June 27, 2009

Know your Rights

As a result of numerous concerns expressed to the Irish Drivers Association and particularly in border counties, in relation to Gardai and Customs Officers dispossessing and attempting to dispossess our citizens’ and members’ vehicles, it is extremely important that you know and are aware of your fundamental rights. These rights include your Constitutional Law Rights, your EC Law rights, your Human Law Rights and the important European Law Principle of Proportionality.

Gardai are actually dispossessing and attempting to dispossess citizens’ motor vehicles on the grounds related to non-payment of road tax in addition to section 140 of the 1992 Finance Act concerning non-payment of VRT (vehicle registration tax). The Irish Drivers Association is actively pursuing radical reform of these areas of taxation. We believe, as most motorists feel, that VRT is effectively a customs duty in disguise or charge having the equivalent effect which is prohibited by Article 25 of the Treaty of Rome to which Ireland acceded to by referendum held in 1972 and to which The European Communities Act of 1972 amended Article 29.4 of the Irish Constitution to what is now Article 29.4.5o. In relation to road tax, we feel that consideration should now be given by the Government to exploring the possibility of including the road tax in the petrol because of the huge benefits this would bring to the motorist after suitable and effective consultation and agreement by the electorate. If road tax was included in the petrol, each motorist only pays for the road in direct proportion to their use of the road and therefore does not pay for the road when they are stopped or have their car parked in their driveway overnight or otherwise not using their car, there would be no discrimination against motorists who drive 1, 2 or 3 litre cars, it would free up Garda time checking road tax thereby not interfering with citizens freedom of movement, it would free up Court time, it would be environmentally beneficial because trees would not need to be cut down to display a disc on our windscreens for a short limited period, it would reduce the administrative burden by freeing up a building of the road tax office of the urban or county councils and staff deployed to other essential areas of alternative administration or work. These systems exist in Canada, The United States, South Africa, Australia and Poland where the road tax is in the petrol so why not here.

What do you think? Even if you agree that Road Tax should be in the petrol is it not already there in the form of 62.5% excise duty on a litre of petrol and in any event have we and our forefathers not already paid for the existing roads to date so that citizens should be able to drive on them without being further taxed, save perhaps for maintenance of the roads? The imposition of excise duty on petrol and diesel and the separate payment of road tax is simply a form of double taxation. Note also that even on payment of road tax, consideration must be given to the statistics that only about 25% or as little as 6% of your road tax is being spent on the road! Why?

Where has all the money for infrastructure development gone since we joined the EU on the 1st. January 1973? Also s.1(2)(b)(ii) of the 1952 Finance Act (Excise Duty)(Vehicles) states that a quarter of the year shall mean not exceeding 30%. First of all a quarter of anything as we all know is 25% in terms of a percentage and why was this sentence begun with a fraction and finished with a percentage? Was it done to confuse the Irish citizen? In fact today 3 months road tax amounts to approximately 28.1% of the annual premium thereby discriminating against citizens in endeavouring to obtain 12 months road tax in advance. If a person comes home on the 15th. of the month and want to drive their car and the tax is out, they must backdate it to the 1st. of the month thereby causing further discrimination causing a citizen to pay road tax for a period they were not even in the country. Why can’t the road tax issue from any day in the month? Why must it be always from the 1st.day of the calendar month? What do you think? Please let us know your views. These are the kind of questions to which politicians seem reluctant to answer probably because we are reluctant to call them to account. The citizen is the true sovereign power in the Nation and in casting your vote, you assist in the formation of a Government in a democracy, so at the next General Election cast your vote intelligently and don’t vote for the same party just because you have always voted for them. Bring back democracy which is supposed to be a Government of the people, for the people and by the people rather than tolerate second best which is effectively citizens being dictated to by Government policies which are not discussed with you nor is your opinion on them sought so that we end up with laws being ‘dictated’ to us under the disguise of Democracy.

When dispossessing or attempting to dispossess the vehicle, the Gardai asks, requests or demands from the citizen the keys of their vehicle. By voluntarily handing over your keys, you are in effect permitting, allowing and agreeing to your vehicle to be seized. Do not hand over your keys under any circumstances for this act is in effect no different to that of a common thief and is in fact theft of your vehicle. In order to recover your vehicle from the ‘pound’ you are asked for €135 to get your own property returned and if you fail to pay, another charge of €25 per day accrues until it is paid. If you fail to pay this money, your vehicle may be sold to recover the expenses of impounding your car! First of all, The Association believes that in impounding the car, the request of €135 is extortion and the demand of an extra €25 per day amounts to blackmail. Furthermore the threatened sale of the car amounts to the tort of conversion which is an act effectively displacing the true owner’s rights and if this is done, the State can be sued for intentional interference with the property rights of the owner and may be liable for the full value of the car.

