Migrant worker rights

Pawwed Rig

Regarding the case of Mohammad Younis where he was deemed no to have rights under Irish law.

http://www.irishexaminer.com/ireland/judge-exploited-migrant-no-right-to-92k-award-206002.html

With my admittedly extremely limited knowledge of law (a couple of modules in college) could I ask legal poster
Could the judge have made a ruling in favour of someone like Mr Younis on the basis of 'Natural Justice'?
Alternatively could the Judge have used a precedent from another jurisdiction (which I am sure there are many) to rule in his favour or is the judge restricted to the reading of the employment law where he found he could not rule in his favour?

Comments appreciated
Please reply in the general sense if not appropriate to comment on this specific case

234

Taking the report as accurate there really was nothing else Hogan J could have done. If there was no contract of employment then there are no right to invoke. It's a harsh position but pretty clear-cut. And no, he could definitely not have invoked a precedent from another jurisdiction to try and subvert Irish legislation.

ResearchWill

Pawwed Rig wrote: »

Regarding the case of Mohammad Younis where he was deemed no to have rights under Irish law.

http://www.irishexaminer.com/ireland/judge-exploited-migrant-no-right-to-92k-award-206002.html

With my admittedly extremely limited knowledge of law (a couple of modules in college) could I ask legal poster
Could the judge have made a ruling in favour of someone like Mr Younis on the basis of 'Natural Justice'?
Alternatively could the Judge have used a precedent from another jurisdiction (which I am sure there are many) to rule in his favour or is the judge restricted to the reading of the employment law where he found he could not rule in his favour?

Comments appreciated
Please reply in the general sense if not appropriate to comment on this specific case

Interesting post, I will say Judge Hogan is one of the best constitutional lawyers in the State. The decision in my opinion was very very very political, read what he says at the end of the judgement.

My little understanding of Hogan J he would not be a serious follower of Natural Justice, the judgement had a lot more todo with bad drafting and immigrant rights as well as the power of parliament.

Pawwed Rig

Well on reading the article it seemed to me (in my limited knowledge) that the judge was trying to highlight the weakness in the law (at the expense of the poor migrant).

Could the Judge have invoked Natural Law?
Also why could the judge not invoke precedent?

MagicSean

Pawwed Rig wrote: »

Well on reading the article it seemed to me (in my limited knowledge) that the judge was trying to highlight the weakness in the law (at the expense of the poor migrant).

Could the Judge have invoked Natural Law?
Also why could the judge not invoke precedent?

If he did would he not be, in effect, introducing his own legislation in a similar fashion to the Sinnott case?

ResearchWill

Pawwed Rig wrote: »

Well on reading the article it seemed to me (in my limited knowledge) that the judge was trying to highlight the weakness in the law (at the expense of the poor migrant).

Could the Judge have invoked Natural Law?
Also why could the judge not invoke precedent?

Read the judgement it's on line he invoked precedent, as I said I don't think Hogan is a Natural Law advocate in my personal opinion he would hold parliament above judge law or in other words judges should not over rule parliament unless parliament contradict the constitution.

Procrastastudy

I thought, on the face of it, it was a simple seperation of powers issue?

ResearchWill

Procrastastudy wrote: »

I thought, on the face of it, it was a simple seperation of powers issue?

Yup with a healthy dollop of politics.

234

Well there seemed to be no need to invoke precedent since the legislation was quite clear. And we have long moved on from the regrettable era when judges thought they could use natural law to do whatever they saw fit regardless of legislation.

ResearchWill

234 wrote: »

Well there seemed to be no need to invoke precedent since the legislation was quite clear. And we have long moved on from the regrettable era when judges thought they could use natural law to do whatever they saw fit regardless of legislation.

But he did very clearly invoke precedent,

"18. To my mind, therefore, the present case cannot be sensibly distinguished from the decision of the Supreme Court in Martin v. Galbraith [1942] I.R. 37. Here the plaintiff sued to recover overtime payments which had been earned in circumstances where he had worked in excess of a statutory prohibition contained in s.20 of the Shops (Conditions of Employment) Act 1938. Murnaghan J. rejected the claim, saying ([1942] I.R. 37 at 54):

“Parties to a contract which produces illegality under a statute passed for the benefit of the public cannot sue upon a contract unless the Legislature has clearly given a right to sue.”"

I agree totally about Natural Law which came back into legal fashion after WWII was at its zenith in Ireland in the 60's and 70's but has in my opinion (while some good decisions came from it) fallen out of fashion in recent years. Agin my own view constitutional judges agree parliament is supreme except for the constitution.

Pawwed Rig

Thanks for the link to the precedent used.

It would seem to me to be a precarious link and I am sure there could have been a more relevant case quoted from UK which has a longer history of immigration than we do.

It seems to me in a case like this where there is such a wrong done to a person that the Judge could have and (I think) should have used discretion to do what was right rather than just blindly follow laws.

