Unenumerated Rights

Implied Rights

Article 40.3 of the Constitution reads

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. The State shall, in particular, by its laws protect as best as may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

The above wording by referring in particular to certain personal rights implies the existence of instances of other so-called unenumerated rights.  Unenumerated rights are those that are not specified in the Constitution.

The courts have identified unenumerated rights by implication from express rights.  The courts found an implied right of access to the court from the principle that the Constitution establishes the courts, and that justice is to be administered in court established by law.

Origin of Principle

The famous Ryan v Attorney General case involved a challenge to the legislation providing for fluoridation of water.  The High Court rejected the particular claim but accepted the argument that there was a right to bodily integrity, which was one of the unenumerated personal rights of the citizen protected by the Constitution.

The High Court indicated that the superior courts have the difficult and responsible duty of ascertaining and declaring what are the personal rights of the citizen guaranteed by the Constitution.  Many personal rights of the citizen are said to follow from the Christian and democratic nature of the state such as the right to freedom of movement, right to marriage.

In the Ryan case, the right to bodily integrity meant that no mutilation of the body or its parts could be provided for by law and no process, which is or may as a matter of probability be dangerous or harmful to life or heath may be imposed by law.  The judge referred to the Papal Encyclical in justifying this particular right.The Supreme Court agreed that there are personal rights implicit in the Constitution.

Inhuman & Degrading Treatment

The courts have accepted that the unenumerated constitutional right to life and bodily integrity recognised in the Ryan v AG in 1965 imply a right to freedom from torture, inhuman and degrading treatment.  Challenges to prison conditions have been made based on the prisoner’s constitutional rights.

The State many not without justification or necessity expose the health of a person including a prisoner to risk or danger. However, the courts have not made specific orders in relation to the c medical treatment of prisoners.  Although there is a duty to provide for medical treatment, this should not require specialist units to be constructed for the special needs of particular prisoner.

Free Movement

Freedom of movement is regarded as a fundamental personal right in a democratic state.  Subject to regulation as might be required in the common good, the citizen has the right to a passport permitting him to avail of the right to travel subject to such international agreements and arrangements as exist with other states.

This was contrasted with authoritarian states, particularly those in Eastern Europe prior to 1989, which restricted their citizens from traveling outside their state.  The High Court found the Adoption Act prohibition on a non-marital child under 18 years being removed from the state, to be unconstitutional.

Personal Privacy

The courts famously recognised a right to marital privacy and autonomy in the McGee case (1973).  The minority in the Norris (1984) also relied on a right of privacy.

In the famous Magee case in 1973, the Supreme Court found that the prohibition on the importation (and effectively) on the sale of contraceptives in Ireland contravened the personal rights of the plaintiff in the circumstances. The plaintiff risked her life if she became pregnant.  The prohibition had the effect imperilling her health to the point of endangering her life.

The prohibition was incompatible with the State’s pledge to protect the plaintiff’s unenumerated personal right to marital privacy.  The court mentioned that the right must be shown to be a right that inherits in a citizen by reason of his or her human personality.

The right to privacy which inheres in each citizen by virtue of human personality and is a constitutionally recognised unenumerated right was recognised by a minority of the Supreme Court judges in the Norris Case.  One of the minority judges spoke of an excluded area of activity or non-activity, which may be said to be necessary for the expression of the individual’s personality. It may be for purposes not always necessarily moral or commendable.

Privacy of Communications

The right to privacy again arose in the context of claims by journalists for compensation against the State arising out of the unlawful bugging of their telephones.  The President of the High Court stated that the right to privacy must be such as to ensure the dignity and freedom of an individual in the society envisaged by the Constitution namely a sovereign independent democratic society.

The dignity and freedom of an individual cannot be ensured if his communications of a private nature written electronic are deliberately and consciously and justifiably intruded upon and interfered with.  In certain circumstances the exigencies of the common good may require and justify intrusion and interference.  There was no justification in the case concerned and the deliberate conscious and unjustifiable interference by the State with their telephone communications constituted a beach of their constitutional right to privacy.

The right to privacy and autonomy was recognised by a majority of the Supreme Court in a case concerning an adult patient’s refusal of medical treatment.  Generally, adults may not be given medical treatment without consent subject to exceptions relating to contagious diseases or a medical emergency where the patient is unable to communicate.

Access to Courts

The right of access to court and the right to make a claim and litigate is a personal constitutional right. In a case where a person was to be extradited without the opportunity to challenge the validity of his extradition in the High Court, that person’s constitutional rights were found to be violated.

A former requirement to obtain the Attorney General’s consent to sue a government department was found unconstitutional.

The right to receive effective legal aid has been recognised as a personal constitutional right.  The State is entitled to impose conditions and limitations on the right, but they must not be such as to negate it.

Christian Principles

One of the minority judges in the Norris case rejected the notion that unenumerated rights should derive from Christian theology.  He preferred to derive unenumerated rights from human personality, and the dignity and freedom of the individual.

