Meaning of Art. 9.2 of the Constitution

Thirdfox

The provision states:

"Notwithstanding any other provision of this Constitution..."

(it deals with the issue of whether a child born in Ireland is entitled to Irish citizenship)

But the phrase seems to me to suggest that this provision is supreme to all other provisions of the Constitution... therefore right to life, right to bodily integrity etc. are all subservant to this.

Meaning that no-one can challenge this provision at all (not even the European Court of Justice, since their power derives from another Constitutional provision)

This seems really strange so I'm probably mistaken... anyone with a view on this?

Sangre

Article 9

1.
1° On the coming into operation of this Constitution any person who was a citizen of Saorstát Éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.
2° The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.

3° No person may be excluded from Irish nationality and citizenship by reason of the sex of such person.

2. Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens.

Where does it say notwithstanding?

Thirdfox

Look at the Constitution post the 27th Amendment (Irish citizenship) of 2004

I think the ones on the net only go up to 1999...

*edit* typo!

Kappar

It's an interesting point, I haven't got an up-to-date copy of the Constitution here so haven't had a chance to look at it. On a similar point though look at Art 41.1.1 Family having 'inalienable' rights does this mean that these rights cannot be removed even if there were a referendum?

Thirdfox

Art. 9.2.1 in full:

Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.

9.2.2 states that it has no retrospective effect...

Didn't the Murray case have something to do with family rights and Art. 41.1.1 (after they got put in prison for shooting an off-duty garda)? They wanted to have children but the court said that since they were in prison they couldn't have any... at least that is what I think I've read... so maybe inalienable doesn't inalienable and notwithstanding doesn't mean notwithstanding

Sangre

Kappar wrote:

It's an interesting point, I haven't got an up-to-date copy of the Constitution here so haven't had a chance to look at it. On a similar point though look at Art 41.1.1 Family having 'inalienable' rights does this mean that these rights cannot be removed even if there were a referendum?

Basically the answer is we don't know until its decided. Really depends whether you're a natural or a positivist.
Lot of debate on this though

Thirdfox

Or whether you adopt a literal or purposive interpretation of the words...

Kappar

Interesting should 9.2.2 have been included in 9.2.1 so as to avoid the 'nothwithstanding any OTHER provision' because as you say it could be argued that 9.2.1 is not subject to any other provision thus negating the effect of 9.2.2.

You're right about Murray they did argue that. If I remember correctly the Court held that they had the right but weren't able to use it but I am open to correction on that.

Thirdfox

Lol...true true!!! Well... who's up for a court case?

besty

Kappar wrote:

You're right about Murray they did argue that. If I remember correctly the Court held that they had the right but weren't able to use it but I am open to correction on that.

I think the finding was something along the lines of that alright. Like in one of the voting rights cases (can't remember the name.) The court deemed that the inmate had the inherent right to vote but had sacrificed the freedom of being able to exercise that right by committing an offence. The same reasoning was applied in the Murray family argument AFAIK

Sangre

So its basically like our freedom of speech.
You are free to say whatever you want, as long as its ok with us.

besty

All rights bring responsibilities Sangre

Sangre

That reminds of something besty.
Oh yeah, soviet russia,

dermot_sheehan

Sangre wrote:

Basically the answer is we don't know until its decided. Really depends whether you're a natural or a positivist.
Lot of debate on this though

But doesn't Re: Abortion Information Bill say that the constitution can be amended in any shape, way or form (provided the relevant articles on amending it are complied with). In that case, court appointed counsel said that natural law made the relevent constitutional amendment invalid, the Supreme Court rejected this contention.

TalkISCheap

Interestingly, "Nothwithstanding any other provision of this Constitution..." would surely imply that the Government are free to legislate to refuse Citizenship on the grounds of race....

The argument can be made that equality before the law is subservient to this provision, and that therefore the legislation enacted under this provision is exempt from any sort of test of equality...

Could the Govt. legislate to refuse Citizenship to EU Citizens, and ignore the inevitable European Court's ruling on the grounds that who is and isn't entitled to Irish Citizenship is set out above all other law which has effect in the State?

Thirdfox

It seems so technically... but perhaps the court won't take the literal approach when interpreting the article?

And the provision saying that it has no retrospective effect is set out in another provision separate to 9.2.1 therefore we can have retrospective effect too!

This may be a case where the literal interpretation will result in absurdity and courts won't go near it... (hopefully!)

EducatedGuess

I agree with most of all the above but understanding the acceptance of our succession into the EU allows all European Union Law to supercede national law unless it is in direct contradiction of each States internal and external security legislation and of course contradicts previous EU Treaties.

Thirdfox

Talking about EU supremacy in LSM in Trinity our lecturer said that EU law is only supreme because we allow it to be. If some part of our constitution clashes with the ECHR or EU legislation then it can be open for the courts to decide to ignore the EU law... that's what I got from the lecture anyway

milkytigerrr

besty wrote:

I think the finding was something along the lines of that alright. Like in one of the voting rights cases (can't remember the name.) The court deemed that the inmate had the inherent right to vote but had sacrificed the freedom of being able to exercise that right by committing an offence. The same reasoning was applied in the Murray family argument AFAIK

Yeh, the case was Breathnach (I think... god I hope so... the Fe1's are only a month away!)... and yeh. The court took the stance that because the prisoner was in custody he had given up other rights such as liberty etc, so therefore it is justified to deprive him of voting rights. The court also made the point that all prisoners are treated equally so it's not discrimination (??!!). The ECTHR recently overruled that in Hirst so I'm not sure where Murray would stand now.

As regards the 'notwithstanding....' part of the provision, I think it relates to Article 2. the 1999 ammendment and restricts it. It does seem to be a incongruous with the constitution, but as someone pointed out, the courts could take a harmonious interpretation of it and not play it off any other rights in the constitution. Or they could fall back on the old favourite, the preamble, to argue its constitutionality. They might base this on the 'common good' principle.
Re the European Law query. I have no idea. It seems to be superior to the constitution, but its a grey area. Anyone else know??

Sangre

Thirdfox wrote:

Talking about EU supremacy in LSM in Trinity our lecturer said that EU law is only supreme because we allow it to be. If some part of our constitution clashes with the ECHR or EU legislation then it can be open for the courts to decide to ignore the EU law... that's what I got from the lecture anyway

No because we had a ref. to say EU was supreme.
But ECHR means feck all in our courts.

Thirdfox

So our constitution allows EU legislation to be supreme... therefore we can also revoke that supremacy if we need to - in another referendum right?

besty

Thirdfox wrote:

So our constitution allows EU legislation to be supreme... therefore we can also revoke that supremacy if we need to - in another referendum right?

But that would be contrary to the terms of our EU membership so it would have to be one or the other.

Thirdfox

That raises another question... can members quit the union? What if Ireland suddenly decides "hey we don't want to be net contributors to this scheme" and pull out? Or are we inextricably linked to the EU forever?

TalkISCheap

They're not going to stop us.
I would think that Britain will do so one of these years, they're not getting a whole lot out of the EU at the moment besides grief. You could retain a Switzerland/Norway/Iceland type borders/E111 card/visa/trade + tariffs system. If the EU didn't decide to freeze you out for being pesky b*******.