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

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Introduction

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. ...read more.

Middle

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". ...read more.

Conclusion

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. 1 1937 Irish Constitution http://www.taoiseach.gov.ie/upload/static/256.pdf 2 Article 40-44 1937 Irish Constitution 3 www.justice.ie work permit, refugee, visa etc. 4 http://www.oasis.gov.ie/moving_country/moving_to_ireland/right_to_vote.html 5 1972 IR 241 6 1973 IR 121 7 Citizenship and the International Remit of Constitutional Protection William Binchy 8 1966 IR 567 9 Citizenship and the International Remit of Constitutional Protection William Binchy 10 2001 3 IR 62 11 1937 Constitution 12 http://www.ireland.com/focus/referendum2004/ 13 Annu Rev Popul Law. 1989;16:168 14 http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=12344201&dopt=Abstract 15 case C -200/2 http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=&datefs=&datefe=&nomusuel=chen&domaine=&mots=&resmax=100 1 The constitutional protection of non-citizens ...read more.

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