The Gazette 1976

GAZETTE

SEP T EM BER

1976

deserve close exanvnation and appreciation for their remarkable content rather than the mildest criticism of the language in which they are couched. No practising lawyer welcomed more enthusiastic- ally the enactment of our Constitution in 1937, in particular its guarantees of the fundamental personal rights of the family, of parents, and of the citizen. (I do not know if he had any part in the formulation of the Constitution, but it certainly expressed his con- viction that there are fundamental rights which derive from the natural law and his emphasis on the funda- mental rights of persons simply as human beings, as rights which transcend all positive law). I think a further reference to two particular de- cisions of the late Judge is desirable in this context, because I believe that the paramount importance of the Constitution on the minds not alone of legal prac- titioners, but of the average citizen began to have effect largely as a result of these decisions, so that proceed- ings to enforce Constitutional rights are now almost an everyday occurrence in our Courts. First was the case of The State (Burke) v. Lennon and the Attorney General (1940) l.R. 141. This case arose un- der Section 55 of the Offences against the State Act, 1939, purporting to enable the Minister for Justice to issue a warrant, upon being "satisfied" that a person was engaged in certain activities, to issue a warrant for the arrest and detention of individuals concerned. The late Judge held in granting habeas corpus that a law for the internment of a citizen without charge or hearing, out- side the protection of criminal jurisprudence and even the Special Criminal Court, did not express the constitutional right to personal liberty; further, that a Minister of State, in signing a warrant under Section 55, was not only acting judicially, but was purporting to administer justice, which was also unconstitutional. The following striking sentences occur in the judg- ment: "There is no provision enabling the Oireachtas

A SUPPLEMENTARY ASSESSMENT OF THE LATE MR. JUSTICE GEORGE GAVAN DUFFY AS JUDGE by Thomas Conolly, S.C. I am prompted to write a footnote to Mr. Frank Connolly's admirable "interim Assessment of the late Mr. Justice Gavan Duffy as Advocate and Judge" published in the Gazette of August, 1976. (The late Judge was so well known to us practising barristers as 'Gavan' that 1 maye be excused for referring to him simply as 'Gavan Duffy'). I believe that 1 have certain qualifications to write on the subject. I was the first (in time) of a number of 'devils' who enjoyed the inestimable advantages of his tuition during Gavan Duffy's days of practice as a Junior Counsel at the Irish Bar. As a consequence 1 remained in close contact with him after he took silk and I owe much to his advice and encouragement as a Senior Counsel. I had the pleasure of fairly frequent appearances in his Court after his elevation to the Bench. It would be hard to better the substance or style of Mr. Frank Connolly's appreciation of Gavan Duffy's achievements as barrister and Judge, My hope is to supplement the latter's appreciation, and perhaps sug- gest some change of emphasis. Firstly, my memory vividly suggests that Gavan Duffy's passionate de- votion (I do not eraggerate,) to the advancement of human rights in the eyes of the law, and to the rights of the private citizen in confrontation with executive authority, were his most clearly distinctive features as a lawyer. Certainly during his career at the Bar, and for much of h's career on the Bench, he dealt with a generation of lawyers trained in a different tradition, and who in general approached the interpretation of the law in another spirit. The widespread recognition of the fundamental nature of human rights, now a commonplace in the legal world, did not receive such general acceptance during Gavan Duffy's early career at the Bar. It was to my knowledge always a first priority in his mind. Indeed such criticism of Gavan Duffy (I would not say obloquy,) as existed in legal circles, affecting the estimation in which he was held as a jurist, wh ; ch Mr. Connolly seems to attribute in part to his activities in the field of politics, and in part to his inclination to change the settled ( ; f archaic) law too much, in fact stemmed, in my view from the new outlook and legal philosophy which I have mentioned. I believe it is true that an older generation of lawyers casts a cold eye on this inclination (now notably displayed on the British Bench by Lord Denning, Master of the Rolls) to depart from law said to be settled, but which Gavan Duffy con- sidered as obsolete and no longer binding on our Courts. I would not agree that the estimation in which Gavan Duffy was regarded by his brethren was affected in any material degree by old political controversies. Rather it was that as a lawyer he was ahead of his own time, nd that he was inspired by liberal principles which practically every genuine lawyer now regards as paramount. I suggest that the two paragraphs cited from the late Judge's judgment in the Tilson Minors case (1951), as examples of the Judge's occasional use of Johnsonian idiom, strongly support the view here expressed, and

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