Unenumerated Rights – Sustainable in Modern Ireland?

Introduction

Emerging in the 1960s and gaining significant judicial support throughout the 70s and 80s, the doctrine of unenumerated rights has been one of the most innovative and controversial measures adopted by the Irish Court to recognise rights since its formation in 1937. Questions have been raised since the doctrine’s foundation regarding whether allowing an unelected judiciary to wield such unchecked powers is undemocratic and lacks objectivity.[1] Issues have also arisen regarding the philosophical ideals upon which unenumerated rights are founded, and whether these foundations are inherently too vague. The question becomes, therefore, that of whether this doctrine has any place in a decidedly more multi-denominational Ireland than that of the late twentieth century. In this essay, I will outline why I believe that unenumerated rights as they have been understood thus far ought not to have a place in modern Ireland.

The Development and Decline of Unenumerated Rights

The doctrine of unenumerated rights was first conceived of in the case of Ryan v Attorney General.[2] In this case, the Court recognised the right to travel and held that rights ‘are not confined to those specified in Article 40’.[3] By focusing on the words ‘in particular’, the Court allowed for rights to be ‘read into’ Article 40.3.2. The doctrine has led to the recognition of,  amongst others, the right to marital privacy,[4] the right to earn a livelihood[5] and, more recently, a right to environment consistent with human dignity.[6] A variety of methods have been used to recognise these rights. Ryan employed a papal encyclical and focused on the Christian and democratic nature of the State, whereas later cases focused on the natural law[7] and the human personality.[8]

The unifying feature of these bases for unenumerated rights is how unclear and vague they are. Although the unenumerated rights doctrine was originally deemed ‘logically faultless’,[9] it has since been accepted that the doctrine has introduced, to put it mildly, ‘an element of uncertainty’[10] into Irish law. On what solid foundation are these rights based? As they were read into the Constitution, can they be just as easily read out? Are unenumerated rights of equal or greater importance to those textually founded in the Constitution?

The almost unfettered discretion allowed to judges was also a serious concern from almost the outset, with Walsh J explicitly stating that ‘judges must interpret these rights in accordance with their ideas of prudence, justice and charity’.[11] This is a definite expansion of the powers of judicial review, and it is these various issues that resulted in the eventual demise of the doctrine.

Although it was never formally abandoned by the Courts, the unenumerated rights doctrine has been largely avoided as a method of rights recognition in recent times. While it was stated in the case of The Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995[12] that natural law is ‘antecedent and superior to all positive law’,[13] this case was followed by repeated calls for ‘some degree of judicial restraint’[14] in employing the doctrine to recognise rights. This decline was further accelerated by the Report of the Constitution Review Group,[15] which advised that the doctrine should cease to be utilised by the Courts. Although the recent case of NHV v Minister for Justice[16] has shown signs  that the doctrine has not faded altogether, it has inarguably declined to an almost irrelevant stature in comparison to its place in the Courts of the 1970s and 80s. The question then becomes that of whether the doctrine has any place in the Ireland of today and whether it could see a revival, given its decidedly religious and Catholic origins.

A ‘Christian and Democratic’ State?

The preamble of the Constitution states that:

‘In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,

We, the people of Éire,

Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ,

(…) Do hereby adopt, enact, and give to ourselves this Constitution.’

This, coupled with numerous references to God throughout the text, has served as the basis upon which rights may be enumerated. This method of rights enumeration was first employed in the case of Ryan v Attorney General, in which Kenny J observed that, ‘personal rights… are not confined to those specified in Article 40 but include all those rights which result from the Christian and democratic nature of the State’.[17] This was further confirmed in the Norris case, which made its decision ‘[h]aving regard to the purposive Christian ethos of the Constitution, particularly as set out in the preamble’.[18]

It is thus questionable whether the formation of new rights based on these foundations would survive in modern Ireland. With recent referenda to repeal the eighth amendment banning abortion and to legalise gay marriage, one would not be surprised to find that, as of 2016, only 78.3% of Ireland’s population are Catholic, down from a height of 94.9% in 1961.[19] It is also interesting to note that, as rights have traditionally been based on papal encyclicals,[20] their formation has been decidedly Catholic in nature, not Christian. Admittedly, this has succeeded in giving judges a tighter frame within which to form rights and one may argue that the percentage of Ireland’s practicing Catholics is still a secure majority. However, the trend is evidently only going in one direction, both in terms of the population and politically. Therefore, I would contend that employing Christianity, or more specifically Catholicism, as a basis upon which to enumerate rights should not continue in the more modern, multi-denominational Ireland of today.

Judicial Activism and Philosophical Vagueness

However, simply because rights perhaps should not be inferred from the Christian nature of the State, does not automatically mean that they cannot be inferred at all. Judges have traditionally used a variety of methods, and any number of these could be employed to enumerate rights in a manner that would not rely so heavily on religion, and thus would not encounter the issues outlined above.

