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GAZETTE
SEP
T
EM
BER
1976
A SUPPLEMENTARY ASSESSMENT OF
THE LATE MR. JUSTICE GEORGE GAVAN
DUFFY AS JUDGE
by Thomas Conolly, S.C.
I am prompted to write a footnote to Mr. Frank
Connolly's admirable "interim Assessment of the late
Mr. Justice Gavan Duffy as Advocate and Judge"
published in the
Gazette
of August, 1976. (The late
Judge was so well known to us practising barristers as
'Gavan' that 1 maye be excused for referring to him
simply as 'Gavan Duffy').
I believe that 1 have certain qualifications to write
on the subject. I was the first (in time) of a number of
'devils' who enjoyed the inestimable advantages of his
tuition during Gavan Duffy's days of practice as a
Junior Counsel at the Irish Bar. As a consequence 1
remained in close contact with him after he took silk
and I owe much to his advice and encouragement as
a Senior Counsel. I had the pleasure of fairly frequent
appearances in his Court after his elevation to the
Bench.
It would be hard to better the substance or style of
Mr. Frank Connolly's appreciation of Gavan Duffy's
achievements as barrister and Judge, My hope is to
supplement the latter's appreciation, and perhaps sug-
gest some change of emphasis. Firstly, my memory
vividly suggests that Gavan Duffy's passionate de-
votion (I do not eraggerate,) to the advancement of
human rights in the eyes of the law, and to the rights
of the private citizen in confrontation with executive
authority, were his most clearly distinctive features as
a lawyer. Certainly during his career at the Bar, and
for much of h's career on the Bench, he dealt with a
generation of lawyers trained in a different tradition,
and who in general approached the interpretation of
the law in another spirit. The widespread recognition
of the fundamental nature of human rights, now a
commonplace in the legal world, did not receive such
general acceptance during Gavan Duffy's early career
at the Bar. It was to my knowledge always a first
priority in his mind. Indeed such criticism of Gavan
Duffy (I would not say obloquy,) as existed in legal
circles, affecting the estimation in which he was held
as a jurist, wh
;
ch Mr. Connolly seems to attribute in
part to his activities in the field of politics,
and in part to his inclination to change the
settled (
;
f archaic) law too much, in fact stemmed, in
my view from the new outlook and legal philosophy
which I have mentioned. I believe it is true that an
older generation of lawyers casts a cold eye on this
inclination (now notably displayed on the British Bench
by Lord Denning, Master of the Rolls) to depart from
law said to be settled, but which Gavan Duffy con-
sidered as obsolete and no longer binding on our
Courts. I would not agree that the estimation in which
Gavan Duffy was regarded by his brethren was affected
in any material degree by old political controversies.
Rather it was that as a lawyer he was ahead of his
own time, nd that he was inspired by liberal principles
which practically every genuine lawyer now regards as
paramount.
I suggest that the two paragraphs cited from the
late Judge's judgment in the
Tilson Minors
case (1951),
as examples of the Judge's occasional use of Johnsonian
idiom, strongly support the view here expressed, and
deserve close exanvnation and appreciation for their
remarkable content rather than the mildest criticism of
the language in which they are couched.
No practising lawyer welcomed more enthusiastic-
ally the enactment of our Constitution in 1937, in
particular its guarantees of the fundamental personal
rights of the family, of parents, and of the citizen. (I
do not know if he had any part in the formulation
of the Constitution, but it certainly expressed his con-
viction that there are fundamental rights which derive
from the natural law and his emphasis on the funda-
mental rights of persons simply as human beings, as
rights which transcend all positive law).
I think a further reference to two particular de-
cisions of the late Judge is desirable in this context,
because I believe that the paramount importance of
the Constitution on the minds not alone of legal prac-
titioners, but of the average citizen began to have effect
largely as a result of these decisions, so that proceed-
ings to enforce Constitutional rights are now almost an
everyday occurrence in our Courts.
First was the case of
The State (Burke)
v.
Lennon and
the Attorney General
(1940) l.R. 141. This case arose un-
der Section 55 of the Offences against the State Act, 1939,
purporting to enable the Minister for Justice to issue
a warrant, upon being "satisfied" that a person was
engaged in certain activities, to issue a warrant for the
arrest and detention of individuals concerned. The late
Judge held in granting
habeas corpus
that a law for the
internment of a citizen without charge or hearing, out-
side the protection of criminal jurisprudence and even
the Special Criminal Court, did not express the
constitutional right to personal liberty; further, that a
Minister of State, in signing a warrant under Section
55, was not only acting judicially, but was purporting
to administer justice, which was also unconstitutional.
The following striking sentences occur in the judg-
ment: "There is no provision enabling the Oireachtas
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