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An Treoir Poiblí ar an mBunreacht

Contents Forward The Honourable Justice O’Donnell

4.

Introduction Patrick Fitzgerald & James Hodgson

6.

The Preamble Constitutional Frameworks The Irish Language Article 8 Citizenship Article 9 The President Article 12-14 The Oireachtas Article 15 Dail Eireann Article 16 Seanad Eireann Article 18 The Government Article 28 The Judiciary Article 34-34 The Separation of Powers

7. 8.

Constitutional Rights Article 38 Trial in due course of law Article 40.1 Equality before the law Article 40.3 Privacy Article 40.3 Right to Life Article 40.3, 43 Private Property Article 40.4 Personal Liberty Article 40.5 Inviolability of the Dwelling Article 40.6 Freedom of Expression Freedom of Association Article 41 Rights of the Family Divorce and the Irish Constitution Article 42 Right to Education Article 44 Religious Freedom Article 45 Socio-Economic Rights

18. 19. 20. 21. 22. 23. 24. 25. 26.

Constitution in Modern Ireland Changing the Constitution: Referenda EU Law, International Law and the Constitution

32. 33. 34.

9. 10. 11. 12. 13. 14. 15. 16. 17.

27. 28. 29. 30. 31.

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UCD Student Legal Service

Disclaimer

UCD Student Legal Service assumes no responsibility of any kind for the information contained herein or for any reliance that the recipient or any other party may place on any information contained herein and hereby disclaims all liability in respect of such information. The information contained herein is not intended to convey legal advice and should not be construed as or used as a substitute for such advice. It is written for general informational purposes and reading it does not create a lawyer-client relationship. While every effort is taken to ensure that the information provided is correct and accurate, it should not relied upon as a comprehensive or current statement of the law in respect of any matter and appropriate advice should be sought before taking or refraining from taking any action in reliance on any information contained herein. Neither UCD Student Legal Service nor any of its officers, members or contributors, either individually or collectively, make(s) any warranties, representations or undertakings relating to any of the content of such information (including, without limitation, as to the quality, accuracy, completeness or fitness for any particular purpose of such information) and no liability is accepted for any injury and/or damage to persons or property as a result of any reliance on any such information.

All enquiries should be directed towards: UCD Student Legal Service, Box 32, UCD Student Centre, UCD, Dublin 4 studentlegalservice@ucd.ie ©University College Dublin Student Legal Service 2013

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Civic Guide to the Constitution

Acknowledgements Many thanks to the committee of the Student Legal Service and the contributors who made this guide possible:

Guide Editor James Hodgson

Designer Conor Fox

Contributors: Ellen Barr Laura Byrne Thomas Condon Lauren Dooley Sarah Downes Patrick Fitzgerald Daniel Griffin Hannah Higgins James Hodgson Matthew Judge Treasa Kelly

Yvanne Kennedy Glenn Lynch Clare Mohan Demi Mullen Samantha O’Brien Molly O’Casey Aisling Prendergast Faye Rowlands Greg Talbot Desislava Valkanova Rory Walsh

Committee: Patrick Fitzgerald Conor Fox Daniel Griffin Jenny Harvard James Hodgson Matthew Judge

Yvanne Kennedy Demi Mullen Samantha O’Brien Barry Ó Fiacháin Oisin Sudway Greg Talbot

With special thanks to:

The Honourable Justice Mr Donal O’Donnell; Professor Colin Scott, Dean of UCD School of Law; Dr Liam Thornton, Senior Treasurer; Linklaters; Dr Eoin Carolan and the Constitutional Studies Group, for taking the time to review the articles for accuracy.

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UCD Seirbhís Dlí na Mac Léinn UCD

Forward It is indeed appropriate, and certainly not before time, that more than 75 years after the drafting of the Constitution (in which enterprise graduates of this University played a significant part) and its adoption by the People, that a civic guide to the Constitution should be published through the good offices of the UCD Student Legal Service. The publication of this guide illustrates in a very practical way one of the central truths of the Constitution. While it is law – indeed the basic law - it does not belong to lawyers. As it makes clear from the very outset, it was made by the People, for the People and belongs to the People. It is worth considering, even at this remove, the reasons for the survival and indeed vitality of the Constitution over the last three quarters of a century. It was launched, after all, at a time which could not be said to be propitious. It did not have the intellectual support and protection that might have been forthcoming if it had adhered to the dogmas of the ideological blocks on the right and on the left, then dominating debate in Europe and it did not even secure the approval of the Catholic Church. It was closely associated with Eamon de Valera, then and for some time thereafter probably the most divisive figure in Irish politics and it was adopted by an underwhelming majority of the People. But while the history of Ireland has been a history of tragedy and missed opportunities, that part of the history of the 20th century which is constitutional history, provides some significant rays of light. It demonstrates the application of those virtues which should be associated with education: intelligence, broad learning, thoughtfulness and the seeking of solutions which take account of competing views. Thus, the 1922 Constitution was drafted in a conscious effort to put as much distance between the new State and the Treaty as was possible in an attempt to narrow the gap in Ireland that led to the civil war. The 1937 Constitution for its part was a remarkable exercise in the use of law to achieve, without the use of force, the almost complete severance of this country from its British imperial past. Thus, an important feature of the 1937 Constitution was the assertion of its claim on behalf of the Irish people to a status of free citizens of an independent nation. It can I think be said that the constitutional tradition in Ireland achieved longevity, acceptance and ultimate success because it was the embodiment of a generous vision and a conscious attempt to state truths of enduring value that transcended divisions, whether national or international. The 1937 Constitution was remarkable for example in its assertion of the importance of fundamental rights based on human dignity and enforceable by action in the courts, well before those virtues became recognised in international constitutions and conventions in the aftermath of World War II. A central innovation in the 1937 Constitution was the guarantee of equality before the law contained in Article 40.1 and thus located, perhaps significantly, at the transition from the structural elements of the Constitution, to that portion of the Constitution dealing with fundamental rights, and perhaps illuminating both. It, together with its often overlooked

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An Treoir Poiblí ar an mBunreacht

companion provision in Article 40.2, makes it absolutely clear that this is a Constitution for citizens, not subjects. Thus persons who have the privilege of holding a constitutional office, are treated by the Constitution as citizens – citizens plus certain powers, duties, and responsibilities and occasionally minus certain freedoms – but at all times, citizens. Like Bluntschli the pragmatic Swiss hero of George Bernard Shaw’s Arms and the Man, the Constitution allows every Irish person to say, and with some pride, “My rank is the highest rank …. I am a free citizen”. But if citizenship is to be effective in creating the social order envisaged by the Constitution, it requires effort and knowledge. It is somewhat surprising therefore, that in the current vogue for the teaching of civic values to school children, it does not appear that much emphasis is placed on the Constitution, other than a tendency to locate it as only a part, and a rather unfashionable one at that, of some broader conception of human rights. Similarly, it would be beneficial if the Constitution and its development was the subject of more study from the distinctive perspectives afforded by the disciplines of history and political science, as indeed occurs in the United States. However, notwithstanding this, and at a time when much in public affairs appears ephemeral, trivial or simply dismaying, it is heartening to see the seriousness with which Irish people can on occasion address constitutional matters such as proposals to amend the Constitution, and the performance of constitutional duties such as service on juries and not least participation in litigation on constitutional issues in the courts. But a constitution however impressive is only words; it can become effective however with the application of those enduring values of education, such as knowledge, learning and thoughtfulness. I congratulate therefore the authors of this guide and those who have supported it and I hope that it will introduce the Irish Constitution to many more citizens and inspire them to learn of, think about, and perform the obligations it imposes, and to exercise the freedoms it guarantees.

