An Analysis of the Court's Interpretation of Article 40.1 in JD v Residential Institutions Redress Committee
Author | Andrew Flynn |
Position | Senior Freshman LLB (Ling Franc) Candidate, Trinity College Dublin |
Pages | 182-188 |
AN
ANALYSIS
OF THE
COURTS'
INTERPRETATION
OF
ARTICLE
40.1
IN
JD
VRESIDENTIAL
INSTITUTIONS
REDRESS
COMMITTEE
ANDREW FLYNN*
"[An]
inequality will
not
be
set aside
as
being
repugnant
to
the
Constitution
if
any
state
offacts
exist
which
may
reasonablyjustify
it.
"'
This
statement
from
Kenny
J
delivering
the
judgment
of
the
Supreme
Court
in
Murphy
v
Attorney
General
2
provides
a
stark
illustration
of
the
difficulties
faced
by
individuals challenging
discrimination
by
the
State.
The
recent
case
of
JD
v
Residential
Institutions
Redress
Committee
3
offers
a rare
of
example
of
a
constitutional
case
in
which
Article
40.1
of
the
Constitution
4
is
the
sole
provision
relied
upon.
This
Article, while
previously
interpreted
restrictively
by the Courts,
has
in
recent
decisions
been referred
to in
a
manner
which
suggests
that
it
may
be
of
more
assistance
to
those
subjected
to
discrimination
by
the
State.5
Despite these
developments
since
Murphy,
however,
the
Supreme
Court
decision
in JD
indicates
that
litigants continue
to
face
a
"high
hurdle"
(in
the
words
of
the
Court)
to
obtain
a
declaration
that
legislative
discrimination
is
unconstitutional
having
regard
to
Article
40.1.
This
is
highlighted
by
contrasting
the
decision
of
O'Neill
J
in
the
High
Court
in
the
same
case.
The
Facts of the
Case
The
applicant
was
committed
to
St
Patrick's
Mother
and
Baby
Home
in
November
1968
after
becoming pregnant,
allegedly
through
incest.
She
*
Senior
Freshman
LLB
(Ling
Franc)
Candidate, Trinity
College
Dublin.
The
author
would
like
to
thank Ah-Young
Koo for
her helpful
comments
and
suggestions
during the
editing
process.
1
Murphy
v
Attorney
General
[1982] 1
IR
241,
at
283-284
[hereinafter
Murphy].
2
[1982] 1
IR
241.
' [2008]
350;
[hereinafter
JD].
4
Bunreacht
na
hireann,
Article
40.1:
All
citizens
shall,
as
human persons,
be
held
equal
before the
law.
This
shall
not
be
held
to
mean
that
the
State
shall
not
in
its
enactments
have
due
regard
to
differences
of
capacity,
physical
and
moral,
and
of
social
function.
5
Infra,
at
184.
©
2010
Andrew Flynn
and
Dublin
University Law
Society
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