The Nation, People & State Flashcards
(14 cards)
THE PEOPLE
- The people have enacted and adopted the Constitution under the preamble;
- As per ARTICLE 6, all powers derived from the people and, therefore, they possess the right to designate rulers of the State and decide questions of national policy;
- Notably, the concept of people has been invoked in prior case law by judges and courts when expressing a point of view or making a remark, as observed in the case of…
+) BYRNE v. IRELAND
THE NATION
- The Nation is present in the preamble and in practice is used interchangeably with the term “The People”;
- Articles 1-3 of the Const in relation to the nation are quite clear and appear to refer to both the people and the territory of the entire island;
THE STATE
- The State is the political entity created by the Constitution;
- It possesses its own rulers and organs (Article 6), natural resources (Article 10) and revenues (Article 11);
- Most importantly, Articles 40 to 44 guarantee fundamental rights to citizens and other individuals;
- When it comes to the concept of state, the core issue appears to be in relation to the definition of “sovereignty” and its application;
+ BYRNE v. IRELAND =
- Case emphasize that according to Article 1 of the Constitution, it is the people -not the State- that hold ultimate sovereignty and power, possessing the right to choose their government;
- Therefore, the People are above the State in superiority and, as a result, the State is not immune from being sued.
OLD ARTICLES 2 & 3
- Previous Article 2 stated that the entire island of Ireland formed a single “national territory”;
- Previous Article 3 asserted that the Oireachtas had the right to exercise jurisdiction over the whole of that territory;
- Prior to the imperative SC ruling of “McGimpsey v. Ireland”, two schools of thought prevailed:
1) + RUSSELL v. FANNING =
- Hederman J had stated that the re-unification of the national territory was a constitutional imperative imposed by Article 3 and the preamble;
2) Various justices speaking EXTRA-CURIALLY had shared the viewpoint that Article 3 was merely a political & rhetorical aspiration.
+ MC GIMPSEY v. IRELAND =
- This paramount case settled the matter as the Court interpreted Articles 2 & 3 as a legal right to national territory, rejecting the view that Article 3 was a mere aspiration and asserting the superiority of the Const in assessing international agreements.
- This ruling, however, is contrary to the new text of Articles 2 and 3.
NEW ARTICLES 2 & 3
- New Article 2 describes the nation in terms of its people;
- New Article 3 aims to eliminate Ireland’s constitutional claim over Northern Ireland and the OBLIGATION FOR NATIONAL UNITY;
- Essentially, Articles 2 & 3 were revised under the “1998 Good Friday Agreement” to ELIMINATE CLAIMS TO NATIONAL TERRITORY and to OUTLINE that a united Ireland should only come about with MAJORITY CONSENT from both jurisdictions (Northern Ireland & Republic of Ireland);
- DONAL O’DONELL SC warned that defining the Irish Nation by its “people” rather than “territory” could allow Northern Ireland residents to claim voting rights in Irish referenda. He HIGHLIGHTED that many constitutional powers are vested in the “nation” rather than the “state” and suggested that the SC might one day treat such issues as POLITICAL rather than LEGAL matters. (PTNS - PT Never Stay)
+ LOBE v. OSAYANDE =
- Hardiman J outlined that the entitlement and birthright to be part of the Irish Nation is an option, personal to each individual, to be exercised by his or her own discretion.
NEW ARTICLE 9
- The 27th Amendment of the Constitution 2004 added the insertion into Article 9 of the Irish born parent rule;
- Essentially, the Articles clarified that only those born in the country of Ireland with at least once Irish citizen parent are automatically entitled to citizenship.
EXTRA-TERRITORIAL
- Ireland has the LEGAL ABILITY to apply its laws BEYOND ITS BORDERS, known as extra-territorial jurisdiction;
+ RE ARTICLE 26 AND THE CRIMINAL LAW (JURISDICTION) ACT 1977 =
- Court upheld the constitutionality of a bill allowing Ireland to prosecute criminal crimes committed outside of its borders, and confirmed that Ireland had the power to legislate in this way.
