind the Taoiseach will be able to tell us when the war between the United States ended. It does seem to me that Senator MacDermot would have done more to shorten the period during which the Government could arrogate to itself these exceptional powers if he had proposed an amendment with regard to the phrasing there because, remember, the end of the war does not mean when fighting ends; it means when a formal pact has been made in relation to it, a pact which declares that the previous condition of war has now terminated and a condition of peace has come about.
To go back to the amendment itself, on the whole, I do not see any strong objection to some such amendment as Senator MacDermot proposes, but if such amendment is brought in, do not put any undue hopes in the thing because, when you hand over responsibility for the administration of the State to a body of men and make them responsible to a Legislature consisting of two Houses, if you are then going to try to put on other safeguards, as, for instance, reference to the whole people, you are only creating a machine which either will not be used or, if it is going to be used, can be used in a way which is more calculated to be harmful to the people of the country than leaving powers in the hands of an executive would be. The truth is that when you have given power of voting to a people nothing can save that people if it insists upon voting for the wrong people. It would  be wrong to say to them: “You can vote for these people but do not worry about the fact that they are venal, corrupt or incompetent”—or whatever objection you might have—“because the law is so drafted that they will never be able to do anything to harm you.” The Government is responsible for the administration of the country and it is the responsibility of the people to vote, and if the people do not recognise that responsibility then no arbitrary from of words is going to save them from what is coming to them.
Professor Magennis: I submit that this amendment is quite unnecessary. I believe the situation, especially with regard to the present world-wide war, is not quite so simple as the last speaker seems to regard it. We have the experience of the last Great War and we remember—I am sure that most of us do—that there was a great difficulty confronting English administration as to when the war was to be declared over. To the best of my recollection, for a period longer than two years, there was a marked difference of opinion between statesmen as to whether or not it was advisable to declare the war at an end at a particular moment. This is a very complicated war. Senator Fitzgerald talks about a war between Turkey and another country being over when the two belligerents had declared that it was over, but in the present war how many subjugated countries are in question whose diplomatic representation has been withdrawn?
Diplomatic representation has been withdrawn on the ground that they are no longer sovereign States. Suppose the main belligerents declare the war at an end, probably the States deprived of their sovereignty would insist on an effort to resume their sovereignty and declare the war was not at an end as far as they were concerned, in what position would the neutral State be in regard to the complicated situation such as I envisage? After all, the Government of the country, more particularly the Minister for External Affairs, is better informed than the President could be, even  though, as suggested by Senator MacDermot, the Taoiseach was to keep the President informed from day to day. Now Senator Fitzgerald showed what is really in his mind when he contemplates the Minister for External Affairs or the Taoiseach, as it happens in this case to be the same person, who is referred to, keeping the President informed how things are going. He is still further amending the Constitution if he is to convert an tUachtaráin into a sort of monarch or constitutional king.
Professor Magennis: Did I say “Senator Fitzgerald”? Senator MacDermot spoke of that. I thank you for the correction. It is to Senator MacDermot I allude. He said that it was to be presumed that the Uachtarán would be kept informed. Does that make it right?
Professor Magennis: The quotation was correct, although by a slip of the tongue the reference to it was not correct. The Uachtarán is not a monarch, nor is he, like the President of the United States, the chief of the Executive. He is as was described: “the embodiment of the nation”. He represents in a personal form the nation. It is true he can be invested with powers when these powers are given to him. Under Article 12 I think it is, that is dealt with. No, that is the oath he takes. He takes an oath “solemnly and sincerely promises and declares” that he will maintain the Constitution of Ireland, uphold its laws and fulfil his duties, so that one asks what are his duties. These are set out in the Constitution. It is sub-section (1) of the same section: “There shall be a President of Ireland (Uachtarán na hÉireann) hereinafter called the President, who shall take precedence over all other persons in the State and who shall exercise and perform the powers and functions conferred on the President by this Constitution and by law.” So that if we are to confer  further powers on the President other than these given in the Constitution it will be by a specific enactment. It is my case that we do not need to extend these powers within the Constitution for this purpose that Senator MacDermot has in view, because in one of the sub-sections he is empowered to summon either one or both of the Houses of the Oireachtas, and it does not say for any particular purpose. It is not limited in regard to that.
