The Government is "satisfied" that its controversial plan to grant presidential pardons to paramilitary fugitives from justice will stand up to constitutional challenge. Under the plan, an unknown number of on-the-runs (OTRs) will be granted pardon by President Mary McAleese, but they will not suffer any conviction and they will not be released under licence.
Despite growing doubts about the constitutionality of the plan, which is based on Article 13.6 of Bunreacht na hÉireann, the Government insisted that it could not be dealt with in any other way.
"We are satisfied that a pre-trial pardon can be granted in such cases. In fact, there would be great difficulties under our Constitution in adopting any other approach to dealing with this issue," said a Government spokeswoman.
"The power of pardon cannot be delegated under the Constitution - it is vested solely in the President to be exercised on the advice of the Government."
The Government could not follow the British example and set up an eligibility body that would record a conviction against the OTRs before their immediate release.
"The provisions in the Constitution dealing with the trial of offences would stand in the way of setting up the type of tribunal the United Kingdom has opted for," she told The Irish Times.
Following the Good Friday referendum, 45 Republican prisoners were released under licence - which means that they could be sent back to jail without a further trial if they returned to paramilitary ways.
Defending the measure yesterday, Taoiseach Bertie Ahern said the decision to guarantee freedom for the OTRs was taken during talks in Weston Park in 2001. "Tony Blair is very determined to move ahead. This was an arrangement that was made 4½ years ago exactly. It was very publicly announced at that time. What was agreed at that time is now going through the legislative process.
"He is going ahead with that. We will complete that," said Mr Ahern, speaking in Barcelona. "We allowed out all of the prisoners 7½ years ago, so we are now talking about a lot of people who were never caught. Probably a lot of them will never return home."
The issue has united Fine Gael and Labour in criticism, following Fine Gael leader Enda Kenny's complaint that he has yet to receive any detail about the plan three weeks on. "I believe that the Government's chosen route is inappropriate, constitutionally dubious and liable to cause immense hurt to the victims of terrorism," he said.
Accepting the need for some method of dealing with OTRs, Mr Kenny said paramilitary fugitives should "at a minimum" be "required to admit their guilt before a court".
In addition, they should have a conviction recorded against them and only be released under a licence that could be quickly revoked if they breach its terms, he said.
"Such a mechanism could provide some acknowledgment and comfort for victims and their families who would appear to have no rights whatsoever under the Government's proposal," he went on.
