“None of the personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas when the common good requires this.” ~ Kenny J

Unenumerated Rights

Unenumerated Rights are rights that are not expressly stated in the written text of a Irish Constitution, however, they are inferred from the language, history, and structure of the constitution, or cases interpreting it. It can also be defined as inferred rights.
A common misconception among the people is that their rights come from the Constitution, legal personnel are even of the misconception of this, often citing rights as being a constitutional right, and this can often mislead people into believing the constitution is the source of their rights.

One question which can be asked to determine if a person’s rights come from a constitution is: For example, if the constitution was not enacted in 1937 would an Irish citizen not have the rights which are enumerated in it?

The answer is no, of course not. The existence and protection of those rights do not depend on the Constitution and the person would be protected by legislation etc.

Fundamental Rights in the Irish Constitution

A fundamental right can be defined as a basic human right. The Irish Constitution recognises that Irish citizens have certain fundamental rights. Not every fundamental right is listed in the constitution; unenumerated rights are unwritten and therefore inferred.

Article 40.3 of the Irish Constitution refers to and accounts for the recognition of unenumerated rights. The Supreme Court is often the main source of such rights, such as the right to marry, the right to bodily integrity and the right to earn a living, among others.
These Fundamental Rights, enumerated or unenumerated, they are not absolute as can be seen in the case of Ryan v AG, they can be limited or restricted by the Oireachtas on the grounds, i.e. of the common good, public order or national security.

How they developed:
On 1 July 1937 the people enacted a new Constitution, Bunreacht na hÉireann, to replace the 1922 Constitution of the Irish Free State. Even though the 1922 Constitution had been approved by Dáil Éireann, there continued to exist throughout the country a substantial body of opposition to it owing to its being circumscribed by the terms of the Treaty, its recognition of the British monarch as part of the national legislature and its requirement that members of the Oireachtas swear an oath of faithfulness to that monarch.

Much of the case for a new Constitution was the need to make perfectly clear that the source of authority in Ireland and of the fundamental law of the state is the people of Ireland. There was a desire to give the state all the characteristics of a republic and so all references to the British monarch were removed.

Where are Fundamental rights found in the Constitution:

Articles 40 – 44 of the Constitution allow for fundamental rights.

How did unenumerated rights develop and are they afforded the same protection as enumerated rights:
Unenumerated rights are implied rights, not necessarily written but implied. They are rights that have been read into the court. Courts have interpreted Constitutional rights in such a way that unenumerated rights implied in the text are protected to the same extent as enumerated rights.

Discuss two examples of a specified right:

(I) The right to Trial by Jury:
The present Constitution of the Republic of Ireland, enacted by the People in 1937, provides that subject to three exceptions, “no person shall be tried on any criminal charge without a jury with except to trial for minor offences, trial by special criminal courts and trial by military tribunals.
In Ireland jury trials are available for criminal before the Circuit Court, Central Criminal Court and defamation cases. Consisting of twelve persons, non-lawyers who have been chosen at random from a diverse range of jurors from the community. Juries only decide questions of fact; they have no roll in sentencing or awarding damages. If you have been charged with a “non-minor” offence, you will be tried by a judge sitting with a jury. There are some offences for which you will be given a choice – whether you want to have your case decided by a District Court Judge sitting alone or by a judge sitting with a jury. For certain terrorist and organised crime offences the Director of Public Prosecutions may issue a certificate that the accused be tried by the Special Criminal Court. Instead of a jury the Special Criminal Court consists of three judges, one from the District Court, Circuit Court and High Court.

(ii) The right to Education.
Art: 42
The State acknowledges that the primary and natural educator of the child is the Family. And the state guarantees to respect the right of the parents to provide that education. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State. The State shall not oblige parents to send their child to any particular type of school, but they do require children to receive a certain minimum education, moral, intellectual and social. The State will provide for free primary education and will provide reasonable aid to private, home taught, education
Sinnott Vs Minister For EducationDiscuss two examples of an unspecified right:

(i) The Right to Privacy.
The Constitution does not specifically state a right to privacy but the courts recognise that the personal rights in the constitution imply the right to privacy.
The unenumerated right to privacy has been interpreted as protecting individuals against certain kinds of intrusion by persons or body’s , your private written communications and telephone conversations cannot be deliberately and unjustifiably interfered with.

