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]

IEHC

350;

[2009]

IESC

59

[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