Donal O’Donnell, Supreme Court, Dublin 7. 22nd March, 2013

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UCD Student Legal Service

Introduction Our Constitution is the most fundamental legal document in the State. Last year marked 75 years since its enactment. Yet in all this time, there has never been a civic guide to explain the provisions of the Constitution in clear and simple language. While there is a rich repository of academic commentary on the Irish Constitution, perhaps we have forgotten that Bunreacht na hÉireann is the Constitution of the people; not just of the legal community. We believe this guide shows our young generation that they can inspire a renewal within Irish society. The publication demonstrates that the students of UCD can apply the skills of their legal education in an innovative and exciting manner. This is exemplified by the fact that the guide will be made available for free in three distinct formats: via a specially created mobile phone app, via the SLS website and in hardcopy. However, this publication would not have been possible without the support of so many. We wish to sincerely thank The Honourable Justice Mr Donal O’Donnell for his kind foreword. The staff of the UCD Law Faculty have been equally generous with their time. We would like in particular to thank Professor Colin Scott, Dean of the Law School, Dr Liam Thornton, Senior Treasurer of the society, and the members of the UCD Constitutional Studies Group , who reviewed the publication. This publication could not have been possible without the financial support of UCD and Linklaters. Their support has been crucial in bringing this novel idea to fruition. We must extend the utmost thanks to those students who made this publication possible. The numerous contributors to the publication have shown their immense ability to explain the provisions of the Constitution cogently. Without your commitment, this publication could never have come into existence. The 2012/13 SLS Committee has been tremendous in making this project a reality. Daniel Griffin and Demi Mullen have to be complimented for skilfully orchestrating the financing of this publication. Conor Fox has been the essence of creativity for the SLS this year. As designer of the publication, he has superbly presented the work of the volunteers. Finally, we must thank all the volunteers who made this session possible. Your dedication to SLS has been immense and your altruism is an inspiration not only to the legal system, but to society in general.

Patrick Fitzgerald Chairperson UCD Student Legal Service 2012/13

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James Hodgson Editor UCD Student Legal Service 2012/13


Civic Guide to the Constitution

The Preamble to the Irish Constitution

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he Preamble enshrines the values of the Irish Constitution. While it has been referred to in multiple decisions, there has never been a case decided solely on the basis of the Preamble. Rather, the Preamble is symbolic. It declares what we believe in as a people and as a country.

of democracy is “ thistheexpression spirit of our Constitution ” The Preamble describes us, the citizens of Ireland, as ‘the people of Éire’. The Preamble outlines who we are as a people.

The influence of Christianity is apparent from the introduction declaring ‘in the name of the Most Holy Trinity. From whom all authority and to Whom, as our final end, all actions both of men and States must be referred.’ The Constitution affirms God is the ultimate source of power. Moreover, the Preamble vows that we, the people of Éire, acknowledge all our obligations to Jesus Christ. As Christianity has shaped the history of Ireland, it is not surprising to see that the drafters in 1937 incorporated the religious values of the Ireland into the Constitution. The Preamble acknowledges that we, the people, remember those who fought for Irish independence ‘gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation.’ This is a renewed statement of Irish independence. The Preamble is quite nationalistic, the Constitution being the first document saying Ireland as an independent country. It refers to the idea

of Irish unity and the desire to see the unity of the country restored. One should add that the Preamble uses different terms referring to ‘our Nation’ and ‘our country’. The use of the term ‘Nation’ implies all the ‘people of Éire’ on the island rather than the people of the ‘country’ of the 26 counties. The principles that we should aspire to are set out as we, as a people, seek ‘to promote the common good, with due observance of Prudence, Justice and Charity’. However, the aspirations of the community are balanced with the rights of the individual. ‘The dignity and freedom of the individual may be assured.’ The common good balanced against the rights of individual is a key philosophical theme of our Constitution. Furthermore, the Constitution hopes for the attainment of ‘true social order’.

the Preamble outlines “who we are as a people ”

Ireland’s place on the world stage is raised in the Preamble. It envisions that concord will be established with other Nations. Clearly, the Preamble foresees Ireland engaging with other nations internationally. The Preamble implies that the State is the creation of the People. It is the Constitution of the People concluding that we ‘Do hereby adopt, enact, and give to ourselves this Constitution.’ This expression of democracy is the spirit of our Constitution.

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UCD Seirbhís Dlí na Mac Léinn UCD

Constitutional Frameworks This section of the Guide looks at the institutions and offices created by the Irish Constitution, from the ceremonial President to the Chief Justice of the Supreme Court. It details the division of power into three organs of the State, and examines the relationship between them. In essence, this section seeks to promote a better understanding of the rules and systems without which the State would not function.

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An Treoir Poiblí ar an mBunreacht

The Irish Language.

T

he Constitution of Ireland is a bilingual document. Both Irish and English are recognised as official languages of the country. However, Article 8 declares ‘the Irish language as the national language is the first official language.’

has an important role “ [Irish] in the interpretation of the

The acknowledgement of the Irish language as the first language is not simply a symbolic gesture. It has an important role in the interpretation of theConstitution. Article 25.5.4 states that in the event of conflict of interpretation between the Irish and English texts, the Irish text shall take precedence. Therefore, an in-depth knowledge of the Irish language is fundamental if a discrepancy arises between both texts.

This shows the limited effects of Articles 8 and 25.4.4 in furthering the use of Irish in practice within the Irish legal system.

Articles 8 and 25.4.4 have been relied upon by the Courts to rule that the State must provide translation of all Acts of the Oireachtas within a reasonable time. It is clear that the Constitution not only wishes to promote the use of the Irish language but legally protect its status as the first language. While English may be the second official language of the Constitution, the vast majority of cases in the Courts are argued in English.

Constitution

Article 8.3 acknowledges that a law may be introduced for the exclusive use of either of the official languages for official purposes throughout the State. Nonetheless, no law to this effect has ever been introduced. The legal position of Irish has been enhanced in recent years. The introduction of the Official Languages Act 2003 has set down the rules governing the provision of services through Irish by State bodies. Moreover, Irish is an official language of the European Union since 2007.

text shall “thetakeIrishprecedence ”

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UCD Student Legal Service

Article 2, 9

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s a result of the Good Friday Agreement Article 2 became part of the Irish Constitution on 2nd December 1999. It states: “It is the entitlement and birth right of every person born in the island of Ireland…to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland.” This amendment appears to mean that any person born on Irish soil would automatically become an Irish Citizen regardless of any blood relationship to an existing citizen (known in Latin as ius soli). The Government became concerned that this Article might encourage migrants to travel to Ireland in order to have children who would become Irish citizens. They proposed certain amendments to Article 9, the amendments are now provided in Article 9(2) after an overwhelming approval in the referendum. The consequence of Article 9(2) is to bar any child who doesn’t have a parent who is an Irish citizen or entitled to citizenship from acquiring citizenship on the grounds that they were born in Ireland alone. The opening phrase of the provision gives the new amendment precedence over Article 2: “Notwithstanding any other provision of this Constitution”. However there is not an absolute bar on children born to non-citizen parents residing in the state from acquiring citizenship. The phrase “unless provided for by law” allows the Oireachtas to enact legislation that allows for statutory entitlements to citizenship. For example; under current legislation non-citizen parents who have children born within the

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Citizenship. state after 1st January 2005 must prove that they have a genuine link to Ireland in order for the child in question to be entitled to citizenship. This is evidenced by their residence within the state for more than three of the past four years. Citizenship granted to children of non-national parents before the changes to Article 9 cannot be revoked.

