Insult was not real cause of Ó Dálaigh resignation

 

The circumstances surrounding the resignation of President Cearbhall Ó Dálaigh were recalled recently. Retired judge Donal Barrington, the only survivor of a key episode in that drama, gives his version of events

I was surprised at the recent portrait of Cearbhall Ó Dálaigh which appeared in the article written by Jim Duffy to mark the occasion of the 30th anniversary of the former president's resignation.

Could this be the same Cearbhall Ó Dálaigh, I wondered, who had presided over the Supreme Court from 1963-1973 in one of the most distinguished periods of that court's history and who was regarded in the legal profession as a byword for learning, courtesy and concern for justice?

Mr Duffy gives myself and my late colleague Rory O'Hanlon the distinction of having averted a constitutional crisis by advising President Ó Dálaigh that he had not, of his own right, the power to commute or remit a sentence of death passed on people who had been convicted of capital murder.

One might indeed be forgiven for drawing this conclusion if one's only source of knowledge was the Ó Dálaigh presidential papers, now available to the public in University College Dublin.

But one would be totally wrong in doing so.

As I am the only survivor of the three principal actors in this alleged drama, it is proper that I should put the record straight.

There is no doubt that Cearbhall Ó Dálaigh had been, all his life, an opponent of capital punishment. Neither is there any doubt that he was distressed at finding himself, even indirectly, involved in a case of capital punishment.

But it is quite clear, on the face of the Constitution, that the power of the president to commute a sentence of capital punishment is only nominal and that the real decision rests with the Government, on whose advice the president must act.

It is fatuous to suggest that a former chief justice of Ireland did not understand the distinction between the real and the nominal powers of the president. Of course he knew that he had no power, acting on his own initiative alone, to commute a death sentence. The point is that the people who were petitioning the president to commute the death sentence as passed on Noel and Marie Murray did not appreciate this.

The significance of the joint opinion from Rory O'Hanlon and myself is that the president did the petitioners the courtesy of seeking independent legal advice on the matter.

Mr Duffy refers to the fact that Cearbhall Ó Dálaigh once wrote to Jack Lynch suggesting that he sack his minister for justice as evidence of the fact that Cearbhall was prone to call for the heads of ministers. The incident referred to occurred some time in or about 1970.

There was a major law conference in Dublin attended by judges and lawyers from abroad. It culminated in a formal dinner in the Gresham Hotel.

The minister for justice arrived at the dinner drunk, was seen to be drunk, and before the dinner was over, departed from the dining hall through the hotel kitchen.

Cearbhall thought the minister had disgraced both himself and the country. Cearbhall wrote to Jack Lynch and apparently suggested the minister's dismissal. The incident did not attract the press attention which it would attract today, but it was widely discussed in legal circles.

I do not recall any suggestion that the chief justice's action was heavy-handed or disproportionate. Jack Lynch, it is true, did not sack the minister on that occasion, but within a very short space of time, he accepted the minister's resignation in much more sinister circumstances.

To understand the president's resignation, it is necessary to remember that Cearbhall was, above all else, a constitutional lawyer. One of his judgments contains the following highly significant sentence: "Constitutional rights are declared not alone because of bitter memories of the past but not less because of the improbable, but not to be overlooked, perils of the future."

The Constitution declares or recognises many rights but also (at Article 28 Section 3, Sub-Section 3) gives the Oireachtas (of which the president is a part) and the Government sweeping powers to protect the State in times of war or armed rebellion.

It accordingly provides that nothing in the Constitution may be invoked to invalidate any law which is "expressed" to be for the purpose of preserving the security of the State in time of war or to nullify anything done or "purporting" to be done in pursuance of any such law.

At the outbreak of the world war in 1939 there were doubts as to whether the phrase "time of war" in the Constitution was broad enough to cover the case of a world war in which Ireland was neutral.

The Constitution was accordingly amended to provide that the words "time of war" should include a time when there was taking place an armed conflict in which the State was not involved, but arising out of which both houses of the Oireachtas should have resolved that "a national emergency exists affecting the vital interests of the State".

The murder of the British ambassador by the IRA was a heinous crime and it was natural that the Government should attempt to make a show of strength in response to it.

But did it amount to "a national emergency . . . affecting the vital interests of the State"? And was the IRA's "armed struggle" properly regarded as "an armed conflict in which the State was not a participant"? Above all, was the situation such as to justify a suspension of the constitutional guarantees?

The president took the view that if he signed the Emergency Powers Bill which was presented to him it would immediately become a law "expressed" to be for the purpose of securing the public safety in time of war and that nothing in the Constitution could be invoked to invalidate anything done or "purporting" to be done in pursuance of it.

The taoiseach may have had perfectly valid reasons for bringing about the declaration of emergency and the introduction of emergency legislation. The problem was that he never explained them to the president.

The president's position was not made any easier by the fact that a government minister addressing tourist agents in the UK advised them to pay no attention to the national emergency which had been declared in Ireland, as Ireland was a perfectly peaceful place for British tourists to come and enjoy their holidays!

In these circumstances the president referred the Bill to the Supreme Court for an opinion as to its constitutionality.

The Supreme Court upheld the right of the president to refer the Bill to it for its opinion. It also upheld the constitutionality of the Bill, but only by blurring the distinction between the powers of the courts in time of peace and in time of national emergency.

It will not rank as one of the court's best judgments. Certainly it appears from the State papers that the president was bitterly disappointed by it.

However, it also appears from these papers that the main cause of the constitutional crisis was the failure of the taoiseach to take the president into his confidence.

It would appear that relations between the two men were perfectly cordial, but the taoiseach simply did not discuss matters of State with the president. This appears to be contrary to Article 28 Section 5, Sub-Section 2 of the Constitution, which provides that the taoiseach "shall keep the president generally informed on matters of domestic and international policy".

Certainly it appears that the president deeply resented this failure on the taoiseach's part, going so far as to describe it, in one of his notes, as "an act of constitutional defiance". The British prime minister did not help matters by publicly referring to Cearbhall Ó Dálaigh as "a menace to civilisation".

This insult, coming from a man who had presided over the British government at the time of Bloody Sunday, should not have rattled Cearbhall Ó Dálaigh, but it did. It was an extraordinary insult directed at the president of Ireland for exercising one of his legitimate constitutional powers.

But there was no one to defend the president. Instead, the minister for defence, addressing a group of army officers, referred to their nominal commander in chief as a "thundering disgrace". This crude insult precipitated the president's resignation, but it is clear that it was not the real cause.

Mr Duffy says that politicians on both sides of the House were agreed that Cearbhall Ó Dálaigh should never have been president of Ireland.

I don't know on what basis he rests this judgment.

I do know, however, that in the 1977 election campaign, the Fianna Fáil Party organisers were therefore surprised when canvassers came back to report that on the doorsteps, voter after voter was raising the question of the "insult to the president".

I have no doubt that this insult was one of the matters which, with other matters, led to Jack Lynch's landslide victory in the elections in 1977.

Donal Barrington is a former Supreme Court judge, a former member of the Court of First Instance of the European Communities and a former president of the Irish Human Rights Commission