The Gazette 1976

GAZETTE

SEP T EM BER

1976

stituted when the Statute was passed. This decision was unanimously upheld by the Supreme Court. At an advocate, the late Judge enjoyed, to my personal knowledge, an extensive Chancery practice, frequently being briefed by solicitors whose political views were poles apart from his own. Here his immense industry and capacity for research work stood him in good stead. I have known him, in the effort to elucidate a difficult problem in chancery (or in State side) law, to trace the law to its inception in the Norman French of the Year Books. I speculate whether these are perused to any extent by practitioners of the present day! Gavan Duffy was a popular figure in the Law Library, with friends of all shades of political thought among his colleagues at. the Bar, and remarkable both for his ready wit and friendliness. He was distinguished also by his marked willingness to help any colleague in difficulty with a knotty point of law - his great talents were readily made available to any barrister wishing to avail of his powerful aid. Mr. Connolly concludes with the opinion that it may be too early to pronounce a definitive assessment of Gavan Duffy as an advocate and as a Judge. I would say that the merits and standing of an advocate are ephemeral; it is only his contemporaries who can speak with authority. This is not true of the written decisions of a Judge. The written word endures, and it is neces- sary only to note the keen attention paid up to the moment by the Bench to judicial decisions of the late Judge, and the abundance of citations of these in modern judgments, to assess his merits from the judicial aspect. In this respect, I would compare the position to that of a younger Judge, Mr. Justice Kevin Dixon, now long deceased, whose decisions are also treated with a respect that surpasses the normal. I doubt if the future will lessen this degree of regard, in the case of either of these brilliant men. OBITUARY Mr. Terence B. Adams, B.A., LL.B., died on 11th August, 1976. Mr. Adams was admitted in Hilary Term, 1943, and was the senior partner of the firm of Adams, Farrell & Co., in Tullamore and in Ferbane, Go. Offaly. Mr. Thomas . Gannon, B.C.L., died as a result of a flying accident on 28th September, 1976. Mr. Gannon was admitted in Michelmas Term, 1959, and practised under the style of Messrs. J. Delany Gannon & Co., in Mohill, Co. Leitrim. Mr. Patrick C. Markey died on 24th October, 1976. Mr. Markey was admitted in Trinity Term, 1909 and practised at Quay Buildings, South Quay, Drogheda, Co. Louth. Mr. Hugh B. Naughton died on 3rd Novemger, 1976. Mr. Naughton was admitted in Hilary Term, 1930, and practised at Hynes Buildings, St. Augustine Street, Galway. Mr. Maurice F. Noonan died on 6th August, 1976. Mr. Noonan was admitted in Trinity Term, 1922, and was the senior partner of the firm of Maurice Noonan & Son in Newcastle West, Rathkeale and Adare, Co. Limerick. Mr. Eamonn O'Carroll died on 1st October, 1976. Mr. O'Carroll was admitted in Michelmas Term, 1950, and practised with the firm of Michael Buggy & Co., in Kilkenny. Mr. William T. White died on 17th October, 1976. Mr. White was admitted i nEaster Term, 1922 and was the senior partner of Messrs. White & Co., who practised at Abbeyleix, Portlaoise and Rathdowney.

or the Government to disregard the Constitution in any emergency short of war or specific armed rebellion. The Constitution contains no express provision for any law endowing the Executive with powers of in- terment without trial. "I am quite seriously asked to hold that this intern- ment was not punishment at all, but merely a 'deterrent'. I shall refrain from painting this lily of speech. The document which the Act calls a 'warrant' is really a combination of a conviction, an order to arrest, and a warrant of committal. The Constitution, with its most impressive Preamble, is the Charter of the Irish People, and I will not whittle it away. In my opinion, the Con- ststitution intended, while making all proper provisions for times of genuine emergency, to secure his personal freedom to the citizen as truly as did Magna Carta in England. The rights to personal liberty were most deliberately drawn up in a national Constitution, drawn up with the utmost care for a free people; consequently the pomer to intern on shspicion or with- out trial is fundamentally inconsistent with the Rule of Law as expressed in our Constitution." The consequences of this decision, by which many internees had to be released, and particularly of a raid on the Magazine Fort in the Phoenix Park, on Christ- mas Eve, in which much ammunition was stolen, but most of it was subsequently recovered, led to the intro- duction of the Offences against the State (Amendment) Bill, 1940, where the alteration was made from the 1939 Act that Ihe mere personal "opinion" of the Minister was sufficient to enable the latter to issue the warrant, in place of the Minister "being objectively satisfied" as to the matters in question. This Bill was referred by the President to the Supreme Court under Article 26 of the Constitution and its constitutional validity was upheld by a majority of the Supreme Court with the result that such validity could no longer be challenged in any proceedings. The appeal against the late Judge's decision under the 1939 Act was held by the Supreme Court to be inapplicable, as no appeal against a habeus corpus decision was then valid. In the result, the latter decision remained good law, and it has been frequently cited as a valid authority in subsequent cases. The circumstances mentioned indicate that the late Judge's decision was an embarrassment to the Government of the day, by whom he had been appointed. Plainly, whatever Gavan Duffy's political activities had been before his Bar career opened, this case and the Buckley case demonstrate that his judicial integrity and independence were never in question. The second decision to which I particularly refer is that in Buckley & Others v. the Attorney General, (1950) I.R. 69, generally re- ferred to as the Sinn Fein Funds case. A Statute of 1947 provided that certain funds lodged in Court by Trustees should be paid out to the Attorney General on an ex parte application by the latter, that is, without notice to the Trustees of the funds. The Trustees had commenced action claiming entitlement to the funds before the Statute was passed. On appli- cation being made ex parte to the late Judge on behalf of the Attorney General, a surprised Counsel for the latter was met with a fully reasoned judgment to the effect that the Sinn Fein Funds Act, 1947, under which he moved the Court, was unconstitutional. The grounds were that the Statute provided for an infringe- ment of the citizen's private property rights guaranteed by the Constitution, and further that it contemplated an unconstitutional interference by the Legislature with Judiciary's jurisdiction over proceedings already in-

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