The Gazette 1981

SEPTEMBER 1981

GAZETTE

that case lo be a guarantee of fair procedures. As Griffin J. said: "The rules of Natural Justice are only the rules of fair play and fair procedure put into practice". Ilenchy J. expressed himself even more forcibly thus: "Neither the Government nor the Courts can ignore the solemn guarantees contained in Articic 40 (3) (2) of the Constitution that the State shall, by its laws, protect as best it may from unjust attack. That guarantee would be abandoned and abrogated if, in every case of dismissal from an office such as this, the possibility of error, unfairness and injustice were to be compounded by silence and then rendered immune by the concept of executive authority. I conceive the law to be that, when a person holds a whole time pensionable office, . . . from which he may be removed at any time, the power of removal may not be exercised without first according him Natural Justice, by giving him the reason for the proposed dismissal and by providing him with an adequate opportunity of dealing wiili the reason and making a reply to it". In view of the narrow construction of the non constitutionality of S. 6 (2) of the 1925 Act in the High Court, the majority of the Supreme Court, Kenny J. dissenting, was thus compelled to consider whether S. 6 (2) of the 1925 Act providing for the removal of every Commissioner appointed by the Executive Council at any lime was in fact against the rules of Natural Justice and consequently repugnant to Article 40 (3) of the Constitution. O'Higgins C.J., with whom Parke J. concurred, gave a useful brief historical summary of the legal power of dismissal. The original distinction between office holders and servants, upon which the Irish Queen's Bench Division in R. (Jacob) v. Blaney - 119011 2 l.R. 93 at p. I 12 had heavily relied, gradually became blurred. He staled that, generally, Natural Justice is the only protector for office-holders. Undoubtedly, if the office-holders held office at the will and pleasure of the Crown, since the King could do no wrong, as it was the King's pleasure to appoint, so it was his to remove; there was thus no question of Natural Justice. Although still applicable in England, this view is increasingly regarded as out of date in Commonwealth countries. In Ireland, it had already received the coup de grace in Byrne r. Ireland I 19721 l.R. 24), see in particular the judgments of Walsh J. and Budd J. As regards the royal prerogative, Henchy J. stated that the older authorities, on whom Kenny J. relied so heavily, exemplify the concept in British constitutional theory that the King can do no wrong and that offices held at royal pleasure arc outside the reach of Natural Justice. This is a theory of immunity and of executive absolutism that has been steadily crumbling in modern times and which lie did not propose to follow. As Lord Wilbcrforcc had stated in Malloch v.Aberdeen Corporation - I 197 11 2. All E.R., 1278, at p. 1295 "a difficulty arises, in the cases of offices held at pleasure, where there arc other incidents of the employment laid down by statute or regulation. The rigour of the principle of not hearing an office-holder is in modern practice mitigated, for it has come to be perceived that the very possibility of dismissal without reason being given an action which may vitally affect a man's career or his person makes it all the more important for him to be able to state his ease and, if denied the right to do so, to be able to have his dismissal declared void". I( was important to stress that S. 6(2) of the 1925 Acl

did not at any time create a contractual relationship of master and servant between the Government and the Commissioner, but created a statutory office and the Commissioner, on appointment, became the holder of the office. While the District Justices (Temporary Provisions) Acl 1923« slated that District Justice could be dismissed or removed at the pleasure of the Governor-General on the advice of the Executive Council and that Civil Service Commissioners could be removed in the same way by the Civil Service (Regulation) Act, 1924, there was no corresponding provision in S. 6 (2) of the Police Forces (Amalgamation) Act, 1925. The Chief Justicc then referred to Article 40 (3) of the Constitution which, he stated, necessarily incorporated into our laws and their administration the requirements of Natural Justicc. The Chief Justice also pointed out that a statute of the Irish Free State enacted in 1925, continued in force only to the extent to which it was not inconsistent with our present Constitution. Powers exercised under Articic 40 (3) cannot be exercised unjustly or unfairly. The Government must act fairly and must tell the Commissioner of the reasons of the proposed action and must also give him an opportunity of being heard; as this was not done in this case, the purported dismissal of the Commissioner was null and void. In the result, until the dismissal of Garvcy as Commissioner had been properly rectified, there were theoretically two Commissioners of the Garda holding an identical position. Henchy J. first stressed that the Government were

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