VALIDITY OF INCLUSION OF RIGHT TO PROPERTY IN THE CONSTITUTION

Article 40.3.2 and Article 43

AbstractThe assessment will analyze the validity and relevance of the fundamental right of property in light with the two views provided by Review Group supported by later developments and case laws concerning the given issue.

NAME: UTKARSH KUMARSTUDENT ID.: 14209353BRANCH: SUTHERLAND SCHOOL OF LAW

INTRODUCTIONThe fundamental right is warranted by two provisions of the Constitution Article 40.3.2 and Article 43. generally, Article 40.3.2 could shield the individual citizens property rights, whereas Article 43 deals with the establishment of property itself.The right to own and transfer private property is guaranteed by Article 43, subject to "the principles of social justice", and in accordance with laws passed reconciling the right "with the exigencies of the common good"In case Blake v Attorney General[footnoteRef:1], the Court examined the issue of the interplay between Art. 43 and Art. 40.3 in detail, concluding that, while Art. 43 protect private property as an institution (i.e. prohibits its complete abolition), Art. 40.3 prevent an unjust attack on the property rights of an individual. [1: [1982] IR 117]

The right to enjoyment of private property is protected by the European Convention on Human Rights (ECHR) in Article 1, Protocol 1 of the Convention.[footnoteRef:2] [2: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."]

REVIEW GROUP, 1996The Review Group perceives that, regardless of detailing may be concocted to trade Article 40.3.2 and Article 43, it might more likely than not abstain from entrusting a degree (even a high degree) of subjective evaluation to the legal. It is considered by Review Group that, it may be liked to recast these procurements in an exceedingly way that accommodated an extra organized and target system of legal investigation

TWO VIEWSThe majority was of the opinion that the Constitution should contain such a protection whereas some members of the Review Group did not favor the constitutional protection of property rights.

Firstly, the one in favor was of the opinion that State has legitimate reasons to manage and regulate the exercise of property rights as, the prosperity of the State depends in substantial live on property like land, building, equity or the other kind of wealth being on the market as a supply of, or security for investment. Also, the same has been acknowledged internationally.

Secondly, the assertion of property rights has traditionally been related to the protection of business and business interests and isn't designed to confirm to everybody the fabric conditions for a lifetime of dignity. They take into account, therefore, that it's no place among the basic rights provisions of a constitution. Moreover, in their read, the constitutional protection of property rights might endorse major differ- entails within the possession of productive wealth existing at the time of the adoption of the text.

RECOMMENDATIONS

1. The Constitution should expressly protect the right to property (majority view).2. The Constitution should expressly provide that such property rights can be qualified, restricted etc. by legislation where there are clear social justice or other public policy reasons for doing so.

FURTHER DEVELOPMENTS/ CASE LAWS Major development in the issue was seen in the case-

Re Article 26 and the Health (Amendment) (No2) Bill 2004[footnoteRef:3] (referred to below as the Health Bill Case). [3: [2005] 1 IR 205]

The State had been charging elderly people for medication since 1975 although they were entitled for free treatment; thereby the charges levied were unlawful. The administration acquainted a Bill looking for with reflectively render the charges legitimate.[footnoteRef:4] [4: ... firstly, to examine the nature of the property rights at issue; secondly, to consider whether the Bill consists of a regulation of those rights in accordance with principles of social justice and whether the Bill is required so as to delimit those rights in accordance with the exigencies of the common good; thirdly, in the light of its conclusions on these issues, to consider whether the Bill constitutes an unjust attack on those property rights ]

The court perceived that patients unlawfully charged had a property right comprising of a privilege of activity to recuperate that cash. The court found that the patients' property rights in connection to the money would be annulled by the bill.

In the view of the Court, such legislation cannot be regarded as regulating the exercise of property rights. It is straining the meaning of the reference in Article 43.2.1 of the Constitution to the principles of social justice[footnoteRef:5] [5: [2005] 1 IR 205 [130]]

an abrogation of property rights and an unjust attack on them contrary to the provisions of the Constitution and in particular Articles 43 and 40.3.2.[footnoteRef:6] [6: [2005] 1 IR 205 [134]]

Unjust Attack -Costello P. in Daly v. Revenue Commissioners[footnoteRef:7] [7: [1995] 3 I.R.]

The SC held that to claim relief under Article 40.3.2, the claimant must prove as unjust attack on its right to private property

When an applicant claims that his constitutionally protected right to private property referred to in Article 40.3.2 has been infringed and that the State has failed in the obligation imposed on it by that Article to protect his property rights, he has to show that those rights have been subject to an unjust attack'. He can do this by showing that the law which has restricted the exercise of his rights or otherwise infringed them has failed to pass a proportionality test.