So that if the unhappy state of affairs that Senator MacDermot has in mind should, unfortunately, arise, that there is conflict of view between the Uachtarán and the Executive Ministry as to whether or not the state of war referred to in the Constitution has passed away, it is within the power, I submit, under this sub-section, of the President, on the advice, or with the approval of, or after consultation with the Council of State, to call both Houses of Parliment together, or one of them, and submit to Parliament the issues. In other words, that is an appeal to the people. It is a more exact use of the instruments of government set up by the people than to have recourse to a very exceptional thing which is used, no doubt, in Switzerland, the referendum, of whose use and the value of whose use we are very much in the dark. It is very problematical. It happens to have been adopted and enacted by the people, and you do not get rid of it, for the enlightenment of Senator Fitzgerald, by indicating a further employment of it, as suggested by the Senator.
Professor Magennis: It is very difficult to be clear about what Senator Fitzgerald says, but Senator Fitzgerald made an attack on the referendum, at least that is what I understood. Sometimes it is very hard to understand him, but on this occasion that is the impression he gave me, and I am referring to his argument. I say that he condemns the referendum, and that he says he desires to have it done away with, and I say that it is not going to help him to do away with it if he includes in the Constitution an arrangement for the further and extended use of it.
Professor Magennis: Very well, we are in perfect agreement, and the Senator need not interrupt me any further. He has a habit of interrupting and, of course, he must be indulged but there is a limit. Suppose the worst to have happened, and Senator MacDermot's situation had arisen, and the referendum is employed, and the issue is to be in effect the utter condemnation of the Government. The people are called upon to declare that they are doing something different from their pledges, that it amounts to an abuse of their powers, that comes from the spirit of autocracy, and that from long exercise of emergency powers they have become autocrats, despots. That is the political arrangement in this country where there is Party government such as prevails at present. That, in effect, raises a question of no confidence in the Government and the voters are to be the Parliamentary electors, not the elected representatives of the people and the Second Chamber. Does anyone doubt that all the machinery of Party propaganda will at once be brought into active operation to beat them?
 I do not think that that is a desirable situation to create, that first of all having created the office, and appointed an honoured citizen to be the embodiment of the State, you should then have a Government using all these propagandist powers and raising all sorts of political issues to could the real issue, that in fact the Government should be placed in this position, that they say to those who returned them to power: “We are indicted for the misdemeanour of usurping powers and of seeking to maintain possession of these powers. If you agree with the Uachtarán you are doing more than turning out the Government. The indictment is more than an indictment of a Government that is incompetent. It is an indictment of a Government that it is making itself into a sort of corporative dictator.” With that issue before the country, is it not clear that a passionate Party spirit will be aroused in the fullest measure? It seems to me that everything that could be done to prevent such a feeling being aroused in the country should be done. We have a way in that sub-section which I quoted. Suppose it did happen that the Government presented a plausible excuse to retain emergency powers beyond the proper period. It is within the powers already given to the Uachtarán to summon Parliament and to make that an issue—in other words, to call upon Parliament to demand that the Taoiseach and his Cabinet should resign.
Mr. MacDermot: I submit that the suggestion made by Senator Magennis does not help us at all. It is inconceivable that a Government would try to retain emergency powers beyond the time that it really should have them unless in doing so it has the support of a majority in the Oireachtas. We may take it that if this crime against the people ever occurred, it would be a crime in which not only the Executive of the day but the majority of the day in both Houses of the Oireachtas would be participants. So, if the President is ever to fulfil at all the duty which the Taoiseach said a week ago here in this House was one of his principal functions, namely to  act as guardian of the Constitution for the people, if he is ever to fulfil that function in the sort of circumstances I have imagined, he has got to guard the people as much against the Oireachtas as against the Executive.
