A Guide to Exercising Your Constitutional Rights Under Article 40.4 of the Constitution of Ireland


A Guide to Exercising Your Constitutional Rights Under Article 40.4 of the Constitution of Ireland

The Constitution of Ireland enshrines the fundamental right to personal liberty, making it one of the cornerstones of our democratic system. Article 40.4 provides robust protections against unlawful detention and ensures that individuals can challenge any infringement on their liberty through a constitutionally mandated process. This guide is intended to help individuals understand and exercise their rights under this provision effectively.

Understanding Article 40.4

What Does Article 40.4 Guarantee?

Article 40.4 of the Constitution protects personal liberty by providing a mechanism for individuals to challenge unlawful detention. It ensures that no one can be deprived of their liberty except in accordance with law.

Key Provisions of Article 40.4.2°

  • Upon complaint of unlawful detention, the High Court, or any of its judges, is required to inquire into the legality of the detention “forthwith.”

  • If the detention is found to be unlawful, the court must order the immediate release of the detained person.

  • A complaint may be made verbally, without requiring an affidavit or written application, to the High Court or any judge, including judges of lower courts.

This process is designed to safeguard against arbitrary or unlawful actions by the State or any other authority.

The Role of the District Court

While Article 40.4.2° primarily outlines the duties of the High Court, the District Court also has an important procedural role. When a person appears before the District Court alleging unlawful detention, the court must facilitate access to the High Court without delay.

Obligations of the District Court:

  1. Facilitating the Application: The District Court must ensure that any person seeking to invoke their rights under Article 40.4.2° is not delayed or obstructed. This involves enabling swift access to the High Court.

  2. Order for Production Before the High Court: The District Court must:

    • Order the person in custody to be brought before the High Court.

    • Direct the detaining authority to certify, in writing, the grounds of the detention as required by Article 40.4.2°.

  3. Notifying Relevant Authorities: The District Court must communicate with the responsible authorities to ensure compliance with the constitutional mandate and to prevent any delays in bringing the matter before the High Court.

The High Court’s Role and Immediate Action

Under Article 40.4.2°, the High Court is constitutionally obligated to act without delay once a complaint of unlawful detention is made. The Constitution uses the term “shall forthwith,” emphasizing the urgency of the court’s duty.

Steps the High Court Must Take:

  1. Initiating an Inquiry: The High Court must immediately inquire into the legality of the detention. This involves reviewing the written grounds provided by the detaining authority and hearing arguments from both sides.

  2. Ordering Release: If the court finds that the detention is not in accordance with law, it must order the release of the detained individual without delay.

Key Precedents Affirming High Court’s Duty:

Distinction Between Constitutional and Statutory Remedies

What About Habeas Corpus?

It is important to distinguish the constitutional remedy under Article 40.4 from the statutory remedy of habeas corpus.

  • Habeas Corpus originates from the Habeas Corpus Act 1781, a statutory process requiring an affidavit to initiate proceedings in the High Court.

  • Article 40.4, however, provides a constitutional remedy that supersedes statutory provisions. This remedy is broader, more immediate, and does not require the procedural formalities associated with habeas corpus.

Order 84, Rule 1(2) of the Rules of the Superior Courts explicitly clarifies:

  • “The expression ‘order of habeas corpus’ does not include an order made pursuant to Article 40 section 4 of the Constitution.”

This distinction is critical in ensuring that individuals exercise their constitutional rights fully and do not get diverted into statutory frameworks that may delay justice.

Practical Steps to Assert Your Rights

If You Are Detained:

  1. Invoke Article 40.4.2°: Clearly state that you wish to exercise your rights under Article 40.4.2° of the Constitution.

  2. Request Access to the High Court: Inform the detaining authority or the District Court (if applicable) that you want the legality of your detention to be reviewed by the High Court immediately.

  3. Demand Written Grounds for Detention: Ask the detaining authority to provide a written explanation of the grounds for your detention, as required by Article 40.4.2°.

  4. Make a Verbal Complaint: You can make a complaint verbally to the High Court or any judge, including those in the lower courts, without needing to file an affidavit. This ensures immediate action can be taken to review the legality of your detention.

If You Are Assisting Someone Detained:

  • File a complaint on their behalf with the High Court, citing Article 40.4.2°.

  • Ensure that the detaining authority is notified and complies with the constitutional requirements.

Why This Matters: Upholding Constitutional Supremacy

The Constitution of Ireland is the supreme law of the land. Ensuring that the remedies under Article 40.4 are exercised correctly reinforces the primacy of constitutional rights over statutory provisions. This distinction protects individuals from:

  • Delays caused by procedural requirements in statutory remedies.

  • Attempts by authorities to divert cases into less effective legal frameworks.

By standing firm and asserting rights under Article 40.4, individuals safeguard not only their own liberty but also the integrity of constitutional protections for all citizens.

Conclusion: Know Your Rights, Assert Your Rights

Article 40.4 of the Constitution provides a powerful mechanism for protecting personal liberty. Understanding the distinction between constitutional and statutory remedies is essential to ensuring that your rights are not compromised.

If you or someone you know is detained unlawfully:

  • Act immediately.

  • Demand access to the High Court under Article 40.4.2°.

  • Ensure that constitutional protections are upheld at every step.

The Constitution is your shield against arbitrary detention. Use it wisely and stand firm in asserting your rights.

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