18 November 1999 Edition
Offences Against Our Rights
The case for repeal of the Offences Against the State Acts
In the section of the Good Friday Agreement entitled Rights, Safeguards and Equality of Opportunity, the Dublin Government undertakes to ``further strengthen the protection of human rights in its jurisdiction''. Under the heading of Security, the government also undertakes to ``initiate a widespread review of the Offences Against the State Act 1939-1985 with a view to both reform and dispensing with those elements no longer required as circumstances permit''. A Commmittee was established earlier this year to carry out the review and here we carry, in summary, the Sinn Féin submission to the Committee.
Central to the Good Friday Agreement is the protection and promotion of human rights. Sinn Féin believes that the review of the Offences Against the State Acts is an essential element of the implementation of the Agreement. The continued existence of those Acts is incompatible with a new political dispensation in which human rights form the bedrock of civil society in Ireland, and with our international obligations to respect human rights.
Section 30 has been used extensively against people engaged in legal and open, democratic political activity throughout this state
We argue that the Offences Against the State Acts have done nothing to resolve the political conflict arising out of Partition, and in some ways, have actually helped to fuel it, while at the same time undermining the rights of citizens.
The Offences Against the State Act was introduced in March 1939. The Fianna Fáil Minister for Justice, P.J. Ruttledge, told the Dáil that the ``sole object'' of the legislation was the ``prevention of the display, the use, or the advocacy of force as a method to achieve political or social aims''. This was in the context of a perceived threat to the state from the IRA, which had just launched a short-lived bombing campaign in England.
It is clear from a reading of the Dáil debates that the government of the day sought powers on the basis of what was presented as an immediate danger. This pattern was repeated in 1972 and 1998. In 1972, the then Fianna Fáil government introduced the Offences Against the State (Amendment) Bill. Once again the legislation was rushed through the Oireachtas to deal with what was presented as an emergency situation.
The Fine Gael Justice spokesperson Patrick Cooney TD denounced its provisions as ``repugnant to the basic principles of justice and liberty''. Fine Gael was ready to oppose it in the Dáil. Then, on 1 December, the day the vote was taken, two bombs exploded in Dublin, killing two people and injuring many others. It has never been ascertained who planted the bombs, although it is widely believed that British intelligence agents were involved, claims given credence by later revelations about such activities in the 26 Counties at that time. Whoever was responsible, there is no doubt that Fine Gael changed its position because of the bombings.
Despite all the political developments of recent years, the Offences Against the State Acts remain in place, and indeed, have been strengthened
In 1998, there was a similar response to the Omagh bombing. In the space of a few hours, a very far-reaching Offences Against the State Bill was enacted in the heat of the justifiable anger at the bombing. The emergency nature of the 1998 Act is acknowledged by the fact that it is due to lapse, unless renewed, in June 2000. However no such provision was made in the Acts of 1939 and 1972. Support was sought for them on the basis that they represented the necessary suspension of certain rights in an emergency situation. The indication was that once the emergency passed the legislation would be set aside. Yet these Acts remain on the statute book.
The 1939 Act clarified and strengthened the power of the government to introduce internment without trial. This power was used from that year until the end of the Second World War, during which hundreds of people were interned. Internment was used again between 1957 and 1959. A grave injustice was done to all these internees and their families. One man, Barney Casey of Longford, was shot dead in the Curragh Internment Camp by military police in December 1940.
The power to impose internment remains in the hands of the government to be used without even the necessity of a vote in the Dáil. This is probably the most repugnant aspect of the Offences Against the State Acts.
During the 1940s, the deployment of emergency legislation, including the Offences Against the State Act, was particularly harsh and repressive. Six republican prisoners were executed after trial by Special Courts. All suffered the grave injustice of being deprived of a jury trial on charges which entailed the death penalty. In the cases of George Plant (executed March 1942) and Maurice O'Neill (executed November 1942) it is almost certain that convictions could not have been obtained in the ordinary courts and that the defendants' rights to due process were denied.
The provision to establish Special Courts is central to the Offences Against the State Acts. It empowers the government to establish by proclamation special courts which may consist of military officers or judges. These courts may be established where ``the ordinary courts are inadequate to secure the effective administration of justice and preservation of peace and order''. We would argue that at no time since 1939 were the ordinary courts inadequate to secure the effective administration of justice nor was there any threat to the preservation of peace and order on such a scale as to warrant the suspension of civil liberties involved in the establishment of these special courts.
During the 1940s, six republican prisoners were executed after trial by Special Courts
The right to trial by jury is guaranteed in the 1937 Constitution and suspension of this right is only contemplated in the exceptional circumstances outlined above. It was argued in 1939, 1961 and 1972 that outbreaks of armed conflict arising out of partition made such draconian measures necessary. The prolonged use of the Special Court however, especially since 1972, means that this is no longer the `emergency' measure, temporary in nature, it was presented as when enacted. It has effectively become an integral part of the judicial system. Until this review, there has been no official review in the Oireachtas or elsewhere of the supposed necessity for, or operation of, the Special Court.
When the current Special Court was established in 1972, the then Minister for Justice Desmond O'Malley stated that it was necessary because jurors were being intimidated. He was unable to cite one instance where this had happened.
It was primarily the armed campaign of the IRA which was cited as the reason for the establishment of the Special Court in 1939, 1961 and 1972. On that basis, the continued existence of the Court since 1994, when an IRA cessation of military operations began, must be challenged.
One of the lesser known but most draconian aspects of the Acts is the empowerment of the Director of Public Prosecutions to send cases involving non-scheduled offences for trial in the Special Court. The DPP has only to certify that in his opinion the ordinary courts are inadequate to secure the effective administration of justice and the preservation of peace and order, in a particular case, and that case can be sent for trial in the non-jury court. There is no provision for appeal or review of the DPP's decision.