However, your right to privacy may be limited or restricted by legislation in the interests of the common good. See introduction last paragraph.

Kennedy Vs Ireland(ii) The Right to Martial Privacy, Rights of the family

The Right to consort together, to enjoy each others company and the right to procreate or to make their own private decisions, made within married life, regarding procreation.
Origins of the Irish Constitutional act The Right to Martial Privacy stem from the case of McGee Vs Attorney General.

McGee Vs Attorney General

Name and discuss/explain cases from aforementioned specified/unspecified rights :

The Right To Trial By Jury: Gangland Ireland Vs StateEven though the Irish constitution recognizes and declares that people living in Ireland have certain fundamental personal rights like a fair trial and a trial by jury, this like all our fundamental rights can and are broken, if, the state feels there is a conflict between the constitutional rights of individuals and the greater good.

The following case has recently been brought forward and in this case their right to Trial by Jury has been wavered. These men/boys have a very low value on life and because of this the state feels that jury intimidation is very probable and will face the juryless special criminal court; this is not a new approach to dealing with cases where the ordinary courts are deemed inadequate to secure the effective administration of justice. The court was first established by the Dáil under the Offences against the State Act 1939 to prevent the Irish Republican Army from subverting Ireland’s neutrality during World War II. The current Incarnation of the Special Criminal Court dates from 1972, just after the Troubles in Northern Ireland began. The court is composed of three judges appointed by the government from among the judges of the ordinary courts, usually one from the High Court, one from the Circuit Court and one from the District Court.

The (DPP) recently ordered eight Limerick men, arrested as part of an investigation into alleged extortion, go on trial at a non-jury Special Criminal Court. The eight defendants were sent forward for trial to face the three-judge non-jury court. All eight men were arrested by gardaí in Limerick last April as part of the same investigation. They face a number of separate charges, including threatening to kill a man, violent disorder and alleged extortion. All of the defendants were wearing handcuffs when they were served with books of evidence in court yesterday.
State Solicitor, Michael Murray told the court that some of the accused had not co-operated with prison officers in the holding cells. Among those who appeared in court was 24-year-old Ger Dundon from Hyde Road in Limerick. He is charged with committing violent disorder, when his case was called, Mr Dundon covered his ears and repeatedly shouted, “I am not listening to the court” and stuck his middle finger up at the judge.

The Right To Education: Sinnott Vs Minister For Education

Art 42 recognised the rights of the child, and duty of the state as guardian of the common good. The constitution declares that the primary and natural educator of the child is the family.
The state guarantees to respect the rights of the parent to provide an education for the child. The state requires children to receive a certain minimum education; the wording ‘certain minimum’ does leave a grey area as to what that said minimum standard is. The Education (Welfare) Act 2000 does not give a definition of a “minimum education”. However, it does provide that the Minister may set out a “prescribed minimum education”. That minimum standard may be different for children of different ages and of different capacities – including physical, mental and emotional capacities. The state will not oblige parents to send their child to certain schools and the child can be home educated, once registered.
Where a child has special needs which cannot be provided for by the parents, the state is obliged to cater for such needs in order to fulfil the child’s basic fundamental right to education.

Jamie Sinnott was at the time a man with the physical age of 22, but with a mental age of 12. In October 2000 Kathy Sinnott, mother of Jamie won her battle in the High Court. The High Court was critical of the government’s inaction in providing for Jamie’s constitutional right to an education and declared that Jamie and others like him, had a right to free primary education for as long as he could benefit from it, or as long as such education was reasonably required by him. The case established that the state had breached its constitutional obligation to provide Jamie with an appropriate education and that this education should be provided regardless of a person’s age.