A significant feature of the 1937 Constitution is that it is, in effect, superior to any other source of law, including statute law. Like the original text of the 1922 Constitution, the 1937 Constitution prohibits the Oireachtas from enacting any law which is repugnant to, or is in conflict with the provisions of the Constitution, including the fundamental rights of the citizen, Article 15.4.1o. A key feature of the Constitution is its entrenched nature. Your Constitutional rights are superior to any Act of Parliament and are known as ‘entrenched’ fundamental rights, meaning they cannot easily be displaced unless the citizens amend these rights in the form of a referendum and courts are obliged to protect your fundamental rights the moment that they are infringed. Since 1941, Article 46 of the Constitution provides that its provisions may not be amended by ordinary legislation; amendments may only be effected by a referendum of the entire electorate. The Constitution is in effect a ‘living and breathing document’ and there have been at least 17 amendments to the Constitution so far.

Article 1 of the 1937 Constitution proclaims a clear declaration of independence and right to self determination:

The Irish Nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.

The Preamble of the Constitution provides, in part, an important ‘enacting formula’ namely We, the people of Eire…Do hereby adopt, enact and give to ourselves this Constitution.

Article 6.1 states: All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

Article 40.3. provides:

1The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

Many of the fundamental rights provisions are contained in Articles 40 to 44 in the 1937 Constitution though other Articles also confer important rights such as Articles 15,16,34 & 38 and you should be aware of them.

From a property point of view Article 43 of the Constitution provides “The right to own property is recognised…” As such, being a Constitutional provision, it cannot be easily interfered with nor the citizen deprived of it without good cause.

In addition to these rights, Article 40.3 has, since the 1960’s proved a source of an additional tranche of rights. Between 1937 and 1963, it was not considered that Article 40.3 contained any additional list of constitutional rights beyond those already contained in the remainder of the constitutional text. This view was radically transformed by the decision in Ryan v Attorney General [1965] IR 294 which marked a watershed in the development of constitutional judicial review.

Since the Ryan case, the following rights have been recognised as unspecified personal rights:
the right to bodily integrity: Ryan v Attorney General;
the right not to be tortured or ill-treated: The State (C) v Frawley;
the right to travel within the State: Ryan v Attorney General;
the right to travel outside the State: The State (M) v Attorney General;
the right to communicate: Attorney General v Paperlink Ltd;
the right to marry: Ryan v Attorney General;
the right to marital privacy: McGee v Attorney General;
the right to individual privacy: Kennedy v Ireland;
the right to procreate:Murray v Ireland;
the rights of the unmarried mother concerning her child: G v An Bord Uchtala;
the rights of the child: In re the Adoption (No 2) Bill 1987;
the right to independent domicile and to maintenance: CM v TM (No 2);
the right of access to the courts: Macauley v Minister for Posts and Telegraphs;
the right to legal representation in certain criminal cases: The State (Healy) v Donoghue;
the right to fair procedures: In re Haughey;
the right to earn a livelihood: Murphy v Stewart.

Thus, from a Constitutional point of view, you have a right to own your property by virtue of Article 43 and a right to use that property to travel within and outside the State. It follows, therefore that dispossession of your car are likely to be infringements of your Constitutional rights. A point of ‘caution’. It is clear that the unspecified personal rights guaranteed protection by Article 40.3 cover a wide range of matters. However, like many of the rights expressly stated in the constitutional text, they are not absolute, but are to some extent limited by the requirement that the State must respect and defend them ‘as far as practicable’.

Some of our fundamental rights are limited by the phrase ‘subject to law’. Consider this. If our rights are subject to ‘law’ and our Constitutional rights are the highest source of law in the land, does it not make the qualification ‘subject to law’ a higher source of law than your constitutional rights? Either we have fundamental constitutional rights or we don’t! If our right is ‘subject to law’ then this ‘subject to law’ now becomes a source of higher law which would make this ‘absolute’ and this is in effect a contradiction if we refer to the Constitution as the highest source of law in the land.

