Conduct of Elections
Cases
Tom Kivlehan v Raidió Teilifís Éireann
2016 78 JR
High Court
15 February 2016
unreported
[2016] IEHC 88
Ms. Justice Baker
February 15, 2016
JUDGMENT
1. The broadcasting and print media play a vital role in political debate leading up to an election, and the role of the media in that context is central to the democratic process. It acts as a platform by which those running for election may inform the electorate of their policies, and also plays a direct role in covering candidates, parties and political issues in the form of news programmes, current affairs commentary, and debates between candidates and their representatives.
2. Radió Teilifís Éireann (“RTE”) is a public service broadcaster and it is mandated by statute to inform and educate the public in matters of news and current affairs, and in doing so to present and report in an objective and impartial manner and without expression of the broadcaster’s own views. All broadcasters in the State are so mandated but the particular role of RTE as a public service broadcaster is identified in s. 114 of the Broadcasting Act, 2009 which expressly mandates that the station shall uphold the democratic values enshrined in the Constitution. It is the democratic right of the electorate to elect the Oireachtas, and the right of freedom of expression which imports a right to receive information and views, which forms the backdrop of these proceedings.
3. The applicant is a member of the Green Party/An Comhaontas Glas (hereinafter, “The Green Party”) and a trustee and member of the executive committee of that party. He formerly served as a Green Party local government representative. He is a candidate in the February, 2016 general election. He has standing as a citizen, a member of the Green Party, and as a candidate for that party to bring these proceedings.
4. These proceedings arise out of the decision made by RTE not to invite the leader of the Green Party to participate in a live television debate intended to be broadcast this evening between the leaders of seven political parties contesting the general election.
5. The applicant seeks a declaration that criteria operated by RTE, and in particular the requirement that a party have at least three TDs in the outgoing Dail, before the leader of that party be invited to participate in the leaders debates is contrary to constitutional fairness, infringes the right of the applicant as a citizen enshrined under Article 5 and/or Article 40.1 and/or 40.3 and/or 40.6.1 of the Constitution, and in breach of its statutory obligations in ss. 39, 42 and 114 of the Broadcasting Act, 2009.
6. The application for judicial review was brought by way of a so-called “telescoped hearing” and the respondent has filed a notice of opposition and was represented at the hearing.
The live TV debates since 1982
7. The 2016, general election is due to be held on the 26th February, 2016. In anticipation of an election RTE has been considering the means by which it will deliver news and current affairs coverage of the campaign. It has in place an Election and Referendum Steering Group, a standing group which fixes policies and criteria with regard to radio and T.V. coverage. The Steering Group commenced active consideration of the nature and extent of coverage in respect of the 2016 General Election in January, 2015, and part of its consideration was the extent to which criteria and policies applied by RTE during the general election of 2011 required to be modified in the light of what is described as a changing political landscape.
8. RTE broadcasts a number of categories of television and radio programmes during the election, including news and current affairs programmes and party political broadcasts. No complaint is made by the applicant with regard to the criteria and principles which guide the respondent in its overall election coverage.
9. Since 1982, RTE has broadcast a live TV debate between the leaders of the political parties. Between 1982 and 1992, the debates were between the leaders of the outgoing governments and the leaders of the opposition, and in those ten years the leaders of Fianna Fáil and Fine Gael were the two featured leaders in the relevant debates. However the increased fragmentation of political parties and the fact that government was, or could be, made up of a coalition or group of parties had the effect that from 1992, RTE scheduled two live TV debates between party leaders, in 1997 one between the leaders of Fine Gael and Fianna Fáil, and the second between Labour and the Progressive Democrats, and in 2007, one six-way TV leader debate, and two two-way debates were broadcast. The leader of the Green Party participated in the larger format debate.
10. During the general election of 2011 the respondent scheduled two live TV debates between the leaders, the first being a five-way debate and the second a three-way debate. The leader of the Green Party participated in the debate with Fine Gael, Fianna Fáil, Labour and Sinn Féin.
11. It is proposed for the purposes of the Election in February, 2016 that two live leaders debates will be held, one with seven participating leaders, and the other with four.
12. As is apparent there is no fixed format for the leaders debate, and the format and number of parties participating in the debates has varied from one election to the other, as have the number of debates broadcast.
