OPINION:This is a moment when we can shape our future; how we want our Republic to look for future generations, writes MAURICE MANNING
THE UPCOMING referendums on judicial pay, the powers of Oireachtas committees and children’s rights can be the prequel to a process of deeper constitutional change in this country.
Recently I wrote to Taoiseach Enda Kenny about the constitutional convention which forms a central part of the programme for government. I suggested that the planned constitutional review offers a huge opportunity to shape how the values of our society are reflected in our law, and that a constitution based firmly in modern human rights standards will ensure that we can tackle the challenges ahead in a way that ensures respect for the dignity of everyone in the Republic.
There is a tendency to take human rights for granted until something happens to us. And so, for many, this may seem at first sight a luxury. But it is not. When something happens to us that affects our rights, we recognise them for what they are: the very basics that should exist in all societies – rights to life, health, and education.
Take the parents who took cases all the way to the Supreme Court to achieve a basic level of education for their autistic children. In an ideal world, we should not even need to talk about achieving human rights. They would already be inherent in society, allowing us to live our lives in freedom and dignity.
As a Constitution developed 11 years before the 1948 Universal Declaration of Human Rights, Bunreacht Na hÉireann is quite progressive in protecting human rights, particularly in the inclusion of the specific set of articles relating to “fundamental rights”.
However, the text of the Constitution has not kept up with developments in the international understanding of human rights in the 75 years since it came into force.
As the Tánaiste and Minister for Foreign Affairs Eamon Gilmore said at the Irish Human Rights Commission’s annual lecture in June, “it is very much a product of its time”.
So while there is strong protection for certain human rights, compared to modern international human rights standards it is clear that several important rights are absent from the Constitution or from the remit of constitutional recognition and protection. The rights of children and the rights of women are two such areas but there are others that would benefit from a comprehensive review and updating.
There are other reasons why it makes sense to have a comprehensive review of its fundamental rights provisions and how they work in practice for the individual. For instance, significant limitations arise under the “separation of powers” doctrine, as to the practical remedies that the courts can provide for a breach of an individuals rights by the State or other body.
First, because human rights do not automatically become a part of Irish law once the State ratifies a convention at the UN or Council of Europe, our constitutional law needs to identify a mechanism under which it can give effect to these rights in practice.
Second, it is now eight years since the European Convention on Human Rights Act, 2003, came into force and the effectiveness of the legislation is in some doubt, not least in relation to recent European court judgments against the Republic. This legislation is key to ensuring human rights protections for everyone in Ireland, and it must function effectively.
Third, the impact of the European Charter of Fundamental Rights under the Lisbon Treaty is now an important element of EU law and we need to identify how this is working in tandem with the Constitution. This charter will help to ensure greater rights protections for everyone in the Republic, including in relation to working conditions.
Fourth, the State will appear before the United Nations Human Rights Council next month and – in addition to demonstrating that it is strengthening an independent and vibrant human rights infrastructure here – the Republic will need to demonstrate how its Constitution is keeping pace with human rights law to ensure protections and freedoms for all.
Finally, but most importantly, we need to do it for ourselves. We need to make sure that everyone in the State feels that the Constitution is actually, actively, protecting our human rights and that we have easy access to sympathetic courts when organs of the State – or private actors – have a negative impact on our rights.
It is well recognised that there are four pillars to democracy: the structural organs of the executive, legislature and judiciary, and the fourth pillar of the rule of law and respect for human rights.
This is a moment when we can shape our future, when we can learn from the lessons of our recent and more distant past and set out in the founding document of our State how we want the Republic to look for our children and future generations.
This is no time to shy away from change or tackling the big issues and reforming our Constitution to reflect modern Ireland and its values and principles can help to put this country on a firm footing for the future. It is time for us all to discuss these issues within the context of the constitutional convention.
Dr Maurice Manning is president of the Irish Human Rights Commission