The Gazette 1981

GAZETTE

S E PT EMBER 1981

Instant Dismissal Without Observing Natural Justice Unconstitutional by

Colum Gavan Duffy, M.A., LL.B. Lecturer in Law, University College, Galway

G ARVEY V . Ireland, The Attorney General, An Taoiseach and the Minister for Justice. (Full Supreme Court, 9 March 1979, unreported) demonstrates irretrievably that the Government cannot dismiss a high official, such as the Commissioner of the Garda Siochana. without first observing fairly the principles of Natural Justice, particularly "Nemo judex in causa sua" and "Audi alteram partem". The Plaintiff, Edmund Garvey, was appointed by the Government as Commissioner of the Garda on 2 September 1975. On 15 December 1977 the Plaintiff was required to attend a meeting with the Minister for Justice. At that meeting, the Minister read out to the Plaintiff a number of complaints relating to him. The Plaintiff said that lie would have to have these complaints in writing, so that he could answer them. This was followed by a written complaint. The Plain tiff was soon notified that the Minister required immediate replies to these allegations. On 2 1 December, the Plaintiff sent a written reply and, on 22 December, the Plaintiff gave full oral replies, in the Department, to all the charges. The Minister, having heard him. said he would make a report to the Government and that they would probably order an inquiry. Notice of his removal wasfinally given to the Plaintiff by letter, delivered by hand at his home at 6.35 p.m. on 19 January 1978. without any previous notice or warning, but he was given an opportunity of resigning from office within two hours of receiving this letter. When he declined to resign, he received a notice, issued under S. 6 (2) of the Police Forces (Amalgamation) Act 1925, removing him from his office as from that day. Subsequently, the Plaintiff brought declarations against Ireland, the Government and the Attorney General requesting the Court to answer the following questions:- 1. Docs the Police Forces (Amalgamation) Act 1925 empower the Government to terminate the post of Garda Commissioner at any time — (a) without prior notice; (h) without giving reasons; (c) without giving the holder of the office an opportunity of making representations? 2. Is S. 6 (2) of the Police Forces (Amalgamation) Act 1925, which, briefly, provides that "every Commissioner appointed by the Executive Council . . . may at any time be removed by the Executive Council", inconsistent with the Constitution?

McWilliam J., in the High Court, construed the dismissal as llie normal consequence of a contract of employment for an indefinite term but held that, under S. 6 (2) of the Police Forces (Amalgamation) Act 1925, senior officers can only have their contract terminated without cause on being given reasonable notice. Having quoted Article 40(1) of the Constitution ("All citizens shall as human persons be held equal before the law"), lie found it difficult to identify any constitutional right which had been infringed. McWilliam J., however, endeavoured to apply the same principles to Article 40(3). which seems to this writer to be the lynch-pin of the whole Constitution. It will be recalled that in Article 40(3), "the State guarantees in its laws to respect, and so far as practicable to defend and vindicate the personal rights of the citizen". Furthermore, "the State shall in particular by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property right of every citizen". The fact that McWilliam J.'s views on this point were unacceptable on appeal was emphasised by Henchy J., when he stated that "the guarantees contained in Article 40 (3) cast a duty on Judges, who are required by the Constitution to expand and interpret the common law in terms which will not deny the citizen a shield against injustice". It follows that Article 40 (3) is the guarantor of the observance of Natural Justice. In stating that in applying the operation of S. 6 (2) of the 1925 Act the Government must apply the concept of Justice, be it called Natural Justice or Constitutional Justice, McWilliam J. concurred forcibly with the majority view of the Supreme Court. McWilliam J. admitted that reasonable notice should have been given to the Plaintiff and that he should have been given adequate opportunity lo defend himself. He then, surprisingly, reached the conclusion that S. 6 (2) itself was not repugnant to the Constitution, which appears to contradict the principle expressed by O'Dalaigh, C.J. In Re Haughey - I 19721 I.R. at p. 264:- "Thc Constitution guarantees to the citizen basic fairness of procedures. It is the duty of the Court to underline that the words of Article 40, Section 3 are not political shibboleths but provide a positive protection for the citizen and his fair name". Griffin J. had stated that Article 40 (3) had been held in

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