One immediately encounters another significant issue with unenumerated rights, however – the power it allows judges to wield when deciding issues of justice. For example, in utilising the natural law to from rights, the Courts accepted a judicial philosophy that was, if anything, even more vague than that of the ‘Christian and democratic’ nature of the State. For judges ‘to assert that natural law provides a clear set of rules beyond and above a Constitution…is to imagine a vain thing’.[21] Natural law is, at its essence, antecedent to positive law, and to attempt to ‘know’ or to determine the natural law is inherently problematic; ‘[t]he paradox is that of an agent of positive law (the judge) determining what is superior to positive law.’[22] Therefore, given these inherent issues, ‘what a judge or a legislator will recognise as good or as evil depends very largely on his personal disposition.’[23]

Judicial activism is, frankly, unavoidable when one deviates from the written Constitution, regardless of the method one employs to determine rights, because,

‘by conferring a superior constitutional status on some unwritten law, it leaves open the permanent possibility that the courts will use parts of that unwritten law to declare invalid what is explicitly written in the Constitution.’[24]

Namely, in employing these methods, ‘the Constitution is permanently open to paradoxes or inconsistencies.’[25] Who, therefore, is left to fill in these gaps and inconsistencies, so to speak? The judiciary.

One could, of course, argue that judicial activism is not necessarily a bad thing – the judiciary, separated as they are from the political sphere, could perhaps make more objective decisions regarding personal rights. However, I would submit that, particularly due to the intensely fraught political climate we have found ourselves in of late, allowing any branch of government to claim powers greater than those specifically allocated to them is to allow too significant a deviation from the separation of powers as set out in the Constitution. Ireland is an ‘independent, democratic state’.[26] To allow judicial activism to extend to the creation of rights when even the basis of these rights cannot be agreed upon is to significantly deviate from the democratic process. This is because,

‘it is one thing for the courts to render the implicit explicit; it is quite another thing for them to reserve the right to discover rights not only not enumerated in the text but also not logically necessitated’.[27]

It is true that by adding the clause ‘in particular’ to Article 40.3 it would seem that the drafters of the Constitution intended that the list of rights not be exhaustive. The question then must be, however, ‘if the framers…had really wanted to embed unenumerated rights in its text and give permission to the Courts to pronounce upon them, why did they not say so explicitly?'[28] Would it not be more democratic to, as above, have the Courts infer rights from what is explicit in the Constitution?

Where gaps still exist, it is then plausible that the legislature could pass laws enumerating rights. The role of the judiciary is traditionally that of ensuring that the legislature enacts laws that are consistent with the Constitution. Thus, it would seem to be infinitely more democratic to allow the elected legislature to enact laws regarding personal rights and to allow the judiciary to assess these laws for constitutional consistency. This improves democratic participation in the enumeration of rights, which is integral to the process of rights enumeration, as personal rights must be one of the most important and significant legal safeguards provided by the Constitution to the average person. This process would also allow the separation of powers to function by having the judiciary ‘check’ the legislature, rather than having the judiciary essentially create laws with little to no oversight.

 

Conclusion

In conclusion, it would appear that unenumerated rights should not have a place in the Ireland of today. While it is almost unavoidable that the Constitution requires that certain rights be implicit, I would argue that, as it is currently understood, the doctrine of unenumerated rights is insufficient to discover these rights. This is largely because the process by which the doctrine discovers these rights is too undemocratic to hold in modern Ireland. By giving the judiciary what is ‘practically tantamount to an open invitation… to become latter-day philosopher-kings via the guise of constitutional adjudication’,[29] the separation of powers’ suffers and the ability of the people to impact upon the rights that affect them is significantly diminished. The country has changed since the ‘Christian and democratic state’ was first cited in the 1960s. The method by which rights are enumerated must also change accordingly.

 

 

[1] JM Kelly, Fundamental Rights in the Irish Law and Constitution (2nd edn, Allen Figgis & Co Ltd 1967).

[2] [1965] IR 294.

[3] ibid [313] (Kenny J) (emphasis added).

[4] McGee v Attorney General [1974] IR 284.

[5] Murphy v Stewart [1973] IR 97.

[6] Merriman v Fingal County Council [2017] IEHC 695.

[7] McGee (n 4).

[8] Norris v Attorney General [1983] IESC 3, [1984] IR 36.

[9] Kelly (n 1) 42.

[10] ibid.

[11] McGee (n 4) (SC) 318-319 (emphasis added).

[12] [1995] IESC 9, [1995] 1 IR 1.

[13] ibid [38] (Hamilton CJ)

[14] OT v B [1998] 2 IR 321 (SC) 370.

[15] Constitution Review Group, Report of the Constitution Review Group (Pn 2632, Stationery Office 1996).

[16] [2017] IESC 82.

[17] Ryan (n 2) (SC) 313 (emphasis added).

[18] Norris (n 8) [71] (Henchy J) (emphasis added).

[19] Central Statistics Office ‘Census of Population 2016 – Profile 8 Irish Travellers, Ethnicity and Religion’ https://www.cso.ie/en/releasesandpublications/ep/p-cp8iter/p8iter/p8rrc/ accessed on 19/12/18.

[20] Ryan (n 2).

[21] Kelly (n 1) 69.

[22] Oran Doyle, ‘Legal Validity: Reflections on the Irish Constitution’ (2003) 25 DULJ 56.

[23] Kelly (n 1) 69.

[24] Desmond Clarke, ‘The Constitution and Natural Law: A Reply to Mr. Justice O’Hanlon’ (1993) 11 ILT 177.

[25] ibid.

[26] Article 5.

[27] Gerard Casey, ‘Are there Unenumerated Rights in the Irish Constitution?’ (2005) 23(8) ILT 123, 125.

[28] ibid.

[29] Gerard Hogan, ‘Unenumerated Personal Rights: Ryan’s Case Re-Evaluated’ (1990-1992) 25-27 Ir Jur 95, 110.