McDONNELL v IRELAND, ATTORNEY GENERAL, MIN for COMMUNICATIONS & an POST
| Jurisdiction | Ireland |
| Judge | O'Flaherty J.,Mr. Justice Barrington,Keane J.,??? RRON J.??? |
| Judgment Date | 23 July 1997 |
| Neutral Citation | 1998 WJSC-SC 9677 |
| Docket Number | (37/96) |
| Court | Supreme Court |
| Date | 23 July 1997 |
1998 WJSC-SC 9677
THE SUPREME COURT
Hamilton C.J.,
O'Flaherty J.,
Barrington J.,
Keane J.,
Barron J.,
BETWEEN:
Citations:
OFFENCES AGAINST THE STATE ACT 1939 S34
COX V IRELAND 1992 2 IR 503
MURPHY V AG 1982 IR 241
CONSTITUTION ART 25.4.1
CONSTITUTION ART 26.4.2
POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S45
CONSTITUTION ART 15.4
STATUTE OF LIMITATIONS 1957 PART II
MESKELL V CIE 1973 IR 121
BYRNE V IRELAND 1972 IR 241
CONSTITUTION ART 50
OFFENCES AGAINST THE STATE ACT 1939 PART IV
OFFENCES AGAINST THE STATE ACT 1939 S34(1)
OFFENCES AGAINST THE STATE ACT 1939 S34(2)
OFFENCES AGAINST THE STATE ACT 1939 S34(5)
GARVEY V IRELAND 1981 IR 75
STATUTE OF LIMITATIONS 1957 S11(2)
STATUTE OF LIMITATIONS 1957 S11(2)(b)
TATE V MIN FOR SOCIAL WELFARE 1995 ILRM 507
TUOHY V COURTNEY 1994 3 IR 1
HANRAHAN V MERCK SHARP & DOHME 1988 ILRM 629
CONWAY V IRISH NATIONAL TEACHERS ORGANISATION (INTO) 1991 2 IR 305
HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 2ED 643
PINE VALLEY DEVELOPMENTS LTD V MIN FOR ENVIRONMENT 1987 IR 23
SALMOND & HEUSTON LAW OF TORTS 20ED 15
KENNEDY & ARNOLD V IRELAND 1987 IR 587
R V KHAN (SULTAN) 1996 3 AER 289
CIVIL LIABILITY ACT 1961
BINCHY "CONSTITUTIONAL REMEDIES & THE LAW OF TORTS" HUMAN RIGHTS & CONSTITUTIONAL LAW : ESSAYS IN HONOUR OF BRIAN WALSH (1992)
HUNTER V FOX 1966 IR 520
INDUSTRIAL & COMMERCIAL PROPERTY (PROTECTION) ACT 1927
RYLANDS V FLETCHER 1868 LR 3 HL 330
Synopsis:
Constitutional
Breach of constitutional rights; limitation period; post office worker convicted of paramilitary offences; automatic forfeiture; dismissed pursuant to legislation subsequently found to be invalid; whether plaintiff entitled to damages for breach of constitutional rights; whether claim statute barred; whether tortious action; misfeasance of public office; policy considerations; whether plaintiff an established civil servant Held: Claim statute barred Supreme Court: Hamilton C.J., O'Flaherty J., Barrington J., Keane J., Barron J. 23/07/1997
McDonnell v. Ireland
[1998] 1 IR 141
Judgment delivered on the 23rd day of July, 1997, by O'Flaherty J. [HAMILTON ???
I have read in advance the judgment that Keane J. will deliver and I agree with his reasons for holding that the appeal should bedismissed.
Like Keane J., I have difficulty in understanding what cause of action the plaintiff seeks to assert. As Keane J. will recount: during a time when the appellant was employed as a post office worker, he was also a member of an unlawful organisation. Even aside from the provisions of s.34 of the Offences Against the State Act, 1939, the Minister, on his release from prison, was most unlikely to have restored him to his previous employment. What the court held in Cox.v. Ireland [1992] 2 IR 503 in striking down s.34 was that itsprovisionswere impermissibly wide and indiscriminate. The Court did not proclaim anything as absurd as that the State is not entitled to protect itself in the case of those that it employs. Quite the contrary: as Finlay CJ., for the Court, said:-
"The Court is satisfied that the State is entitled, for the protection of public peace and order, and for the maintenance and stability of its own authority, by its laws to provide onerous and far-reaching penalties and forfeitures imposed as a major deterrent to the commission of crimes threatening such peace and order and State authority, and is also entitled to ensure as far as practicable that amongst those involved in carrying out of the functions of the State, there is not included persons who commit such crimes." (at pp.522–523)
In any event, since the provision was in place when the appellant was prosecuted on 30th May, 1974, he cannot now avail of its extirpation as giving him a cause of action. This is established in both the majority judgments, as well as in the minority judgment, of the Court in Murphy .v. Attorney General [1982] IR 241.