The increased rate of referral of `ordinary' (i.e. non-politically related) offences to the Special Court in recent years represents, in our view, a further serious undermining of civil rights arising out of the Offences Against the State Acts.
Section 30 of the Offences Against the State Act is, in the experience of our party, one of the most abused powers in the hands of the State. As amended since 1998, it allows gardaí without warrant to stop, search, interrogate, arrest and detain persons for up to 72 hours on suspicion of having committed or being about to commit or ``being or having been concerned in the commission of an offence'' under any section of the Act.
The vagueness of this provision means that the gardaí are not required to show any reasonable cause for suspicion and as a result Section 30 has been used systematically for the purpose of (a) political harassment and (b) information-gathering and interrogation in relation to `ordinary' offences.
The figures for Section 30 arrests as against charges between 1972 and 1986 are very revealing in this regard. In 1972, 229 people were arrested under Section 30, of whom 186 were charged. In 1974, 602 were arrested and 271 charged. By 1980, however, the number of arrests reached 1,874, with only 168 charged. The number of arrests, and the gap between that number and the number charged, continued to grow throughout the 1980s, reaching 2,387 arrests as against 484 charged in 1986.
Individual members of Sinn Féin, and the party itself, have made numerous complaints over many years about the use of this legislation by gardaí to carry out harassment of our members. While ostensibly directed against illegal organisations engaged in the use of force, the Acts, and Section 30 especially, have been used extensively against people engaged in legal and open, democratic political activity throughout this state.
Section 30 has most often been deployed against new and young members of our party. A familiar pattern is for a young member seen publicly at a Sinn Féin event, or entering or leaving a Sinn Féin premises, to be stopped and questioned by a member or members of the Garda Special Branch. A visit to the person's home will often follow. The pattern continues with the Special Branch members seeking to alarm the parents or other relatives or friends of the Sinn Féin member, often with accusations that the person in question is a member of an illegal organisation. The obvious purpose of this harassment is to deter the person from continuing their chosen political activity. Arrest and detention without charge for up to 48 hours has also been a common experience.
Supporters of our party have experienced this harassment also, as have trade unionists, civil libertarians and members of various campaigns and community groups. Section 30 has also been used to detain people allegedly suspected of non-scheduled offences and as a means of `trawling' for information. While the use of the Section in the case of non-scheduled offences has been upheld in the courts, it is totally at variance with the purported purpose of the Act itself.
The political misuse of Section 30 by the gardaí contributed to a climate of fear in this state where people were deliberately deterred from joining or supporting a legal, registered political party, Sinn Féin.
The Acts provide for prosecution of persons for membership of an unlawful organisation. It is fundamentally unjust that a person can be found guilty of the serious offence of membership of an unlawful organisation, liable upon conviction to seven years imprisonment, on the word of a Garda Superintendent. The ability to convict for membership without real evidence is strengthened under the 1998 Act, which allows for the silence of a person charged with membership to be legally admissable, as well as his or her failure to mention to the gardaí a fact on which he or she may rely at trial. The 1998 Act is a most significant extension of the already draconian membership laws. It contains the new offence, modelled on British legislation, of directing ``at any level'' the activities of an unlawful organisation. For this nebulous, ill-defined offence the penalty is life imprisonment.
Section 52 of the 1939 Act, requiring a person, on pain of a penalty of six months in prison to give an account of his or her movements, is a serious infringement of the right to silence. This has been compounded by the provisions in the 1998 Act as cited above. The right to silence is also attacked by Section 9 of the 1998 Act, which creates the offence of ``withholding information''. Taken together with the provisions to allow gardaí to hold people under Section 30 for up to 72 hours, the infringements on the right to silence pose a grave threat to the rights of persons held in custody.
Under Section 34 of the 1939 Act, finally declared unconstitutional by the Supreme Court in 1991, people were liable to dismissal from State employment and loss of pay and pension upon conviction. Convicted persons were also barred from state employment for seven years after their conviction.
Under Section 34, many people suffered loss of livelihood. We believe that the Committee should recommend a special scheme of compensation for those adversely affected by this unconstitutional section of the Offences Against the State Acts.
The effect of the Offences Against the State Acts was that to be associated in any way with what the state defined as `subversive', which was often political dissent of any kind, but especially of a republican character, was to risk, at best, petty harassment, and, at worst, loss of livelihood and liberty.
The combination of political censorship of the broadcast media and the use of the Offences Against the State Acts against those seen as political dissidents not only undermined civil liberties; it also had a corrosive effect on public life. This led to official toleration of abuses such as those carried out by a group within the gardai known as the `Heavy Gang' in the late 1970s.
The climate of fear continued throughout the 1980s, with repressive legislation serving only to deepen political divisions, stifling debate and contributing to the political vacuum in which conflict existed.
The political developments of the early 1990s, as the Irish peace process began, slowly brought about a change in the climate in the 26 Counties with regard to the conflict. Approaches based on exclusion and repression were seen to have failed and a new inclusive approach to finding a political resolution leading to lasting peace was being attempted. As a result of this, the orders under Section 31 of the Broadcasting Act were revoked and freer debate and discussion was possible.
Despite all the political developments of recent years, the Offences Against the State Acts remain in place, and indeed, have been strengthened. Their retention on the statute books is anachronistic and runs contrary to the new political dispensation which is being created in Ireland today.
Irish obligations under international law can only be served by their repeal. The review is required to take into account ``the threat posed by international terrorism and organised crime''. We do not consider that Ireland is under any threat from ``international terrorism'' nor that the Offences Against the State Acts are required to deal with organised crime.
Sinn Féin therefore recommends the complete repeal of the Offences Against the State Acts 1939 to 1998.