No automatic citizenship “ arises from marriage to an Irish citizen ”

Article 9.1.1 envisages any other grounds to citizenship entitlement to be determined by legislation. If you do not satisfy the ius soli entitlement and Article 9(2) restrictions, the other principal ground for obtaining citizenship is through descent. If either of your parents was an Irish citizen at the time of your birth, you will obtain Irish citizenship regardless of your place of birth. Also, you will obtain citizenship regardless of your parents being married at the time of your birth. You may also obtain citizenship if any of your grandparents are/were Irish citizens. However if neither of your parents were born in Ireland you may obtain citizenship by having your birth registered in the Foreign Births Register. As of 2001 no automatic statutory citizenship arises from marriage to an Irish citizen and The Minister for Justice has discretion to grant citizenship to non-national spouses based on various conditions being met.


Civic Guide to the Constitution

Articles 12-14, 26

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The President.

he Constitution states that:

“there shall be a President of Ireland (Uachtarán na hÉireann), hereinafter called the President, who shall take precedence over all other persons in the state and who shall exercise and perform the powers and functions conferred on the President by this Constitution and by law.” The President is elected by direct vote of the people of Ireland and serves for 7 years, unless (s)he should die, resigns, or is removed from office. A person may serve as President only twice. Every citizen aged 35 or above is able to run for the office of President. Articles 12 - 13 contain several different subsections which outline the roles and duties of the President. For example, the President appoints the Taoiseach and the other members of the Government, as well as accepting the resignation of any member of the Government. There are further Presidential duties contained in various other articles of the Constitution (such as Article 26). Some of the President’s powers are contingent (or dependent) powers. (S)he can only use these powers when they are raised by someone else. For example, the President may appoint judges to the High Court on the instruction of the Government only. The Constitution also gives the President absolute powers which (s)he uses at his/her Douglas Hyde (1938 - 1945) Seán T. O’Kelly (1945 – 1959) Éamon de Valera (1959 - 1973)

discretion, without the influence of another party. For example, the President may pardon a criminal who has been sentenced by Irish courts.

serves for “ [The President] seven years

Another such absolute power, and one of great importance, is that of the President signing off a Bill before it can become a law. The President does not have to sign any Bill (s) he does not want to. (S)he must consult with the Council of State, and then may refer the Bill to the Supreme Court. The Supreme Court decides on whether or not the Bill is repugnant to the Constitution (i.e. that it goes against the Constitution). If the Supreme Court finds that part of the Bill offends the Constitution in some way, the Bill is deemed to be unconstitutional and the President does not need to sign it and make it law. However, if the Supreme Court finds that the Bill is in line with the Constitution, the President must sign it off as law or face being impeached for his/her failure to do so. As mentioned above, the President can be impeached (removed from office) for misconduct. For the President to be impeached, an investigation must be carried out, and twothirds of the Oireachtas must agree on the impeachment.

Erskine H. Childers (1973 – 1974) Cearbhall Ó Dálaigh (1974 – 1976) Patrick Hillery (1976 – 1990)

Mary Robinson (1990 – 1997) Mary McAleese (1997 – 2011) Michael D. Higgins (2011 - Incumbent) 11


UCD Seirbhís Dlí na Mac Léinn UCD

Article 15

The Oireachtas/The Legislature.

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rticle 15 sets out the rules and powers of the National Parliament, known as the Oireachtas. The Oireachtas consists of two Houses: a House of Representatives called Dáil Éireann and a Senate called Seanad Éireann. Sittings of both Houses have to be held in public, except in cases of special emergency when a private sitting can be approved by two-thirds of the members present. No person can be a member of both Houses at the same time. All matters for the determination of the Oireachtas will be made by a majority vote of all members present except for the Chairman. If there is a tie, the Chairman then casts their vote. The Oireachtas is vested with the ‘sole and exclusive power of making laws for the State.’ The Oireachtas can give this legislative power

“ The Oireachtas consists of two Houses ”

(power to make laws) to another body, such as a County Council. This sole and exclusive legislative power is limited, and the Oireachtas cannot do whatever it feels. Most importantly, the Oireachtas cannot enact any law which is in conflict to the Constitution. As well as that, the Oireachtas cannot create retrospective liability (i.e. laws which makes an act illegal after it has been done, and punishes a person for that act even though it wasn’t illegal at the time).

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The Houses of the Oireachtas are responsible for their own rules, and penalties for breaches of these rules. The Oireachtas can enforce the means necessary to ensure that their members are not interfered with or corrupted in their course of duty. It also has the right to protect official documents and the private papers of individual members. This is reinforced by Section 46(1)(e) of the Freedom of Information Act 1997, which expressly excludes information within the meaning of Article 15.10 of the Constitution from its scope. This protection is known, and commonly referred to, as privilege.

cannot enact any law “ ...which is in conflict with the Constitution

Comments made by members in either House are also privileged. A member cannot be questioned about anything (s)he has said by any authority other than the House in which the comments were made. Under the same provision, members are protected from arrest while travelling to and from the Oireachtas or while occupying it, except in cases of treason or a breach of peace. The Oireachtas is also granted the exclusive right of establishing the State’s military and armed forces, and can provide for the payment of allowances to members in connection with their duties as public representatives.


An Treoir Poiblí ar an mBunreacht

Article 16 Dáil Éireann is the lower house of the Oireachtas, or the House of Representatives. According to the Constitution, any Irish citizen can be a member of the Dáil Éireann, so long as they are at least twenty-one years old and eligible by law (for example, not in jail at the time).

are elected by propor“ Members tional representation through a single transferable vote ”

The law may specify the number of Dáil Éireann members, known as Teachtaí Dála (or TDs). The Constitution provides that there must be at least one member of Dáil for every twenty thousand people and no more than one member for every thirty thousand people in Ireland. The 2006 census indicates that there is one TD for every 25,512 people. The members of Dáil Éireann represent their own constituency, of which there are 43. The ratio between the members of Dáil Éireann and the population in each constituency should be the same throughout Ireland. The Oireachtas must review the size of constituencies at least once every twelve years, taking into account the most recent Irish census. There can be no less than three members representing a constituency. Furthermore, changes to a constituency do not apply until the next session of the Dáil Éireann.

Dáil Éireann. Dáil after a period of no greater than seven years from the date of its first meeting. This time period can be shortened via legislation. The first meeting of the new Dáil must take place up to thirty days after the Dáil Éireann has been dissolved. The Chairman of Dáil Éireann prior to the election is deemed to be elected a member of Dáil Éireann at the following election, without an election actually being held. Otherwise, elections for membership to the Dáil Éireann are regulated by law.

of Dáil Éireann “ The members represent their own constituency ” Irish citizens and people specifically allowed by the State may vote in the Dáil Éireann elections, so long as they are at least eighteen years old. Members of Dáil Éireann are elected by proportional representation through a single transferable vote. This means that after the elector’s first choice of candidate has been either elected or eliminated, the surplus votes are transferred according to the voter’s stated preference. All voting in Ireland should take place, as far as is possible, on the same day. Voters are only allowed one vote and the ballot must be secret. It is illegal to interfere with someone voting.

