Rights-Based Constitutional Review
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Rights-Based Constitutional Review

Constitutional Courts in a Changing Landscape

  • Studies in Comparative Law and Legal Culture series

Edited by John Bell and Marie-Luce Paris

Constitutional review has become an essential feature of modern liberal democratic constitutionalism. In particular, constitutional review in the context of rights litigation has proved to be most challenging for the courts. By offering in-depth analyses on changes affecting constitutional design and constitutional adjudication, while also engaging with general theories of comparative constitutionalism, this book seeks to provide a heightened understanding of the constitutional and political responses to the issue of adaptability and endurance of rights-based constitutional review. Providing structured analyses the editors combine studies of common law and civil law jurisdictions, centralized and decentralized systems of constitutional review, and large and small jurisdictions.
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Chapter 3: Ireland

Eoin Carolan and Cliona Kelly

Abstract

Chapter 3.1 Carolan’s chapter (‘Leaving behind the Commonwealth model of rights review: Ireland as an example of collaborative constitutionalism’) presents a critical account of the affiliation of the Irish experience with models of rights-based review. Rather than embracing Gardbaum’s new Commonwealth model of constitutionalism, Carolan contends that this model does not well describe the Irish situation. To support his claim, the author provides a comprehensive account of structural barriers to judicial supremacy by examining interpretative and substantive constitutional principles of Irish law, as well as other factors in the political-judicial interaction between the legislative and judiciary. The value of Carolan’s argument lies in the alternative model of collaborative constitutionalism that he proposes. Between the American model of so-called ‘strong form’ of judicial review and the new Commonwealth model of parliamentary-judicial dialogue, the Irish experience reflects a possible third way, which ‘eschew the exaggerated images of institutional conflict that the language of judicial or parliamentary supremacy tends to evoke’. Coined as ‘a collaborative model of constitutionalism’, Carolan explains that this alternative rests more on accountability of the different branches of power than on their dialogue which arguably entails a ‘final say’. Chapter 3.2 In her chapter (‘A tale of two rights-based reviews or how the European Convention on Human Rights Act 2003 has impacted on the Irish model of review’), Kelly focuses on the derangement of the model of rights-based review brought about by the adoption of the ECHR Act 2003 which incorporates the European Convention on Human Rights into Irish law. The examination of the relationship between the ECHR and the 1937 Constitution shows how the Irish version of Gardbaum’s new Commonwealth model operates against the matrix of a written constitution with strong judicial review. This reveals the picture of a multi-layered and complex system of rights review divided into two sets of rights, namely constitutional rights which are subject to strong constitutional review, on the one hand, and Convention rights which are to be primarily enforced by the legislature supported by a form of dialogic review, on the other. It is argued that, whilst the minimalist approach of the ECHR Act 2003 ‘is unlikely to represent a challenge to the dominant constitutional paradigm of strong judicial review’, more could have been done in terms of design and judicial application of the 2003 Act to encourage a culture of rights awareness, including within parliamentary processes.

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