13. The two television debates which are to be held for the purposes as part of the coverage of the February 2016 election are one debate which will feature the leaders of the four largest political parties, Fine Gael, Fianna Fail, the Labour Party and Sinn Fein and another debate with the leaders of those four parties plus the leaders of the Anti-Austerity Alliance/People Before Profit, the Social Democrats and Renua.
14. The applicant argues that the leaders debate is of considerable influence. His evidence points to considerable viewer interest in the debates, and in 2011 the leaders debate was the fourth most watched programme on Irish TV, and attracted 964,000 viewers, or 1.4 million if one considers persons who watched some or all of the debate. It is less clear what, if any, impact performance in the debate has on electoral choice, and no Green Party candidates were elected to the outgoing Dail notwithstanding participation by the leader of the Party in the live debate in 2011. The applicant argues that the leaders debate is sui generis because of its audience reach, and media coverage of the political issues engaged in the campaign.
15. The applicant argues that given the high profile and importance of the leaders debate, the impression would be given to the electorate that should Eamonn Ryan, the leader of the Green Party not be permitted to participate in one of the debates, that the public could form a perception that the Green Party is not a political party of any importance or any weight as a national party.
The criteria for participation in the debate
16. In a letter of 15th January, 2016, RTE set out the criteria it applies to participation in the leaders debate as follows:-
a. A party whose leader will be entitled to participate in the debate must have at least three sitting members of the outgoing Dáil;
b. The party must be a registered Dáil party;
c. The party must be standing candidates in the general election of 2016.
17. It is the first of these three criteria that is argued by the applicant as being in breach of the statutory obligations of the respondent as a public broadcaster. It is argued that the criteria are discriminatory, insufficiently objective, impartial, unfair and inclusive to satisfy the statutory obligation on RTE, or the Constitutional recognition of the democratic principles.
Arguments as to relevant factors
18. Certain factors relating to the participation of the Green Party in this election have been identified as relevant by the applicant, including that it is part of an international political movement, and has a particular interest and engagement with environmental matters, that it was a coalition partner in the previous government, and that, outside what is described as the “big four”, is the only registered political party which has a candidate running for election in all constituencies.
19. It is argued by the applicant that the criteria adopted by the respondent for participating in the leaders debate fail to give due regard to what the applicant identifies as a number of considerations relevant to its participation in the 2016 election as follows:-
a. the number of candidates a party is running in the election;
b. its number of local government elected representatives;
c. actual support for the party amongst the electorate, the percentage of first percentage votes won nationally by the political party in the last election, and in elections to the European Parliament, to local government and to Seanad Éireann, and the results of recent opinion polls;
d. the history, heritage, and longevity of each political party and the contribution that each of them made up to or immediately before the general election in 2011;
e. alliances between parties, taking account of government and opposition coalitions from common policy platforms etc.;
f. developments which take place during the course of the election campaign;
g. newsworthiness of any matter with which the given political party, or parties, has a particular interest or platform to promote;
h. the significance of having been a partner in a previous government;
i. the growth of public concern about environmental issues and the central significance attached to matters arising in particular from recent United Nations agreements;
20. The applicant does not argue that RTE is obliged to give equal airtime to all political parties or candidates in the general election, but argues that the obligation arising from statute seen through the prism of the Constitution requires RTE to be impartial, objective, proportionate and fair in its invitation to participate in the leaders debate, and that the criteria adopted are rigid and not sufficiently flexible.
21. The applicant also points out that the leaders of three parties which have been invited to participate in the first of the two leaders debates are members of political parties which did not exist at the time of the last general election, and that the criteria, therefore, fail to reflect the political reality and to give sufficient weight to the role of the Green Party as a long established party in the State.
22. The respondent argues that the criteria adopted are rational, coherent and objective, and emerged from a considered choice, and in the light of editorial factors. It points to the obvious requirement that a public broadcaster should not appear to subjectively judge any one political view or party, but that it had an obligation to ensure that its current affairs and news coverage of the election is objective and fair and that the criteria for participation are objectively ascertainable.