Senator Fitzgerald says that the people must abide by the consequences of their acts, and if they elect a bad Government or a bad majority, there is nothing that can save them. That seems to be an argument that can be carried altogether too far. It is an argument really for having nothing but single-chamber government without any checks or balances at all. I would not agree that that was a sound point of view even in normal times. Let me put this to Senator Fitzgerald: even in the case of the present Government, did the people at the time they elected them last, ever dream that during their term of office they would assume powers over the individual citizen that they have in fact been compelled by circumstances to assume?
Mr. MacDermot: I am sorry if the word “assume” indicated to the Senator that I was blaming the Government for anything they have done but they have, in fact, been clothed with powers which no elector ever dreamed they would be clothed with during their period of office. It never occurred to the mind of any elector that the Constitutional guarantees enshrined in our Constitution would be suspended in the near future as they have been suspended. I suggest that that is a consideration to be borne in mind. Really what we are dealing with here is something very abnormal. We are dealing with the taking away from the individual of the whole body of guarantees that he believed himself to be protected by for ever.
Mr. MacDermot: I agree, but not with the consent of an Oireachtas elected by a people knowing that the Oireachtas would have any such powers as they have in fact been obliged by circumstances to take.
Professor Magennis: May I ask the Senator whether any body of public opinion has questioned the rectitude of the Oireachtas in so expressing confidence in the Government as to give them these powers for the emergency?
Mr. MacDermot: I do not know what the definition of responsible public opinion is but I am sure there are a good many people of the country that regret it very deeply. There are a good many people of a subversive order of mind who regret that these powers were conferred on the Government by the Oireachtas. While I think it is right in present circumstances that these powers should have been given by the Oireachtas it does not follow that the same thing might not happen in future on an occasion when it would not be justified. I think we have initiated a tremendous precedent in the matter of giving the Executive extraordinary powers. In the days when we were attacking the British Government about Coercion Acts, etc., it never occurred to me that an Irish Government would be found exercising the sort of powers that the Irish Government is now exercising. That may have been due to short-sightedness or lack of imagination on my part, but we have set a terrific precedent in the power we have now given to our Executive and I suggest that we should do everything that in us lies to prevent that precedent being extended in an undesirable manner in some future generation, that we have a duty to posterity to be very careful in what we are doing, and that if there  is any meaning at all in the statement of the Taoiseach that one of the principal functions of the President was to guard the Constitution for the people, here in this matter of the suspension of the Constitution is an ideal opportunity for that duty being imposed upon him.
Mr. Quirke: I fully agree that we should do everything we can to provide every possible safeguard, but I do not agree that we shall provide such a safeguard by the insertion of this amendment. Senator MacDermot pre-supposes a certain situation here in the country, that a clash will arise between the President and the Government and that the Government will obstinately hold to office despite any feeling which may exist as to their right to hold office. To my mind, if such a situation as that existed, nothing which we could do here would provide an efficient safeguard. With regard to the setting of a time limit, it is reasonable to assume that in a period of undeclared wars—we will probably have an undeclared peace. That will create difficulties as to the time limit, but what is most serious in connection with this is that, first of all, we accept the position in which only with the consent of both Houses of the Oireachtas can a state of emergency be declared.
When that state of emergency has existed for a considerable time we then suggest that the people who declared the state of emergency are not the proper people to declare that the state of emergency ceases to exist. If we are going to accept that position we are going to declare now, beforehand, that the Parliamentary institutions are not capable of deciding such matters at all, and we are going to take the decision out of the hands of the Oireachtas and put the question to the people at a time when it is natural to suppose that the people would be least in a position to make such drastic decisions. Senator MacDermot, I think, suggested that a Government may carry on without a majority in the country or even without a majority in the Oireachtas. Well, they may carry  on without a majority in the Oireachtas——
Mr. Quirke: Well, without one in the country. They may carry on without one in the country, and therefore it is possible that they may carry on for a certain time without a majority in the Oireachtas. But if the Government lost contact to such an extent as is suggested, with the people of the country, they would not for long retain a majority in the Dáil or Seanad. I think we are really trying to provide safeguards where it is not possible to provide such safeguards, and in doing so we may do considerable harm without hope of doing any reasonable amount of good.
