4
MURPHY v. IRELAND JUDGMENT
14. The Supreme Court considered that religion was a private and a
public affair and that the impugned provision was a restriction of the
applicant's right freely to communicate and of his right to freedom of
expression (Articles 40(3) and 40(6)(1) of the Constitution, respectively)
which rights could be limited in the interests of the common good. The
court cited with approval previous case-law which considered that the
balance found by parliament between the individual rights and the common
good should prevail:
“... unless it was oppressive to all or some of the citizens or unless there is no
reasonable proportion between the benefit which the legislation will confer on the
citizens or a substantial body of them and the interference with the personal rights of
the citizen.”
15. The court went on to point out that the real question was whether the
limitation imposed upon the various constitutional rights was proportionate
to the purpose which parliament wished to achieve. Again quoting with
approval previous case-law, it described the principle of proportionality as
follows:
“In considering whether a restriction on the exercise of rights is permitted by the
Constitution the courts in this country and elsewhere have found it helpful to apply the
test of proportionality, a test which contains the notions of minimal restraints on the
exercise of protected rights and the exigencies of the common good in a democratic
society. This is a test frequently adopted by the European Court of Human Rights and
by the Supreme Court of Canada in the following terms. 'The objective of the
impugned provision must be of sufficient importance to warrant over-riding a
constitutionally protected right. It must relate to concerns pressing and substantial in a
free and democratic society. The means chosen must pass a proportionality test. They
must (a) be rationally connected to the objective and not be arbitrary, unfair or based
on irrational considerations; (b) impair the right as little as possible; and (c) be such
that the effects on the rights are proportional to the objective.”
16. The Supreme Court found that section 10(3) of the 1988 Act
complied with this test - the restriction was “minimalist”, the applicant had
the right to advance his views in speech or writing or by holding assemblies
or associating with persons of like mind as himself; he had no lesser right
than any other citizen to appear on radio or television; and the only
restriction placed upon his activities was that he could not advance his
views by a paid advertisement on radio or television. As regards the blanket
nature of the ban and the applicant's argument that it would have been
possible to introduce a more selective administrative system whereby
inoffensive religious advertisements would be permitted, the Supreme Court
noted:
“No doubt this is true. But [parliament] may well have decided that it would be
inappropriate to involve agents of the State in deciding which advertisements, in this
sensitive area, would be likely to cause offence and which not.”
17. The Supreme Court went on to conclude that:
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