23. The respondent argues that it must be afforded a margin of appreciation in the making of editorial decisions. It accepts that the purpose of the leaders debate is “to bring to the public a debate on national issues between parties holding policy positions on those issues”, but that as a matter of editorial choice, the respondent must adopt a formula which results in an informative, engaging and meaningful television programme which, at the same time, achieves the overall objective of fairness, balance and impartiality.
The evidence
24. The statement of opposition is supported by an affidavit of David Nally, Head of Current Affairs in RTE Television, in which he identifies the increased fragmentation of political parties in the Irish political landscape as importing a significant challenge to it in achieving fairness and balance in current affairs and news coverage of this election.
25. The applicant had adduced evidence from Prof. Anthony Coghlan and Prof. Colum Kenny, both of whom have extensive knowledge, expertise and experience in the field of political and social policy and the role of journalism and communication in an election campaign. Each propose the view that RTE would more fairly, objectively and democratically respect the right of the citizen to hear political debate, and be informed on the issues in the election, were the broad general approach identified by RTE for its current affairs and general news coverage of the election be adopted for the debates. Both of them, albeit with a different emphasis, and each of them with a degree of conviction which they root their experience and expertise, suggest that the exclusion of the Green Party from the live TV leaders debate fails to take account of the previous role of the party as partner in government, its specialist contributions on critical public issues, especially those concerning the environment, its position in the international environmental movement, and the fact that it is fielding a candidate in each constituency, as factors which ought to inform the editorial choices made by RTE.
The legislative context
26. The respondent is a public broadcaster and its powers and obligations are found in the Broadcasting Act, 2009. RTE is regulated in the exercise of its powers by s.39(1) of the Act, and s.39(1)(b) provides an express requirement that the broadcast treatment of current affairs by the respondent is to be presented in an “objective and impartial manner”.
27. Section 42 requires the preparation of a broadcasting code to provide inter alia for the broadcasting treatment of current affairs, including, as set out in s.42(2)(b) that the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of public debate is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and not be an expression of the broadcaster’s own views.
28. Section 114(1)(b) of the Act provides in the relevant part the objects of RTE as inter alia:-
“to establish, maintain and operate a national television and sound broadcasting service which shall have the character of a public service, be a free-to-air service and be made available, in so far as it is reasonably practicable, to the whole community on the island of Ireland.”
29. Section 114 (2)(b) mandates RTE in the pursuit of the objects to:-
“uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression.”
This positive obligation is not imposed on other broadcasters in the State and arises from RTE’s public broadcaster status.
Freedom of speech
30. The importance of the right of freedom of speech as a fundamental index of the democracy can be seen from the authorities and the positioning of the right as one of the fundamental and inalienable rights. Article 40.6.1(i) of the Constitution expressly guarantees the “right of citizens to express freely their convictions and opinions”, it also has been said to arise as a result of the nature of the state. In AG v. Paperlink Ltd. [1984] ILRM 373 Costello J. reasoned that the right of the citizen to communicate must “inhere in the citizen by virtue of his human personality” and is “one of those personal unspecified rights of the citizen protected by Article 40.3.1”. This is echoed in Murphy v. I.R.T.C. [1999] 1 I.R. 12, where Barrington J., delivering the judgment of the Court, explained the philosophical distinction between the personal and public rights, saying, at p. 24:-
“It appears to the Court that the right to communicate must be one of the most basic rights of man. Next to the right to nurture it is hard to imagine any right more important to man’s survival. But in this context one is speaking of a right to convey one’s needs and emotions by words or gestures as well as by rational discourse.
Article 40.6.1 deals with a different though related matter. It is concerned with the public activities of the citizen in a democratic society. That is why, the Court suggests, the framers of the Constitution grouped the right to freedom of expression, the right to free assembly and the right to form associations and unions in the one sub-section.”
31. Budd J. in the decision of O’Donovan v. Attorney General [1961] I.R. 114, recognised the import of the spirit of equality in a political campaign. His dicta is often quoted and was quoted with approval by Denham J. in McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10:-
“ Article 40, s. 1 provides that all citizens shall, as human persons, be held equal before the law…. A ‘democratic state’ is one where government by the People prevails. In modern usage of the words I believe it to be correct to say a ‘democratic state’ denotes one in which all citizens have equal political rights. That the words should be given such a meaning in our Constitution seems to be supported by the other two Articles I have referred to as to the restriction of voting power to one vote per person and the equality of all before the law … There are thus contained in the Constitution other Articles the spirit of which demands equality of voting power and representation. The Articles I have just referred to admittedly have reference to equality of voting power, but are relevant in construing sub-clause 2.3 of Article 16 of this extent, that if it be established, as I believe it is, that the spirit and intendment of these other Articles is that the notion of equality in political matters is to be maintained, it would be illogical to find a different and inconsistent principle adumbrated elsewhere in the Constitution.”
