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Foundation of Irish Law Solved

Referencing Styles : Harvard | Pages : 14
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Foundation of Irish Law

 

 

 

 

 

 

Contents

  1. Introduction. 2

Description of the Rights. 2

Case laws. 3

Constitution as a safeguard of human rights. 4

  1. Conclusion. 5
  2. References. 6

 

 

 

Introduction

The Constitutional Law is a branch of law which serves to define the relationship amongst the various components of the State i.e. the executive, the legislature, and the judiciary. The Irish Constitution is the fundamental law of the land. .The Constitution of Ireland grants to the citizens of Ireland certain fundamental rights. The Constitution protects these rights, and they are more of natural human rights. The citizens of Ireland have many other personal rights that are not explicitly stated in the Constitution. Such rights are derived from the Constitution (Chubb, 1963). For instance; the right to privacy is not specifically mentioned in the Constitution but the courts in Ireland recognize this right of the citizens. But the fundamental rights guaranteed under the Irish Constitution are not absolute, and they may be restricted. Public good may be one of the grounds on which fundamental rights of the citizens may be restricted. The value and status of each and every constitutional rights are the same in the eyes of the law. Hence, in case of conflict between the constitutional rights the courts consider all necessary factors for determining as to which right carries the greater value in a given situation.

Description of the Rights

Though the Constitution of Ireland grants several fundamental rights to the citizens, in this section, I would discuss in detail about five such rights. These include;

  • Equality Before Law (Article 40.1)

All Irish citizens have equal status before the law. Equality before the law means that the citizens shall not be subjected to discrimination by the State. This equality clause is applicable only is cases of discrimination on the basis of human characteristics. This clause does not serve to guarantee equal treatment in all matters (Dickson, 1997).

  • Right to Life (Article 40.3)

Under the Irish Constitution, the right to life has been enumerated as a fundamental right of the citizens. The right to life includes the right of an individual of dying in the natural course and not being kept alive artificially. But this right does not imply that individuals are free to terminate their lives.

  • Personal Liberty (Article 40.4)

The Constitution guarantees to the citizens personal freedom and liberty but restrictions on such freedom may be imposed by the laws of the land. For instance; it may require the detention of individuals in certain circumstances. In case, an individual believes that he/ she is being detained unlawfully, he/ she may make an application for the writ of habeas corpus before the High Court

 

Freedom of Expression, Assembly, and Association (Article 40.6.1)

The Constitution guarantees to the citizens, the freedom to express their views and opinions. But at the same time the Constitution require the State to ensure that the press is not misusing this right by undermining public order and morality. Thus, there are few restrictions on the freedom of expression. The Censorship of Films Acts and the Censorship of Publications Acts put restrictions on the freedom of expression.

 

Citizens have the right to assemble, without arms, with each other in the society. Such right of association may be restricted for the purpose of maintaining morality and public order. For instance; individuals whose intention behind forming an assembly is illegal cannot take the recourse of the freedom of assembly.

 

Freedom of association is another fundamental right granted to the citizens of Ireland. But the right to form an association is limited to purposes that are not illegal. In case of illegality, the right would be curbed by the State.

  • Right to Fair Trial (Article 38.1)

This fundamental right provides that the courts and the other judicial and quasi-judicial bodies that are responsible for making decisions must treat the citizens in a fair manner. The decision-making authorities must not exercise bias while making decisions and all individuals must be given an opportunity of being heard, before a decision is passed against him/ her(Quekett, 1928).

 

Case laws

O’Brien v. Keogh (O’Brien v. Keogh, [1972])

In this case, the plaintiff who happened to be an infant was injured in a road accident. The Supreme Court held that under the provisions of Article 40 of the Constitution all individuals may not be treated identically, notwithstanding the difference of situation and circumstance. Thus the law upheld by the courts in this case, is that unequal may not be treated equally and in case they are so treated, it would result in the elimination of equality.

In the case of Finan,zant koln Altstadt v. Schumacker (Finanzant koln Altstadt v. Schumacker, [1995]) the same principle has been upheld.

In the case of Ryan v. Attorney General (Ryan v. Attorney General, [1965]) it held by the Irish court that the personal rights guaranteed to the citizens under the Constitution are not unrestricted. For common good, the Oireachtas have the liberty to curb this right.

Even though the Irish Constitution provides for the fundamental right to trial yet the State in the following case has abridged such right. The courts may do so if it feels there is a conflict between the greater good of society and the said fundamental right. In the case of Gangland Ireland v. State (Gangland Ireland v. State, [2009]) the court has waived the right to trial. The reason behind such decision was that the individuals in question had very low values and if they are granted an opportunity of the trial they might intimidate the jury (Palombella, n.d.).

Right to privacy has not been enumerated in the Constitution but the courts have upheld this right. The case of Kennedy v. Ireland (Kennedy v. Ireland, [1987]) may be cited in this regard. In this case, the plaintiffs who were journals made an application for the breach of their constitutional right. The telephones of the said journalists were tapped. The court held that this is an instance of violation of fundamental right to privacy.

Constitution as a safeguard of human rights

In this section, I would try to assess the role of the Irish Constitution in protecting the human rights of the citizens of Ireland. Various amendments to the Constitution have taken effect signify that the primary role of the Constitution since its inception is the protection of the human rights of the citizens. In the last 28 years, sixteen amendments have been made to the Constitution. The thirteenth and fourteenth amendments have recognized the right to life of the unborn. The fifteenth amendment made provision for the dissolution of marriage under certain circumstances. The most significant development was the coming into force of the European Convention on Human Rights in the year 2004 (Litton, 1988). The constitution does not use the term human rights anywhere, but human rights are protected by the Constitution under the provisions of Articles 40-44 that are referred to as the fundamental rights of the citizens. It has been stated by Chief Justice Finlay that the Constitution is the primary as well as the most effective mode for the protection of human rights. He referred to the Constitution as a weapon for securing of justice (Veenhoven and Ewing, 1975).

Conclusion

From the above discussion, we may conclude that the Constitution of Ireland guarantees to the citizens several fundamental rights whether explicitly or implicitly. The role played by the courts in applying the provisions of the Constitution in the protection of the rights of the citizens is highly significant. The fundamental rights are not absolute and may be restricted by the State under certain circumstances, like, public order and morality.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

Chubb, B. (1963). The Constitution of Ireland. [Dublin]: Institute of Public Administration.

Dickson, B. (1997). Human rights and the European Convention. London: Sweet & Maxwell.

Finanzant koln Altstadt v. Schumacker [1995]ECR 1, p.225.

Gangland Ireland v. State [2009].

Kennedy v. Ireland [1987] IR, p.587.

Litton, F. (1988). The Constitution of Ireland 1937-1987. Dublin: Institute of Public Administration.

O’Brien v. Keogh [1972]IR p.144.

Palombella, G. (n.d.). From Human Rights to Fundamental Rights - Consequences of a Conceptual Distinction. SSRN Electronic Journal.

Quekett, A. (1928). The constitution of Northern Ireland. Belfast: H.M.S.O.

Ryan v. Attorney General [1965]IR p.294.

Veenhoven, W. and Ewing, W. (1975). Case studies on human rights and fundamental freedoms. The Hague: Nijhoff.

 

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