Her victory, however, was short lived. The government appealed the High Court’s decision. The objection was against the argument that the constitutional entitlement to a free primary education is based on needs, not on age, and does not cease at age 18. The government warned that the judgment created dangerous constitutional precedents , because it awarded damages for the first time to a person for the suffering of another , the High Court had acknowledged and financially compensated Kathy Sinnott for her long struggle , furthermore the government were also appealing the damages awarded.

In July 2001 the Supreme Court overturned the High Court ruling. The seven judges of the Supreme Court agreed that Jamie had not received the education he had been entitled to, but that this entitlement ends at the age of 18.

The government had to put an end to the dangerous constitutional precedents, it was estimated that there were 200 legal actions being taken by parents with children with special needs throughout Ireland in the year that followed the Sinnott case.
The Irish government however, resisted disability campaigners despite international criticism.

The Right To Privacy: Kennedy Vs Ireland

The unenumerated fundamental right to privacy has been interpreted as protecting individuals against certain kinds of intrusion by persons or bodies.

In the case of Kennedy Vs Ireland the plaintiffs were journalists whose telephones had been tapped, on foot of a warrant, issued by the Minister for Justice. Tapes were made of the recorded conversations and the plaintiffs (journalists) were claiming for breach of their constitutional rights.

The nature of the Right to Privacy must be such as to ensure the dignity and freedom of an individual, in this so called independent and democratic society. The dignity and freedom of an individual in this ‘democratic’ society cannot be ensured if his communications of a private nature, written telephonic or electrical, are deliberately intruded upon.

Although the right to privacy is an unanimated right and is read into our fundamental constitutional rights , in recent years the law has changed whereas recordings from criminal matters can now be admitted into court proceedings. The only real change is not that they now make these recordings; it is merely that they can now do so legally and admit them in court coupled with the right to trial by NO jury.

The Right To Martial Privacy, Rights Of The Family: McGee Vs Attorney General

Mrs McGee is a married woman who was 27 years old at the time; she lived with her husband, a fisherman, and their children in Skerries, County Dublin. She was married in 1968, and has four children. The first two children of the marriage were boys; the third and fourth were twin girls who were born on the 15th November, 1970. The parents and children are all Irish citizens and of the Roman Catholic religion. Her second and third pregnancies were complicated by serious attacks of cerebral thrombosis; that the second caused a temporary paralysis, and that the third caused toxemia with high blood pressure and a threat of cerebral thrombosis.

She alleged in court that she had been warned by her medical adviser that her life would be in danger if she were to become pregnant again. She further alleged that, having considered this advice, she and her husband decided that they should have no more children and would resort to the use of contraceptives. She further alleged that her doctor prescribed the use of a diaphragm together with a contraceptive jelly known as “Staycept Jelly”, and that he supplied her with a quantity of it.

At the trial her evidence, the evidence of her husband, and the evidence of her doctor, duly established the case which she had pleaded. She further pleaded, and adduced evidence to support her plea, that when she attempted to import a quantity of “Staycept Jelly” it was seized by the customs authorities, and that they refused her application to release it on the ground that its importation was prohibited by s.17 of the Criminal Law Amendment Act, 1935. The plaintiff claimed a declaration that s.17, sub s. 3 of the Act of 1935 is inconsistent with the Constitution and that, therefore, it was not carried forward by Article 50 of the Constitution, and that it no longer forms part of the law of the State. She further claimed a declaration that the seizure by the second defendants of the packet of jelly was unauthorised by law and illegal, and she claimed damages for its detention or conversion.

In the final judgment delivered on the 19th day of December 1973 at THE SUPREME COURT it was found that sub-section 3. S. 17 of the Criminal Law Amendment Act, 1935 violates the personal rights of the plaintiff, in this case, her right of privacy in her marital relations with her husband. The right to marry and the intimate relations between husband, wife and the four infant children of the marriage were entitled to be considered by the law as being entitled to protection as having an interest in seeing that the family was not further enlarged, or furthermore that nothing would happen to the wife/mother due to a medical issue that could have been avoided, these are fundamental rights which have existed in most, if not all, civilised countries for many centuries.

Conclusion:My conclusion is basic and simple, our basic rights as humans are rights that we, man, and woman or child have at a fundamental level.