Citizenship Stripping, Fair Procedures, and the Separation of Powers: A Critical Comment on Damache v Minister for Justice
| Published date | 01 November 2021 |
| Author | Conor Casey |
| Date | 01 November 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12648 |
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Modern Law Review
DOI:10.1111/1468-2230.12648
Citizenship Stripping, Fair Procedures, and the
Separation of Powers: A Critical Comment on Damache
vMinister for Justice
Conor Casey∗
Damache vMinister for Justice concerned a constitutional challenge to section 19 of the Irish
Nationality and Citizenship Act 1956. This section outlined the statutory process the executive
branch, acting through the Minister for Justice, had to follow before revoking a certicate of
naturalisation. The appellant successfully argued this process was an unconstitutional breach of
fair procedures. The judgement will be of interest both to Irish and other public lawyers for its
treatment of fair procedures, which the Supreme Court approached in a regrettably blinkered
way – seeing only one constitutional principle when several others were at stake.The judgment
is a stark reminder for both Irish and comparative lawyersof the fact that the concrete demands of
fair procedures must be balanced with a range of competing institutional goods and principles
equally important to constitutional democracies: from administrative eciency to structural
principles stemming from the separation of powers.
INTRODUCTION
Damache vMinister for Justice1(Damache (SC)) concerned a constitutional chal-
lenge to section 19 of the Irish Nationality and Citizenship Act 1956 (the 1956
Act). This section outlined the statutory process the executive branch – acting
through the Minister for Justice (the Minister) – had to follow before revoking
a certicate of naturalisation. There were two grounds of challenge brought be-
fore the Supreme Court.Fir st,the appellant argued the revocation of citizenship
was a judicial power that could only be constitutionally exercised by the judi-
ciary and not the executive branch.Second,the appellant argued the statutory
process by which citizenship is revoked was an unconstitutional breach of fair
procedures. Specically, that it was a breach of the principle of Nemo Iudex in
Causa Sua – that no one may be a judge in his own case (Nemo Iudex principle).
The Supreme Court rejected the appellant’s rst argument,nding that the
revocation of citizenship was an executive and not a judicial function,drawing
heavily on Ireland’s historical link with UK constitutionalism in the process.
The Supreme Court proceeded to nd in favour of the appellant’s second point,
holding that the fact that the Minister both initiated the proposal to revoke and
∗Lecturer in Law, University of Liverpool and Max Weber Fellow, European University Institute
(2020-2021). The author would like to thank Michael Foran and Advocate-General Gerard Hogan
for their comments on an earlier draft. The author wouldalso like to thank the anonymous reviewer
for very helpful feedback.
1 [2020] IESC 63.
© 2021 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(6) MLR 1399–1413
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, provided the original work is properly cited.
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