#17462 - Constitutional Rights Unenumerated Personal Rights - Constitutional Rights

UNENUMERATED PERSONAL RIGHTS • Article 40.3.1 • Methodology & criticism • Types of rights - Fundamental 40-44 - Personal * Enumerated > equality > life, person, good name, property > unborn >personal liberty >dwelling >expression, association and assembly *Unenumerated Ryan v AG > judge giving literal effect to the rights under article 40.3 • 3.1 … defend and vindicate the personal rights of the citizen • 3.2… in particular…the life…good name…of every citizen • 'in particular' - just giving examples. He said that this is backed up by the fact that this is the only mention > only occur in subsection 2. • General category > - Courts to decide what's included. • Secondary reason: Nature of the state Many personal rights that aren't mentioned flow from the 'Christian and democratic nature of the state' • Examples: the right to free movement and the right to marry. • Concealed by general phrase ' the personal rights of the citizen' SC agreed that personal right of citizen included implicit rights but did not agree with how one would discern or identify one of these rights. Re abortion information bill 1995 - Process of interpretation Court not recognising superior or natural law > it's doing the best it can to interpret the meaning of the constitution. - You don't import rights from another source, you give the best interpretation of the constitution you can. CRG REPORT: • • • • • • • • • • Constitutional review group This gives judges too much discretion It is undemocratic Violates separation of powers > not expressly approved by people at any stage for courts to decide rights Blurs lines between legislature and judiciary Uncertainty - relying on judges' decision of what Christian and democratic rights mean. Leave this to the people. They wanted an exhausted list of enumerated rights - more detailed, exhaustive. < if it's not on the list, you can rely on it as a personal right. They said - of course they should be general enough - they gave an example of 'right to privacy' But generality = uncertainty? THIS would be what the judges decided. JUDICIAL SECOND THOUGHTZ • 12 unenumerated personal rights since 1963 • SC in Ryan didn't set criteria for courts to determine • Courts reluctant to accept new rights if someone comes to court with their own idea. O'B v T - Except for rights already 'unequivocally' recognised, some degree of judicial restraint should be applied.