liberty Flashcards
(10 cards)
1
Q
what are fundamental rights
A
- Fundamental rights – ‘It means inalienable moral entitlements that attach to all persons equally by virtue of their humanity, being the minimum conditions for human dignity and a tolerable life’ – Forde and Leonard
- Two types of right:
1. Enumerated – rights expressed in the Constitution
2. Unenumerated – rights implicit in the constitution - Rights can be absolute (freedom from torture) or qualified (right to property) that can be restricted for the common good and safety
- The Constitution recognizes that people are naturally given the fundamental rights from birth.
2
Q
1922 constitution
A
- The Free State Constitution marked a departure from British norms by rejecting parliamentary sovereignty, placing the Constitution above the Oireachtas, and empowering the courts to review legislation.
- It aimed to establish the people as the ultimate source of legal authority, with Article 50 requiring a referendum (with two-thirds turnout) for constitutional amendments.
- However, this ideal was undermined by a provision in Article 50 allowing amendments by ordinary legislation for eight years, later extended to sixteen by the 16th Amendment, weakening its claim to popular sovereignty.
- This issue surfaced in State (Ryan) v Lennon, which challenged both the extension period and Article 2A (introduced by the 17th Amendment), which enabled military courts to override civil liberties, raising serious concerns about the erosion of constitutional protections and the role of natural law.
- 16 amendment – from 8 years to 16 years
- 17 amendment – article 2A – military courts.
3
Q
ryan v lennon
A
- This tension between natural law and popular sovereignty echoes the conflicting judgments in Ryan v Lennon.
- The case arose under the Free State Constitution and centred on the constitutionality of sweeping legislative amendments, including Art.2A, which established military tribunals with extreme powers.
- These amendments were made via Art.50, which allowed for ordinary legislative amendment of the Constitution for eight years. Originally intended for technical updates, Art.50 was used to make substantive changes, including to itself, thus enabling the Oireachtas to amend the Constitution indefinitely.
- Fitzgibbon J., for the majority, upheld the amendments, expressing scepticism about judicial enforcement of natural rights, and warning against “judicial despotism.” He embraced a procedural view of democracy, where elected representatives, not judges, held ultimate authority, unless clearly limited by constitutional text.
- By contrast, Kennedy C.J.’s dissent rested on natural law, asserting that fundamental principles like the separation of powers were immutable and beyond legislative reach, even via constitutional amendment.
o For him, the removal of the referendum safeguard in Art.50 was a usurpation of popular sovereignty by parliament. He saw the judiciary as constitutionally obliged to act as a check on legislative overreach, invoking values that democracy could not override. - The contrast between the two judgments maps onto broader democratic theories.
Fitzgibbon’s reflects a Schumpeterian model: democracy as a mechanism for electing rulers, not for realising substantive moral ideals.
Kennedy, however, aligned more with a value-based model, where judicial intervention was necessary to protect core principles. Yet this model is not without difficulty; if judges are guided by their own moral convictions, they risk becoming a law unto themselves. - Gerard Quinn later suggested that the judiciary’s reluctance to act in Ryan v Lennon left the constitutional order vulnerable to procedural dismantling, comparing it, in form if not substance, to the Nazi Party’s legalistic dismantling of the Weimar Constitution.
o Quinn’s critique raises a dilemma: should judges act only on prudential moral intuition to save democratic systems, or should they strictly adhere to a legalist, rule-of-law approach as articulated by thinkers like Lon Fuller?
o The text ultimately leaves both Fitzgibbon and Kennedy’s responses unsatisfactory, each representing extremes that fail to adequately protect citizens from the abuse of power, whether by judges or elected officials.
4
Q
unenumerated rights
A
- Art 40.3.1° and 2 of the Constitution guarantee several rights and it has been seen that this list is not exhaustive.
1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizens
2° The State, shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. - Freedom of Expression, Assembly, and Association are subject to limitations based on public order and morality, and are further defined by specific qualifications in Article 40.6.1° of the Irish Constitution.
5
Q
fluoridation of water
A
- Ryan v AG (1965) – the applicant challenged the compulsory fluoridation of public water, claiming it violated her personal rights, including the right to bodily integrity, which is not explicitly written in the Constitution.
o The High Court rejected the challenge on the substantive issue but agreed that personal rights under Article 40.3 extend beyond those specified in the text. It was noted that these rights are derived from the Christian and democratic nature of the State.
o Kenny J affirmed that the right to bodily integrity falls under these protected personal rights.
o The Supreme Court agreed, emphasizing that attempting to list all such rights was unnecessary for this case.
