The Gazette 1976

GAZETTE

SEP

BER

1976

or the Government to disregard the Constitution in

any emergency short of war or specific armed rebellion.

The Constitution contains no express provision for

any law endowing the Executive with powers of in-

terment without trial.

"I am quite seriously asked to hold that this intern-

ment was not punishment at all, but merely a 'deterrent'.

I shall refrain from painting this lily of speech. The

document which the Act calls a 'warrant' is really a

combination of a conviction, an order to arrest, and a

warrant of committal. The Constitution, with its most

impressive Preamble, is the Charter of the Irish People,

and I will not whittle it away. In my opinion, the Con-

ststitution intended, while making all proper provisions

for times of genuine emergency, to secure his personal

freedom to the citizen as truly as did Magna Carta

in England. The rights to personal liberty were most

deliberately drawn up in a national Constitution,

drawn up with the utmost care for a free people;

consequently the pomer to intern on shspicion or with-

out trial is fundamentally inconsistent with the Rule

of Law as expressed in our Constitution."

The consequences of this decision, by which many

internees had to be released, and particularly of a raid

on the Magazine Fort in the Phoenix Park, on Christ-

mas Eve, in which much ammunition was stolen, but

most of it was subsequently recovered, led to the intro-

duction of the

Offences against the State

(Amendment)

Bill, 1940,

where the alteration was made from the

1939 Act that Ihe mere personal "opinion" of the

Minister was sufficient to enable the latter to issue the

warrant, in place of the Minister "being objectively

satisfied" as to the matters in question. This Bill was

referred by the President to the Supreme Court under

Article 26 of the Constitution and its constitutional

validity was upheld by a majority of the Supreme Court

with the result that such validity could no longer be

challenged in any proceedings. The appeal against the

late Judge's decision under the 1939 Act was held by

the Supreme Court to be inapplicable, as no appeal

against a habeus corpus decision was then valid. In the

result, the latter decision remained good law, and it has

been frequently cited as a valid authority in subsequent

cases. The circumstances mentioned indicate that the

late Judge's decision was an embarrassment to

the Government of the day, by whom he had been

appointed. Plainly, whatever Gavan Duffy's political

activities had been before his Bar career opened, this

case and the Buckley case demonstrate that his judicial

integrity and independence were never in question.

The second decision to which I particularly

refer is that in

Buckley

Others

the

Attorney

General,

(1950) I.R. 69, generally re-

ferred to as the Sinn Fein Funds case.

Statute of 1947 provided that certain funds lodged in

Court by Trustees should be paid out to the Attorney

General on an

ex parte

application by the latter, that

is, without notice to the Trustees of the funds. The

Trustees had commenced action claiming entitlement

to the funds before the Statute was passed. On appli-

cation being made

ex parte

to the late Judge on behalf

of the Attorney General, a surprised Counsel for the

latter was met with a fully reasoned judgment to the

effect that the Sinn Fein Funds Act, 1947, under which

he moved the Court, was unconstitutional. The

grounds were that the Statute provided for an infringe-

ment of the citizen's private property rights guaranteed

by the Constitution, and further that it contemplated

an unconstitutional interference by the Legislature with

Judiciary's jurisdiction over proceedings already in-

stituted when the Statute was passed. This decision was

unanimously upheld by the Supreme Court.

At an advocate, the late Judge enjoyed, to my

personal knowledge, an extensive Chancery practice,

frequently being briefed by solicitors whose political

views were poles apart from his own.

Here his

immense industry and capacity for research work

stood him in good stead. I have known him, in the

effort to elucidate a difficult problem in chancery (or

in State side) law, to trace the law to its inception in

the Norman French of the Year Books. I speculate

whether these are perused to any extent by practitioners

of the present day!

Gavan Duffy was a popular figure in the Law

Library, with friends of all shades of political thought

among his colleagues at. the Bar, and remarkable both

for his ready wit and friendliness. He was distinguished

also by his marked willingness to help any colleague

in difficulty with a knotty point of law - his great

talents were readily made available to any barrister

wishing to avail of his powerful aid.

Mr. Connolly concludes with the opinion that it

may be too early to pronounce a definitive assessment

of Gavan Duffy as an advocate and as a Judge. I would

say that the merits and standing of an advocate are

ephemeral; it is only his contemporaries who can speak

with authority. This is not true of the written decisions

of a Judge. The written word endures, and it is neces-

sary only to note the keen attention paid up to the

moment by the Bench to judicial decisions of the late

Judge, and the abundance of citations of these in

modern judgments, to assess his merits from the

judicial aspect. In this respect, I would compare the

position to that of a younger Judge, Mr. Justice Kevin

Dixon, now long deceased, whose decisions are also

treated with a respect that surpasses the normal. I

doubt if the future will lessen this degree of regard,

in the case of either of these brilliant men.

OBITUARY

Mr. Terence B. Adams,

B.A., LL.B., died on 11th August,

1976. Mr. Adams was admitted in Hilary Term, 1943,

and was the senior partner of the firm of Adams, Farrell

& Co., in Tullamore and in Ferbane, Go. Offaly.

Mr. Thomas . Gannon,

B.C.L., died as a result of a flying

accident on 28th September, 1976. Mr. Gannon was

admitted in Michelmas Term, 1959, and practised under

the style of Messrs. J. Delany Gannon & Co., in Mohill,

Co. Leitrim.

Mr. Patrick

Markey

died on 24th October, 1976. Mr.

Markey was admitted in Trinity Term, 1909 and practised

at Quay Buildings, South Quay, Drogheda, Co. Louth.

Mr. Hugh B. Naughton

died on 3rd Novemger, 1976. Mr.

Naughton was admitted in Hilary Term, 1930, and

practised at Hynes Buildings, St. Augustine Street, Galway.

Mr. Maurice F. Noonan

died on 6th August, 1976. Mr.

Noonan was admitted in Trinity Term, 1922, and was

the senior partner of the firm of Maurice Noonan & Son

in Newcastle West, Rathkeale and Adare, Co. Limerick.

Mr. Eamonn O'Carroll

died on 1st October, 1976. Mr.

O'Carroll was admitted in Michelmas Term, 1950, and

practised with the firm of Michael Buggy &

Co., in

Kilkenny.

Mr. William T. White

died on 17th October, 1976. Mr.

White was admitted i nEaster Term, 1922 and was the

senior partner of Messrs. White & Co., who practised

at Abbeyleix, Portlaoise and Rathdowney.

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