Mrs. Concannon: One thing seems to me to emerge from this discussion, now that an amendment like this is before the House, and it is that such an amendment could not possibly be accepted without the fullest consideration by the responsible Government. It is pointed out that the reason is that we have not got a cast-iron Constitution. But what is written in the Constitution is meant to be fundamental law. Every word that goes into it— and this is the point I want to make— should be weighed, and all the implications should be most carefully judged. Now, a proposal like this though it may seem plausible — and it was suggested by Senator MacDermot that the phrase was that the President was the watch-dog of the Constitution and the liberties of the people — might endanger the constitutional rights of the people by giving the President such powers as are implicit in the amendment. It seems to me that the wording of it is rather loose. I do not make any reflection on Senator MacDermot's draftsmanship, but the implications could be very serious. It says: “Provided that if it should at any time appear to the President after consultation with the Council of State.” It does not say “on the advice of the Council of State”.
Mr. MacDermot: No; it is not meant to. That same phrase occurs several times in the Constitution already, and on each occasion where it does occur the situation is one where the President is being given unfettered discretion.
Mrs. Concannon: There are not such implications as there are in this case. The amendment visualises possibly a state of affairs where the President is in opposition to the Oireachtas and the Executive on the important point as to whether these emergency powers, which the elected representatives of the people gave the Government, should be taken from them; whether the time had come for that; and that postulates a very difficult situation, when the two Houses of Parliament are not reliable, apparently, and the Government is not reliable, and the President at his own discretion could put the country into the turmoil of referendum. A referendum, I imagine, would be far worse than any general election, and there may or may not be the same opportunity of putting the issues clearly. In face of such difficulty as is envisaged, it would be very difficult to put them before the people clearly. I do not know that the people could give a good answer in such circumstances, and the principle of the President going over the heads of the elected representatives to the people themselves, without having first put it to the elected representatives, is one that might easily be dangerous. I do not know whether the initiative of the referendum has been defended by law or whether there could be a new way of instituting that referendum, but certainly I would like to impress on the Taoiseach that such an amendment as this, is full of implications that should be most carefully weighed before it should be accepted.
Sir John Keane: I listened with some interest to Senator Quirke's remarks, and I wondered whether he was speaking as an advocate or a realist. Surely Senator Quirke does not suggest that Party independence is so strong that at a certain stage when the liberties of the people are being disregarded they  will revolt against the Government and turn them out. If that is Senator Quirke's view it is not mine. Party discipline is so strong, and the individual personal interests of Parties to remain in power are so strong, that things will have to go very far before they would say to their leader: “Look here, we are going to turn you out.” I do not agree for a moment that responsibility of Party is sufficient to safeguard the Constitution or the liberties of the people.
What is concrete is the interests of the Party; the liberties of the people, valuable as they are, are somewhat indefinite. As long as the period of election is not prolonged I will be quite happy. In the 17th century we had what was known as the Long Parliament, a Government which stayed in indefinitely under emergency powers. If it were possible in some way to frame an amendment to limit the term definitely to the time when hostilities cease, it would be satisfactory, and if there was a difficulty about when hostilities ceased, then, as long as the Government had outrun its normal parliamentary existence, there should be a general election. That would satisfy me. There may be some difficulty about approaching the thing from that angle. I think Senator MacDermot's method is probably the one that is capable of being brought within the framework of the written Constitution more easily.
Mr. Hawkins: We must look beyond the present emergency in considering this amendment. We are asked to give in the Constitution power to some future President that may be very dangerous. In introducing the amendment, Senator MacDermot said that this war might be a long war and that, during its course, we might even see changes of Government. Let us examine the matter from that point of view, knowing that the ordinary term of office of a President is seven years. In the present case, we had election by choice. If we assume that we are to have an election of President by the people, we shall realise that it will be necessary for the person elected to have the support of one or other of the  big political parties. Otherwise, he could not be elected. His having no politics is as much out of the question as our trying to make believe that the members of the Seanad are nonpolitical.
