Conor o'mahony


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Conor o'mahony

  1. 1. Constitutional Protection ofEconomic, Social and Cultural Rights: Ireland and Beyond Dr Conor O’Mahony Lecturer in Constitutional Law University College Cork
  2. 2. Constitutional Rights• Usually civil and political (freedoms)• Economic and social usually excluded• Capitalist system – incentive• Democratic accountability for use of public funds• Courts not well placed to balance competing demands
  3. 3. Constitutions Globally• US: no economic and social rights• Ireland: economic and social rights mostly non-justiciable (Art 45) Approach followed by India• South Africa: numerous enforceable economic and social rights
  4. 4. Constitution of Ireland 1937• Economic and social rights set out in Article 45: Directive Principles of Social Policy• “…care of the Oireachtas exclusively”• “…shall not be cognisable by any Court under any of the provisions of this Constitution” In simple terms: you cannot take Article 45 to court
  5. 5. Constitution of Ireland 1937• Article 42.4: “The State shall provide for free primary education…”• Article 42A.2.1 (formerly Article 42.5): “In exceptional cases, where where the parents…fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State…shall…endeavour to supply the place of the parents…”
  6. 6. Enforcing Article 42• Articles 42.4 and 42.5 are enforceable• Case law from mid-1990s• Children with special educational needs• Children with severe behavioural disorders Courts found that the State was constitutionally obliged to make provision suitable to meet their needs
  7. 7. Enforcing Article 42• Damages: financial compensation for injury or loss suffered• Declaratory relief: court declares a breach of rights  up to executive to respond appropriately• Mandatory order: court orders executive to take specified steps to vindicate rights
  8. 8. Enforcing Article 42• Damages: retrospective only – do not secure future vindication• Declaratory relief: ignored by executive in series of cases after FN v Min for Ed (1995)• Mandatory order: finally granted by Kelly J in the High Court in DB v Min for Justice (1999) and TD v Min for Ed (2000)
  9. 9. Enforcing Article 42• 2001: Sup Court overturned TD v Min for Ed• Held mandatory orders involved the court in resource allocation and policy formation• Breach of the separation of powers• Mandatory orders only permissible where there is “a conscious and deliberate decision by the organ of State to act in breach of its constitutional obligation…accompanied by bad faith or recklessness”
  10. 10. Constitution of South Africa 1996• Sections 26-29: socio-economic rights (housing, healthcare, food, water, education)• State under obligation to take “reasonable legislative and other measures within its available resources to secure progressive realisation” of these rights• First Certification Judgment (1996): Const Court confirmed that rights are justiciable – separation of powers no bar
  11. 11. Grootbroom (2000)• Right to adequate housing  focus on the reasonableness of overall State policy• No individual entitlement to a house – but failure of Govt to devise plans for emergency shelter unreasonable• Declaration granted that Govt was obliged to formulate such a policy
  12. 12. Soobramoney (1997)• Right to healthcare – access to life-saving dialysis treatment• Applicant did not qualify under hospital criteria• Criteria found to be reasonable and consistent with constitutional values when allocating scarce resources• Focus on larger needs of society rather than claims of individuals
  13. 13. Treatment Action Campaign (2002)• Healthcare: access to treatment to prevent HIV being transmitted from pregnant mothers to babies• No cost issue – manufacturer supplying free• “Minimum core” argument rejected• Govt wanted to pilot for 2 years• Held unreasonable – no cost – thousands of lives would be saved• Court willing to grant mandatory order to enforce
  14. 14. Mazibuko (2009)• Access to water – argued for a 50 litres per person per day minimum• “Minimum core” again rejected – duty is to take reasonable measures towards progressive realisation• Up to legislature and executive to determine these measures• Must keep policies under review
  15. 15. Comparison• Ireland: – Mostly unenforceable, apart from education – Minimum core to individual right to education – Damages and declarations possible – Mandatory orders not• South Africa: – Broad range of economic and social rights – No minimum core – Reasonable measures towards progressive realisation – Mandatory orders possible if policy unreasonable
  16. 16. Conclusion• Economic and social rights only as enforceable as the courts are willing and able to make them• Ireland: individualistic approach – absence of mandatory orders a problem – but declarations have still achieved much• South Africa: focus more on the big picture – more realistic when resources are more scarce