VALIDITY OF INCLUSION OF

RIGHT TO PROPERTY IN THE

CONSTITUTION
Article 40.3.2 and Article 43
CONSTITUTIONAL LAW- ASSESSMENT

ABSTRACT
The assessment will analyze the validity and relevance of
the fundamental right of property in light with the two
views provided by Review Group supported by later
developments and case laws concerning the given issue.

NAME: UTKARSH KUMAR

STUDENT ID.: 14209353
BRANCH: SUTHERLAND SCHOOL OF LAW

INTRODUCTION
The fundamental right is warranted by two provisions of the
Constitution Article 40.3.2 and Article 43. generally, Article
40.3.2 could shield the individual citizens property rights, whereas
Article 43 deals with the establishment of property itself.
The right to own and transfer private property is guaranteed by
Article 43, subject to "the principles of social justice", and in
accordance with laws passed reconciling the right "with the
exigencies of the common good"
In case Blake v Attorney General1, the Court examined the issue of
the interplay between Art. 43 and Art. 40.3 in detail, concluding
that, while Art. 43 protect private property as an institution (i.e.
prohibits its complete abolition), Art. 40.3 prevent an unjust attack
on the property rights of an individual.
The right to enjoyment of private property is protected by the
European Convention on Human Rights (ECHR) in Article 1,
Protocol 1 of the Convention.2

REVIEW GROUP, 1996

The Review Group perceives that, regardless of detailing may be
concocted to trade Article 40.3.2 and Article 43, it might more
likely than not abstain from entrusting a degree (even a high
degree) of subjective evaluation to the legal. It is considered by
Review Group that, it may be liked to recast these procurements in
an exceedingly way that accommodated an extra organized and
target system of legal investigation
1 [1982] IR 117
2 "Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.The preceding provisions shall not, however, in any
way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties."

TWO VIEWS
The majority was of the opinion that the Constitution should contain
such a protection whereas some members of the Review Group did
not favor the constitutional protection of property rights.
Firstly, the one in favor was of the opinion that State has legitimate
reasons to manage and regulate the exercise of property rights as,
the prosperity of the State depends in substantial live on property
like land, building, equity or the other kind of wealth being on the
market as a supply of, or security for investment. Also, the same has
been acknowledged internationally.
Secondly, the assertion of property rights has traditionally been
related to the protection of business and business interests and isn't
designed to confirm to everybody the fabric conditions for a lifetime
of dignity. They take into account, therefore, that it's no place
among the basic rights provisions of a constitution. Moreover, in
their read, the constitutional protection of property rights might
endorse major differ- entails within the possession of productive
wealth existing at the time of the adoption of the text.
RECOMMENDATIONS

1. The Constitution should expressly protect the right to property

(majority view).
2. The Constitution should expressly provide that such property
rights can be qualified, restricted etc. by legislation where
there are clear social justice or other public policy reasons for
doing so.

FURTHER DEVELOPMENTS/ CASE

LAWS
Major development in the issue was seen in the caseRe Article 26 and the Health (Amendment) (No2) Bill 2004 3
(referred to below as the Health Bill Case).
The State had been charging elderly people for medication since
1975 although they were entitled for free treatment; thereby the
charges levied were unlawful. The administration acquainted a Bill
looking for with reflectively render the charges legitimate. 4
The court perceived that patients unlawfully charged had a property
right comprising of a privilege of activity to recuperate that cash.
The court found that the patients' property rights in connection to
the money would be annulled by the bill.
In the view of the Court, such legislation cannot be regarded as
regulating the exercise of property rights. It is straining the
meaning of the reference in Article 43.2.1 of the Constitution to the
principles of social justice5
an abrogation of property rights and an unjust attack on them
contrary to the provisions of the Constitution and in particular
Articles 43 and 40.3.2.6
Unjust Attack -Costello P. in Daly v. Revenue
Commissioners7

3 [2005] 1 IR 205
4 ... firstly, to examine the nature of the property rights at issue;
secondly, to consider whether the Bill consists of a regulation of
those rights in accordance with principles of social justice and
whether the Bill is required so as to delimit those rights in
accordance with the exigencies of the common good; thirdly, in the
light of its conclusions on these issues, to consider whether the Bill
constitutes an unjust attack on those property rights
5 [2005] 1 IR 205 [130]
6 [2005] 1 IR 205 [134]
7 [1995] 3 I.R.