In contrast, the majority judges in the Norris case emphasise the incompatibility of homosexual conduct with traditional Christian thinking.  The preamble of the Constitution asserted the existence of God in the Christian sense and accordingly they  were not prepared to find that the Constitution could imply an unenumerated right, which would be contrary to long-standing Christian teachings.The Norris case emphasised the open nature of the unenumerated rights and the scope for interpretation.

Natural Rights

In other cases, the Supreme Court has referred to the natural personal rights implicit in Article 40.3.  This approach emphasises natural law philosophy as a basis of Constitutional rights.  It assumes the Constitution recognises that there exist natural law or human rights, not created by law, but protected by and confirmed by law.  The view is that such rights are superior to laws as passed by the legislatures and that the state has no authority over such natural and human rights. The courts have appealed to different works in discerning the unenumerated rights.

The justification by reference to natural rights has been criticised.  The deduction of rights as to what ought to be from natural facts may confuse physical law and moral law.  There is no apparent reason why moral or legal rules should derive from physical law.

The natural law basis for the adoption of implied rights appears potentially controversial and even arbitrary. The wording of the Constitution does appear to justify an appeal to a higher rights-based law, whether deemed natural or otherwise.

There are many different versions of natural law, and each are subject to subjective assessment and application.  Although the implication of rights may be an important protection against the abuse of power, it risks judges implying in principles into the Constitution at will which potentially render void laws passed by the legislature.

It has been suggested in some cases that natural law as so interpreted, might even be superior to the Constitution itself.  The Supreme Court has rejected this proposition.

Nonetheless, the Constitution does provide a basis for the existence of natural rights or human rights, not created by, but confirmed by the Constitution.  However, the courts have recognised the express provisions by which the  People to amend the Constitution by referendum  without hindrance from natural law principles

Retreat from Activism

Following the exposition of a number of unenumerated rights in the first two decades after the Ryan case, the recognition of unenumerated rights slowed down in the 1980s.The Keane Supreme Court in the early 2000’s in the Best case and the Reference of the Planning and Development act took a notably less activist approach. There followed a marked reluctance to recognise new unenumerated rights.

In the 1998 G v the Adoption Board, the Supreme Court held that was an unenumerated right to know the identity of an adopted parent.  This was subject to respecting the private parents’ right to privacy.  In that case, Mr. Justice Keane as a dissenting judge urged restraint in the enumeration of new rights. , Mr. Justice Keane as  Chief Justice Keane reiterated his opposition to the enumeration of new implied rights

A leading constitutional expert in ‘A Judgement Too Far’  written in 2001 indicated that the activist phase of Irish constitutional jurisprudence was necessary and understandable in its day but less so in the new century  when there are more agencies and mechanisms checks and balances for keeping the state in line than had existed in earlier times.

The criticism can be made that judicial activism may involve policy choices which might undermine the principle that the courts interpret the law but do not make it. It might draw the judiciary into broader political waters which might undermine public confidence. The lack of a textual basis for some implied rights leads to uncertainty.

Criticism of Ryan Case

In OT v B, he pointed out that there was no discussion in the Ryan case of the question of whether given that unenumerated rights clearly existed in the contemplation of the framers of the Constitution it was intended by them that the duty of declaring what those rights were should be the function of the judiciary rather than the Oireachtas.

There was no explicit endorsement in the Supreme Court of the High Court’s proposed criterion that they might flow from the Christian and democratic nature of the State.…… Keane CJ referred to the problems that have subsequently been encountered in developing a coherent principled jurisdiction in this area. It is sufficient to say that save for such  unenumerated rights as has been unequivocally established by precedent as for example in the case of the right to travel and the right of privacy, up some degree of judicial restraint is called for and identifying new rights of this nature.

Door Remains Open

However, the courts remain open to finding such rights in appropriate . For example, in Fleming the Ireland (2013) which raised issues of a right to die, the court discussed how the values of autonomy self-determination and privacy might give rise to constitutional protection. The existence of such protection will depend on a concrete analysis of the impact of any challenged law on the life of the individual and a careful consideration of the provisions of the Constitution and the values it protects and guarantees.

The Supreme Court in Fleming endorsed the approach in the Norris and McGee case in relation to the right to privacy and that the citizen enjoys such rights as are necessary to ensure his dignity and freedom and that inhere in his individual personality in the context of the social political and moral order posited by the constitution.

The particular case court did not find there was a right to assisted suicide such that would override the legislation. It noted the Constitution guaranteed  rights of general application in the context of the social order envisaged by the Constitution but that protection of the right to life did not necessarily or logically entail a right to terminate that light.

Modern Human Rights

Other cases and commentators have pointed out that judicial creativity is unavoidable due to the wording of Article 40.3. However, it is broadly assumed that the doctrine of implied an unenumerated rights will not be expanded in the same manner as in the period from 1965 to 1999.

The European Convention on Human Rights was made part of domestic law in 2003. It coincided with the enactment of the UK human rights act in 1998 into domestic law and its function as part of the basic law of Northern Ireland. (the Northern Ireland assembly may not legislate in breach of the Human Rights Act). The possibility of invoking a detailed existing human rights jurisprudence has also contributed in part to the slowdown in recognition of unenumerated rights.