The Gazette 1981

GAZETTE

SEPTEMBER 1981

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this view is increasingly regarded as out of date in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

Byrne

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

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

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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