Constitutional Rights *Religion (Art 44)
2010/2011
Lecture 1A
Fundamental rights
Judicial review and democracy
Constitutional interpretation
Fundamental rights
*Fundamental Rights (Arts 40-44)
*Personal Rights (Art 40) (split for judicial
interpretation)
*Enumerated Personal Rights
*Personal Liberty (Art 40.4)
*Inviolability of the Dwelling (Art. 40.5)
*Freedom of Expression, Association & Assembly
(Art. 40.6)
*Life, Person, Good Name & Property Rights (Art
40.3.2°)
*Right to Life of the Unborn (Art 40.3.3°)
*Equality before the Law (Art 40.1)
*Unenumerated Personal Rights (Art 40.3.1°) (11
unenumerated personal rights)
*Family & Education (Arts 41-42)
*Private Property (Art 43)
*Also Art 38.1 (trial in due course of law)
“Fundamental” rights?
*Superior to Acts of the Oireachtas or decisions of other
organs of State; laws or decisions are invalid insofar as
they are repugnant to those rights
*Art 15.4 ‘shall . . . be invalid’ (contrast Art 45 ‘general
guidance’ Buckley v AG [1950] IR 67, 83 or Art 28.3.3°
State (Burke) v Lennon [1940] IR 126, 145)
*Are they also “fundamental” as being independent of &
superior to the Constitution itself? They do not depend on
the Constitution for their existence; if the Constitution
conflicts with these rights, that provision of the
Constitution may be set aside
The Constitution sets out a very clear approach to fundamental
rights, the 1937 does not mention the phrase “Human Rights”
however
“Higher law”
*Preamble
*“as our final end, all actions both of men and of States must be
referred” to God
*“ . . . so that the dignity and freedom of the individual may be
assured”
*Article 6
*“All powers of government . . . derive, under God, from the people
. . .” (Art 6)
*Art 41.1.1°
*“ . . . the Family . . . a moral institution possessing inalienable and
 imprescriptible rights, antecedent and superior to all positive law”
*Art 43.1.1°
*“ . . . man, in virtue of his rational being, has the natural right, to
the private ownership of external goods”
Democratic State
*Article 5: Ireland is a ... democratic State ...
*Article 6: All powers of government ... derive from the
people ...
*Article 46.1: Any provision of this Constitution may be
amended ...
Supremacy of the Constitution = supremacy
of the People?
*How do Arts 28.3.3° & 45 square with the idea of rights
more “fundamental” than the Constitution itself?
*Separation of powers exists in order to protect democracy
& the supremacy of the People: Kavanagh v Government
of Ireland [1996] 1 IR 321 (SC)
Judicial review
*Art 15.4: Acts of the Oireachtas repugnant to Constitution
invalid
*Art 34.3. 2° (HC) 4° (SC)
*Art 26 (Bills held repugnant by SC)
*Art 50 – Laws in force on 29.12.1937 continue in force “to
the extent . . . not inconsistent” with Constitution
*No provision that a court may hold any part of the
Constitution (or any amendment to it) “invalid”
What does it all mean?
*Constitution acknowledges as a matter of principle that
natural or human rights exist independently of the
Constitution & are morally superior
*The People in adopting the Constitution decided what
specifically those rights are, what they require and how
they are to be protected
*They can alter those decisions at any time by referendum
Summary
*The People, through direct democracy of a referendum are
the legitimate authority to identify rights (eg should there
be a right to abortion or a right to life of the unborn?)
*Judge’s role is to interpret & apply the Constitution that
results from these choices, by setting aside decisions
made by organs of state through which the People’s will is
indirectly expressed (the Government, the Oireachtas etc)
Arguments for judicial review I
*Human rights independent of majority’s views; protection
(especially of minorities) shouldn’t depend on majority’s will
*“Democracy” is more than majority rule: it needs free
expression, free association, fair elections, etc - these are
vulnerable to legislative majorities
*International human rights obligations should be reflected in
domestic law – ultimately “Strasbourg” decides
Arguments for judicial review II
*Legislatures usually decide in the abstract; courts decide
concrete cases
*Courts’ decisions are more predictable than political ones
(precedent)
*Courts give coherent, reasoned explanations for decisions
—politicians can fall back on rhetoric
*Judges are relatively impartial & objective (eg don’t make
campaign promises & worry about re-election)
Arguments against judicial review I
*Jeremey Walder has spoken out against judicial review for
the following reasons:
*Judges aren’t accountable for their decisions as elected
legislators are
*Are judges better suited to decide what human rights are
& require? Are they better moral deciders than citizens or
politicians?
*Democratic participation is a better way to protect human
rights
*In democracies, human rights depend on values of a
majority (at a social as well as political level)
*Reducing human rights to technical legal issues weakens
ordinary people’s commitment to them
*Human rights make claims (ethical & even spiritual) more
profound than constitutional law
Arguments against judicial review II
*Courts decide human rights disputes in an artificial context
*Legislation involves legitimate compromises; courts can’t do so
*Judges don’t have objective criteria for deciding human rights
disputes; judgments merely conceals their personal opinions,
which shouldn’t count for more than any other citizen’s
*Judicial review is biased towards protecting some rights (civil &
political) rather than others (social & economic)
What has to be explained?
*People (referendum) trump court (judicial review) trump
Oireachtas (Acts)
*Direct democracy (referendum) can overrule courts which
can overrule representative democracy (Oireachtas)
*Judicial review of Acts protects one kind of democracy (via
the referendum) & upholds the people’s supremacy
*Some form of balance between the courts and the Oireachtas
in protecting human rights most likely to achieve this
A balanced system
*In most states, courts can invalidate laws, but effect of
decision can be reversed by constitutional amendment,
via a special legislative procedure
*In some countries some principles seem unamendable
(India, Germany, France)
*Elsewhere (eg USA) amendment process is very difficult to
operate
Special deliberation
*Common theme: some special kind of deliberation is
required
*Ireland: Oireachtas must propose & People, at a
referendum approve an amendment
Advantages of a referendum
*People decide directly what principles should be laid down
in the Constitution
*decision legitimate as expressing (voting) majority’s views
*voters can inform themselves about issue
*voters must take responsibility for decision (not transfer it to
representatives)
*pressure from special interests less likely to affect the result
*Normally, issue is framed in terms of the general principle Kavanagh v Government of Ireland [1996] 1 IR 321 (SC)
State (Burke) v Lennon [1940] IR 126 (SC)
involved, not just an ad hoc result

Drawbacks of a referendum
*Referendum allows majority to prevail more easily than
representative process —minority more vulnerable
*No full accountability (secret ballot)
*Most proposals respond to (or anticipate) court decision—
often hard for average voter to understand
*“Lack of information” (genuine problem or a sign of lack of
interest?)
*Simplistic to reduce human rights issues to an amending
“formula”

Summary
*Constitution expresses theory that rights exist
independently of it
Constitutional Provisions
*Constitution determines how far it is the courts’ role to
protect those rights Preamble
*The People (at a referendum) have the final say as to Art 5
what rights are to be protected by the Constitution & how
Art 6
*Judicial review mediates between two kinds of democracy
(direct & indirect) Art 15.4
Art 26
Art 28.3.3°
Art 34.3
List of cases .2°
.4°
Ireland
Art 38.1
Buckley v AG [1950] IR 67 (SC)
Art 40.1
 .3
.1°
.2°
.3°
.4
.5
.6
Art 41
.1°.1
Art 42
Art 43
.1°.1
Art 44

Art 45
Art 46.1
Art 50