Separation of Powers

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SYMPOSIUM UNENUMERATED RIGHTS IN THE IRISH CONSTITUTION: THE DEBATE CONTINUES UNENUMERATED CONSTITUTIONAL RIGHTS: THE CURRENT PROBLEMATIC POSITION ORLAITH MOLLOY The Irish Constitution’s fundamental rights provisions are found in Articles 40 to 44. The Irish courts have found that the Constitution guarantees both the rights specified and those unspecified, which have been implied to date by the judiciary. This article questions the legitimacy of the courts’ actions in the past with respect to unenumerated rights and advocates a solution to the problem currently at hand: the unstable and dubious situation of such unenumerated rights. To resolve this situation, the article advocates that specific unenumerated rights be enshrined either in statute or in the Constitution. However, while cognisant of the constitutional design and the potential danger of a “runaway” Supreme Court creating or eliminating “rights” on its own whim or on wholly ethereal grounds, the article posits that future circumstances may justifiably provoke and, indeed, necessitate the Supreme Court’s development of unenumerated rights, even if they are not spelled out in legislation or endorsed by referendum. In order to put the current Supreme Court’s attitude toward unenumerated rights in context, it is first necessary to review the development of the jurisprudence in this area. Initially, very little litigation was taken before the courts on the question of justiciable rights. This reluctance stems from the earliest case worthy of note, The State (Ryan) v Lennon,1 which established the dominance of the positivist view. Stated another way, there are no constitutional


The State (Ryan) v Lennon [1935] I.R. 370.


rights guaranteed, other than those expressly mentioned. An element of “timidity”2 characterised the early years of constitutional litigation as the judiciary were accustomed to the common law system. Keane has commented that constitutional jurisprudence was “inhibited” by the fact that the judges “had been, in the main, educated in the English constitutional tradition.”3 Judicial reluctance to consider an expansive view was reiterated forcefully in The State (Burke) v Lennon4 by Johnson J. and The State (Walsh) v Lennon,5 where Maguire J. spoke of potential “mischief and inconvenience.” In Re Article 26 and the Offences against the State (amendment) Bill,6 Sullivan C.J. “emphatically rejected”7 the suggestion that the clause was applicable to particulars and established the court’s view that the rights of individuals concerning the rights of citizens in general lay within the remit of the Oireachtas. These cases had the ultimate effect of discouraging any judicial investigation of the term “personal rights.” The general consensus at the time was that Article 40.3.1 could not be relied on to assert personal rights. Therefore, the provision received no attention for many years concerning its potential to become a valuable protection. The natural law view8 does not consider that Articles 40-44 are an exhaustive enunciation of the rights afforded constitutional protection, but espouses that unspecified rights inhere in natural law or are otherwise intrinsic in the Irish citizen due to the nature of the state. The many varying interpretations of natural law have caused problems in the development of Irish jurisprudence concerning fundamental rights. Criticism concentrates on inconsistency and a lack

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Hamilton, “Remark: Matters of Life and Death,” 65 Fordham Law Review 543 at 544 (1996-97). Keane, “Judges as Lawmakers- The Irish Experience” (2004) 4(2) Judicial Studies Institute Journal 1 at 9. 4 The State (Burke) v Lennon [1940] I.R. 136. 5 The State (Walsh) v Lennon [1942] I.R. 112 at 124. 6 Re Article 26 and The Offences Against the State (Amendment) Bill [1940] I.R. 470. 7 Hogan, “Unenumerated Personal Rights: Ryan’s Case Re-evaluated” (1990-92) 25-27 Irish Jurist 95 at 101. 8 Kelly, The Irish Constitution (Dublin, 3rd Ed.,...
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