E3 - Expansion of the enumerated Rights Doctrine Flashcards
MacAuley v Minister for Posts and Telegraphs
Kenny J linked the personal right to litigate
under Article 40.3.2 with Article 34.3.1. The obtaining of the fiat of the Attorney General before taking a suit to
argue that legislation was unconstitutional was declared unconstitutional in itself.
right to privacy
The right to privacy was effectively established and protected in the case of McGee v AG wherein the statutory prohibition on the importation of contraceptives was deemed to violate Article 40.1 & 40.3 with regard to a woman’s right to marital privacy. Budd J read into the constitution a ‘personal right’ to privacy based upon the constitution’s promotion of the dignity and freedom of the individual. This case could have
been decided on Article 41 grounds alone (as the judgment of Walsh J explains) however it is a good illustration of the extension of constitutional interpretation under Article 40.3 which various judges have expounded upon. Surely it is right and proper that the ‘dignity and freedom of the individual’ is respected by
itself alone without having to have recourse to other definite Articles contained within the constitutional text.
right to earn a livelihood
The right to earn a livelihood is also couched as a personal right under Article 40.3.1, as per Griffin J in case of
Hand . Kenny J was informed by the wording of Article 45.2.i in the case of Murtagh Properties
v Cleary when the learned Judge held that all men and women equally have a right to an adequate means of livelihood. While this right can and has been couched as a property right in recent
decisions, its basis has been clearly expressed as also encompassing the personal rights under the
unenumerated rights doctrine. The extension of the rights-based approach under constitutional law is found in
the dicta of Kenny J in the case of Ryan v AG where it was stated ‘…there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all…this leads to the conclusion that the general guarantee extends to rights not specified in Article 40’.
right to travel
In the Ryan case the right to travel was established under the guise of the freedom of movement within the
State. The case also established the right to bodily integrity and concerned the compulsory fluoridation of
drinking water. If considered dangerous, it would violate the right to bodily integrity and would be prevented.
The State’s obligations towards its citizens in this regard will be limited as the case of State (C) v Frawley. A prisoner with a rare mental disorder required specialist medical and psychiatric treatment
however it was held that on the facts the State had provided the requisite treatment necessary in all the
circumstances. The dicta of Finlay J is the most instructive however as he stipulates that there is no reason in
principle to prevent an act or omission of the Executive which, without justification, exposes persons to risk or
danger, to utilise the right of bodily integrity as a sword in constitutional litigation. The right was founded upon
Article 40.3, a crucial right for prisoners and others in this jurisdiction. Lastly the right to marry was also
referred to by Kenny J in this judgment when the learned judge opined on the use to which Article 40.3 may be
put.
right to communicate
Barrington J in Murphy v IRTC [1999] 1 IR 29 found that the right to communicate existed by virtue of an
overlap between the implied right under Article 40.3 and the right to freedom of expression contained at
Article 40.6.1.
right to fair procedures
In Re Haughey a general right to fair procedures was found to exist by reason of Article 40.3 in that it was the duty of the court to ensure that the words of Article 40.3 ‘provide a positive protection for the citizen and his good name’. The case set at a minimum a set of fair procedures which an individual is entitled
to and includes the ability to cross-examine one’s accuser and to address by counsel, ones defence in court or before a committee or tribunal.
