UCD Seirbhís Dlí na Mac Léinn UCD
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.