ARTICLE 4 - NAME OF THE STATE
- As per Article 4 the name of the State is ÉIRE or in the English language, Ireland;
+ CORYN v. AG =
- Court held that the State is a JURISTIC PERSON separate from its PEOPLE or the GOVERNMENT just as a company is distinct from its directors and shareholders;
+ BYRNE v. IRELAND =
- Court clarified that the State enjoys no INHERITED or PREROGATIVE OF IMMUNITY FROM SUIT and may be sued as “Ireland”;
ARTICLE 5 - SOVEREIGNTY
- Article 5 of the Constitution describes a couple of the most crucial characteristics of the State: INDEPENDENT, SOVEREIGN & DEMOCRATIC;
- Sovereignty fundamentally means the source of all LEGAL VALIDITY, AUTHORITY & POWER in the State;
- Importantly, Article 6 states that all sovereignty and power in the Irish jurisdiction flows directly from the people;
- There are two types of sovereignty:
1) Internal Sovereignty (Domestic law);
2) External Sovereignty (International Law). - KELLY has previously stated that the sovereignty of the State has “two spheres of operation”; it operates at a domestic level (inside the country) and at an external level (dealing with other countries).
- The distinction between the two types of sovereignty was illustrated in the case of…
+ BYRNE v. IRELAND =
- Court held that Art 5 does not signifies that the State is ABOVE DOMESTIC LAW, and it is also not subject to external sovereignty;
- Imperatively, the prerogative of the immunity of the State from suit has been fully abandoned due to its ROYALIST SOURCE.
INTERNAL SOVEREIGNTY
- Internal Sovereignty concerns the extent to which the State is subject to the laws created/made for the State;
+ BYRNE v. IRELAND =
- Same shit about Article 5 plus ROYAL/CROWN PREROGATIVES HAS ENDED AND DID NOT CARRY OVER!!!
+ WEBB v. IRELAND =
- Individuals using a metal detector found the DERRYNAFLAN CHALICE, which the State claimed prerogative of “TREASURE TROVE”;
- Plaintiffs argued as per “Byrne” that the State WAS NOT SOVEREIGN AND THUS COULD NOT CLAIM PREROGATIVE;
- However, Court held that although the Crown prerogative has ended, THE STATE OWNERSHIP OF ANTIQUITIES WAS NOW A CONSTITUTIONAL ATTRIBUTE OF SOVEREIGNTY, GROUNDED IN ARTICLES 5 and 10 of the Constitution.
- KELLY has critized this ruling as IN HIS VIEW sovereignty is being invoked as a SELF-EVIDENCE SOURCE for a MODERN CLAIM to a treasure trove.
EXTERNAL SOVEREIGNTY
- External sovereignty concerns the extend to which the State is subject to CONTROL from EXTERNAL SOURCES;
+ CROTTY v. AN TAOISEACH =
- In this seminal SC case, the court determined that the Irish government could not ratify the EUROPEAN SINGLE ACT (SEA!) without a referendum;
- The court emphasized that transferring sovereignty to the EU requires the consent of the Irish people, as they are the ultimate SOURCE OF SOVEREIGNTY;
- This case determined that MAJOR EU TREATY CHANGES MUST BE APPROVED BY REDERENDUM;
- This ratio was confirmed in…
+ PRINGLE v. IRELAND.
STATE IS A JURISTIC PERSON
- The State is a legal ENTITY/juristic person CREATED by the people which is SEPARATE to the people;
+ COMYN v. AG =
- The State is a legal entity and therefore enjoyed the right to HOLD PROPERTY.
STATE ENJOYS CERTAIN RIGHTS
- As a juristic entity, the State enjoys a set of rights;
+ OSHEKU v. IRELAND =
- The State possesses vital rights the very same way citizens do;
- However, PROTECTING the State’s rights might limit individual rights;
- Additionally, the Court referred to the preamble of the Const as a SOURCE OF THE STATE’S RIGHTS.
+ COX v. IRELAND =
- Court stated that the State is allowed to make use of strict penalties to protect PEACE ORDER, and its authority if necessary.
- However, in doing so, the State must still respect citizen’s constitutional rights as much as possible.
THE STATE MAY BE SUED IN TORT
- Initially, it was presumed that the State COULD NOT BE SUED FOR THE WRONGDOINGS OF ITS SERVANTS/employees; having INHERITED THE
•CROWN’S
•COMMON
•LAW
•IMMUNITY
- However, in…
+ MACAULEY v. MINISTER FOR POSTS & TELEGRAPHS =
- Court determined that the State can indeed be sued -in contract and tort- IF NEEDED TO PROTECT A CITIZEN’S RIGHTS.
+ BYRNE v. IRELAND =
- SC held that the State is not immune from tortious liability and this abolished immunity of the State in Tort;
- Therefore, the State can indeed be sued for the actions of its servants;
- AS PER BUDD J, JURISTIC PERSON CHARACTERISTIC OF THE STATE LEADS TO AN ABILITY TO BE SUED.
+ KEARNEY v. MINISTER FOR JUSTICE =
- The State can be VICARIOUSLY LIABLE for the breaches of constitutional rights by its servants.
