Direct Provision ruling signals new “dialogue” between Dail and the Judicary

The Supreme Court ruled last week in favour of a Burmese asylum seeker who challenged the legislative provisions that prohibited him from seeking work during the course of the eight years he had spend awaiting resolution of his application in a Direct Provision facility in Co. Monaghan. The judgment, written by Justice Donal O'Donnell on behalf of a seven-judge court, in certain ways harks back to a by-gone era of "judicial activism." It forthrightly presses the political branches into taking action to remedy what the judges deem to be a straightforward breach of rights, and in an area generally understood to be in principle the remit of the political actors rather than of the judges. But it does so in quite a distinctive way; one that may well signal a new departure in Irish constitutional law.

In short, the judges say that s 9(4) of the Refugee Act 1996, which bans asylum seekers from ever working, is in conflict with the implied right to work protected under Article 40 of the Irish Constitution. Perhaps the key issue addressed in the judgment is the nature of the right to work (or to seek work) in Irish constitutional law; specifically, whether it can be said to apply to non-citizen asylum seekers, and if so, in what ways or to what extent.

This brings the judges into moral territory. Like in the activist days of the 1960s-80s, they seek to identify the meaning of constitutional rights by reference to the deeper principles that seem to underpin and explain them. Justice O’Donnell presents the right to work as a broader dignity norm that “protects something that goes to the essence of human personality such that to deny it to persons would be to fail to recognise their essential equality as human persons as mandated by Article 40.1” of the Constitution. This idea forms the basis of the judgment overall; it means that the right is not in principle inapplicable to non-citizen asylum seekers.

The judges acknowledge that there is no absolute right to work. They acknowledge that governments are entitled to restrict the right, even very dramatically in the case of non-citizens. They recognize the political considerations at play, mentioning for example the notion that an unrestricted such right for asylum seekers might well operate as a "pull factor" to Ireland. Indeed they recognize that the separation of powers norm that undergirds the entire constitutional order itself suggests that it is in principle up to the political actors to resolve these essentially political conundrums.

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But ultimately the judges rule as they do because of the combination of two factors. First, there is the fact of the absolute nature of the ban on work for asylum seekers; it is not as though the legislation permits work after a period of months or years waiting a decision, for instance. Second, there is the fact that asylum seekers may be awaiting indefinitely for decisions on their applications, and for many years as in the case of the Burmese man. Ultimately, the arrangements are such that the dignity of individual asylum applicants are in jeopardy, and in a manner that clashes with constitutional values.

The most interesting feature of this judgment, however, is Justice O'Donnell's novel conclusion. Irish judges enjoy constitutional supremacy. That means that if they deem legislation unconstitutional, they render it null and void from that moment. It is arguable that judges have been reluctant to actually use this "guillotine" power though, in part because they are themselves uncomfortable with it from a democratic standpoint. It is also arguable that this has on occasion come at the cost of the rights of citizens. Take Marie Fleming in her right-to-die claim some years ago, for instance. The judges seemed in ways attracted by the notion of a ban on assisted suicide with limited exceptions, rather than the absolute ban. But they saw the matter as simply one for the politicians, and ultimately upheld the constitutionality of the ban, despite its absolute nature.

At around the same time a similar case was taken in Canada by a women suffering the same neurodegenerative disease as Marie Fleming. The Canadian judges responded by handing down a "suspended declaration of invalidity." That is, they held the guillotine in reserve, giving the politicians 18 months to come up with a limited ban. The legislators did so, and an assisted suicide law came into force there last summer.

Justice O’Donnell did something like that in this instance. Instead of guillotining s 9(4) of the Refugee Act, he adjourned the matter for six months, essentially inviting a response from the political actors. They can now figure out how to cure the law of its constitutional shortcomings; perhaps by allowing asylum seekers to seek work after a certain period, or allowing them seek work in particular economic domains etc. The judgment is thus a promising “dialogue-oriented” departure in Irish constitutional law. The judges did not shirk their responsibility to act as guardians of constitutional rights, but neither did they arrogate political power to themselves.

Dr. Tom Hickey is director of the LLM programme at the School of Law and Government at Dublin City University.