Constitutional Protection of Economic, Social and Cultural

Rights: Ireland and Beyond

Dr Conor O’MahonyLecturer in Constitutional Law

University College Cork

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

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

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

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…”

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

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

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)

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”

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

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

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

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

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

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

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