The Gazette 1981

SEPTEMBER 1981

GAZETTE

entitled to dismiss the Plaintiff when they purported to do so. The Government's submission, however, that the Government's right to remove the Plaintiff from office at any time is, in fact, an executive discretion is unacceptable. If, by maintaining an obscuring silence, the Government could render their act of dismissal impenetrable as to its reasons and irreconcilable as to its methods, an office holder such as the Plaintiff could have his livelihood snatched from him, his chosen career snuffed out, his pension prospects dashed and his reputation irretrievably tarnished, without any hope of redress, no matter how unjustified or unfair his dismissal might be. In stating that, if the rules of Natural Justice had been observed, the dismissal would have been justified, Henchy J. then limited the reasons for dismissal to general ones. He stated that, in the absence from Section 6 (2) of express restriction of the Government's power to remove a Commissioner from office at any time, a discretion so wide is connoted that it is limited only by what the law to he interpreted now by the Constitution deems indispensable. It must consequently be deemed to be a tacit assumption of the law that it will not require the discretion to be exercised in a manner that is inimical to the common good. Thus, even if Natural Justice is applied, the reason for the dismissal need not always be specific. Griffin J. emphasised the Government's argument that if they had not full confidence in the Commissioner, it was not only their right but their duty, however distasteful, to remove him from office. The Government contended that to disclose the reasons for the removal would be contrary to public policy and executive necessity. Griffin J. stated that he found it difficult to see how, in modern times, public policy and executive necessity required that the tenure of an office held at pleasure should be capable of being determined without giving to the office-holder the right to be heard on his own behalf. If, however, the dismissal is on procedural as opposed to substantive grounds . . . a second dismissal is valid, provided that the correct procedure is followed. It is submitted by the author, with great respect, that one can only consider the sentiments expressed in his dissenting judgment by Kenny J. as surprising. The theories of Natural Justice are completely ignored as if they did not exist, save in the case of the holder of an office who may be removed in certain events only. The fact that the holder of an office has not the right to hold it for any period of time, nor that there are any safeguards to protect him in S. 6 (2) of the 1925 Act, is unduly stressed. Kenny J. then stated that on principle and on the construction of Section 6 (2) of the 1925 Act, he considered that the Government were fully entitled to remove the Plaintiff without prior notice, without giving reasons and without giving him an opportunity of making representations with regard to his removal. He added that the conclusion was supported by five Irish authorities, extending from 1846 to 1918, which he deemed coercive on the question at issue. As the five cases referred to do not, even remotely, contemplate the position existing today, after the passing of our Constitution, their relevance can be questioned. Most of these cases are based on the old procedure of an information in the nature of a "quo Warranto", directed to the new holder of the office to show cause how he held it. The five decisions are alleged to establish

conclusively that the holder of an office held at the will or pleasure of a body was not entitled to the remedy of an information in the nature of a "quo warranto". This may be interesting from the point of view of legal history, but it is highly significant that this remedy of an information in the nature of a "quo warranto" was abolished in England by Section 9 of the Administration of Justice Act, 1938 and proceedings for an injunction were substituted. One cannot but commend the views of Henchy J. on this subject, who states that judicial precedents resting on the theory of community and of executive absolutism are of little value to-day, particularly in a State such as this, where constitutional guarantees compel the recognition of personal fundamental rights, which this dissenting judgment ignores. The five Pre-Treaty Irish cases which Kenny J. considers to be coercive on the question at issue are. chronologic ally (1) Darley v. R. (1846) 12 Clark and Finelly. In this case, which related to the position of Corporation Treasurers of the City of Dublin, it was held this was a public office of an independent character. The House of Lords held that an information in the nature of a "quo warranto" would lie, whether the office had been created by Charter or by Act of Parliament. (2) R. (Fitzmaurice) v. Neligan: (1884) 14 I.R. Ireland 141. The Queen's Bench Division in this case decided a minor procedural issue. On 5 June 1883, the then surgeon of the infirmary, Mr. Lawlor, sent a letter to the secretary of the Governors, resigning his office on the ground of ill health. Although there were special regulations as to annual subscription of three guineas, the Plaintiffs, after receipt of this letter, claimed to be entitled to vote for the vacancy on 6th June 1883, as they had paid an annual subscription first on 23 June 1881 and again on 6 June 1883. The Court held that the vacancy existed from the receipt of the letter on 5 June 1883, and that consequently the three plaintiffs were not entitled to vote on 6 June 1883, despite the payment of their annual subscriptions. (3) R.(Ryall) v.Bailey- 118981 2 I.R. 335. The Court or Appeal affirmed the Court of Queen's Bench and held, briefly, that an information in the nature of quo warranto does not lie in respect of the office of secretary of a Grand Jury in Ireland, such a secretary nolding office merely at the will and pleasure of the Grand Jury. The Plaintiff had claimed that the defendant had no authority to act as Secretary of the Grand Jury of the County of Tipperary, as he was then High Constable for the North Riding of that County and had not resigned from that office in accordance with regulations. (4) R. (Jacob) v. Blaney 119011 2 I.R. 93. The Court of Queen's Bench held that the office of surgeon in the Queen's County Infirmary is one held at pleasure and is thus not subject to an information in the nature of a quo warranto. At a special meeting on 25 October 1899 the majority of the Committee passed a resolution as to the desirability of determining Dr. Jacob's services as County Surgeon. At a special meeting on 22 November 1899, Dr.

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