The Unenumerated Rights Doctrine - Irish Constitutional Law

The Unenumerated Rights Doctrine

Article 40

s.3.1

The State guarantees in its laws to protect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

s.3.2

The State shall, as far as practicable, 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.

Ryan v Attorney General (SC 1964)

Facts

1. The plaintiff claimed that the fluoridation of the water supply was an infringement of her right to bodily integrity.

Issue

• Unenumerated Rights – Means of determination

High Court Judgment (Kenny J)

• The words “in particular” show that sub-section 2 of Article 30 s.3 is a detailed statement of something which is already contained in Article 40 – however it protects rights that are mentioned nowhere else in the Article 40.

• Thus the first sub-section must also encompass rights which are enumerated nowhere else in the Constitution, that flow from the Christian and democratic nature of the State.

• One such right is that of bodily integrity – the existence of which is corroborated by a recent Papal Encycical.

Supreme Court Judgment (Ó Dálaigh CJ)

• The trial judge is correct in stating that the guarantee of rights in Article 40 s.3(1) is not exhausted by the rights specificallly enumerated in Article 40.

• However the right to bodily integrity is not infringed in this case.

Macauley v Minister for Posts and Telegraphs (HC 1966)

Facts

1. The plaintiff wished to sue the defendant for failing to provide him with a working phone service.

2. At that time anyone wishing to sue a Minister in his capacity as Minister required a fiat from the Attorney General which the Attorney General failed to grant in this case.

3. The plaintiff claimed he had an unenumerated right to have recourse to the Courts to assert and vindicate a legal right.

Issue

• Unenumerated Rights – Means of determination

Judgment (Kenny J)

• The right in this case exists – it flows from Article 34.3.1 which states that the High Court has jurisdiction to determine all matters and questions, whether of law or fact, civil or criminal.

• The corollorary of this is that the citizen has a right to bring such matters and questions before the Court.

The State (M) v Attorney General (HC 1978)

Facts

1. The prosecutors were the parents of an illegitimate child who wished to send the child to live with the parents of the father.

2. The law did not allow the removal from the State of a Irish citizen under the age of seven.

3. The prosecutor's challenged the constitutionality of this law, claiming that it was an infringement of the right to travel outside the State.

Issue

• Unenumerated rights – means of determination

Judgment (Finlay P)

• Where a facility exists to allow people to travel outside the State, then there is a right to use those facilities without arbitrary or unjust interference by the State – this arises from the Christian and democratic nature of the State e.g. one of the hallmarks of an authoritarian state is the practise of putting wholsale restrictions on this right at the whim of the government.

Kennedy v Ireland (HC 1987)

Facts

1. The plaintiff's phone was tapped on the orders of the Minister for Justice who had no legitimate grounds for making such an order

2. The plaintiff sued for damages arising out of a breach of what he alleged was a constitutional right to privacy.

Issue

• Unenumerated Rights – Whether right to privacy such a right

Judgment (Hamilton P)

• The right to privacy is one of the rights which flow from the Christian and democratic nature of the State – judgment of McCarthy J from Norris followed.

• The nature of the right must be such as to ensure the dignity and freedom of the individual in a sovereign, independent and democratic society (i.e. can be subject to limitations) – this is not the case if his private communications are subject to conscious, deliberate and unjustifiable intrusions as occurred in this case.

McGee v Attorney General (SC 1973)

Facts

1. The plaintiff had imported contraceptives from England and they were confiscated by customs.

2. She claimed that this action breached her right to marital privacy which she alleged was an unenumerated right under the Constitution.

Issue

• Unenumerated right – Whether marital privacy such a right

Judgment

1. Walsh J (concurring)

   • One of the rights of a married couple is not be subject to interference such as this in their private life

   • Both in its Preamble and in other Articles, the Constitution recognises God as a supreme authority – thus the natural/human rights referred to earlier in the judgment are part of the natural law i.e. the law of God promulgated by reason.

