The Gazette 1973

Some Aspects of Irish Constitutional Reform PART 2 By Colm Gavan-Duffy, M.A., LL.B. (Editor)

Lecture delivered to the Irish Association of Jurists in May 1968 (Part 1 was published in July/August 1971 Gazette, page 77). FUNDAMENTAL RIGHTS In order to evaluate what part Fundamental Rights play in modern Constitutions, it would be necessary to make a study of such documents as—The Canadian Bill of Rights, the European Convention of Human Rights and the different United Nations Conventions on this subject, on Genocide and on Non-Discrimina- tion. A most useful document issued by the Interna- tional Commission of Jurists is The Rule of Law and Human Rights—Principles and definitions published in 1966. It would strictly be necessary not merely to study the text of other Constitutions, but also to know how far Fundamental Rights have been protected in practice in those countries. As this is difficult of achievement, I have decided to adopt Jacques Maritain's division of Human Rights, as it corresponds reasonably closely to that of the Inter- national Commission of Jurists. Jacques Maritain divides what he calls the Natural Rights broadly into three main classes, which are much more extensive than those contained in the Constitution : (1) Rights of the Human Person as such : (a) The Right to existence —this appears to be presumed under the Constitution as there would otherwise be no refer- ence to person and citizen. (b) The Right to personal Liberty. This is guaranteed most specifically by the strong language of Article 40 Section 3 of the Constitution by which—The State guarantees in its lass to respect and by its laws to defend and vindicate the personal rights of the citizen. Sub-Paragraph 2, is even stronger, as by it The State shall in particular by its law protect as best it may from unjust attack, and, in the case of injustice done, vindi- cate, the life, person, good name and property rights of every citizen. Prima facia this strong clause would seem effectively—to guarantee the freedom of ' the citizen, but as will be seen, this clause has sometimes been construed in an exceptionally narrow way. There appears to be a connection between Article 40, Section 3, and Article 6, Clause 1, which claims that all powers of Government legislative, executive and judicial de- rived from the people whose right it is to designate the Rulers of the State and in Final Appeal to decide all questions of National Policy according to the require- ments of the good. The Right to Personal Liberty and Pluralism The Section adds that the powers of Government are exercisable only by or on the authority of the organs of State established by the Constitution. Furthermore, Article 5 declares that Ireland is a sovereign indepen-

dent and democratic State. As Maritain has pointed out, democracy is the rational organization of Freedom founded upon Law. It is therefore the only way of bring- ing about the moral rationalisation of politics. Consequently, the means to achieve this must be moral and the end in view must be the principle of justice and freedom and the dignity of the individual. From this arises the pluralist principle by which the State should as far as possible leave to particular organs and Societies the free initiative to carry out their ends. The Principle of Pluralism is of particular importance in construing Article 40, Clause 3, of the Constitution. There is little doubt but that this Clause, in view of its eminence and importance, should be considered as absolutely vital as the Preamble itself. In the Fluorida- tion Case— Ryan v. The Attorney General, (1966) I.R. 312, Mr. Justice Kenny made the following statement in the course of his Judgment, which was subsequently approved by the Supreme Court: "In my opinion, the High Court has jurisdiction to consider whether an Act of the Oireachtas respects and as far as practicable defends and vindicates the personal rights of the citizen and to declare the legislation unconstitutional if it does not. I think that the personal rights which may be involved to invalidate legislation are not con- fined to those specified in Article 40, but include all those rights which result from the Christian and Demo- cratic nature of the State. It is, however, a jurisdiction to be exercised with caution. There are many personal • ights which follow from the Christian and Democratic nature of the State which are not mentioned in Article 40 at all—The right to free movement within the State, the right to marry, the right to bodily integrity are examples of this. In Macauley v. The Minister for Posts and Telegraphs—{ 1966) I.R. 345, Mr. Justice Kenny further held that the necessity to obtain the fiat of the Attorney General before instituting Proceedings against a Minister of State is a direct failure by the State to defend and vindicate one of the personal rights of the citizen. The next Article of the Constitution to be considered is Article 40, Section I, which states that "No citizen shall be deprived of his personal liberty save in accor- dance with law". A recent application of this Section is the case of The State (G.) v. Minister for Justice (1967) I.R. 106. The Chief Justice held that Section 15 of the Lunatic Asylums (Ireland) Act 1875, which enables a Minister at will to transfer an accused to a mental hospital before the preliminary investigation on the summary pro- ceedings in a District Court are completed is an un- warranted interference by the Executive in the working of the Court, because the Court alone must determine whether an accused is insane. The Chief Justice and Mr. Justice Walsh stated that the doing of any act by any non-judicial authority in the State which interferes with the District Court's discretion is an infringement of 197