Title:
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Constitutionalising socio-economic rights in Ireland
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There is an antipathy to constitutionalising socio-economic rights in Ireland among'
senior judges and politicians. The arguments advanced are based mainly on alleged
differences between socio-economic rights and the traditionai civil and political
rights.
.An analysis shows that the distinction between social and economic rights and the
traditional civil and political rights is not as simple as is often supposed. Further, the
two sets ofrights are interdependent and indivisible.
Most of the rights protected by the Constitution of Ireland are traditional civil and
political rights. The socio-economic right to free primary education is enshrined in
the Constitution ofIreland and has been the subject of much litigation in recent years.
The Supreme Court regards itself as constrained in cases involving socio-economic
rights by the doctrine of the separation of powers and the argument about the
distortion of democracy (both based on the alleged character of socio-economic
rights) and is prepared only in the most exceptional of cases to issue a mandatory
order against the Government to enforce a socio-economic right. The views of the Constitution Review Group (1996) and of the Government are broadly similar to
those of the Supreme Court.
The arguments advanced against constitutionalisation are assessed and problems with
the doctrine ofthe separation of powers evaluated. Accordingly, the arguments
advanced by the judges, politicians and Constitution Review Group are rebutted, and
the courts' role as guardians of constitutional rights emphasised. The influence of
international instruments, principally that of the European Convention on Human
Rights is analysed and some possible judicial remedies proposed.
To demonstrate that such rights can be enforced judicially, the experience of the
South African Constitutional Court in adjudicating entrenched socio-economic rights
is examined.
The conclusion is that in theory, as well as in practice, such rights can be enforced by
the courts.
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