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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
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