32. A similar and authoritative approach by the Supreme Court is found in Coughlan v. Broadcasting Complaints Commission, albeit given in the context of the now appealed Broadcasting Authority Act 1960, Hamilton CJ. expressed the view that the principles explained in Mc Kenna v An Taoiseach (No. 2) are of “general application, being based on the Constitutional rights of the citizen and the requirement of fair procedure”. He quoted with approval from the judgment of Henchy J. in The State (Lynch) v. Cooney [1982] I.R. 337 at p. 381 that:-
“It is correct as a general statement to say that a citizen, as such, has no particular legal right to make a broadcast. Such a right will normally arise only when an agreement to broadcast is made. However, this does not mean that the Authority has carte blanche as to what kinds of broadcasts it will transmit or as to whom it will allow to broadcast. Its discretion in respect of those matters is limited by the requirements of the Broadcasting Authority Acts, 1960-1976 .”
The importance of the right is a factor that must weigh in the role of the Court.
The standard of review
33. The applicant identifies what counsel described as a “tension in the authorities” as to the applicable test in determining this judicial review. She argues that the court is not confined to a consideration of whether the criteria are unreasonable or irrational, but that a wider jurisdictional basis for the intervention of the court approach arises because RTE is mandated to positively respect the democratic process and has a central role in informing and educating choice within that process. She argues that if it is shown that a particular approach has the potential to interfere with the informed choices of the electorate or elements of the electorate that the court has a duty to supervise and interfere with even a reasonable decision.
34. Counsel argues that the test identified by the Supreme Court in Keegan v. the Stardust Tribunal [1996] I.R. 642, and O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 is not sufficiently broad in scope and reach to form the basis on which the High Court should examine the approach taken by RTE. I do not propose engaging with the difficult question of whether the Supreme Court decision in Meadows v. Minister for Justice & Ors. [2010] 2 I.R. 701 did establish a different or higher standard of review when the Court is considering the reasonableness of administrative decisions in cases affecting constitutional or fundamental rights. I consider that counsel for the applicant is correct however that the particular role of RTE as a public service broadcaster, and its statutory mandate which is expressed in positive terms to uphold the constitutional principle of freedom of expression, does create a context or circumstance in which this judicial review is to be considered. As Denham J. identified in Meadows v. Minister for Justice & Ors. the nature of the decision and the decision maker is relevant to the application of the test. Fennelly J. made it clear in that case that the test laid down in the old cases starting with Keegan v. the Stardust Tribunal is “ sufficiently flexible ” to provide an appropriate level of judicial review and affording “ an appropriate level of protection of fundamental rights ”.
35. I accept that broad and central constitutional issues are at play in the present case, and that RTE is placed in a unique position of obligation to protect freedom of expression in the context of the democratic process. Thus I consider that principles of proportionality are engaged. I consider that the dicta of Murray C.J., at paras. 57-58, in Meadows v. Minister for Justice & Ors. correctly identifies the role of proportionality in the test of reasonableness as follows:-
In examining whether a decision properly flows from the premises on which it is based and whether it might be considered at variance with reason and common sense I see no reason why the court should not have recourse to the principle of proportionality in determining those issues. …
The principle requires that the effects on, or prejudice to, an individual’s rights by an administrative decision be proportional to the legitimate objective or purpose of that decision.”
The authorities
36. The applicant relies on the judgments of the Supreme Court in McKenna v. An Taoiseach and Coghlan v. the Broadcasting Complaints Commission [2000] 3 I.R. 1. Each of these judgments concerned a referendum.
