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(c) Article 30 of
the Constitution of 1937
deals with the present position of the Attorney-
General.
Kenny J., subsequently held :—
1.
The office of Attorney-General established
by the Ministers and Secretaries Act 1924 was a
new office created by an Act of the Oireachtas
and was not a legacy from the functions of the
Law Officers of the Crown.
2.
The powers conferred upon the Attorney-
General by Article 30 of the Constitution of 1937
include the powers conferred on him by virtue
of the Ministers and Secretaries Act 1924.
(3)
The concept of granting
the
fiat may
have come from the royal immunity from being
sued in Courts of Law, but it is
not
the same
fiat.
4.
The cause of action given by the Ministers
and Secretaries Act 1924 is
not
a new cause of
action, even though henceforth proceedings are
instituted by summons or civil bill instead of by
petition, as the essential nature of the remedy is
unchanged, and therefore the citizen is not obliged
to take it subject to the condition imposed.
5.
The necessity
to obtain
the fiat of
the
Attorney-General is
not
inconsistent with Article
40, Section 1 of the Constitution which provides
that—"All citizens shall, as human persons, be
held equal before
the
law." Although
it was
contended
that the State was
in a privileged
position, the guarantee given in this Article relates
only to the position of a citizen as a human
person, and not as a person in an official capacity
like a Minister.
6.
The function of the Attorney-General in
granting or withholding the fiat is
not
an ad
ministration of justice, as he has complete and
unfettered discretion.
7.
The contention that the requirement of a
fiat for an action against a minister of State was
a denial or an unnecessary interference with the
rights of
the citizens
to have recourse
to
the
Courts to vindicate their rights was justified, on
the following grounds :—
(a) Article 40 Section 3 of the Constitution
provides :
1.
The State guarantees in its laws to respect,
and, as far as practicable by its laws to defend
and vindicate the personal rights of the citizens.
2.
The State shall, in particular, by its laws,
protect as best it may from unjust attack and,
in case of injustice done, vindicate the life, person,
good name and property rights of the citizen.
(b)
This guarantee applies to all laws passed
by the Oireachtas since the foundation of
the
State in 1922.
11
(c) The very nature of the fiat is a power at
the unfettered discretion of the Attorney-General
to give or withhold a right to have recourse to
the Courts to assert or vindicate a right.
(d) The guarantee in Article 40 Section 3 of
the Constitution is not limited to the rights men
tioned specifically in the Constitution but extends
to other personal rights of the citizen which flow
from the Christian and democratic nature of the
State—because many personal rights of the citizen
—such as the right to free movement, and the right
to marry—are not specifically mentioned in Article
40.
(e)
If the High Court has full original juris
diction
to determine all matters under Article
34, Sectiion 3
(1) of the Constitution,
it must
follow that the citizens have a
right
to have
recourse to that Court to question the constitu
tional validity of any law, or to assert or defend
an unspecified constitutional right.
(f)
Section 2
(1) of the Ministers and Secre
taries Act 1924 does not respect
the personal
right of the citizen to have recoruse to the High
Court when he wishes to bring proceedings against
a Minister of State.
(g) The necessity
to obtain
the fiat before
instituting proceedings against a Minister of State
is a failure by the State to defend and vindicate
one of the personal rights of the citizen.
(h)
It
follows
that Section
2
(1)
of
the
Ministers and Secretaries Act 1924 is repugnant
to the Constitution in so far as it requires the
fiat of the Attorney-General to be obtained be
fore proceedings in the High Court can be validly
instituted against a Minister of State.
(Macaulay v. The Minister for Posts and Tele
graphs—unreported decision of Kenny J., 14th
February 1966).
Note—It is understood that no appeal against
this decision will be made to the Supreme Court.
Solicitor's Negliegencc
The plaintiff employed the defendant to act
as her solicitor in the conduct of a matrimonial
suit brought against her by her husband
for
divorce on the ground of desertion. In October,
1961, the husband obtained a decree nisi, the suit
being heard as undefended notwithstanding that
his solititors had given the defendant some partic
ulars of adultery on the husband's part, which
had caused him to amend his petition to ask for
the exercise of the court's discretion, and that
the plaintiff had
instructed
the defendant
to
obtain disclosure of
the adultery so
that she
could pray for divorce. The court found negligence