The constitution requires the Dáil Éireann to be dissolved and election carried out for a new

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UCD Student Legal Service

Article 18

S

eanad Éireann (or the Senate) is the upper house of the Oireachtas and forms one part of Ireland’s parliament. The current Seanad has different methods of appointment and limited powers which are much weaker than the powers of the Dáil.

powers in relation “ ... limited to Money Bills ... ”

Currently, the Seanad consists of 60 members who are both elected and nominated to their seats. Forty-three members of the Seanad are elected from among five different vocational panels. These panels group individuals who represent different trades and interests within Ireland such as the Agricultural Panel. About 1,000 people elect these seats including local councillors, outgoing Senators and incoming TDs. A further eleven members of the Senate are nominated by the current Taoiseach. Finally, six seats of the Senate are elected by graduates of the National University of Ireland (including UCD, NUI Maynooth and NUI Galway) and Trinity College Dublin. It is important to note here that the way Senators are elected is not actually in the Constitution, but in legislation. The Senate has limited powers to review legislation passed by the Dáil or to suggest new legislation. The Seanad can only delay legislation passed by the Dáil and cannot block it from coming into force. No Bill to alter the

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Seanad Éireann. Constitution can be proposed in the Senate and the house has limited powers in relation to Money Bills (i.e. the Finance Bill which contains the details of the Budget). Recently, there has been growing debate about whether the Seanad should be abolished, leaving Ireland with a single house of parliament. Several arguments have been put forward by groups, including all of the major political parties, in favour of the abolition of the Seanad. It has been argued that Ireland could easily survive with only one house of parliament and that election to the Senate is undemocratic. However, arguments have been put forward to keep the Senate and many have suggested that the Seanad could easily be reformed. The Oireachtas has formed a sub-committee to look into this possibility and has published a report outlining potential improvements.

members who are both elected “ 60and nominated to their seats ” These reforms aim to increase the number of people who can vote for the Senate and to give it a greater role in Irish affairs. It has been suggested that all citizens with a third-level degree or its equivalent should be able to vote for the university seats. Another suggestion is that the Taoiseach should nominate members from groups decided by the people, including members to represent the interests of Northern Ireland. The Senate would also play a greater role in EU affairs, reviewing legislation and allowing Irish MEPs to discuss European issues in Ireland.


Civic Guide to the Constitution

Article 28

The Government.

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he Government is in essence the Cabinet of Ministers including the Taoiseach and Tánaiste, otherwise known as the Executive. Under Article 28, there must be a minimum of seven members in the Government and a maximum of fifteen members. It is the President who appoints the Government, however this is a constitutional formality. While the Government is responsible to Dáil Éireann, it is not responsible to Seanad Éireann. However, each member of Government has the right to attend and be heard in either House of the Oireachtas. The Government acts as a collective body with members collectively responsible for each respective Department of State. This has led to some commentators questioning the constitutional validity of the current Economic Management Council within the present Government. All discussions which take place at meetings of the Government are subject to constitutional protection. However the High Court does have the power to issue a disclosure order removing cabinet confidentiality if it believes this to be in the interests of justice or, at the request of a tribunal established by a Government Minister to be in the public interest. Under Article 28, the Taoiseach is obliged to keep the President ‘generally informed’ on international and domestic matters. However, this obligation is open to interpretation and has been the subject of dispute in previous decades.

Taoiseach were to ... die, “ ifthetheTánaiste will carry out the

responsibilities of the Taoiseach

[are] collectively re“ members sponsible for each respective Department of State ”

Once appointed, the Taoiseach nominates the Tánaiste who during the temporary absence of the Taoiseach acts in his/her place. If the Taoiseach were to become permanently incapacitated or die, the Tánaiste will carry out the responsibilities of the Taoiseach until a replacement is selected. While the Taoiseach, Tánaiste and Minister for Finance are constitutionally required to be members of Dáil Éireann, the Taoiseach may nominate two members of Seanad Éireann to serve as members of the Government. This provision was last utilised in 1981. The Taoiseach may request the resignation of a member of Government at any time for reasons which he/she believes to be sufficient. If a member of Government fails to comply with this request, the President on the advice of the Taoiseach may terminate the member’s appointment as a Minister. The Taoiseach may at any time submit his/ her resignation from office to the President. If the Taoiseach fails to retain the majority support of Dáil Éireann, he/she is required to resign from office unless following the dissolution and re-election of the Dáil, the Taoiseach secures the majority support of deputies. Following the resignation of the Taoiseach, all members of the Government are deemed to have also resigned from office but will carry out their duties until their successors are appointed. This provision also applies where the dissolution of Dáil Éireann takes place.

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UCD Seirbhís Dlí na Mac Léinn UCD

Article 34-35

The Judiciary.

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rticle 34 is primarily concerned with the establishment of the Irish court system. Article 34 only establishes a Court of First Instance (the High Court) and a Court of Final Appeal (the Supreme Court) but provides for more courts to be set up if the Government so wish, including courts of limited and local jurisdiction (Circuit and District Courts). This article gives the High and Supreme courts the exclusive power to determine if an Act of the Oireachtas is invalid, unless the Bill has already been referred to the Supreme Court under article 26 by the President of Ireland. If the Bill has been referred to the Supreme Court as above, either court may not subsequently strike it down when it becomes an Act. The Supreme and High Courts can invalidate laws of the Oireachtas if they are proven to be incompatible with the constitution (or unconstitutional).

will be appointed by the “Judges president ... only the constitution and the law shall influence their decisions

It is a crucial provision of article 34 that justice must be administered so far as possible in public. This ensures that fair procedure is followed by the Court, as any member of the public can enter the Court to watch a trial. Family Law cases are exceptional in that they are heard in camera, meaning the public cannot enter, watch or write about it. Article 34.4 is concerned with the structure of the court system. The president of the Su-

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preme Court shall be called the Chief Justice; the Supreme Court can hear appeals from all courts (though usually appeals will flow through the High Court first). The decision of the Supreme Court will always be final. Article 34.5 sets out the declaration that all judges must make to take up their office. They must do so within 10 days of taking the office, unless the President chooses another date. The Chief Justice must make the declaration in front of the President, but the other members of the Supreme Court and all lower courts must only make the declaration in open court in front of the Chief Justice or the most senior available Supreme Court judge. If a judge does not do this they will lose their position. Article 35 states that the judges of all courts will be appointed by the president, and guarantees their impartiality, stating that only the constitution and the law shall influence their decisions. They cannot hold a position in either house of the Oireachtas, or indeed hold any other office of employment for pay. Article 35.4 deals with how and for what reasons a judge may step down or be removed from their office. A High Court or Supreme Court judge can only be removed by incapacity or for ‘stated misbehaviour’, generally being convicted of a crime. This has never been done before in the history of the Irish Republic. To remove a judge both houses of Oireachtas must pass a resolution. The President is the person who officially removes the judge from office, after being notified by the Taoiseach of the resolution of both houses of the Oireachtas, and given the resolutions in written form.


An Treoir Poiblí ar an mBunreacht

Article

T

he Constitution provides for three separate, but equal, organs of State: the Legislature, the Executive and the Judiciary. This system is known as the ‘Separation of Powers’ and aims to ensure that no one branch of State interferes with the functions of the other two. These three organs, the constitutional position of which is examined above, amount to the three most important powers of the State: the making of law by the Legislature, the enforcement of law by the Executive, and the interpretation of law by the Judiciary. Much of the information contained here has already been stated in the preceding pages. This article aims to tie together this information and to show the importance of the Separation of Powers to the running of the State. The Legislature Under the Constitution, the Oireachtas consists of two chambers and the President of Ireland. The two Houses of the Oireachtas are Seanad Éireann (the Senate) and Dáil Éireann (the chamber of deputies). Article 15 of the Constitution gives sole law-making power to the Oireachtas, but this power is not unlimited as they cannot enact legislation that is contrary to the terms of the Constitution or which would provide for the imposition of the death penalty. Legislation can begin in either of the two Houses, with the exception of Bills concerning finance and Bills to amend the Constitution which may only be introduced in Dáil Éireann. A Bill goes through several stages in both Houses before being sent to the President for signature, after which the Bill becomes an Act of the Oireachtas. Articles 12 to 14 set out the functions of the President of Ireland. The President’s function within the Separation of Powers is to review legislation which (s)he may sign or refer to the Supreme Court for review.