37. In McKenna v. An Taoiseach (No. 2), the Supreme Court considered the lawfulness of the use by Government of public funds to promote a particular outcome in a referendum. The Supreme Court granted a declaration that such expenditure was in breach of the constitutional right to equality. Hamilton C.J. stated that matter in broad terms as follows:-
“As the guardians of the Constitution and in taking a direct role in government either by amending the Constitution or by refusing to amend, the People, by virtue of the democratic nature of the State enshrined in the Constitution, are entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of State that they, the People, have created by the enactment of the Constitution.”
38. Denham J. regarded the expenditure by the Government of public funds to promote a result in a referendum as infringing upon the constitutional right of equality, the right to freedom of expression and the right to a democratic process. She expressly referred to the “right to equal treatment in the political process”, and found the rationale in principles of equality from A. 40:-
“This recognises the equality of citizens. It also requires the organs of government in the execution of their powers to have due regard to the right of equality. The citizen has the right to be treated equally. This includes the concept that in the democratic process, including referenda, neither side of an issue will be favoured, treated unequally, by the government.”
39. In Coghlan v. the Broadcasting Complaints Commission the question was whether unequal broadcasting time promoting a particular side in the referendum was an interference with the democratic process. Carney J. in the High Court pointed to the unique position of RTE, the second respondent, and took the view that “ a package of uncontested or partisan broadcasts by the national broadcasting service weighed on one side of the argument was an interference with the referendum process” .
40. The Supreme Court agreed, and applied the principles enunciated in McKenna v. An Taoiseach as being ones of general application and based on the “ constitutional rights of the citizens and the adoption of fair procedures.”
41. Counsel for the applicant argues that no distinction can be made for the purposes of the present case between a referendum and a general election. Denham J. however did identify certain key differences in her judgment in that case and at p. 30 she said the following:-
“The referendum process is a different process to that of an election. In a general election or a local election political parties are key players. They are running for power, for government. The institutions of representative democracy are driven by the party political system. Thus, party politics are at the core of an election or a general election. The party political broadcast is an important part of that process. In contrast, in a referendum the process is one of direct legislation.”
42. Denham J. pointed to the binary nature of a referendum, and it is clear that the 2016 general election does not admit of any binary categorisation of positions having regard to the very wide spectrum of political positions advanced. The evidence unequivocally points in the present case to a plurality of issues, parties, groupings and independents, and it is not possible to identify an approach to the issues which would be amenable to a mathematical formula.
43. While I consider that a referendum and a general election do, each in their different ways, impose an obligation of impartiality, objectivity and transparency and fairness on public service broadcasters, the primary difference identified in the case law between a referendum and a general election is the role of the parties. This has the inevitable result that still less is mathematical equivalence a requirement of fairness. At p. 31 of her judgment in Coughlan v. Broadcasting Complaints Commission, Denham J. said with regard to referenda that:-
“Mathematical equality is not a requirement of constitutional fairness and equality.”
In a general election where there is a plurality of issues still less can mathematical equality be a requirement of constitutional fairness.
44. Thus while I consider that McKenna v. An Taoiseach and Coughlan v. Broadcasting Complaints Commission are authoritative, I do not consider that they dispositive of the issue. This is primarily because it cannot be said that any individual party has a constitutional right to participate in the TV debate. The applicant does not go this far, and the position advocated by the applicant is that a broader set of criteria which would recognise, inter alia, the unique political and historical position of the Green Party would more appropriately achieve fairness and impartiality.
45. In the absence of a requirement of mathematical equality then, it must logically be the case that it falls to the broadcaster to exercise its editorial judgment in structuring programmes and coverage relating to the election.
46. In Green Party v. RTE [2003] 1 I.R. 558 Carroll J. considered that the decision of RTE to limit live coverage of its party conference was not “unreasonable”. She regarded the decision as not being unreasonable, although she did consider the question in what might be called “traditional” judicial review terms.
Decision
47. I consider that the question before me is whether the decision by RTE to fix the three criteria for participation of the leader of a party in the TV debate is reasonable and proportionate in the wide sense, having regard to the constitutional rights that are engaged, and that a high degree of judicial scrutiny is engaged, if, to borrow from Hamilton C.J. in Mc Kenna v An Taoiseach (No. 2), that if the approach of RTE is at least capable of affecting the outcome of the election it was one with which the High Court can scrutinise.
