The State and Northern Ireland Originally, Article 2 of the Constitution purported to include as part of the State, the whole of Ireland, its islands and territorial seas. The original Article 3 of the Constitution provided that pending reunification, then, the laws enacted by the Parliament established by the Constitution shall apply to the like area and extent of application as laws enacted by the […]
Trial without Delay The Supreme Court has held that the Constitution guarantees a right to a trial without undue delay. The delay may ensue before prosecution or after commencement. Undue delay is said to prejudice the accused in the preparation of his defence and thereby deny a fair trial. The Constitution guarantees to every citizen that the trial of a person charged with a criminal […]
Presumption of Constitutionality The presumption of constitutionality reflects the proposition that those asserting a position must bear the onus of proving their claim. The Courts presume that the Oireachtas is aware of and has legislated in accordance with the Constitution. Generally, courts do not wish to readily strike down legislation, given its disruptive effect on the executive. The Oireachtas, as the representative of the people, […]
Due Process The constitutional obligations of fair procedures apply to civil court procedures. Court Rules and the rules of evidence, give effect to long-standing principles of fair procedures. The European Convention on Human Rights guarantees that in the determination of civil rights and obligations, persons are entitled to a fair and public hearing within a reasonable time, by an independent and impartial tribunal. Subject to […]
Constitutional Protections In Blake v. Attorney General, the Supreme Court held that Article 43 protects the institution of property and property in the broader sense. This would include the elements of the institution including the rights of transfer, bequest, inheritance and enjoyment of property. Other aspects of state interference with property are covered by Article 40.3 by the guarantee against unjust attack. The right to […]
Forfeiture A range of legislation allows for forfeiture of the proceeds of crime, articles involved in crime or the assets of persons involved in crime. They have been held not to be in the nature of criminal proceedings, but to be civil proceedings. Accordingly, the provisions applicable to criminal proceedings do not apply. Generally, the courts have upheld forfeitures, even arising in consequence of an […]
Hearing in Public The principle that courts should sit in public is a long-standing at common law and is implicitly recognised by the Constitution. It is expressly recognised by the European Convention on Human Rights. However, there are long-standing and logically justifiable exceptions to the principle that courts hear cases in public. The principle that courts should sit in public is designed to maintain public […]
General Many fundamental freedoms and rights in the Constitution are expressed in very general terms. They are subject to limitations that are equally open and general. Most of the individual rights are actually qualified in terms of public interest and the common good. The starting point for interpretation, even in the Constitutional context, is the ordinary or literal meaning of the words concerned. Reference to […]
Invoking Emergency War shall not be declared, and the State shall not participate in the war save with the assent of Dail Eireann. In the case of actual invasion, however, the Government may take whatever steps may be considered necessary for the protection of the State. Dáil Eireann, if not sitting, shall be summoned to meet at the earliest practicable date. Article 28.3.2 empowers the […]
Justice in Public The principle that courts should sit in public is a long-standing at common law and is implicitly recognised by the Constitution. It is expressly recognised by the European Convention on Human Rights. However, there are long-standing and logically justifiable exceptions to the principle that courts hear cases in public. The principle that courts should sit in public is designed to maintain public […]
Express Power of Review The Irish Constitution allows for the judicial review of laws in relation to their compliance with the Constitution. The courts have express power to declare a law, whether made by the Oireachtas, a statutory instrument or otherwise made under the authority of statute, to be unconstitutional. This power is in marked contrast to the practice in the United Kingdom where the […]
Deference to State The Constitution of Ireland was adopted shortly before the Second World War. It was a time in which subversive activity against the State had reached a particular height. See the section on legal history in relation to the emergency legislation of that period. Historically and internationally, courts have been reluctant to review executive decisions in relation to State security. In the United […]
The Criminal Process The Constitution expressly refers to certain of the common law features of the criminal process. Many other such features have been recognized by the Irish courts as implied in the Constitution over the last 50 years. Express and implied Constitutional rights protect the integrity of the criminal process. The common law criminal process involves a trial of the facts and circumstances alleged […]
Non-State Parties The Constitution binds the State and its various departments, bodies and agencies. Some cases have taken the view that fundamental rights place obligations on private persons as well as the State. In Moyne v. Londonderry Port & Harbour Commissioners, it was stated: “to succeed in a claim that the exercise of a personal right referred to in Article 40.3.1 has been infringed, it […]
Free Speech Many constitutions and human rights instruments recognise the right to free speech. Free speech and the ability to communicate thoughts and ideas is upheld as one of the most precious rights of man. It is fundamental to the democratic nature of the State. Under Article 40.6.1: the State guarantees liberty for the exercise, subject to public order and morality, of the right of […]
Arrest Article 40.4.1 provides that no citizen shall be deprived of his liberty, save in accordance with law. A person may be arrested if he is suspected of an offence, for the purpose of procuring his attendance at court and, subject to conditions and limits, for the investigation of more serious offences. It is not clear, under statutory powers to what extent a person may be […]
Separation of Powers The Constitution provides for a separation of powers. This principle is found in the Constitutions of most Western democracies. The lawmaking power, the executive or administrative power and the courts are largely separate. Each body or organ of the State should not trespass on another. This is a traditional idea dating back many hundreds of years. It is designed to prevent corruption […]
Protection of Liberty The protection of person’s liberty is deemed to be fundamental. For this reason many constitutional rights relate have been developed in the context of criminal law. In particular the position in relation to arrest, bail, detention, trial and imprisonment is strictly subject to constitutional right. The Constitution largely underpins basic criminal procedure.The following board rights are recognised by the Constitution but may […]
Challenging Constitutionality The constitutionality of laws can be challenged by private parties in proceedings. There are two slightly different procedures which apply depending on whether the laws are made prior to or after 1938. In the case of post-1938 legislation, the Supreme Court must deliver a single judgment. There is a special procedure by which the President can refer legislation to the Supreme Court where […]
Constitution Background The present Constitution was adopted in 1937. It replaced the 1922 Irish Free State Constitution, which arose out of the Anglo-Irish Treaty of 1921. The 1922 Constitution had provided a role for the King, acting through a Governor General, equivalent to the President in the 1937 Constitution. It had also provided for an oath of allegiance and other features which, the Fianna Fail […]
Taoiseach The Constitution lays down details regarding the administration and organisation of the government and the Courts. The head of the government is the Taoiseach or Prime Minister. In practice, the Irish designation is invariably used. The Taoiseach is appointed by the President on the nomination of the Dáil. The Taoiseach must be a member of the Dáil. The Taoiseach is the head of government […]
Scope Constitutional rights apply primarily to natural persons who are Irish citizens. The Courts have recognised that citizens of other countries may rely on most constitutional rights. The rights are recognised rather than granted by the Constitution. Some rights particularly those relating to elections, rights of office are very clearly limited to citizens. The Courts have allowed constitutional rights of claims in respect to companies in […]
Oireachtas – the Dáil The Oireachtas is the national parliament of Ireland. It consists of the Dáil (lower house) and Seanad (upper house). Details of how it is elected and its powers are set out in the Constitution. The Oireachtas has the sole law-making power in the land. In practice, however, the government, through the political process, usually controls the lawmaking agenda. The Dáil appoints […]
Role The President is Head of State. In this capacity, he plays a number of roles. Most are ceremonial in nature and/or are performed on the advice of the Government. In these cases, the President has no discretion. There are a relatively small number of functions where the President has a genuine discretion as to their exercise. In these latter functions, the President acts as […]