The Separation of Powers. The Government (Executive) The Executive is the Government of Ireland and must be made up of no fewer than 7, and no more than 15 members and includes the Taoiseach who is the head of the Executive and his Deputy, the Tánaiste. The Judiciary The Judiciary has already been dealt with, but its function within the separation of powers system is very specific. Article 35 deals with the appointment of members of the Irish judiciary, who, under the Article “shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”. The members of the Supreme Court and the High Court can be removed from office only by an order of both Houses of the Oireachtas for “stated misbehaviour or incapacity”. Though they have never been utilized, these provisions ensure that judges remain unaffected by any threat, perceived or real, from either of the other branches, when making their decisions. There have been times when the Judiciary has been accused of attempting to take the place of the Legislature with the way in which they have decided certain cases but criticism has not been confined to this branch of State. Recently, concerns over investigations that were being proposed by the Oireachtas led to a defeated Referendum on Oireachtas inquiries, which, if passed, would have given the Oireachtas ‘trial-like’ powers where the protections of the courts did not apply. Until recently, under Article 35, the salary of a judge could not be reduced during their term of office. Again, this was to ensure the judges remained independent and impartial. However, it passed through the Dáil that the pay of judges could be affected in the same way as other State employees. 17


UCD Student Legal Service

Constitutional Rights This section of the Guide considers the fundamental human rights protected by the Irish Constitutions and guaranteed to all citizens of the Irish nation. Some of these rights are expressed in the words of the Constitution itself, while others have been considered by the Supreme Court to be implied by the Constitution.

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Civic Guide to the Constitution

Article 38

A

Trial in Due Course of Law.

rticle 38 of the Constitution provides:

“No person shall be tried on any criminal charge save in due course of law”. This begs the question, what is the meaning of the phrase “due course of law”? It fundamentally comes down to the requirement of ‘a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society’.

deemed innocent until proven “...guilty ... beyond all reasonable doubt...

This provision of the Constitution has played an essential part in the area of criminal procedure. If a person is accused of a crime, the law respects his or her rights in trial and pre-trial investigation as well as guaranteeing that trials are conducted in accordance with basic standards of justice. The following concepts: the presumption of innocence, that an accused can only be tried with an offence known at law, that they cannot be tried twice for the same offence etc., are so longstanding in the law throughout the Common Law world (i.e. countries with the a similar legal system to Ireland, such as England, Australia and Canada) that they have been given Constitutional protection here in Ireland.

The presumption of Innocence is not explicitly stated in the Constitution but as mentioned above, is such a fundamental principle of international law that it is implicitly required under Article 38.1. An accused will be deemed innocent until proven guilty by the prosecution beyond all reasonable doubt. Another important facet of common law is that a person accused of a crime will not be allowed to give evidence which could incriminate him or her. The courts, in attempting to secure the balance between individual freedoms and the greater good of the public, have held that if an accused fails to answer a question either at trial or during a police investigation his/her silence may be used against him/her in certain circumstances. In addition to protecting the right to silence, the courts have ensured that only voluntary statements may be taken into account in the administration of justice. It is also of common knowledge that an accused person has the right to cross-examine people giving evidence against him. Although this isn’t without restrictions, the courts have since enacted legislation which provides that children under the age of 17 can give evidence by way of video-link. Evidence need not be given in the physical presence of the accused, especially if the crime in question is one of a sexual or violent nature.

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Article 40.1

Equality Before the Law.

‘All citizens shall, as human persons, be held equal before the law’

E

quality is very important of a fair legal system. Unfortunately, the concept that we all are to be treated the same by the judicial system can sometimes be difficult to fully carry out.

to treat “it isoneunconstitutional sex more favourably than the other

To say that your right to equality before the law has been breached, you must show that discrimination is based on human characteristic. For example, a woman may claim that her right to equality has been breached where she is discriminated because of her sex. The Irish Supreme Court has stated that Article 40 does not require identical treatment of all persons, in other words not everyone is entitled to be treated exactly the same as relevant circumstances must be taken into account. For example, under the Constitution we are all entitled to a fair and public hearing, yet in certain circumstances a case may not take place

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in public due to the sensitive nature of a case, such as a case involving children. These cases said to be held in camera (i.e. in private). Another quite relevant example is that it would not be unconstitutional for the State to provide special facilities for disabled person and not provide those facilities to a non-disabled person. Article 40.1 allows, and in some instances requires, that the State have regard to relevant physical, social and moral differences. There have been many cases challenging a breach to a person’s equality before the Irish Courts. These cases have pointed to certain behaviours which are indeed in breach of the right to equality. For example, it has been established it is unconstitutional to treat one sex more favourably than the other. Equality in elections is the key way to protect democracy and the Courts have held unequal treatment of candidates unconstitutional. For example the State may not fund promotion of a ‘Yes’ vote in a referendum. This breaches the equality rights of citizens as it puts the voting rights of one class above another.


An Treoir Poiblí ar an mBunreacht

Article 40.3.1

T

he concept of privacy is fundamental in society. Privacy allows us to enjoy an individual private life away from the public domain. Article 40.3.1 does not contain an expressed constitutional right of privacy. However, the Courts have recognized and developed an implied constitutional right to privacy. The first type of privacy that was recognized was that of martial privacy. In McGee vs. Attorney General, the court had to determine whether a law preventing McGee from using contraceptives was in breach of her martial privacy. The Irish Supreme Court ruled that the right to martial privacy was a fundamental personal right under Article 40.3.1 and that ban on the sale or importation contraceptives was unconstitutional. The right of individual privacy was first recognized in the case of Norris vs. Attorney General. Norris challenged section 11 of the Criminal Law (Amendment) Act 1885 and section 61 and 62 of the Offences against the Person Act 1861. These provisions criminalized homosexual activity between consenting males. The applicant claimed these laws in effect breached his right to privacy. The minority of the court recognized that every individual has the right to privacy or the right “to be let alone” by virtue of their human personality.

Right to Privacy. have recognised “andCourts developed an implied right to privacy

In 1987, the Irish High Court accepted an individual’s right to privacy in the case of Kennedy vs. Ireland. This case concerned the phone tapping of Irish Times journalists Geraldine Kennedy and Bruce Arnold. The High Court recognized the applicant’s individual right to privacy and that the government’s actions had breached Article 40.3.1. Furthermore, the court held that the right to privacy is not an absolute right and can be restricted by the constitutional rights of others, the requirements of the greater good or in the interests of national security, public order and morality. As the right to privacy has been recognized by the Irish judiciary, it has the potential to develop further as society progresses. With the privacy concerns that have accompanied the rise of the internet and social networking, we can expect to see a heighten reliance on the right to privacy as a fundamental personal right under Article 40.3.1.

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Article 40.3.2, 43

Private Property Rights.

T

he right to private property is covered within two articles of the Irish constitution. The constitution provides double protection for the right to private property. However, the fact that the right to private property exists in two separate articles has caused the courts considerable difficulties over the decades. Which one applies? Is one article more important than the other? The courts have decided that they will observe both articles when referring to your rights in regards to private property.

you have a right to own “ transfer and inherit property ... to leave property to someone in your will.