   • As a matter of constitutional law judges can not be required to choose between the different conflicting views as to the extent or nature of such natural rights, but rather decide upon them drawing upon their experience and training as a judge in accordance with the values of prudence, justice and charity.

2. Budd J (concurring)

   • The right to privacy and self determination within marriage is one of the most fundamental of rights and is almost universally recognised.

3. Henchy J (concurring)

   • As the statute makes criminal the conscientious actions of the family in seeking to use contraception to preserve the plaintiff's health, continue their sex lives and preserve the welfare of their family, it fails to assure the dignity and freedom of the individual and a failure to protect, defend and vindicate the personal rights guaranteed in Article 40 s.3.1

4. Griffin J (concurring)

   • The right to privacy within marriage is one of the rights protected by Article 40.3.1

5. Fitzgeral CJ (dissenting)

   • The right to marry and have intimate relations are rights protectd by the Constitution – however as the Act in question does not prohibit the use of contraceptives, it can not be said to be an abrogation of those rights.

Norris v Attorney General

Facts

1. The appellant was a practising homosexual male.

2. He challenged the Offences Against the Person Act 1961 and the Criminal Law Amendment Act 1885

Issue

• Whether he had standing to challenge the legislation and whether the legislation was unconstitutional.

Judgment

1. O'Higgins CJ

   • The plaintiff argues that the Acts interfere with his private life, and as such should constitute an unconstitutional interference with private morality.

   • The practise of homosexuality has been condemned by Christianity and organised religion for a long time and there would need to be express provision in the text if a right contrary to such teaching were to be found.

2. Finlay P(concurred with O'Higgins CJ)

3. Henchy J

   • The true social order envisaged by the Constitution guarantees a number of person rights necessary to ensure the dignity and freedom of the individual.

   • There exists within these rights a complex of rights which may be collectively referred to as the right to privacy.

   • In his judgment the trial judge placed too much emphasis on the position taken by the Christian Churches in the State. The balance required in the Constitution between the dignity of the individual and the common good requires that sin and criminalisation are not equated.

   • In this case, the law is unconstitutional by reason of its breadth. While some homosexual acts need to be criminalised e.g. those with minors, for those of a congenitally homosexual disposition, it is a gross interference with their rights to privacy, dignity and freedom, without being justified by the common good.

4. Griffin J (concurred with O'Higgins CJ)

5. McCarthy J

   • The State in interfering with a person's right to privacy must show a compelling interest.

   • In this case the State has failed to discharge that duty.

State (Nicolau) v An Bord Uchtála (SC 1966)

Facts

1. The relevant Act allowed the making of an adoption order of an illegitimate child without the consent of the natural father.

2. The plaintiff was the father of an illegitimate child and claimed he had an unenumerated right under the Constitution to be heard prior to the making of the adoption order.

Issue

• Unenumerated rights – Rights recognised by postive law

Judgment (Walsh J)

• Article 40 s.3 refers to natural personal rights and as such exclude any rights which are solely the creation of laws – that the law may have at one point recognised such a right, does not mean it can not subsequently be altered by law and any alteration is not per se repugnant to the Constitution.

• It has not been shown to the court that any such natural personal right exists as regards to the father of an illegitimate child.

G v An Bord Uchtála (HC, SC 1978)

Facts

1. The plaintiff had a child while she was unmarried and did not inform her parents or the father of the birth.

2. She later put the child up for adoption, but withdrew her consent after her parents agreed to help her raise it.

3. The relevant Act provided that where consent is withdrawn before the making of an order, an applicant for such an order may seek for the order to made by the High Court, regardless of the lack of consent, if the court is satisfied that the making of such an order would be in the best interests of the child.

Issue

• Unenumerated rights

Supreme Court

1. O'Higgins CJ (dissenting)

   • As a mother the plaintiff has certain rights which derive from nature and the fact of motherhood itself – this includes a right to the custody and care of the child, which arises from: the natural relationship between the mother and child, the infant's total helplessness and dependence on the mother and the mother's natural determination to care for the...