This is my response to a paper with the above title, original can be found here: https://trinitycollegelawreview.org/unenumerated-rights-suitable-in-modern-ireland/?fbclid=IwAR3uBR0OVCKEpjIH7Cf5SExPqiAht1xLxGbNwQikocyVpdW7FiiR04lbeIg
From a humble citizen’s unqualified perspective, Ryan V AG is central to this article/essay, in which the big takeaway is that no rights are absolute. That ruling is often referred to when explaining the incompatibility of ECHR with Irish law; while Ireland is a signatory to both the UN and EU charters on human rights, Co- Guarantor of the citizens in N. Irelands rights, it claims the charters are repugnant to our constitution. Ryan V AG also outlines the discretion that the judiciary have to apply one-time arbitrary rights which set no precedent and end in ex-gratia settlements, in other cases European rulings have been spressed by the supreme court. In comparison with our EU and US counterparts, Irish citizens appear to have the legal status of Indentured Servants in relation to the state. Where I come from “Unenumerated Rights” would be referred to as “lucky bag rights” dispensed at will.
Our cousins in the US would say that their bill of rights is the restraint on government. “Absolute power corrupts absolutely” there is no such restraint on Government in Ireland, even the basic rights granted by the British enacted 1922 constitution were removed. The restraint against inventing new special purpose court, the right to a fair trial, habeas corpus, elements considered the basis of any civil society are not rights per se in Ireland. Should we expect the citizens of Northern Ireland to accept those terms in any future United Ireland? The DPP holds a monopoly on criminal prosecution and there are very few avenues of civil recourse against the state for a citizen, what avenues do exist appear far more like cul-de-sacs.“In summary, the crucial, social function provided by the DPP and the Gardaí has made the Irish Courts reluctant to impose any civil liability on them; fearing that such an imposition would hamper the effective operation of the criminal justice system.” Helen Whately Legal Researcher, Office of the Director of Public Prosecutions.
Having received its Royal Charter from Henry VIII, Kings Inn will soon be 500 years old. The court services celebrated their bicentenary in 1998. Indeed, most Irish establishments have their roots based in British rule, which we inherited during the handover as a result of the treaty, Has the philosophy of these institutions changed to any great degree and is it evident in our written law & interpreted through the courts?I read a book authored by a Trinity student titled “The Civil Service and The Revolution” where it tackles the two contradictory accounts of the process by which an Irish State replaced the British State in Ireland. He quotes Kevin O’Higgins, a minister in the Provisional Government, describing himself in 1922 as standing amongst the ruins of the British empire in Ireland while contrasting it with “the magisterial calm of Joseph Brennan, who had been a senior civil servant in Dublin at the handover” describing, “no immediate disturbance of any fundamental kind in the daily work of the average Civil Servant”. It was business as usual, and I am sure that our judiciary would have a similar tale to tell. Is this why, as we approach the state’s first centenary, and 223 years of Irish courts operating, that the Irish judiciary to this day are not capable of defining even the most basic rights required by civil societies all around us. What rights that are attributed to the citizen in the ’37 constitution come with a disclaimer. In a paper written by Susan Denham, she speaks about the group of civil servants and barristers who wrote the constitution. I believe most had served in the British administration prior to 1922, and the group was headed by a man named Hearne. So, the preamble holds no relief, it may be viewed as men’s rea by some. Irish people did not thrust the constitution onto an unwitting establishment. In fact, they’re not qualified to interpret its contents. That privilege is the reserve of the courts, and the courts cannot be held to anything they say on any given day.
Unenumerated Rights – Sustainable in Modern Ireland? I think a more pertinent question would be how will anyone justify any of this as the broader public becomes aware in this age of information? Is there justification? Are Irish people less worthy of rights? What does this say about our Judiciary and wider legal fraternity?