48. If one were to test the criteria established by RTE for the live TV leaders debate in the light of the exposition of the principles of judicial review as outlined in Meadows v. Minister for Justice, there is not found any principle which would lead me to the view that the criteria are not proportionate. The criteria for inclusion in the debate for the current general election are different from that as adopted in previous elections, but RTE has since 1982 when the live leaders debates became a feature of election coverage, always required some level of current Dáil representation. The plurality of candidates and parties has led to the requirement in the current campaign for RTE to adopt a formula that will inevitably exclude the leaders of certain parties having regard to the number of parties engaged in the election. Fairness is achieved if the choice is proportionate to the question asked, namely how to make an engaging, informative and educational TV debate in the context of the current election while still respecting the principles of objectivity and impartiality. I consider that the threshold criterion that a party have some representation in the outgoing Dáil reflects an objective means of ascertaining the current support that a political party has, and that such a criterion is capable of being objectively ascertained, and is intrinsically fair. It applies to all political parties in the State, and does not involve the broadcaster in the subjective exercise of adjudicating on the importance of the policies or historical importance of a political party.
49. I am persuaded too by the fact that the Broadcasting Authority of Ireland has prepared guidelines for the general election coverage specifically referable to the current election. These guidelines which arise from the statutory code prepared by the Broadcasting Authority of Ireland pursuant to s. 42 of the Act of 2009, requires broadcasters in the context of achieving fairness, objectivity and impartiality coverage of the election to have regard to certain matters, including the airtime afforded, the scope of a debate, the structure of a programme, the make up of audiences, the handling by the presenter of a topic. In particular, broadcasters were asked to have regard to the fact that:-
“It is appropriate that decisions in respect of editorial coverage of the General Election rest solely with broadcasters. In this context, broadcasters must develop mechanisms in respect of their approach to coverage that are open, transparent and fair to all interested parties. These mechanisms should be considered and developed at an early stage and information on the approach being adopted should be available to all interested parties.”
50. The criteria adopted by RTE have been made known to all relevant parties. They were developed for this election by an expert group which specifically had regard to the current political reality and plurality of parties. It would be wrong in those circumstances to characterise the criteria as favouring the status quo, as is argued by the applicant. The current Dáil does not reflect solely the results of the election in 2011, and some members of the outgoing Dáil were elected as a result of bye-elections. Thus the criteria do not have a wholly historic focus, but looks to current electoral representation.
51. The applicant has in correspondence both from himself and from Eamonn Ryan, the leader of the Green Party, and in the affidavit evidence furnished to the Court posited a number of different criteria to be employed by RTE in fixing threshold criteria for inclusion in the live TV leaders debate.
52. I do not consider that it is the role of the High Court to identify in detail the criteria that must be applied by any broadcaster in establishing threshold criteria of this type. The Court is inherently unable to engage with those questions as the Court has no expertise in the scheduling or producing of broadcasts. That this is so, for example, in regard to the proposal that the number of candidates fielded by a political party should be a factor in participation in the debate, as is evident from the replying affidavit of Mr. Nally where he suggests that the number of candidates of itself is not necessarily an indication of the strength of a party, its national reach, or of the degree of support that the party has or expects to have on election day. There can be strategic and tactical decisions made by a party as to the number of candidates it will field to take full advantage of the system of proportional representation, in the light of particular individual and local factors, or the presence of high profile or well-known candidates, and this is to my mind a central element in my considerations, and the requirement that a broadcaster act objectively, impartially and fairly cannot involve the broadcaster in considering the value, whether national or international, of the particular policies that a political party espouses.
53. The primary difficulty I have with the argument of the applicant is that many of the considerations contended for are considerations which would favour the Green Party over other possible participants in the TV debate. I accept that it is not the applicant’s case that the leader of the Green Party should replace one of the intended participants, but rather that the refusal to invite Mr. Ryan is a failure to consider the strength historical and international importance of the policies of his party. Those factors, it seems to me, are overly subjective, they suggest engagement with the nature and quality of policies, or an engagement with either the historical or international context, all of which considerations could, it seems to me, lead to arguments of impartiality and subjectivity.
