Is My Place In The Home?

Let’s talk about Article 41.2 of the Irish Constitution. If you are a woman, it tells you your place is in the home. I can only speak for myself, but the home is not my place. I am a 22 year old undertaking a university degree with big aspirations. I certainly don’t intend confining myself to home. Not to say that there is anything wrong with being a homemaker, its perfectly respectable, but it not ME.

The provision itself states:

1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Now we must remember, this Constitution was penned in 1937. The provision was undoubtedly a product of its time– a bid to protect women and recognise their vital role in society. However, society has changed rapidly and has certainly rendered this provision outdated.

If we only look to the preceding article, article 40.1, we will see the Irish stance on equality:

“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.”

Arguably, owing to Article 41.2, women aren’t equal to men under the Constitution. Women have a different “social function” to men. It has been stipulated that Article 41.2 read in conjunction with Article 40.1, could justify gender discrimination.

There has in fact been cases where gender discrimination was justified by invoking Article 41.2

The case of L v. L (1992) regarded a wife, seeking equitable ownership of the matrimonial home. She sought to rely on art 41.2, submitting that she made contributions though her work at home. In the Supreme Court it was held that Article 41.2 didn’t provided women such a protection as the contribution they made in the home does not give them an equitable ownership under Art 41.2. It was expressed by Chief Justice Finlay that the article doesn’t provide any particular right within the family, “whether property or otherwise”.

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Judge Susan Denham Image – Department of Children & Youth Affairs Flickr (cropped) – https://flic.kr/p/nvMM3Q

In the 2001 case of Sinnott v Minister for Education, Judge Denham attempted to justify the article by stating:

 “Article 41.2 does not assign women to a domestic role. Article 41.2 recognises the significant role played by wives and mothers in the home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities”.

Many bodies have called for the Art 41.2 issue to be addressed. In 1993 The Report of Second Commission on the Status of Women suggested the article should be abolished and later called for it to be amended. The Constitution Review Group Report in 1996 suggested that the article be modified to a gender neutral form. They put forward the following as the proposed article:

“The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.”

In the First Progress Report in 1997, The All-Party Committee on the Constitution, agreed with the  Constitution Review Group, amendment, although they slightly changed the wording in their proposal.

However, given that the article doesn’t provide any social or economic rights, one would have to wonder what the purpose of amending the article would be. Arguably we should repeal it.

While the article may not “confine” women to the home, it portrays a negative normative message. Its inclusion doesn’t provide women with any positive obligations, rather it depicts an archaic expectation of women. It certainly provides nothing beneficial to women. The article also fails to recognise stay-at-home fathers therefore undoubtedly embeds gender roles within the Constitution.

The National Women’s Council of Ireland have submitted that we repeal the article and The UN Committee on the Elimination of Discrimination against Women have necessitated  the amendment of Article 41.2 to remove “stereotypical language on the role of women in the home.”

Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission has suggested that that if there is a referendum on abortion, we should also vote on the article 41.2 issue.

What are your thoughts? Should we repeal/amend Article 41.2? Does the inclusion of the article anger you, or does its inclusion not vex you in the slightest?

Featured Image: Stock Image – Pixabay

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What impact will Brexit have on the ECHR?

Unless you have been hiding in the shadows, you will be aware that on the 24th June 2016, the result of Brexit was announced. Britain voted to leave the European Union. It is estimated that if Britain triggers Article 50 of the Treaty on European Union this month, it could be free of the European Union by 2019, but what would that mean for human rights and the European Convention on Human Rights (ECHR)?

The ECHR was drafted by the Council of Europe and currently has 47 Member States, the UK being one such State. The ECHR sets out fundamental human rights such as freedom of expression and the prohibition of torture, and ensures these rights are protected by its Member States. The ECHR is enforced by the European Court of Human Rights (ECtHR) and is a separate entity from the EU. Therefore by leaving the EU, Britain isn’t free of the ECHR.

If Britain wish to opt out of the ECHR, the Human Rights Act 1998 (which partially integrates the ECHR into domestic law) would have to be repealed. There is some domestic law in place protecting human rights in Britain, such as the Bill of Rights 1698 but this afford citizens a weaker protection than the ECHR.

If Britain left both the EU and the ECHR, there arguably could be a void in human rights legislation. They would be erasing long standing precedent on human rights in their jurisdiction. A new British Bill of Rights has been suggested to remedy this problem. However, an unimaginable amount of consideration would have to go in to such legislation, if it were to effectively replace a major framework such as the ECHR. Critics have expressed fears that a Bill of Rights would weaken the rights afforded to citizens.

It has been suggested that following her 2020 election campaign, Prime Minister Theresa May will set the ball rolling for Britain to leave the ECHR. The rights currently conferred under the ECHR would be instead protected under domestic British law and would be enforced by the Supreme Court, rather that the ECtHR in Strasbourg.

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Westminster & the Houses of Parliament                                               Image-Unsplash

May stated:

 “…..my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.”