6
Q
contraception
A
- McGee v AG 1974 – life of a married woman was threatened if she got pregnant again
o Seeks to allow contraceptives and argues that she has an unenumerated right to martial privacy
o SC Fitzerald CJ: ‘The right to marry and the intimate relations between husband and wife are fundamental rights which have existed in most, if not all, civilised countries for many centuries. These rights were not conferred by the Constitution in this country in 1937. The Constitution goes no further than to guarantee to defend and vindicate and protect those rights from attack.’
o Henchy J: it is for the courts to decide in a particular case whether the right relied on comes within the constitutional guarantee. To do so, it must be shown that it is a right that inheres in the citizen in question by virtue of his human personality.
o The infinite variety in the relationships between the citizen and his fellows and between the citizen and the State makes an exhaustive enumeration of the guaranteed rights difficult, if not impossible.
7
Q
secured accom for troubled teens
A
- TD v Minister for Education – the Supreme Court heard an appeal against a High Court order requiring the Minister to provide secure accommodation for troubled teenagers.
o Keane CJ doubted the existence of a constitutional right to be placed in secure residential care, questioning whether socio-economic rights could be considered unenumerated rights under Article 40.
o Referring to Ryan v AG, he noted that while the right to bodily integrity was recognized as an unenumerated right, the formulation used in Ryan was debatable. The Court also questioned whether it was the role of the courts, rather than the Oireachtas, to declare such rights.
8
Q
GAY
A
- Norris v AG – the applicant challenged the prohibition on male homosexual activity, arguing that the Constitution guarantees a right to privacy, including marital privacy, and that the State’s power to control personal conduct is limited unless justified by the common good or public order.
o The Court acknowledged a constitutional right to privacy, but the majority, led by O’Higgins CJ, upheld the legislation. He emphasized that the Preamble of the Constitution reflects Christian values, which support laws prohibiting homosexual conduct. The Court also argued that the State was entitled to discourage what it considered morally wrong conduct.
o Henchy J, dissenting, believed that the right to privacy is inherent in every citizen’s personality and should be protected under Article 40.3.
o Following this decision, Norris took his case to the European Court of Human Rights, resulting in Norris v Ireland. Found to be in breach of Art 8 (right to private life) of the ECHR
9
Q
ECHR
A
- The European Convention on Human Rights (ECHR) was agreed in 1950 and signed in 1953, with Ireland being the first signatory. However, it wasn’t until the European Convention on Human Rights Act 2003 that rights under the ECHR could be enforced in Ireland, a delay of 50 years, driven largely by pressures arising from the Good Friday Agreement.
- International law is often described as “between states, not within states.”
- In Ireland, Article 29.6 of the Constitution states that international agreements only become part of domestic law if the Oireachtas incorporates them. Therefore, while Ireland is bound internationally when it signs a treaty, such treaties do not immediately grant rights to Irish citizens domestically.
- As a dualist country, Ireland’s international obligations require separate domestic legislation to be enforceable. For example, although Ireland signed the European Convention on Human Rights in 1950, it was not incorporated into Irish law until the European Convention on Human Rights Act 2003.
- Articles 1 – 13 guarantee numerous rights, such as right to life under Art 2 or Article 5 that gives the right to liberty and security.
- Ireland was a founding member of the Council and one of the first to sign the ECHR. However, Irish citizens could only claim their rights through the European Court as Ireland did not incorporate the Convention’s rights into domestic law until the European Convention on Human Rights Act 2003, over 50 years later.
- Re O Laighleas (Lawless) – the applicant argued that the Offences against the State (Amendment) Act 1939, under which he was interned, conflicted with the ECHR.
o The SC rejected this, citing Article 15.2 (sole law-making power of the Oireachtas) and Article 29.6 (international agreements only become part of domestic law if the Oireachtas incorporates them).
o The Court concluded that since the Oireachtas had not made the ECHR part of domestic law, it could not override domestic law or impose additional obligations.
10
Q
limitations on rights
A
- Moynihan v Greensmith (1977) – O’Higgins CJ emphasized that the State’s obligation to protect these rights under Article 40.3.2° is not absolute, but qualified by the phrase “as best it may”, acknowledging practical limitations in ensuring protection.
- Heany v Ireland proportionality test