54. The affidavit evidence of David Nally expresses his view that to hold a leaders debate which included the leaders of all fifteen political parties would be “unfeasibly large and seriously undermine the merit” of such a debate, that it would be “ unwieldy and impractical ” and that viewing quality would be detrimentally impacted by such an approach. He says that he would “not be confident” that a debate with eight speakers would be as “ coherent and informative as one with seven speakers ”.
55. In that context I consider that it is important not to characterise the decision by RTE was one not to invite the leader of the Green Party to participate in the live TV debate. The decision did not arise as a result of any choice with regard to any view of the position of the Green Party in the election, as to the importance of its role in the discussion regarding environmental policies, or its historic and European political history. The choice of the criteria for inclusion in the live TV leaders debate arose from an editorial decision that the debate would not be attractive and informative to viewers if the leader of every political party were to participate. The 2016 general election is described in all of the affidavit evidence before me as being unusual in the diversity and fragmentation of political positions, and in the number of independent candidates or candidates who are members of formal or informal groupings some of which have chosen not to register as a political party. Fifteen parties are fielding candidates, only seven of whom have current Dáil representation. Some of those parties did not exist at the time of the 2011 election, some of their TDs were elected in bye-elections between 2011 and the dissolution of the Dáil in on 3rd February, 2016.
56. The complexity and range of the political platforms, the number of candidates who cannot readily be grouped as either sharing a broad political approach, or as holding a position obviously contrary to that of another group or grouping, shows the difficulty in making the editorial decision as to how to program the live TV debates. As Mr. Nally says in his affidavit some cut off point or some threshold criteria had to be imposed in order to enable the producer of the live TV debate to broadcast a programme which would be sufficiently attractive and educational to hold the attention of viewers.
57. The democratic process is fully engaged in a society where freedom to express opinions and the freedom to receive information is a primary right of the citizen. I accept the argument of counsel for RTE that the interest of the citizen, and in the case of a TV programme the interest of the viewer or likely viewer, is fully respected not merely by broadcasting programmes which are informative and educational, but also by broadcasting programmes which are attractive and which hold attention.
58. When positioning the provisions in particular of s. 114 of the Act of 2009 in the constitutional framework one must also have regard to Article 40.6.1 which recognises the role of the media as a “ organ of public opinion ”, and that education of public opinion is a matter of “ grave import to the common good ”.
59. I regard the provisions of Article 40.6.1(i) as importing a positive obligation on a public service broadcaster to produce programmes and to inform and educate. I consider that the framers of the constitution, in recognising the unique and central role of the media, recognised both its duty and any rights that flow therefrom. The right, it seems to me, must include the right of editorial or programming choice, the right of that organ of public opinion to choose the means by which it would educate public opinion. The role thus understood and described as being one of “grave import to the common good” recognises the singular nature of the press and media, and what is singular and unique is found in the editorial process. The Court is not an organ of public opinion, has no expertise as such, and must respect the constitutionally different factors at play in the media.
60. I do not consider that the High Court can have any role in that editorial choice, and the choice is one that must be made by an expert person or body who can weigh the elements of a programme by reference to all of these factors, and presumably factors of which the Court could have no knowledge.
Fettering discretion?
61. Counsel for the applicant argues that RTE has adopted a rule or fixed policy such that it has fettered its discretion in regard to participation, and has thereby failed to fully exercise its discretion with regard to whom should be invited to participate in the leaders debates. That RTE has discretion not to hold such a debate, and to determine the qualifying criteria is not in question. It is argued however that the correspondence from RTE shows a degree of inflexibility with regard to participation which is tantamount to having a policy or rule, and which does not fully engage with the various elements that ought to inform the choice of participants.
62. The requirement that a decision making body not fetter its discretion is well-established and by way of example counsel relies on the decision of the High Court in Madigan v. RTE [1994] 2 ILRM 472. The applicant was an independent candidate in elections for the European Parliament. RTE broadcast a number of programmes some of which included the presence in studio of certain nominated candidates from the main political parties. The applicant challenged what he argued as the failure to offer sufficient airtime to independent candidates. Kinlen J. refused declaratory relief and took the view that the approach of RTE was “ fluid ” and that it might change hourly having regard to various factors which might emerge in the course of the election. Counsel for the applicant argues that the proposition stated by Kinlen J. that, while there was no reason why the results of past elections should not be taken into account, that they “ must not be used as the sole criteria ”, and that a strict policy on the basis of prior election results would be “ unfair to some interests concerned ”.
