The Constitutional Right to Protest and the Freemen on the Land Movement

• Author: Niamh Barry - Dr. Macdara Ó Drisceoil
• Position: Barrister at Law - Barrister at Law
• Pages: 40-48

IRISH JUDICIAL STUDIES JOURNAL

[2017] Irish Judicial Studies Journal Vol 1 40

CONSTITUTIONAL RIGHT TO PROTEST AND THE

FREEMEN ON THE LAND MOVEMENT

Niamh Barry, Barrister at Law and Dr. Macdara Ó Drisceoil, Barrister at Law

Introduction

This article examines the constitutional right to protest and the limitations which are placed on

that right. It then looks at a specific example of a protest group: the Freemen on the Land

(“the Freemen”) and the ideas underpinning this movement and the manner in which this

group is dealt with in court. The Freemen is a disruptive movement which does not recognise

the legitimacy of the courts and rejects what might be termed the constitutional consensus.

This raises questions in relation to the constitutional right of protest and the extent to which

such voices of dissent can be accommodated within a constitutional framework which they

regard as illegitimate. Therefore, the very principles which seek to both accommodate and limit

such a movement are not recognised by the movement itself.

Constitutional right to protest

While liberty of expression and the right of assembly under the Constitution are protected,

both are subject to public order and morality. These rights, like all constitutional rights, must

be viewed in light of Article 5 of the Constitution which defines the state as “democratic”.

Therefore, democratic legitimacy requires the accommodation of views which while awkward

do not threaten public order, morality or the authority of the state.

There is a scarcity of constitutional case law in this area. It would appear that where an

assembly though lawful in itself, is likely to provoke unlawful activity, it may be curtailed.

However, any actions by state actors to curtail such a protest must be proportionate to the

threat posed to public order.

Article 40.6.1˚ states

The State guarantees liberty for the exercise of the following rights,

subject to public order and morality:-

(i) The right of the citizens to express freely their convictions and

opinions.

The education of public opinion being, however, a matter of such grave import

to the common good, the State shall endeavour to ensure that organs of public

opinion, such as the radio, the press, the cinema, while preserving their rightful

liberty of expression, including criticism of Government policy, shall not be

used to undermine public order or morality or the authority of the State.

(ii) The right of the citizen to assemble peaceably and without arms. Provision may

be made by law to prevent or control meetings which are determined in

accordance with law to be calculated to cause a breach of the peace or to be a

danger or nuisance to the general public and to prevent or control meetings in

the vicinity of either House of the Oireachtas.