In short article 40.3.2 is an assurance that the state will protect the property rights of its citizens: ‘The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.’ Broadly speaking, Article 40.3.2 pledges that the State will defend the property rights of

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every citizen. This means that you have a right to own, transfer and inherit property. You also have the right to leave property to someone in your will. Article 43 reinforces this assurance. However unlike article 40.3.2 it also explains when there are exceptions to this private property right. In other words, Article 43 regulates this right to private property. It states that these rights ought to be regulated by the principles of social justice. But what does this mean? This means that the State may pass laws limiting your right to private property in the interests of the common good. However if the state passes a law that restricts your property rights, it may be required to compensate you for this restriction. Examples of restrictions or limitations on your right to own property include town and regional planning, protection of national monuments and property taxes. The law suggests that the reference to social justice and the common good in article 43 is an important consideration in the courts decision of whether a right to private property has been interfered with. When measures of the state are challenged because they breach an individual’s private property rights the Irish courts will look at a number of things, such as whether a person’s right has actually been breached.


Civic Guide to the Constitution

Article 40.3.3

Right to Life. Abortion and the Irish Constitution

A

bortion under the Constitution is governed by Article 40.3.3 (inserted by the 8th amendment) which reads as follows: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’

These amendments prevent Article 40.3.3 from limiting any person’s right to travel abroad or any person’s right to information on legal abortion services in other states

risk “atorealtheandlifesubstantial of the mother

In Attorney General v. X, the Supreme Court allowed a 14 year-old girl travel to England for a termination. The girl was pregnant as a result of a rape and the psychological evidence before the Court indicated that she was suicidal. In coming to this decision, the Court interpreted Article 40.3.3 as meaning that abortion is possible if there is a real and substantial risk to the life of the mother, and that risk will be avoided by aborting the unborn.

In December 2010 A B & C v Ireland, a case of three women who took a suit against Ireland in the European Court of Human Rights, was decided. The court found that while it was valid that the Irish laws required women to travel to England to have an abortion, Ireland was found to have violated the Convention in that there is no accessible and effective procedure by which a woman can have it established whether she qualifies for a legal abortion in Ireland.

The decision in X in 1992 lead to two further referenda which inserted the following in Article 40.3.3:

However, no legislation has yet been introduced which gives effect to the decisions in X and/or A, B & C.

‘This subsection shall not limit freedom to travel between the State and another state.’

Currently the only law governing the matter outside of the Constitution is the Offences Against the Person Act 1861. Sections 58 and 59 of this Act essentially state that it is illegal for any pregnant woman to procure her own miscarriage by any means, and that it is illegal for any person to supply a pregnant woman with any means of procuring her own miscarriage.

‘This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.’

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Article 40.4.1 ‘No citizen shall be deprived of his personal liberty save in accordance with law’

P

ersonal liberty is not freedom to do whatever you like. Personal liberty is concerned with freedom from unlawful arrest and imprisonment. When you have been ‘deprived of your personal liberty’, you have been stopped from going about your daily business and this has not been in accordance with law. For you to claim that your right to personal liberty has been broken, your arrest or detention must be unlawful. You must be told that you are under arrest and the reason for this arrest.

.. ..

If you have been arrested, you have the right to: be told that you are under arrest be given a reason for your arrest remain silent, communicate with family and friends, legal and medical assistance, and have your case heard before a judge. Even if you have been arrested lawfully, it is possible that your detention by the Gardaí has been unlawful and this has breached your right to personal liberty.

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Right to Personal Liberty. For example, as a detainee, you have the right to speak to a solicitor and the Gardaí must contact one for you. However, if three solicitors are contacted and none of them are able to come to you, the Gardaí have made a reasonable effort to not break your right to personal liberty.

Personal liberty is concerned “with freedom from unlawful arrest and imprisonment

Your right to bail as a detainee is also part of personal liberty. You can be refused bail if you are charged with a serious offence (with a possible penalty of imprisonment longer than five years) and there is a belief you may commit a similar offence if granted bail. Some people have a restricted right to personal liberty. People who are mentally ill can be detained without agreement if a doctor recommends it. This may not have a specific time frame but must be reviewed periodically. An illegal immigrant may not be kept in official custody unless there is an immediate intention to deport that immigrant.


An Treoir Poiblí ar an mBunreacht

Article 40.5

Inviolability of the Dwelling.

T

his constitutional right ensures that the “home” of any individual shall not be entered by unauthorized persons. In practice, Article 40.5 is often invoked in Irish criminal proceedings as a means of excluding evidence collected at the a dwelling, where members of An Garda Siochána have entered that dwelling illegally. Article 40.5 and its protections of the “home” are significant for two reasons. Firstly, the protections envisaged within Article 40.5 reflect the value of the “home” in Irish society. Secondly, the exclusionary powers of Article 40.5 in criminal proceedings acts as an incentive for all state agents to follow the correct protocol and procedures when entering the home of any Irish citizen. In order to understand Article 40.5, it is vital that we understand the meaning of the term, ‘dwelling’. Article 40.5 does not provide a definition of ‘dwelling’. The Irish Courts were left with defining ‘dwelling’ for the purposes of Article 40.5. In the landmark case The People vs. O Brien the Irish Courts defined the dwelling as a place ‘where members of a family live together in the family house, the house as a whole is for the purpose of the constitution the dwelling of each member of the family’. In O’Brien, the courts also outlined that the concept of the ‘dwelling’ was confined solely to the structure of the house and not to the surrounding property.

... ability to enter your home on foot of a lawful warrant

The Irish Courts have limited the scope of Article 40.5 and the protections applicable to ‘dwellings’. A citizen can only invoke their Article 40.5 rights solely over their own dwelling. For example, an individual is not entitled to claim a breach of their Article 40.5 rights where their friend’s house has been illegally entered.

the “home” of any individual “shall not be entered by unauthorised persons

The right to inviolability of the dwelling is not without its limitations. The presence of the term ‘save in accordance with the law’ recognises that state agents have the ability to enter your home on foot of a lawful warrant. Where a state agent holds a lawful warrant to enter your home, they may do so using reasonable force. Under Section 6(2) of the Criminal Law Act 1997, a member of Garda Siochána can enter your home in order to apprehend an individual suspected of an arrestable offence. Although, in order to enter the dwelling lawfully, the Gardaí must have the consent of the occupier of that dwelling. Other circumstances where state agents may enter your home without a warrant are situations where unauthorized entry is necessary to protect constitutional rights. For example, if a Garda forcibly entered a house in order to save the life of the occupier of that ‘dwelling’, that occupier could not claim a violation of Art 40.5 at a later date. The Gardaí had entered the house in order to protect the occupier constitution right to life under Article 40.3.2. Thus the right to protect the occupier’s constitutional right to life would outweigh the occupier’s right to inviolability of the “home”. 25


UCD Student Legal Service

Article 40.6

Freedom of Expression. Freedom of Association.

E

veryone has the right to freely express their convictions and opinions. However, this right is not absolute and may be restricted where required to preserve the public order and morality of the Irish State. These restrictions are of a limited scope and are narrowly interpreted. They must be considered necessary in a democratic society and must impair (interfere with) the right as little as possible.

offence is punishable in “Such anaccordance with law

The state is obliged to ensure that media of power and influence do not undermine the public morality or the authority of the state. The “media”, refers especially to radio and television as these are media of immediate and influential effect. In order to protect the common good, the right to freedom of expression must not be abused in order to incite violence or endanger the state. In such circumstances, there is a right to intervene to prevent the broadcast. This limitation of expression does not affect the media’s ability to criticise of governmental policies. The broadcast of certain contentious matters such as religious or political advertising is carefully regulated and governed by legislation.

The second restriction on an individual’s freedom to freely express their opinions and convictions concerns certain convictions or opinions of a blasphemous or indecent nature.

