LAST UPDATE | 16 Jul
THE TÁNAISTE HAS said that he is “fully and very comfortable” with the President convening the Council of State to examine controversial defence legislation that includes a supposed gagging order on military representatives.
Speaking to reporters this morning in Kenya, Micheál Martin, who is Minister for Defence and Foreign Affairs, said he had no issue with the President convening to discuss the legislation.
President Michael D Higgins had called the meeting to consider the constitutionality of the Defence (Amendment) Bill 2024, which could preclude the Defence Forces from publicly questioning or commenting on government defence policy.
Higgins will now consider the views of the members of the Council before making a decision as to whether to sign the Bill or to refer it to the Supreme Court for a decision.
The new legislation has been greeted with opposition from both PDFORRA, which represents non-commissioned ranks in the Defence Forces and from the Representative Association of Commissioned Officers (RACO).
Martin, in his comments, this morning explained the process for the State and stated that he had not sent any submission.
“Our Constitution allows for the Council of State to be convened by the President to examine any legislation.
“I am fully and very comfortable with the President convening the council of state that’s a matter for the president under the Constitution, no issue with that at all. And this is a matter for the President.
“What happens at the Council is the Attorney General generally makes a presentation on behalf of Government in terms of the constitutionality.
“Obviously I had the trip to Kenya and Ethiopia organised well in advance of the convening of the Council of State – there’s no issue I mean, to me it’s perfectly legitimate for the President to convene the Council of State, no issue with that,” he said.
The particular line in the Amendment, that the representative bodies have taken issue with, was highlighted by RACO in February and Higgins is expected to make the decision by Wednesday.
It states that members of the Defence Forces “shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such policy”.
PDFORRA told the Oireachtas earlier this year that the organisation and its members have “always accepted the need for political impartiality; however, this provision limits the ability of members to speak or give an opinion to any political organisation, society or grouping”.
The representative body highlighted how, under the proposals, members of the Defence Forces could face military charges for speaking out when dissatisfied with the nation’s health service or attending a public demonstration.
“Soldiers are citizens in uniform and should be vested with the rights and entitlement of normal citizens while not in uniform,” they argued.
A statement this afternoon from RACO said: “We welcome the decision of the President to convene the Council of State to examine the constitutionality of certain aspects of the Defence Amendment Bill.
“It is no secret that our members and DF members in general have expressed concern regarding the impact of certain sections of the Bill relating to freedom of expression and fundamental rights, which could have been allayed by minor amendments and greater consultation.
“We look forward to and will naturally accept the outcome of the President’s deliberations.”
One key guide to how the judiciary may examine the issue is to look to a recent judgment of the High Court.
A case taken by the Deputy General Secretary of PDFORRA Martin Bright centred around a “peaceful assembly and protest” which took place in Dublin on 19 September 2018. Bright is a company sergeant in the Irish Defence Forces.
The protest concerned “conditions of service of members of the Defence Forces” and was attended by former members of the military as well as partners and family members of serving military personnel.
The Court ruled in favour of Bright and against the State’s argument.
RACO and PDOFRRA have also raised issue with the make-up of an External Oversight Body which is to include the Secretary General of the Department of Defence.
Additional reporting Jane Matthews in Kenya.
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