Fundamental rights provisions of the 1937

With the harmonization and the development of the world, Ireland becomes a more diverse society. The ability of social policies to address the needs of all its members becomes increasingly tested by distinctions between the rights of citizens and non-citizens. As the most important and fundamental legal document, 1937 Irish constitution sets out the articles about the fundamental rights provisions. According to the constitution, Irish citizens have a range of those fundamental rights, but to what extent the fundamental rights provisions apply to non-citizens is disputable.

In the constitution, a number of the important provisions is expressly to attached to citizens, but leave this area complex and uncertain for non-citizens. So, in practice it is difficult for Irish judges to agree on a precise protection afforded to non-citizens. This paper is focus on this issue in respect to the recent referendum of citizenship. The constitution The Irish Constitution was enacted in 1937. It is the fundamental legal document that sets out how Ireland should be governed through a series of 50 Articles.

The Constitution establishes the branches or organs of government, it establishes the courts and it also sets out how those institutions should be run. The Constitution also contains a strong set of fundamental rights at Articles 40-44, e. g. rights to equality before the law, freedom of expression, freedom of religion, education, etc. The courts may issue binding decisions that legislation is unconstitutional if it breaches these fundamental rights. 1 According to the constitution, the fundamental rights are not absolutely, they can be restricted by common goods or public order.

Every right has the same status and value, so if there is any confliction between them, the court can make a decision, which is more important in particular cases. It is clear that non-nationals have broadly the same rights as citizens in respect of rights relating to the administration of justice. This means their property should be protected they have the right of access to the courts and the rights of a non-national charged with a criminal offence are the same as those of a citizen. Only citizens may serve on a jury.

As a sovereignty country, it is clear that there is a distinction between citizens and non-citizens in the areas of the right to live in Ireland and the right to vote. If a non-citizen (citizens of countries other than the EU member states) wants to live in Ireland, he must meet some requirements and need to apply the permission to come and stay in Ireland. 3 As a non-citizen you still have the right to vote in some elections. 4 The right to vote in referendums and in Presidential elections is confined to Irish citizens.

In other elections, Irish citizens are entitled to vote and so are some non-nationals. Non-EU citizens only can vote in local elections and need to register the name and address before vote. Somehow few non-EU citizens know about this due to the lack of introduction. If the public organization and government can put more efforts to introduce this entitlement to the non-EU citizens, I believe there should be more Non-EU citizens who resident in Ireland participate into the social and political development of the local communities.

The context of those entitlements is clear and certain, what we need to address in this paper is the fundamental rights listed in the constitution, which is still uncertain and ambiguous. The uncertainty of the fundamental rights From the context of constitution, we cannot find any words explicitly refer to the non-citizens. Article 40: Personal rights "1. All citizens shall, as human persons, be held equal before the law… "It refers specifically to citizens but it is not clear whether or not this is meant to exclude non-nationals.

Article 41,42: The family and the education Those two articles do not specifically refer to citizens. In another words, it is not clear whether it entitle the same rights to non-citizens. Article 43 articulates a universalist natural law perception of the right to property. The complicating element is that property rights also crop up under Article 40. 3. 2, which provision is restricted to citizens. Article 44 Guarantee the freedom of religions to every citizens. There is no implication for non-citizens here.

From the case law, we can see the uncertainty resulted from this issue. The Irish jurisprudence on identifying who are rights-holders under the Constitution has been complicated by two decisions three decades ago: Byrne v Ireland5 and Meskell v Coras Iompair Eireann. 6 They failed to provide any considered analysis of the scope of a right under the Constitution, the criteria for being a rights-holder or the question whether the scope of a right against the State is necessarily co-extensive with that of a right against a non-State actor.

7 In case Nicolaou8, Mr Justice Henchy held that non-citizens may not avail themselves of the guarantees of equality of citizens and of the protection of the personal rights of citizens contained respectively in Article 40. 1 and 40. 3 of the Constitution. In the supre court, Walsh J. stated: "Article 42, section 5, of the Constitution, while dealing with the case of failure in duty on the part of parents towards the children, speaks of 'the natural and imprescriptibly rights of the child'….

Those 'natural and imprescriptible rights' cannot be said to be acknowledged by the Constitution as residing only in legitimate children any more than it can be said that the guarantee in section 4 of the Article as to the provision of free primary education excludes illegitimate children. While it is not necessary to explore the full extent of the 'natural and imprescriptibly rights of the child' they include the right to 'religious and moral, intellectual, physical and social education.

' An illegitimate child has the same natural rights as a legitimate child though not necessarily the same legal rights. The law determines legal rights as distinct from natural rights for the time being in force in the State. While the law cannot under the Constitution seek to deprive the illegitimate child of those natural rights guaranteed by the Constitution it can, as in the Adoption Act 1952, secure for the illegitimate child legal rights similar to those possessed by legitimate children".