ROUND-UP WOULD BE DIFFICULT STEP TO STAND OVER
Round-up would be difficult step to stand over
By TOM O'MALLEY
SHORT of the death penalty which has now been completely abolished in Ireland, internment is the most powerful weapon available to the State to counteract terrorism. It is, however, rightly regarded as an option of last resort.
Sentences, no matter how severe, may not imposed unless a person has been tried and convicted by a properly constituted court. Internment, on the other hand, allows for the indefinite detention of persons suspected by the government to be engaged in activities prejudicial to the peace, order and security of the State.
During the past 30 years the possibility of reintroducing internment has often been discussed, and strongly advocated by some. Yet it hasn't been used since the end of the IRA's Border campaign in 1962 although it was used in the decades before that.
The basic structure of internment is provided by the Offences Against the State (Amendment) Act 1940, the constitutionality of which was upheld by the former Supreme Court.
This provides that whenever the Minister for Justice is of opinion any person is engaged in activities which in the Minister's opinion are prejudicial to peace, order and security of the State, he can issue a warrant for arrest and detention of that person.
As it happens, the very first case to be heard by the European Court of Human Rights in 1961, Lawless v Ireland involved a challenge to this internment law.
The court held that the law, on the face of it, violated the European Convention on Human Rights, articles 5 and 6 of which set out basic procedures governing arrest, trial and detention.
However, the court ultimately decided against Lawless because Ireland has entered a derogation as permitted by the Convention itself.
Consequently, it held the violation of Article 5 was justified in the circumstances.
If the Government was to attempt to introduce internment it would probably be required before long to provide convincing evidence to the European Court that such a step was required by prevailing circumstances.
This could be a difficult onus to discharge. After all, despite the barbarous and tragic events in Omagh on Saturday, this country is essentially at peace.
From a policy, as well as a legal standpoint, internment should also be an option of the last resort. To retain people without trial is prima facie contrary to the rule of law.
The legitimacy and strength of a government's bargaining power in any peace process are always enhanced by a steadfast adherence to the rule of law and the principle of legality.
Tom O'Malley is a senior law lecturer at Galway University.
By TOM O'MALLEY
SHORT of the death penalty which has now been completely abolished in Ireland, internment is the most powerful weapon available to the State to counteract terrorism. It is, however, rightly regarded as an option of last resort.
Sentences, no matter how severe, may not imposed unless a person has been tried and convicted by a properly constituted court. Internment, on the other hand, allows for the indefinite detention of persons suspected by the government to be engaged in activities prejudicial to the peace, order and security of the State.
During the past 30 years the possibility of reintroducing internment has often been discussed, and strongly advocated by some. Yet it hasn't been used since the end of the IRA's Border campaign in 1962 although it was used in the decades before that.
The basic structure of internment is provided by the Offences Against the State (Amendment) Act 1940, the constitutionality of which was upheld by the former Supreme Court.
This provides that whenever the Minister for Justice is of opinion any person is engaged in activities which in the Minister's opinion are prejudicial to peace, order and security of the State, he can issue a warrant for arrest and detention of that person.
As it happens, the very first case to be heard by the European Court of Human Rights in 1961, Lawless v Ireland involved a challenge to this internment law.
The court held that the law, on the face of it, violated the European Convention on Human Rights, articles 5 and 6 of which set out basic procedures governing arrest, trial and detention.
However, the court ultimately decided against Lawless because Ireland has entered a derogation as permitted by the Convention itself.
Consequently, it held the violation of Article 5 was justified in the circumstances.
If the Government was to attempt to introduce internment it would probably be required before long to provide convincing evidence to the European Court that such a step was required by prevailing circumstances.
This could be a difficult onus to discharge. After all, despite the barbarous and tragic events in Omagh on Saturday, this country is essentially at peace.
From a policy, as well as a legal standpoint, internment should also be an option of the last resort. To retain people without trial is prima facie contrary to the rule of law.
The legitimacy and strength of a government's bargaining power in any peace process are always enhanced by a steadfast adherence to the rule of law and the principle of legality.
Tom O'Malley is a senior law lecturer at Galway University.
Further Information
Publisher: IRISH INDEPENDENT
Ref: II/019
Published Date: 17-Aug-98
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