The SC held that to claim relief under Article 40.3.2, the claimant
must prove as unjust attack on its right to private property
When an applicant claims that his constitutionally protected
right to private property referred to in Article 40.3.2 has been
infringed and that the State has failed in the obligation imposed on
it by that Article to protect his property rights, he has to show that
those rights have been subject to an unjust attack'. He can do this
by showing that the law which has restricted the exercise of his
rights or otherwise infringed them has failed to pass a
proportionality test.
Taxation is an interference with property rights. This
was recognized in Daly v Revenue Commissioners.8
In Daly, Mr Justice Costello stated: that legislative interference in
property rights occurs every day of the week and no constitutional
impropriety is involved. When, as in this case, an applicant claims
that his constitutionally protected right to private property referred
to in Article 40.3.2 has been infringed and that the State has failed
in the obligation imposed on it by that article to protect his property
rights he has to show that those rights have been subject to an
unjust attack.
Eighth Report of the Convention on the ConstitutionEconomic, Social and Cultural (ESC) Rights9 stated that:
Finally, it should be noted that the right to property which, while
widely accepted as a civil and political right, has important
economic and social dimensions is protected under not one but
two provisions of the Constitution: Article 40.3.2 and Article 43,
which provisions mutually inform each other.
In Ireland and the Attorney General v Mayo County
Council10 case, the court held that property rights, as
protected by the Constitution, are not absolute. The power of
the State to regulate the use of land has been recognized in a
number of cases.
For example, In Central Dublin Development Association v.
Attorney General 11Kenny J stated, the state may exercise the
property right with the aim to promote common good.12
8 [1995] 3 IR
9 1March, 2014
10 [2014] IEHC 382
11 [1975] ILTR 69
12 [Article 43.2.1] does not require that the exercise of the rights of
property must in all cases be regulated by the principles of social
justice. It recognizes that the exercise of these rights ought to be
regulated by these principles and that the State accordingly may
delimit (which I think means restrict) by law the exercise of the said

 Compensation and property rights: Kelly in a passage

approved by Finnegan P stated that Constitutionality of
property rights is not interfered with the existence of
compensation scheme
It is submitted that it follows from Article 43.1 that
compensation cannot validate an interference with property
rights that is not justified by the exigencies of the common good.
Any other view would mean that Article 43 merely guarantees a
right to compensation rather than a right to property per se.13
HC in the case The Central Dublin Development
Association Limited. Cecil F. Hollinshead, M. Rowan &
Company Limited, Barry J. Hardy Limited and Mary W.
O'Brien v The Attorney General gave a conclusive remark
on the right to property guaranteed by constitution:
In my view an analysis of the text of the Constitution and of the
decisions on it lead to these conclusions:
(1)The right of private property is a personal right;
(2)In virtue of his rational being, man has a natural right to
individual or private ownership of worldly wealth;
(3)This constitutional right consists of a bundle of rights
most of which are founded in contract;
(4)The State cannot pass any law which abolishes all the
bundle of rights which we call ownership or the general
right to transfer, bequeath and inherit property.
(5)The exercise of these rights ought to be regulated by
the principles of social justice and the State accordingly
may by law restrict their exercise with a view to
reconciling this with the demands of the common good.
(6)The Courts have jurisdiction to inquire whether the
restriction is in accordance with the principles of social
justice and whether the legislation is necessary to
reconcile this exercise with the demands of the common
good.
(7)If any of the rights which together constitute our
conception of ownership are abolished or restricted (as
distinct from the abolition of all the rights), the absence
of compensation for this restriction or abolition will make
the Act which does this invalid if it is an unjust attack on
the property rights.

rights with a view to reconciling it with the exigencies of the

common good.
13 Hogan and Whyte, Kelly: The Irish Constitution, 4th Ed., 2003,
Dublin

CONCLUSION/ COMMENTS
Considering the cases and developments in the issue in hand, the
minority view of Review Group seems more persuasive. An express
provision in the constitution provides for various issues in following
cases:
Social In-justice
Bank Guarantee
Austerity
Rent/ Leases
The perspective that an arrangement of property rights needs to
meet a test on how it influences others. The rights aren't genuine
unless they sufficiently profit other individuals.
The State's obligation to ensure property rights is not total, as the
wording of Article 40.3.2 itself makes clear. This point was
traditionally made by OHiggins CJ It is noted that the guarantee of
protection given by Article 40, s. 3, sub-s. 2, of the Constitution is
qualified by the words as best it may. This implies circumstances in
which the State may have to balance its protection of the right as
against other obligations arising from regard for the common
good.14
Rent has been one of the most common limitation of property right.
The same can be illustrated by a very local example of case of
Grafton Street in Dublin. John Corcoran, owner Korky store on
14 Moynihan v Greensmyth [1977] IR 55

Grofton street said Over the past ten years rents on Grafton Street
have surged to a level where they are now the fifth highest in the
world. We have seen many well regarded retail businesses fail
these companies cited rents as the primary reason for their
closure.15
All these factors, which ultimately lead to breach of property right
for all, or a class of people makes it fundamentally irrelevant to
include the same in the constitution. The Fundamental motive to
include a right in the constitution is infringed if the same if coupled
by limitations or factors that ultimately leads to shortcomings and
irrelevancy.
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15 Last day of Korkys Grafton Street

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