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Such an offence is punishable in accordance with law. For example, where the Oireachtas is entitled to conclude that the publication of such blasphemous or indecent material might lead to resentment and unrest, or is related to matter which has proven particularly divisive in Irish society in the past then a restriction on its publication may be deemed necessary. Blasphemy refers to all religious beliefs and not just Christian values. There is also an unenumerated right stemming from Article 40.6.1, that being a right to communicate both opinions and the facts upon which those opinions are based. This has been recognised in case law of the Irish Supreme Court. ii) The Constitution also recognises that citizens have the right to assemble peacefully, without arms. This right is not unconditional and is subject to certain limitations. Laws may be passed which prevent or control certain meetings which are deemed by law to cause a breach of the peace or to be a nuisance or danger to the general public. Similarly laws may be passed to control meetings close to the Dáil or Seanad. iii) Citizens also have a right form associations and unions. Laws may be passed in order to control and regulate such unions where necessary in the public interest. Such laws, regulating the exercise of one’s right to form an association or union, must not be discriminatory for political or religious reasons.


Civic Guide to the Constitution

Article 41

The Family.

T

he family possesses an extraordinary position in the Irish Constitution. Indeed, the article governing the rights of the family is by far the most forceful article in the Constitution. Article 41 of the Irish Constitution concerns the legal status of the family and the institution of marriage.

the ‘Family’ ... is one founded “upon the institution of marriage

Firstly the state recognises the family unit as the natural and fundamental group in society and emphasises its role as a moral institution.

Secondly it possesses what is described as inalienable and imprescriptible rights, in other words the family is attributed with a number of constitutional rights which can neither be given away by the possessor nor lost through the passage of time. Such rights are protected by the state and are superior to all man-made law.For example it is the right and duty of a parent to provide, according to their means, for the religious, intellectual, physical and social education of their children. Thirdly the family’s authority is acknowledged which ensures that the family unit and the institution of marriage are protected against unjust legislation and attack. Furthermore the article distinguishes between male and female roles within the family as the latter is specifically held to dominate the home and the domestic; it can be reasonably argued

therefore that such a distinction is based upon rather traditional considerations. While this provision has been relied upon successfully by the state to justify socio-economic measures in favour of women, the current Chief Justice has herself labelled it as a remnant of days gone by and not wholly applicable to the Ireland of 2013. Indeed recommendations have been made by the Constitution Review Group to amend the article by implementing more gender neutral language. The family identified by Article 41 is one founded upon the institution of marriage, yet the dissolution of a marriage is possible under Irish law if a number of conditions are adhered to. A marriage is held to be the voluntary union, potentially for life, between one man and one woman to the exclusion of all others, consequently unmarried and same-sex couples do not fall within the required parameters of the strict definition and therefore they cannot avail of the rights and protections of Article 41. Under the relevant provisions of the Constitution we are led to believe that the rights of an unmarried mother are of a lesser order than her married counterparts, while an unmarried father is not explicitly afforded with any special constitutional status. However, in 2010 an attempt was made to rectify this issue somewhat by introducing rights and obligations for civil partners and certain cohabitants. Overall Article 41 ensures the extraordinary legal status of the family based on marriage, but further reform is still required in this area of law.

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Article Divorce and the Irish Constitution

G

iven Ireland’s history as an extremely religious country, there was always an important emphasis placed on the value of marriage in its society.

Before 1996 an absolute prohibition on divorce existed and Article 40.3.2 read that ‘No law shall be enacted providing for the grant of a dissolution of marriage’. This meant that Ireland could not put in place any laws which allowed for individuals to end their marriage. These strong religious values were reinforced when the Irish people voted no to the first divorce referendum in 1986.

. . .

However, a referendum was held in 1995 where it was decided by a slight margin that the prohibition on divorce would be removed but that it would only be allowed in these specific circumstances: where at the institution of proceedings the spouses have lived apart for four of the previous five years there is no reasonable prospect of reconciliation proper provision has been made for spouses / kids / other necessary persons and that any other provisions required by law have been fulfilled. It is the decision of the court as to whether these conditions have been satisfied by the spouses. The Family Law (Divorce) Act 1996 is the piece of legislation which sets out the law and applicable rules concerning divorce in Ireland.

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This includes the requirement that a number of forms must be filed with the Circuit Court when applying for a divorce including: an application form, a sworn statement of means (detailing the spouses financials), a sworn statement concerning the welfare of any children and a statement outlining that the spouses have been advised of the alternatives to divorce.

divorce is the only one which “adissolves the marriage allowing the spouses to re-marry

Aside from divorce the end of a marriage can be legally dealt with by a separation agreement (decided on by the spouses) or judicial separation (put in place by the court). However, a divorce is the only one which dissolves the marriage allowing the spouses to re-marry. This is why its introduction was significant. Before 1996 in order to legally marry a second time it was necessary to have the marriage annulled which meant seeking the court to declare that the marriage never legally existed. This is a very complex area of law to deal with therefore divorce is a much less complicated way of ending the marriage. The thing to note about seeking a divorce (as with a judicial separation) is that the court is responsible for dealing with the terms of the divorce / separation and the assets of the spouses.


An Treoir Poiblí ar an mBunreacht

Article 42

Right to Education.

T

he manner in which a child is educated is largely up to his or her parents. Education is interpreted broadly under this article, referring not only to the child’s schooling but the developmental training and general upbringing of the child.

is obliged to provide free “the Stateprimary education

Thus subsection 1 acknowledges the family as the primary and natural educator of the child and recognises the right and duty of parents to provide for the religious, moral, intellectual, physical and social education of their children in accordance with their means. Article 41 and 42 expressly provide for children born within the institution of marriage although it is accepted that the same rights would be conferred on a child born outside marriage. Article 42 says that it is the parent’s choice to decide on the nature of their child’s schooling, either in Private schools or those funded by the State. Parents are also entitled to provide education outside the school system if they wish. Although parents may decide which school their child goes to, there is no constitutional obligation on a particular school to accept the child. The provisions of this article also prevent the State from forcing parents to send their child to a particular school. Nor can the state force a child to undergo religious education in a school funded by the State. It has been argued that the article means that a child may not be refused access to a publicly funded school on the basis of the child’s reli-

gious beliefs. The State is obliged to provide for free primary education. However there is no obligation on the State to provide that education directly. In practice, some State schools exist but the majority of primary schools are privately owned (usually by religious denominations) and largely State funded. As already stated, the State respects the right of parents in choosing the most suitable means of educating their child. In general, the State will only step in and interfere when it is felt that the educational needs of the child are being neglected or that the teaching methods used do not meet the necessary criteria.

“ ... acknowledges the ‘Family’ as

the primary and natural educator of the child

Children who are educated outside the mainstream schooling system are identified and assessed to ensure that parents have not failed in their duty to provide the child with a certain minimum standard of education. This certain minimum standard has not yet been defined by legislation or in official policy; however the Education (Welfare) Act 2000 does provide that the minister has the power to set out a “prescribed minimum education” that may differ among children of different ages and different capacities.

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UCD Student Legal Service

Article 44

Religious Freedom.

A

rticle 44 provides a number of protections and freedoms in relation to religion. Freedom of conscience and the free practice and profession of religion are all protected. This freedom is not, however, unlimited, as it is subject to public order and morality. The State tries to respect all religions, but it is strictly neutral as between religions. There is also a recognized need for respect as between believers and non-believers. As a result, the protections of the Constitution cannot be extended to someone who wishes to practice their religion freely to the detriment of someone else of another faith. The courts have, for example, upheld bans on religious advertising to give effect to this provision.

the Courts will read each “clause in light of the modern

multidenominational society

Linked to this is the fact that Article 44 disallows the State from discriminating on grounds of religion. This guarantee has been seen as being inferior to the ‘free practice’ provision and so the courts have arrived at the conclusion that the State is allowed to discriminate on the basis of religion, if necessary, where it is done to give full effect to the right to free practice of another person. State aid for schools cannot discriminate between schools of different religious denominations. Every child has the right to attend a

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school which is run by a religious order which receives State funding without having to participate in religious instruction in the school. The State cannot discriminate between schools under the management of different religious denominations. The courts have found that these provisions do not prevent the State from funding the salaries of school chaplains so long as there is equality as between the religions in this instance. Though there is a very different modern approach to the issue of religion in Ireland, the Constitution’s 1937 origins mean that there are a number of strong references to the Roman Catholic Church and also to the ‘Christian and democratic nature of the State’ within the Constitution. It has been the court’s policy to interpret the Constitution in light of changing social conditions and this is as true with regard to religion as it is with many other provisions. Though there are a number of provisions referring to the Catholic faith, the courts will read each clause in light of the modern multidenominational society.

