Critically discuss the extent to which the fundamental rights provisions of the 1937 Constitution apply to non-citizens.

The constitutional protection of non-citizens

Course: Constitutional Law 2

Year 2

Student no: 03103854

The constitutional protection of non-citizens

-Critically discuss the extent to which the fundamental rights provisions of the 1937 Constitution apply to non-citizens.

Abstract:

Introduction

The constitution------ the fundamental rights

What is the deferent between the rights of citizens and the rights of non-citizens?

The uncertainty of the fundamental rights

The European human rights convention

Conclusion

Introduction:

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.

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.

The fundamental rights include:

Equality before the law

The right to life

The right to trial by jury

The right to bodily integrity

Freedom to travel

Personal liberty

Freedom of expression

Freedom of assembly

Freedom of association

Religious liberty

The rights of the family

Property rights

The right to earn a livelihood

Inviolability of dwelling

The right to fair procedures

The right to privacy

What is the deferent between the rights of citizens and the rights of non-citizens?

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 ...

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Property rights

The right to earn a livelihood

Inviolability of dwelling

The right to fair procedures

The right to privacy

What is the deferent between the rights of citizens and the rights of non-citizens?

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. As a non-citizen you still have the right to vote in some elections. 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 Ireland and Meskell v Coras Iompair Eireann. 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.

In case Nicolaou, 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”.

The court in their interpretation of Article 41 and 42 have laid a strong emphasis on the need to protect family autonomy and the associated desideratum of keeping children, so far as possible, with their parents. In case North Western Health Board v NW15, The parents of a new-born infant declined to accept the health board’s offer of the PKU test to screen for the presence of certain metabolic and endocrine conditions which might cause severe learning difficulties, intercranial bleeding and eye damage. The risk of one of these conditions developing was small. The test involved extracting drops of blood from the infant’s heel, having punctured the skin with a lancet. The parents declined and the health board sought an injunction compelling them to have the test done on their son. In the High Court McCracken J refused to grant an injunction. The degree of deference of parental autonomy afforded by the majority is strikingly wide.

The uncertainty of the constitution leaves the uncertainty to the practice. It is extremely unresolved in relation to the cases of non-national with an Irish-born child what to live in Ireland.

Under articles 2 and 3, anyone born on the island of Ireland is entitled to Irish citizenship. But the status of non-nationals who stay in Ireland with their Irish-born children is uncertain. In 2004,the citizenship referendum was passed, It polished the entitlement to citizenship of children born in Ireland in the future whose parents are not, and are not entitled to be, Irish citizens, unless otherwise provided for by law. Since several of the key rights as described in the constitution is attached to the citizens or a citizen, the children are exposed to the risk of a reduction of their constitutional rights.

Before the referendum although the status of non-nationals who stay in Ireland with their Irish-born children is uncertain, most of their application to stay can be accepted according to the constitution. In the 1990 case, Fajujono v. Minister for Justice, the Supreme Court ruled that it is practically impossible to deport the non-national parents of Irish-born children on the basis that this would infringe the guarantees contained in Article 41 of the Constitution concerning family unity.

The court held that

When an alien has resided for an appreciable time in Ireland and has become a member of a family in Ireland containing children who are citizens, those children have a constitutional right to the company, care, and parentage of their parents within Ireland; and

The government can force such a family to leave Ireland only, after due and proper consideration, it is satisfied that the interest of the common good and protection of the state and society are so predominate and overwhelming as to justify such an interference with the rights of the family under the Constitution.

The case involved a married couple that had lived illegally in Ireland for 8 years and had given birth to a daughter who was a citizen. As a result of this case, the Irish government adopted a policy whereby non-national parents of Irish citizen children were not deported from the country.

After the referendum, the baby born in Ireland whose parents are not Irish can be denied citizenship; since the extent to which the constitutional rights can be applied to non-citizens still not clear, it can make matters worse. If those rights cannot entitle to the babies, they might take the risk of deportation. This will weaken the rights and entitlements of the children at a constitutional level. It just place some children on an discrimination class, encourages the racist behaviour.

The European Convention on Human Rights

Article 1 of the ECHR provides that the States parties thereto "shall secure to everyone within their jurisdiction the rights and freedoms" defined therein. As a party of European Convention on Human Rights, Ireland had already incorporated it into Irish law.

It is open for anyone – citizen or non-citizen - to go to the Irish courts or, if there is no adequate domestic remedy, to the European Court of Human Rights, to vindicate his or her ECHR rights. The European Court ruling that a Chinese woman whose baby was born in Belfast should be allowed reside legally in the UK was a proof support of the non-citizens to vindicate their rights.

Conclusion:

Including European Convention, Several of the great global Conventions and Covenants make no distinction based on citizenship. To some degree, it is a global trend to make no deference on human rights protection between citizens and non-citizens. Although the denial of citizenship to children does not necessarily constitute a breach of the convention since a country is always free to discharge its international obligations without resorting to its constitutional framework, the legitimising negative attitudes towards foreigners will damage the common humanity and equal dignity. The present constitutional protection of non-citizens is far from certain. It is recommended that the Constitution be amended to explicitly guarantee the fundamental protection of non-citizens in the context of Irish immigration and asylum policy

The non-citizens who legally resident in Ireland is a party of the society, as long as they contribute to the Irish economy and the diversity of the culture, they should be protected by the Irish law. The Irish constitution should give a clear expression to protect them.