Mr. Hawkins: I am discussing the probability of the war lasting for some time and the probability of future emergencies. What we are doing in this Constitution will outlast the present emergency and what the Senator inserts in it now will hold for all time. If that be the case, the President may be elected on a, more or less, party ticket. Changes of Government may come along and a particular Government may find it necessary to declare that a period of emergency exists, just as the present Government found it necessary so to declare. That Government may hold different views from the President then in office and they may be justified in declaring a state of emergency. In that, they may have the backing of the entire people. The President, because of his political outlook or because he might be influenced by someone, could put the question to the people as to whether this state of emergency should be permitted and he could force the Government to appeal to the people either by referendum or by general election.
Mr. Hawkins: When a war is over, a state of emergency may exist more dangerous than that which existed during the actual war. The Taoiseach suggested that, as an alternative to the referendum, the Government should be given the choice of going to the  country. Suppose that position came about and the people returned the Government with a greater majority than before, the President would have put the country to an amount of expense, trouble and turmoil. I think that it would be very unwise to accept this amendment and I shall vote against it if if be put to a division.
Professor Johnston: It seems to me that that whole difficulty arises because the Government which is now in power, and which is likely to remain in power for a considerable length of time, is only a national Government in inverted commas. At the last election, it certainly commanded a majority of the voters, but very substantial sections of the community voted for the principal Opposition Party and for the Labour Party, and they would also have voted for the kind of party to which I would belong if I belonged to a party at all. In normal times of peace, we are quite prepared to accept the come and go of party government, but when an emergency situation such as the present arises, it is questionable whether a national Government which is only a national Government in inverted commas has the moral right to exercise the powers which have, in fact, been given to this Government under the Emergency Powers Act. It is also questionable whether the principal Opposition Party were within their political duty in agreeing to confer on a Government of the type indicated powers so extraordinary with reference to the rights of every individual citizen. Looking back on it now, I think that the attitude of those of us who claim to be, and are, independent, was that they should have insisted on the formation of a truly national Government, representing every important section of the people, before agreeing to confer powers so extraordinary on any Government.
I speak as an Independent, but I should like to remind the House that those of us who sit for a university constituency have a representative quality which was at one time considered adequate to justify our membership of the other House and which is rather unique, if I may say so without  undue conceit, in this Assembly, which is not, in general, elected on any very wide democratic franchise. When I speak as an Independent, therefore, I do so as spokesman of a section of the community which might well be 10 per cent., or even more, of the people, and I think a certain amount of weight should be attributed to sentiments such as I am now trying to express. If a Government existed—presided over, of course, by the present Taoiseach—which was representative of every section of political activity in the country, I think it could be trusted not to abuse its powers in any way. When the emergency situation came to an end, I think that the internal frictions that would probably arise in such an Executive Council would ensure that an election would take place reasonably soon after the war was over and that we would resume normal constitutional life. The danger, if any, of the usurpation of authority by such a Government would be greatly minimised. That, it seems to me, would constitute an adequate guarantee that the Constitutional rights of every section of the people would be safeguarded. As for the particular proposal put forward by Senator MacDermot, after listening to the arguments for and against, I am inclined to the view that it would introduce unnecessary and undesirable complications into our Constitution and put both the Government and the Uachtaran in a difficult and anomalous position.
At Reference No. 23 to delete, in Column 3, all words and commas after the words “sa Bhunreacht so” and substitute therefor the words and commas “a riarfar ceart, agus is go poiblidhe a déanfar sin ach amháin insna cásannaibh speisialta teoranta sin a hordóchar le dligheadh.”; and to delete, in Column 4, all words after the word “Constitution” and substitute therefor the words and commas “, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
 Ag Uimh. Thagartha 23 na focail agus na comaí uile i ndiaidh na bhfocal “sa Bhunreacht so” do scriosadh as Colún 3 agus na focail agus na comaí “a riarfar ceart, agus is go poiblidhe a déanfar sin ach amháin isna cásannaibh speisialta teoranta sin a hordóchar le dligheadh.” do chur ina n-ionad; agus na focail uile i ndiaidh an fhocail “Constitution” do scriosadh as Colún 4 agus na focail agus na comaí “, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.” do chur ina n-ionad.
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