Marginalised groups deserve constitutional protection

THE primary function of constitution is to enunciate the values and rules in accordance with which society should be organised. For those concerned about the increasing social and economic exclusion of a significant section of our population, the approach of the Constitution Review Group to this problem off social exclusion is ultimately disappointing.

The review group does accept that it may be appropriate to include rhetorical statements in the Constitution committing the State, to the elimination of poverty and the promotion of justice and equality of opportunity. The inspirational value of such statements should not be underestimated, as they would constitute a political affirmation of the activities of those women and men who struggle on a daily basis with poverty and in equality. However, the group is emphatic that such statements should not give rise to rights which can be legally enforced in the courts.

According to the report, "The main reason ... why the Constitution should not confer personal rights to freedom from poverty, or to other specific economic or social entitlements, is that these are essentially political matters which, in a democracy, it should be the responsibility of the elected representatives of the people to address and determine. It would be a distortion of democracy to transfer decisions on major issues of policy and practicality from the Government and the Oireachtas, elected to represent the people and do their will, to an unelected judiciary."

This reasoning can be challenged on a number of grounds. For example, the rejection of socio economic rights in relation to poverty is difficult to reconcile with the group's subsequent endorsement of the right to free primary education and, indeed with its apparent acceptance of the view that judicial vindication of the right to life and the right to bodily integrity under the present Constitution offers the ultimate safeguard against the risk of anyone being allowed to fall below a minimum level of subsistence.

However, my primary criticism is that it reflects an understanding of the judicial role which is arguably derived from one particular political philosophy (albeit one dominant in Irish legal circles), namely, liberal democracy, with its emphasis on the primacy of the sovereignty of the individual. This philosophy tends to encourage the development of political systems based on the advancement of self interest various pressure groups trade off with each other in an attempt to maximise their respective material in such systems, minority and marginalised groups fare very badly certainly it would appear that in our society, travellers, for example, find it very difficult to have their interests protected through the political process.

In my opinion, the present Constitution cannot be regarded as unequivocally endorsing a limited role, for the judiciary based on this particular philosophy, though this belief is quite common in the legal community. Our Constitution straddles two, sometimes incompatible, philosophies liberal democracy and Christian democracy. This latter influence currently provides constitutional legitimation for a political system based on deliberative, transformative politics, where the question of human good has a central place. More specifically, it may also legitimise a judicial role which seeks to maximise the common good.

The difference, in concrete terms, be seen in the contrasting out comes to two High Court cases the State to provide them with serviced halting sites.

In the first of these, O'Reilly v Limerick Corporation, Mr Justice Costello rejected the claim on the ground that such demands should, as he put it, "be advanced in Leinster House rather than in the Four Courts". Five years later, the same judge, in an extempore judgment, granted an order against Wicklow UDC and Wicklow County Council directing them to provide halting sites for certain traveller families, the judge apparently accepting that his views had changed in the meantime.

I do not wish to overstate the role of the judiciary in this context. There is obviously merit in ensuring that, so far as possible, policy making should be carried out by our elected representatives, not least because I believe that reforms secured through the political process are likely to be more effective than reforms won in the courts.

Moreover, I also accept that not every type of social issue can be effectively tackled by the courts. However, I also believe that, if the political system has failed a marginalised group, it should be permitted to have recourse to the courts to vindicate its basic socio economic rights and I regret that the conservative reasoning of the review group precludes this possibility.

At the heart of, this seemingly arcane debate on the role of the judiciary is a disagreement about the priority to be attached to the problem of tackling social exclusion. I cannot improve on the words of two members of the review group, Dr Kathleen Lynch and Dr Alpha Connelly, who, in one of their briefing documents to the group, state.

"The Constitutional Review Group cannot ignore economic inequalities even if traditional constitutional jurisprudence has ignored them to date. To ignore them is to do a grave injustice to a large sector of the Irish population. There is no logical reason why the Constitution does not have an Article committing us to a democracy based on principles of social solidarity with the aim of eliminating poverty and promoting economic equality through a system of taxation based on principles of, equality and progressiveness.