The ECtHR has been condemned by critics who deem it to hinder nation sovereignty and who are frustrated with it for preventing Member States from deporting terrorists and people who pose a threat to them. They are of the belief that it has too much power in governing domestic policy. The Prime Minister was at odds with the ECtHR when she was acting as Home Secretary when it prevented her deporting the radical cleric, Abu Qatada.

Supporters of the ECtHR recognised the vast work the Court have done in recognising the rights of people and especially of marginalized groups within society. Such groups believe that withdrawing from the ECHR would have a significant impact on Britain’s international footing.

It is worth considering that the ECHR was also a major element of the Good Friday agreement in Northern Ireland. Withdrawing from the Convention would undoubtedly cause controversy.

Alternatively, once Britain has cut ties with the EU and if it chooses not to repeal the Human Rights Act,  they will continue to be governed by the ECHR which is arguably a safer and more robust option.

What do you think is the best option for Human Rights in Britain? IS the best option to withdraw from the ECHR or is remaining in it a safer option? Let me know in the comments.

Featured Image: Pixabay – https://pixabay.com/en/brexit-exit-united-kingdom-england-1481028/

Trump’s ‘Travel Ban’ & its infringement on Human Rights

It is a reasonable assumption that you are all relatively familiar with the Executive Order which was invoked by Donald Trump on 27th January. This was heavily reported by the media as being a ‘Travel Ban’ but was also branded an “Anti-Muslim Ban”.

In essence, the Order prevented immigration & temporarily barred people from entering the U.S from the following countries:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

These 7 countries are predominantly Muslim and this caused worldwide outrage.

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Of course, the ban was then blocked and the 9th Circuit Court of Appeal in San Francisco have since refused to reinstate it. It is important to note however that this doesn’t necessarily render the ban unconstitutional and undoubtedly there will be more to follow on this point as the legality of the ban is further examined. Those opposed to the ban felt it was repugnant to the 1st amendment of the U.S Constitution which was 1 of 10 amendments to the Bill of Rights on 15th December 1791.

The Immigration & Nationality Act was passed in the U.S in 1965. This set out that one can’t be “discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth or place of residence“. Given that the 7 aforementioned countries were all predominantly Muslim, this resulted in the ban being dubbed an “Anti-Muslim” ban by critics and that it was a violation of the 1965 Act.

Zeid Ra’ad al Hussein, the United Nations rights chief said of the ban:

“Discrimination on nationality alone is forbidden under human rights law”

 

Under the United Nations Refugee Convention, the U.S is obliged to provide safety and protection to those facing persecution. In denying such people admission, the U.S was presumably flouting this duty.

Ireland & Preclerance

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Stock Image – Unsplash

Had the ban remained in place, there was also a possible human rights issue relating to preclearance in Irish airports.

The Aviation (preclearance) Act 2009 gives effect to the Preclearance agreement between the U.S and Ireland in 2008. This act means that preclearance in carried out in both Dublin & Shannon airports, which of course are Irish airports, and also the only European airports to have preclearance facilities for the U.S.

Preclearance areas are governed by Irish law however, and must be conducted in accordance with the Constitution and the European Convention on Human Rights (ECHR).

Fiona de Londras, in a blog post, raised an issue in relation to the effect Trump’s Executive Order would have had on discrimination on Irish soil. It is worth browsing humanrights.ie generally on the topic. De Londras noted that if someone was turned away at preclearance, they must be treated in accordance with Irish law and therefore any Irish officials involved must act in a way that is not in contravention with either the Irish Constitution or the ECHR. The State is required to ensure Constitutional rights and right under the ECHR are protected in such preclearance areas. Had the travel ban remained in place, we my have seen breaches of such rights become very topical.

Given that deportation is still a hot topic in the U.S, what do you think will happen next? Will a similar but more ‘thought-out’ ban be put in place?

Featured Image:  Stock Image – Unsplash

 

 

 

 

What are Human Rights?

It is important to have a basic understanding of Human Rights before engaging with this blog. Many of you will be very familiar with the concept but for those who are less familiar, hopefully this post will give you clarity.

Human Rights are difficult to define, but it is the belief of many that Human Rights derive from the natural law i.e, they are inherent in a person by virtue of the human personality.

If we analyse both words separately: ‘human’ and ‘rights’, we can deduce that human rights denote rights which are fundamental to every person. All rights are seen as being of equal importance and they must be protected by our legal system.

The United Nations Office of the High Commissioner for Human Rights definition is commonly cited. It set out that Human rights were:

‘basic rights and freedoms that all people are entitled to regardless of nationality, sex, national or ethnic origin, race, religion, language, or other status’.

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European Court of Human Rights, Strasbourg                                                            Image – Pixabay

Human Rights are now protected by our national and international legal systems. In Ireland, they are protected in the 1937 Constitution of Ireland. They are also heavily protected by the European Convention on Human Rights (ECHR). The ECHR is fundamental to the case law we will be addressing on this blog. However, there remains a noticeable lack of a definition of the concept of Human Rights.

In my next post I will be addressing the Human Rights issues that surrounded President Trumps ‘travel ban’ in the U.S.A. Make sure to follow the blog so you don’t miss a thing!