It will be recalled that in that case O'Higgins CJ., in his minority judgment, concluded that under the Constitution a declaration as to the invalidity of a law or any provision thereof can only operate from the moment such invalidity is declared in the High Court or in the Supreme Court. He went on to hold that the requirement of an ordered society would have inclined hismind to such a conclusion aside altogether from his interpretation of the express provisions of the Constitution. The idea that a declaration of invalidity operated to say that the provision was void abinitio "would provide ... the very antithesis of a true social order - an uneasy existence fraught with legal and constitutionaluncertainty".
The approach of the majority in the Murphy case, while holding that declarations of invalidity of legislation worked to make the impugned legislation void ab initio, produced more or less the same result. It was held that the plaintiffs were not entitled to recover tax paid by them for any period prior to the tax year 1978– 1979, which was the tax year in respect of which the constitutionality of those sections was first effectively impugned. Since a claim had not been formulated by any other taxpayer impugning the sections in question or seeking the recovery of any taxes collected under them "... in the events that have happened and for the reasons given in this judgment, no taxpayers other than the plaintiffs would have the standing necessary to maintain a claim that the State should reimburse them for any taxes collected under the condemned sections", per Henchy J. at p.324
Griffin J. concurred in this view at p.331:-
"When a statute has been declared to be void ab initio,it does not necessarily follow that what was done under and in pursuance of the condemned law will give to a person, who has inconsequencesuffered loss, a good cause of action in respect thereof. Notwithstanding the invalidity of the statute under which such act was done, the Courts recognise the reality of the situation which arises in such cases, and that it may not be possible to undo what was done under the invalid statute - as it was put so succinctly during the argument,"the egg cannot be unscrambled." In regard to this aspect of the case, and the plaintiffs" right to recover the sums collected from them in excess of those which should properly have been collected from them if their incomes had not been aggregated, I have had the advantage of reading in advance the judgment of Mr. Justice Henchy and I agree with his conclusions and the reasons which he has statedtherefor."
The correct rule must be that laws should be observed until they are struck down as unconstitutional. Article 25.4.1° of the Constitution provides that "Every Bill shall become and be law as and from the day on which it is signed by the President..." and that, unless the contrary is expressed, that law is effective from that day forth. Following signature by the President, a public notice is published in Iris Oifigiúil stating that the Bill has become law; Article 26.4.2°.
From that date, all citizens are required to tailor their conduct in such a way as to conform with the obligations of the particular statute. Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of theConstitution. Every judge on taking office promises to uphold "the Constitution and the laws"; the judge cannot have a mental reservation that he or she will uphold only those laws that will not someday be struck down as unconstitutional. We speak of something as having "the force of law". As such, the law forms a cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation, which preserves the distinct status of statute law which, as such, is necessitated by the requirements of an ordered society and by "the reality of situation" (to adopt Griffin J.'s phrase), should have the effect that laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in the Murphy case as well as in the Cox case.
As regard the applicability of the Statute of Limitations, and the declaration sought by the appellant that he is still a civil servant, I am in total agreement with the judgment of Keane J. and have nothing to add on these points.
Judgment 236
JO'F - DO'C
JUDGMENT of Mr. Justice Barringtondelivered the 23rd day of July, 1997. [HAMILTONCONC]
This is an appeal against the Order of Carroll, J. made herein on the 19th day of January, 1996 dismissing the Plaintiff's claim.
The Plaintiff was employed by the former Department of Posts and Telegraphs as a clerk and became a fully established Civil Servant on the 6th of April, 1964. As such he held office "at the will and pleasure of the Government" but in fact, could only be removed from office by the Government. He could only cease to be an established Civil Servant by dying, or resigning, or retiring, or abandoning his office or being removed by the Government or by forfeiting his office under some statutory provision.
On the 30th May, 1974 the Plaintiff was convicted by the Special Criminal Court of membership of the IRA and was sentenced to twelve months imprisonment. He was released after serving nine months of thisterm.
The IRA is a subversive organisation pledged to overthrow the Government and, no doubt, the Government had ample grounds to dismissthePlaintiff from their service. They did not however do so....
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