Taxation is an interference with property rights. This was recognized in Daly v Revenue Commissioners.[footnoteRef:8] [8: [1995] 3 IR]

In Daly, Mr Justice Costello stated: that legislative interference in property rights occurs every day of the week and no constitutional impropriety is involved. When, as in this case, an applicant claims that his constitutionally protected right to private property referred to in Article 40.3.2 has been infringed and that the State has failed in the obligation imposed on it by that article to protect his property rights he has to show that those rights have been subject to an unjust attack.

Eighth Report of the Convention on the Constitution- Economic, Social and Cultural (ESC) Rights[footnoteRef:9] stated that: [9: 1March, 2014]

Finally, it should be noted that the right to property which, while widely accepted as a civil and political right, has important economic and social dimensions is protected under not one but two provisions of the Constitution: Article 40.3.2 and Article 43, which provisions mutually inform each other.

In Ireland and the Attorney General v Mayo County Council[footnoteRef:10] case, the court held that property rights, as protected by the Constitution, are not absolute. The power of the State to regulate the use of land has been recognized in a number of cases. [10: [2014] IEHC 382]

For example, In Central Dublin Development Association v. Attorney General [footnoteRef:11]Kenny J stated, the state may exercise the property right with the aim to promote common good.[footnoteRef:12] [11: [1975] ILTR 69] [12: [Article 43.2.1] does not require that the exercise of the rights of property must in all cases be regulated by the principles of social justice. It recognizes that the exercise of these rights ought to be regulated by these principles and that the State accordingly may delimit (which I think means restrict) by law the exercise of the said rights with a view to reconciling it with the exigencies of the common good.]

Compensation and property rights: Kelly in a passage approved by Finnegan P stated that Constitutionality of property rights is not interfered with the existence of compensation schemeIt is submitted that it follows from Article 43.1 that compensation cannot validate an interference with property rights that is not justified by the exigencies of the common good. Any other view would mean that Article 43 merely guarantees a right to compensation rather than a right to property per se.[footnoteRef:13] [13: Hogan and Whyte, Kelly: The Irish Constitution, 4th Ed., 2003, Dublin]

HC in the case The Central Dublin Development Association Limited. Cecil F. Hollinshead, M. Rowan & Company Limited, Barry J. Hardy Limited and Mary W. O'Brien v The Attorney General gave a conclusive remark on the right to property guaranteed by constitution:

In my view an analysis of the text of the Constitution and of the decisions on it lead to these conclusions:

(1) The right of private property is a personal right; (2) In virtue of his rational being, man has a natural right to individual or private ownership of worldly wealth; (3) This constitutional right consists of a bundle of rights most of which are founded in contract; (4) The State cannot pass any law which abolishes all the bundle of rights which we call ownership or the general right to transfer, bequeath and inherit property. (5) The exercise of these rights ought to be regulated by the principles of social justice and the State accordingly may by law restrict their exercise with a view to reconciling this with the demands of the common good. (6) The Courts have jurisdiction to inquire whether the restriction is in accordance with the principles of social justice and whether the legislation is necessary to reconcile this exercise with the demands of the common good. (7) If any of the rights which together constitute our conception of ownership are abolished or restricted (as distinct from the abolition of all the rights), the absence of compensation for this restriction or abolition will make the Act which does this invalid if it is an unjust attack on the property rights.

CONCLUSION/ COMMENTSConsidering the cases and developments in the issue in hand, the minority view of Review Group seems more persuasive. An express provision in the constitution provides for various issues in following cases: Social In-justice Bank Guarantee Austerity Rent/ Leases

The perspective that an arrangement of property rights needs to meet a test on how it influences others. The rights aren't genuine unless they sufficiently profit other individuals.

The State's obligation to ensure property rights is not total, as the wording of Article 40.3.2 itself makes clear. This point was traditionally made by OHiggins CJ It is noted that the guarantee of protection given by Article 40, s. 3, sub-s. 2, of the Constitution is qualified by the words as best it may. This implies circumstances in which the State may have to balance its protection of the right as against other obligations arising from regard for the common good.[footnoteRef:14] [14: Moynihan v Greensmyth [1977] IR 55]

Rent has been one of the most common limitation of property right. The same can be illustrated by a very local example of case of Grafton Street in Dublin. John Corcoran, owner Korky store on Grofton street said Over the past ten years rents on Grafton Street have surged to a level where they are now the fifth highest in the world. We have seen many well regarded retail businesses failthese companies cited rents as the primary reason for their closure.[footnoteRef:15] [15: Last day of Korkys Grafton Street accessed 01 March 2015]

All these factors, which ultimately lead to breach of property right for all, or a class of people makes it fundamentally irrelevant to include the same in the constitution. The Fundamental motive to include a right in the constitution is infringed if the same if coupled by limitations or factors that ultimately leads to shortcomings and irrelevancy.

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WORD COUNT: 1583 (excluding footnote & cover page)