Art. 44 disallows the State from discriminating on grounds of religion


Civic Guide to the Constitution

Article 45

Socio-Economic Rights.

S

ocial policy essentially refers to the actions and policies of the government which affect the well-being of its citizens. Article 45 sets out the principles which should direct the government when putting in place such actions and policies. It encompasses a broad range of issues including general welfare, equal distribution of wealth and the right to livelihood, to name but a few.

“ Irish citizens have little or no recourse available for their protection

To show the significance of this provision let us take the example of healthcare. It provides that ‘The State pledges itself … where necessary, to contribute to the support of the infirm’. Does this mean that if the state fails to provide healthcare to someone who requires it they are in breach of the Constitution? Normally this would be the case. However, Article 45 states at the outset that the principles within it ‘are intended for the general guidance of the Oireachtas’, and that the application of the principles ‘shall be the care of the Oireachtas exclusively’ and ‘shall not be cognisable by any Court under any of the provisions of this Constitution’. What this means is that the directive principles of social policy are merely there to guide the government and therefore any suggested breach cannot be contested in court.

An important constitutional concept in Ireland, and one already mentioned in this Guide, is that of the ‘separation of powers’; the idea that the government, the legislature and the judiciary are independent of, and should not interfere with, one another. This concept is reflected in Article 45, which states that the Irish courts cannot find the government to have breached the Constitution in directing social policy. As shown in the landmark decisions of TD v Minister for Education and Sinnott v Minister for Education, this is taken very seriously. In these cases, the court refused to make the Irish government provide special educational facilities for children with mental disabilities, on the basis that such issues should be the decision of the government. Therefore, without a direct constitutional

courts cannot find “ thetheIrish government to have

breached the Constitution in directing social policy

provision or the recognition of socio-economic rights as an unenumerated right (a right not expressly set out in, but inferred from the constitution), Irish citizens have little or no recourse available for their protection. If the policies of the government fail to satisfy the directive principles set out in Article 45 and Irish citizens feel their socio-economic rights are not sufficiently protected, they have no remedy available to them under the Constitution.

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Constitution in Modern Ireland

Despite its years, having been in existence since 1937, Bunreacht na hÉireann has changed and developed to reflect the changing social and moral habit of the Irish people. This section shows the Constitution as a living document, unlimited by the time in which it was produced.

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An Treoir Poiblí ar an mBunreacht

Changing the Constitution: Referendum.

A

s the guardians of the Constitution, we the people have the ability to agree or disagree with any issue of constitutional change. We change our Constitution by means of a referendum. Any provision of the constitution may be amended or deleted.There is no limit. Even Article 46 itself could be changed, removing our capacity to change our Constitution or removing the referendum as the process for doing so. A proposal to amend the Constitution must be introduced in the Dáil as a Bill. This Bill may not contain any other proposal. When the Bill has been passed by both Houses of the Oireachtas (the Dáil and the Seanad), it must be submitted to the people for approval at a referendum. If a majority of the votes cast at the referendum are in favour of the proposal, the Bill is signed by the President and the Constitution is amended accordingly. Every citizen who can vote at a general election, that is any citizen who is over 18 and on the Register of Electors, with the exception of British citizens, may vote in a referendum. The Constitution also contains a provision allowing for an ordinary Referendum to be held. A majority of the members of the Seanad and not less than one third of the members of the Dáil may bring a joint petition to the President, requesting him not to decline from signing into law any Bill which they feel contains a proposal of such national importance, the will of the people ought to be taken into account. On consultation with the Council of State, the President may agree that it is a matter of national importance and will decline to sign

it into law until it is either, within eighteen months, approved by the people at a referendum or is approved by a resolution of the Dáil after it is dissolved and re-assembled.

citizen who can vote at a “ every general election ... may vote in a a referendum

The Ordinary Referendum provides a means by which the Seanad (with the agreement of the President) can challenge the more powerful Dáil if it believes that the lower house is defying the wishes of voters. However, due to the current methods of selection of Senators, the Government of the day will usually enjoy a majority in both houses, meaning any such challenge is unlikely. No Ordinary Referendum has ever been held in this state. Since 1937, the Constitution has been amended twenty-five times and proposed amendments have been rejected nine times. This is quite a large number and in the past ten years alone, there have been six referendums. Why do we have so many Referendums? We usually have a referendum for every EU Treaty to prevent constitutional challenges against its provisions in the future, as anything, regardless of what it says, once passed by the people in a referendum cannot be considered unconstitutional.

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UCD Student Legal Service

The European Union, International Law and the Constitution.

T

he Irish State has seen a change in the legal landscape it occupies 1937.

An international order has developed to help regulate the relationship between states.However, Ireland views national and international law as being entirely separate. Article 29.6 of the Constitution states that for a rule of international law to have Constitutional and legal effect in Ireland, the international agreement must be combined with domestic law by the Oireachtas. A large number of international agreements have been integrated into Irish national law in this way, with particular reference to rights regarding asylum, immigration and the environment. The Constitution is dominant over international law which has been enacted by the Oireachtas. In this regard, an international agreement can be scrutinised by the Court and if it is found to be in breach of the Constitution it will be struck down. The European Convention on Human Rights is an example of an international agreement which has been incorporated into the domestic law of Ireland by the European Convention on Human Rights Act 2003. Whilst this Convention protects rights which are largely enshrined in the Constitution, the Convention also provides for individuals and non-governmental organisations to make a direct application to the European Court of Human Rights when claiming a breach of a State’s international obligations. The Court has jurisdiction over the States which have incorporated the Convention into national law and decisions of the Court have proven to be persuasive in the Irish Court system.

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The law of the European Union is offered an exception to the general rule by Article 29.4 of the Constitution, that is, any law or measure of the E.U. has the effect of law in Ireland and no incorporation is required. It has long been recognised by the Supreme Court of Ireland that E.U. Law has supremacy over the national law. This means that if a conflict should arise between a measure of the E.U. and the Constitution of Ireland, the E.U. Law will prevail. This is an exception to the rule of Article 15.2, that only the Oireachtas may create Irish law. E.U law is said to be ‘directly effective’ in Ireland and does not require enactment by the Oireachtas, nor can it be constitutionally challenged. Since its establishment, the E.U. has grown substantially with the scope of the original provisions being extensively increased. It has been suggested that, due to the significant nature and supremacy of E.U. law over the Constitution, amendments to the Treaties on the Functioning of Europe require referenda. However, the Irish Supreme Court has held that this is not necessary. However, if the changes significantly alter the integral purpose of the Union, then a referendum will be necessary. The Irish Constitution maintains a position of dominance over national and international law generally. However, with the development of the E.U. the Constitution has been submissive to the Union’s laws and measures, by the means that E.U. Law is given preference in all conflicts with the Constitution.


Civic Guide to the Constitution

Notes

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UCD STUDENT LEGAL SERVICE SEIRBHÍS DLÍ NA MAC LÉINN UCD

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UCD SLS Civic Guide to the Constitution