Constitutional rights

The_Minister

This is something that I always wanted to know but I never asked (as far as I remember). If this is a really stupid question then just lock the thread.

As you all know the Supreme court "discovers" (ie. invents) unwritten rights in the Constitution. In the Constitution there are certain written rights. Now, if you read the Constitution, every right seems to be qualified, eg:

Bunracht wrote:

ii.The right of the citizens to assemble peaceably and without arms.

Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.

iii. The right of the citizens to form associations and unions.

Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.

There are restrictions on other rights.
My question: Do these restricions apply to "discovered" rights? and if they do not, why not? Surely the rights that were set down are more important as the time to write them in was taken. If the written rights have these clauses, surely the unwritten do too?

dermot_sheehan

Firespinner wrote:

This is something that I always wanted to know but I never asked (as far as I remember). If this is a really stupid question then just lock the thread.

As you all know the Supreme court "discovers" (ie. invents) unwritten rights in the Constitution. In the Constitution there are certain written rights. Now, if you read the Constitution, every right seems to be qualified, eg:


There are restrictions on other rights.
My question: Do these restricions apply to "discovered" rights? and if they do not, why not? Surely the rights that were set down are more important as the time to write them in was taken. If the written rights have these clauses, surely the unwritten do too?

Actually doing some late night cramming on this issue for my Inns entrance exam.

The answer is quite simply, no right is absolute, even rights "discovered".

These are called unenumerated rights and courts have recognised limitations on them. Unenumerated rights exist because of the wording of art. 40.3.1 and 40.3.2 of the constitution. art. 40.3.1 commands the state to protect the "personal rights" of the citizen, art. 40.3.2 says in particular, "life, good name etc", because of the term "in particular" the courts have held there are rights not listed the state is bound to protect.

The case which first came up with the doctrine of unenumerated rights themselves, Ryan v. AG recognised limitations in the doctrine. Ms. Ryan sued the state to prevent water fluoridation. The court recognised her right to bodily integrity as one of the personal rights guranteed by the state, but held on the evidence that fluorodation of water was beneficial to the community and her personal interest in not wanting to consume fluorordated water was outweighed by the community's interest in preventing tooth decay.


Similarly court have recognised a Hierarchy of rights. This does not necessarily give a higher precedence to rights that are written down though. The constitution has no express ban on torture, this would be regarded as infringing the unenumerated right to bodily intergrity under art. 40.3.1. Most people however would feel the right not to be tortured would rank higher then property rights (art. 43 and 40.3.2), free speech rights art 40.6 and equality rights art 40.1.


The main development over the past few years however has been the adoption by the irish courts of the doctrine of proportionality. This is a German law concept that came to Ireland through the European Court of Human Rights. Though first only applied with regard to property rights, it has been expanded. The doctrine is that rights may be limited, if the reason for limitation is necessary in a democratic society, done by law, and proportionate to the ends to be achieved.

For example, in Blake v. Attorney General the court held that the Rent Restrictions Acts infringed private property by restricting the raising of rent, were done for a legitamite purpose, but however were disproportionate. In Cox v. Ireland the court held that removing the pension entitlements of a teacher convicted by the Special Criminal Court of weapons offences was disproportionate. The only legitamite goal achieved by this was deterrence, and since such a harsh penalty was only imposed when the DPP made the decision whether to try the case in front of the SCC or not, it was held disproportionate.

In Re: Art 26 and the Planning and Development Act the Court held that infringing the property rights of land owners was legitamite and proportionate in requiring new developments to have social hosuing.

In the criminal law sphere in Heaney v. Ireland the court held the infringement on the right to silence by the offences against the state act was proportionate and justified. Interestingly the European Court of Human Rights came to a different conclusion.

In Murphy v, IRTC the Supreme Court held that restrictions on religious advertising on radio were proportionate restrictions on the right to freedom of speech.

With regard to unenumerated rights, the court held in TD v. Minister for Education that unenumerated socio-economic rights discovered by the Supreme Court in G. v. An Bord Uchtala were not enforceable against the state. The court referred to the fact that allocation of resources decisions should be made by the democratically accountable government.

There are many many other examples of limitations of rights taking place in case law.

Victor

There are certain rights like the right to live (of the born), breathe, eat, work, marry (natural rights) that are not specificly referred to but there hasn't been any problem legislating on them.

focusing

It's all about the balancing.

The_Minister

Thanks for that Gabhain. That cleared up a few things.