King v Attorney General [1981] IR 233 is a good example of an Act being struck down as being in conflict with the Constitution and makes particularly good reading. Here, the plaintiff had been convicted in the District Court of certain offences under s.4 of the Vagrancy Act 1824, including the following: that, being a suspected person, he had been loitering on a public road between 8.30 pm and 9.30 pm on a particular date with intent to commit a felony, namely to housebreak and steal; and that, on the same date, and at the same time and place he had in his possession housebreaking implements, namely two screwdrivers, a tyre lever, hacksaw, haversack, shifting spanner and a candle with intent to commit a felony, namely to steal. He sought a declaration that the relevant parts of s.4 of the 1824 Act concerning ‘loitering with intent’ were invalid on the ground that they were in conflict with various provisions of the Constitution and he also sought a declaration quashing the convictions. The High Court and the Supreme Court held that the ‘loitering with intent’ offence did not comply with a number of Constitutional provisions. It was in conflict with the right to a fair trial in due course of law in Article 38.1, particularly because evidence of past convictions could be used to convict a person and no evidence of an act involving criminal intent was required. S.4 was in conflict with the right to be held equal before the law in Article 40.1, since a person could be convicted of something which was lawful for another person to do, such as to ‘walk slowly, dawdle or stop altogether in a public street’. The courts considered that Article 40.4 requires that a person should only be convicted of an offence if it is established beyond reasonable doubt that he has broken a clearly stated rule and that s.4 failed to meet the requirements of Article 40.4, that a person may only be deprived of liberty in accordance with law, whereas the language of s.4 was so vague and unclear that it conferred an arbitrary and overbroad power to charge and convict a person. In these circumstances, the High Court and the Supreme Court granted a declaration that the ‘loitering with intent’ elements of s.4 were invalid and also quashed the convictions. This is an example also of the ‘principle of proportionality’. This case referred to an 1824 Act but was decided as recently as 1981. It makes us wonder, have we evolved as a human race at all that these Acts are still existing on the Statute Book?

Your EC law rights however, are now a higher source of law than our own Constitution in terms of Community matters. The four fundamental freedoms under EU law are Free Movement of Persons (Article 39), Free Movement of Goods (Articles 23-31), Freedom of Establishment (Articles 43-48) and to provide services (Articles 49-55) and Freedom of Capital (Articles 56-60).

Of these, the two which affect us almost every day are the free movement of persons and the free movement of goods and to a greater or lesser extent the freedom to earn a livelihood where motorists use their cars to get to and from work or use their cars to provide services. Therefore, any attempt to dispossess, actually or potentially, your car, are likely to infringe further your EC law rights as above and you should make yourself thoroughly familiar with these Articles and the case law on these as decided by the ECJ (European Court of Justice). A particularly interesting web site is www.bailii.org/eu/cases/EUECJ/. This lists all the EU cases from 1954. The Van Lent case is quite interesting on free movement of workers, decided on 2nd October 2003, case C-232/01 and can be viewed on the website at http://www.bailii.org/eu/cases/EUECJ/2003/C23201.html and you should familiarise yourself with its contents and the decision.

After World War II, Ireland and the UK signed the 1950 European Convention on Human Rights. Notwithstanding this, the convention had no force of law as it was not enacted by means of an Act of the Oireachtas (an Act of Parliament). The UK eventually enacted the Human Rights Act 1998 which came into force in October 2000, and eventually after 53 years, Holy Ireland, the land of Saints and Scholars enacted and gave you, the citizen, your Convention Rights in the Human Rights Act of 2003. Under Article 1 of Protocol 1, the following right is guaranteed namely the right to peaceful enjoyment of possessions.

Citizens should also be familiar with the Charter of Fundamental Rights of the European Union, the preamble of which effectively forms a Constitution of Europe. Articles 1-5 concern Dignity. Articles 6-19 concerns Freedoms. Article 17 provides, (1) Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss.

Articles 20-26 provides for Equality. Articles 27-38 provides for Solidarity. Your citizens’ Rights are covered in Articles 39-46, Articles 47-50 cover Justice, finishing off with General provisions under Articles 51-54. Article 54 concerns prohibition of abuse of rights as follows: Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.

Finally, citizens’ should be aware of and familiar with the important European Law Principles of Subsidiarity and Proportionality which were added as a Protocol to EU Law by the Treaty of Amsterdam.

The principle of proportionality simply means that no act can be done which is greater than what is required to achieve a particular objective. You do not crack a nut with a sledgehammer. You crack a nut with a nutcracker! Similarly, if only say €200 of road tax is owed to the State, the state are not entitled to dispossess a motorist of his or her car worth several thousand euro in order to recover that road tax. That act would be disproportionate to what is required to be achieved objectively. Arguably the gardai would be entitled to dispossess only €200 and then to hold it temporarily until the road tax was paid and then to return what was taken. Similarly, if insurance was owing or NCT required, to dispossess a citizen of their car would be a disproportionate act to achieve the objective required when there are clearly lesser means of achieving the same objective, namely to issue a summons.

In summary therefore, any attempt to dispossess a citizen of their car may have the effect of infringing your Constitutional Law Rights, your EC Law Rights, your Human Law Rights in addition to infringing the important EU Law Principle of Proportionality and we submit that any attempt to do so by any body of the State would be unlawful and that the proper procedure would be to issue a summons. In any event there may well be good reasons why the road tax is out of date, why there is not an NCT on the car or why there is a lack of insurance on the car or there may even be a dispute as to the VRT to be paid on a car/vehicle. There may be mitigating circumstances relating to all of the above.

