A little clarification for people who believe their citizen’s right to peaceful protest is protected under the constitution. This is not strictly true and this subtle misconception could be causing some problems with the Gardai.
No right to protest ?
As far as the State and the Gardai are concerned you don’t have a right to protest under the constitution. You see the word protest is not mentioned anywhere in the constitution. What is mentioned in the constitution is (peaceful) assembly [Article 40.6.1 ii]. Hence if you are holding a peaceful assembly you are in accordance with the citizen’s rights under the constitution.
However if you say to a Garda, with your hands in the air, that you are a “peaceful protest” they take that to mean you are in breach of the peace, as that is the essence of a protest. However illogical that may sound to you that is how their logic works when doing their job and interpreting your rights.
So it might be advisable to avoid vocalising the “peaceful protest” claim, and instead stick to the “peaceful assembly”, or if asked if are you protesting either do not respond, or respond that you are simply expressing your opinion [article 40.6.1.i].
It might also be advisable to look at strengthening your position with a few more articles of the constitution first:
40.3.1 – “The 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.” – hence they cannot legislate away you rrights.
40.3.2 – “The 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.” – (see later re: your dwelling)
– This is your starting point to ensure all subsequent rights are adhered to by the Gardai, as follows:
40.1 – “All citizens shall, as human persons, be held equal before the law”. – So ensure they apply this to Irish Water equally.
40.4.1 – “No citizen shall be deprived of his personal liberty save in accordance with law.” – You are not breaking a law peacefully assembling and so should not be arrested.
40.6.1.i – “The right of the citizens to express freely their convictions and opinions.”
But this is the kicker
40.5 – “The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”
The problem Irish Water now have is that the Water Services Act 2013 clearly states in Article 20 that they can only fix meters to premises that contain dwellings, and as you haven’t broken any laws your dwelling remains inviolable and outside their reach.
“20.— (1) The functions of each water services authority under paragraph (f) of subsection (1) of section 32 of the Act of 2007 shall, in addition to being performable by a water services authority, be performable by a metering authority in so far only as they relate to premises that contain one or more dwellings…”
Remember, your dwelling land (in the land registry) extends from the centre of any alley behind your house to the centre of the road in front of your house, and furthermore you can remove the right of access to that dwelling if you so choose and deny the right to set up a temporary work area.
If you are ignored by the meter installers at this point you can make an official complaint of criminal trespass to the Gardai, who should caution the meter installers to leave the land (if the Gardai are doing their job properly). If the installers continue then the Garda should arrest them; but you must make the specific complaint.
If the Gardai fail in this duty you should make a complaint to the relevant ombudsman.
They will probably try and wriggle out
Now if Irish Water, or probably more likely the Gardai, say they are on a public footpath then they still cannot install a meter because if they do they are in breach of the Water Services Act 2013, because it specifically states they can only install meters on dwellings. Public areas are prohibited by virtue of them not being included in the Act. Remember anything that is not specifically included in a legal document is therefore excluded. You must make this clear to all parties and Gardai and demand they apply the law.
The key to this is making the right requests and using the right language with the Gardai to get the response you want.
Using a stronger constitution
The articles listed above are from the 1937 blue book, the English version, however these articles are noticeably weakened from the original text which was written in Irish. It would be beneficial to all to insist on using the direct literal English translation of the Irish version to afford more protection.
It should be noted that the constitutional text in both official languages is authentic. Article 25 provides that in case of conflict between the enrolled texts, the Irish language text prevails. Here is an example of how the literal translation is stronger:
ARTICLE 40.3.1O AIRTEAGAL 40.3.1O
LITERAL ENGLISH TRANSLATION
The State guarantees not to interfere by its laws with the personal rights of any citizen, and it further guarantees to defend and assert those rights with its laws in so far as it is possible.
The 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.
An unfair contract
What with the inequity being meted out by the judicial system during the meter installation, it is interesting to note that Fine Gael’s Water services Act 2013 itself looks pretty tame, simply setting out the legitimacy of the new company, but people are forgetting that the real meat of the Act was legislated back in 2007 by Fianna Fail, and it is a very inequitable piece of legislation.
Just looking at section 8 it is awash with any number of different fines, charges, offences and prison sentences they can level against citizens, with fines up to €15,000 and 5 year prison terms. Then you look at section 29 and you find the Minister, the water authority and any of its agents are indemnified and immune from claims or prosecution; and this indemnity has been extended to Irish Water and its agents in section 23 of the 2013 Act.