Hung, Drawn and Quartered?: The Future of the Constitutional Reference to Treason

AuthorMary Connery
PositionJunior Sophister (Law), Trinity College, Dublin
Pages56-76
HUNG,
DRAWN
AND
QUARTERED?
THE
FUTURE
OF
THE CONSTITUTIONAL
REFERENCE
TO
TREASON
MARY
CONNERY*
Treason
doth
never
prosper:
what's
the
reason?
For
if it
prosper,
none
dare call
it
treason.
When
the
word
treason
is
mentioned
it
conjures
up
images
of
bands
of
men
discussing nefarious
plots
to
overthrow
the
government.
Both
the
words
'treason'
and
'traitor'
are
highly
emotive
terms
and are
useful
weapons
in
any
State's
armoury
for dealing with
opposition
to
the
established
regime.
Historically,
the
populace
has
treated
traitors
with
ultimate
detestation
and
this
is
mainly
as
a
result
of
a
fear that
"there
are
no
crimes
which produce
vaster
or
more enduring
suffering
than
those
which
sap the
great pillars
of
Order".
2
At
a
glance
it would
seem
that
treason,
impugning
as
it
does
the
basis
of
our
society,
is
deservedly
regarded
as
one
of
the
most corrupt
of
crimes.
This,
however,
is
far
too
simplistic
a
view
to take.
It
seems
trite
to
say
it,
but
whether
a
certain
act
is
seen
as
treasonous depends entirely
on
one's
attitude
to
the established
government.
What
some
might
see
as
a
murderous
insurrection might
be
considered
by
others
as
a
liberating
uprising.
It
is
because
of
this
inherent
subjectivity
that the crime
of
treason
can
be
so
problematic.
In
this
State
treason
has
never
formed
the basis
of
a
prosecution
despite
its
constitutional
and
statutory
recognition.
3
It
is
on
account
of
its
lack
of
application
in
the courts,
and uncertainty regarding
the defined
limits
of
the
offence
that
its
place
in
our Constitution
should
be
examined.
The
Constitutional Review
Group
considered
the
matter
and
advocated
the
retention
of
the
constitutional
provision
relating
to
treason
in
its
entirety. They
reasoned
that:
[T]raditionally
laws
of
treason
have
often
been
misused
by
government
factions
to
deal
with
political
enemies.
The
Article
Junior
Sophister
(Law),
Trinity
College,
Dublin.
I
wish
to
thank
Mary
Rogan,
Ronan
Lambe
and
Brian
Foley
for
their
many
helpful
comments
on
an
earlier
draft
of
this
article.
However,
any
errors
and
omissions
are
entirely
my
own.
Harrington,
"Of
Treason"
in
Epigrams
(Budge,
1618).
2
Lecky, quoted
in
Kenny,
Kenny's
Outlines
of
Criminal
Law
(19'h
ed.,
Cambridge
University
Press,
1966),
at
318.
3
Article
39
of
Bunreacht
na
hEireann and
the
Treason Act,
1939.
0
2002
Mary
Connery
and Dublin
University
Law
Society.
The
Constitutional
Reference
to
Treason
clearly represents
a
constitutional
bar
to
this
ever
happening
here
and
should
be
retained
for
that
reason.
4
However,
it
is
asserted
that,
in
doing
so,
the
Commission
failed
to
understand
that
the
law
of
treason
is
notoriously
malleable
in
the
hands
of
government.
The
activities
enunciated
in
the
Constitution
are
sufficiently
broad to
enable
extensive
abuse
of
its
terms to be
undertaken.
The
Treason
Act
1939
gave
no
guidelines
as
to
the
extent
of
the activity
covered
by the
constitutional
provision
and
in
the absence
of
any
caselaw
on
the
subject
the
offence
of
treason
is
extremely
ill-defined
and
as
a
result
has
the
capacity
to
become
extremely
pliable in
the hands
of
the
judiciary.
In
this
article
it
is
proposed
to
examine the
extent
of
the
constitutional
and
statutory
prohibition
on
treason.
As
a
result
of
its
complete
lack
of
litigation
in
this
country
it
is
necessary to
examine
the
law
in
other
jurisdictions,
primarily
in
England,
to attempt
to speculate
on
what
activities
are
covered
under
the
Irish
crime
of
treason. Finally
it
is
intended
to
discuss
the
question
of
whether
or
not
an
offence
of
treason
has
a
place
in
a
modem
Constitution.
This
ultimately
requires
an
evaluation
of
the
importance
of
State
preservation
as
opposed
to the
desire to
remove antiquated crimes
from
our
criminal
law
and
render
it
impossible for
future
generations
to
base
criminal
convictions
on
an
arbitrary
and
uncertain
offence.
The
Constitutional
and
Statutory
provisions
relating
to
Treason
The
Constitution
defines the
offence
of
treason
in
Article
39.
It
consists
of
a
number
of
co-related
attempts
to
compromise
the security
of
the
State,
namely:
"
levying
war
against
the
State;
*
assisting
any
State
or person
or
inciting
or
conspiring with
any
person
to
levy
war against
the
State;
"
taking
part
or
being
concerned in
inciting
or
conspiring
with
any
person to
make
or
to
take
part
or
be
concerned with
such an
attempt;
*
attempting
by
force or
arms
or
other
violent
means
to
overthrow
the
organs
of
government.
Constitutional
Review
Group,
Report
of
the
Constitutional
Review
Group
(Stationary
Office,
1996),
at
208.
2002]

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