For these reasons and others, the Association is actively and will continue to act to represent motorists in endeavouring to reform areas relating to VRT and Road Tax etc. but we need your help. Let us know how you feel. Are you prepared to call the Government and politicians to account to stop ‘ripping-off’ the Irish motorist once and for all? You have an opportunity at the next General Election, so please cast your vote intelligently but above all make sure you cast your vote, for failure to do so only assists in undermining democracy and allows a ‘dictatorship’ to develop where we are denied as an electorate from influencing ‘punitive taxation’ to get taxation in these areas to be fair and reasonable. Get on to your local TD’s and Senators. Attend the MEP meetings. Remember, the decisions that are being made today will also affect your children and grandchildren in the future. Remember that everything you think, say and do affect other people.

The contents of the foregoing, is intended to be for information purposes only and to make you more aware of your rights as a citizen and as a motorist. It is not meant or intended to a definitive statement of the law which is the jurisdiction of the judges in Court and the Association does not take any responsibility whatsoever for any inaccuracies contained in the foregoing information for our members and citizens. We also reserve the right to rectify any deficiencies or inaccuracies as a result of updated or amended legislation or otherwise, concerning the above rights and information.

Notwithstanding the above disclaimer, we hope that you have found this article interesting and that it has increased your understanding, knowledge and awareness of your rights and to uphold those rights and fundamental freedoms whenever you feel that your rights are being infringed. Do not allow yourself to be placed in fear of having your vehicle dispossessed from you nor allow you to be so paralysed by fear that you cannot move, or express your fundamental rights clearly. You also have freedom of speech and freedom of expression. In any event, remember that fear is just simply an illusion and as such cannot hurt you. F-E-A-R is simply False Evidence Appearing Real.   The Government, through certain laws, usually involving money, want you to be fearful of potential consequences if you do not pay money on their terms. Do not allow fear in this way to pervade throughout society. Stand up for your Rights. They are yours. Make sure you know them and that you are consciously aware of your fundamental rights and freedoms.

In conclusion it might at this stage be appropriate to quote a characteristic flourish from Professor John Kelly who commented in 1967, that, in any event:
“If they [the people] allow villains into Government, a piece of paper will not protect them from the consequences, nor must they expect a few learned men in wigs and gowns to save the fools from the knaves they have elected”. You have been ‘warned’. Please cast your vote intelligently and do not be afraid under any circumstances to call the politicians and the Government to account and to make them accountable at all times to the people who are the true Sovereign power in this Nation. Thank you for reading this and we hope that you have found it interesting and beneficial to you.

Once, I saw a huge mountain (representing your ‘entrenched’ Constitutional Rights). Slowly, piece by piece, thieves and knaves (The Government) came and began removing stones (Acts of the Oireachtas/Acts of Parliament without consultation or agreement with its people) from the base of the mountain. Over a period of time, more and more stones were being continually removed undermining the foundations of the mountain. When next I looked and said to my friend, “I thought there was a large mountain existing here before, where is it now”, to which my friend responded, “The Government took it away, stone by stone, so that it no longer exists”.

Please be on your guard and wary of encroaching laws which eventually undermine, circumvent, or ‘get around’ your fundamental constitutional rights by these means and methods as to allow them to chip away slowly at your rights by more and more laws so that your constitutional rights exist no more or reduce these constitutional rights to a mere ‘declaration of intent’ which would render them almost meaningless.

Recently, the Association held a meeting with senior Gardai at Letterkenny in Co.Donegal to express our concern at the number of dispossessions of citizen’s cars and vehicles there. When we notified them of citizens’ Constitutional rights and EC law rights we were informed that they did not care about these important rights, and they would do what the Garda Commissioner told them to do and would apply the law in Statutes. We again reaffirmed citizens’ rights to own property and the peaceful enjoyment of their possessions etc. We were then informed that your EC law rights have no effect unless enacted by an Act of the Oireachtas to which we responded, a referendum was held in 1972 by the people who agreed to EC membership and that in any event the 1972 European Communities Act gave effect to this by amending the Constitution and made them aware that before considering dispossessing or attempting to dispossess any citizen of their car or vehicle to be well aware of and conscious of citizen’s Constitutional Law Rights, their EC Law Rights, their Human Law  Rights under the Act of  2003 and the important EU Law Principle of Proportionality and that in any event there was far less draconian measures available to the Gardai than dispossessing citizen’s of  their cars/vehicles and that these measures should be pursued in the alternative and that the contents of our meeting should be communicated to the Garda Commissioner.

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