The Gazette 1981

GAZETTE

EMBER 1981

Instant Dismissal Without

Observing Natural Justice

Unconstitutional

Colum Gavan Duffy, M.A., LL.B.

Lecturer in Law, University College, Galway

ARVEY

. 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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