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GAZETTE
SEPTEMBER 1981
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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