Could the judge have ruled under other laws like exploitation/slavery laws?

I would assume this case will goto the Euro Court of Justice or Human rights?

It is ironic when a couple of weeks after submissions for the upcoming sex workers act that a judge rules that slavery is not illegal in this case

Procrastastudy

Pawwed Rig wrote: »

Thanks for the link to the precedent used.

It would seem to me to be a precarious link and I am sure there could have been a more relevant case quoted from UK which has a longer history of immigration than we do.

It seems to me in a case like this where there is such a wrong done to a person that the Judge could have and (I think) should have used discretion to do what was right rather than just blindly follow laws.

Could the judge have ruled under other laws like exploitation/slavery laws?

I would assume this case will goto the Euro Court of Justice or Human rights?

It is ironic when a couple of weeks after submissions for the upcoming sex workers act that a judge rules that slavery is not illegal in this case

I'm very confused by your statements here. Cases from the UK would not be binding on the courts. The Supreme court of stated that they might not even follow stare decisis from Irish decisions where the result would be unjust. They are however bound by the Constitution - Article 15 providing that laws come from the legislature and not the courts. Judges aren't all powerful and neither should they be. At no point was slavery found to be legal.

Pawwed Rig

I realise they are not binding but they can be used if a judge deems them relevant right?

The man worked and wasn't remunerated for it. The judge did not find against the 'employer' therefore effectively allowing a person to be exploited in this manner. my point was could the judge have ruled under other laws rather than be confined under the employment law on which he based his ruling.

As I have previously stated I am not a legal person person and my knowledge of law is limited to a couple of modules way back when I was a student but based on that knowledge I would have thought judgements like this one need not be made as there is clearly a victim here.

ResearchWill

Pawwed Rig wrote: »

Thanks for the link to the precedent used.

It would seem to me to be a precarious link and I am sure there could have been a more relevant case quoted from UK which has a longer history of immigration than we do.

It seems to me in a case like this where there is such a wrong done to a person that the Judge could have and (I think) should have used discretion to do what was right rather than just blindly follow laws.

Could the judge have ruled under other laws like exploitation/slavery laws?

I would assume this case will goto the Euro Court of Justice or Human rights?

It is ironic when a couple of weeks after submissions for the upcoming sex workers act that a judge rules that slavery is not illegal in this case

The judge said and he is legally correct that the guy was involved in illegal contract and therefor as statute law did not allow him to sue it is settled law that he can't sue.

Could the judge go against the wishes of Parliement or against we'll settled law even if the case on the face of it requires it, we'll no he can't as the day "Hard cases make bad law."

There is one thing he might have been able to do (well his hands are tied on this point as it was JR) but if someone challenged section 2 of the employment permits act which I believe to be unconstitutional then the section of the act that makes the contract illegal would fall and the contract would not be illegal.

I believe Hogan correctly decided the law as in front of him and then put it up to the Dail to fix it, seperation of powers.

ResearchWill

Pawwed Rig wrote: »

I realise they are not binding but they can be used if a judge deems them relevant right?

The man worked and wasn't remunerated for it. The judge did not find against the 'employer' therefore effectively allowing a person to be exploited in this manner. my point was could the judge have ruled under other laws rather than be confined under the employment law on which he based his ruling.

As I have previously stated I am not a legal person person and my knowledge of law is limited to a couple of modules way back when I was a student but based on that knowledge I would have thought judgements like this one need not be made as there is clearly a victim here.

If there was no precedent from Ireland on point then he could have used other law, his problem was there is a case on point and its very very clear. A judge can not even in hard cases just throw the baby out with the bath water. Judge Hogan is a very clever and really nice man this from what I know of him would eat him up, but judges make the hard decisions and thankfully he is such a good judge he made the right legal decision even though every fiber in his body knew it was morally wrong, that's what judges do justice is blind.

Procrastastudy

Pawwed Rig wrote: »

I realise they are not binding but they can be used if a judge deems them relevant right?

The man worked and wasn't remunerated for it. The judge did not find against the 'employer' therefore effectively allowing a person to be exploited in this manner. my point was could the judge have ruled under other laws rather than be confined under the employment law on which he based his ruling.

As I have previously stated I am not a legal person person and my knowledge of law is limited to a couple of modules way back when I was a student but based on that knowledge I would have thought judgments like this one need not be made as there is clearly a victim here.

To be honest I think I see where you are going. However in a very simplistic view (i.e. mine!) its like this: The Constitution prevents judges overriding legislation unless it's unconstitutional. Judges are, thankfully, bound by the law as it's written. That's what was done in this case with a fair amount of criticism of the legislation from the the judge IIRC. Have a google of the separation of powers if you didn't cover them it's an interesting read. It does have it's disadvantages to go along with its advantages of course.

Pawwed Rig

Thank you for the input guys. Very informative