63. It is clear that Kinlen J. considered that it could have been unfair for RTE to adopt a strict policy which confined the allocation of airtime to existing candidates. It was the fluidity and flexibility of its approach that means fairness was achieved.
64. I consider that the criteria adopted by RTE for the purposes of the current election do not amount to a policy for a number of reasons. While current Dáil representation has been de facto a requirement for participation in the leaders debates since 1982, the process by which the steering group decides the criteria emerges from a consideration of the current political landscape.
Conclusion
65. RTE accepts that the editorial criteria that it is has adopted for this election are not perfect, and it is not suggested that they would be suitable in another electoral context. I accept however the general proposition that some editorial choice had to be made, some threshold requirements and some editorial choice to enable the production of an attractive and engaging programme had to be made. I do not consider that the criteria are unfair or irrational. I also do not consider them to be disproportionate to the aim to be achieved, and in particular I consider that the interest of the viewer in an attractive and engaging programme, the importance of current Dáil representation as an index of political thinking and the spectrum of opinions, all have to be weighed in the balance. I cannot also omit to take account of the extent to which the role of RTE as an expert must be respected by the Court, and which is given a singular and unique recognition in the Constitution. It is not merely that the Court cannot produce a television programme, but the Court cannot be asked to fix programming criteria in which it has no expertise.
66. I consider that RTE is amenable to review in the choice of criteria, and that fundamental and core democratic ideals are in play in the present case. I consider that the criteria adopted for participation the debates are sufficiently reasonable and impartial and that they are proportionate to the needs of the political debate and the right of the public to be informed and educated in an engaging live programme.
67. I propose refusing the relief sought.
Kelly v Minister for the Environment,
[2002] 4 I.R. 191; [2003] 2 I.L.R.M. 81
Kelly v. Minister for the Environment [2002] IESC 73 (29 November 2002)
THE SUPREME COURT
Keane C.J.
Denham J.
Murray J.
McGuinness J.
Hardiman J.
168/02
BETWEEN
DESMOND KELLY APPLICANT/RESPONDENT
AND
THE MINSTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS/APPELLANTS
JUDGMENT of the Court delivered the 29th day of November 2002, by Keane C.J.
Introduction
1. The applicant stood as a candidate for Dáil Eireann in the General Election which took place earlier this year. He was aggrieved by the fact that outgoing members of the Dáil, the Seanad and the European Parliament did not have to include in the return of their election expenses the property, services, and facilities paid for out of public funds to which they were entitled and which, as he claimed, they made use of in their election campaigns. This, he said, gave those candidates who, unlike him, were sitting Dáil deputies, Senators or MEPs an unfair advantage. In the result, he claimed, the relevant provisions of the electoral legislation were unconstitutional. The claim succeeded in the High Court and the respondents/appellants have now appealed to this court.
The relevant legislation.
2. The Electoral Act, 1997 (hereafter “the 1997 Act”) imposed limits for the first time on the expenditure which could lawfully be incurred by candidates in the course of their individual election campaigns. Section 31(1)(a) (as amended by the Electoral (Amendment) Act 2001) defined election expenses as
“all expenses falling within paragraph (b) incurred in the provision of property, goods or services for use at an election”
in order to promote the interests or policies of political parties, promote or oppose the election of candidates or otherwise to influence the outcome of the election.
3. Section 32 of the 1997 Act then imposes a limitation on the election expenses which may be incurred by or on behalf of a candidate at Dáil elections. Under S. 36, a statement must be furnished to the Public Offices Commission established under the Ethics in Public Office Act 1995 (hereafter “The Commission”) within 56 days following the polling day at an election of all the election expenses incurred in relation to the election. Section 43 of the Act provides that a person is to be guilty of an offence who exceeds the limitation on expenses imposed by the Act or fails to furnish to the Commission within the specified period a statement of election expenses which is false or misleading.
4. Section 31 (1))(b) of the 1997 Act (as amended by the Electoral (Amendment) Act 2001 provides that
“the expenses mentioned in the foregoing definition of ‘election expenses’ shall be those, and only those, set out in the Schedule to this Act”.
5. Paragraph 1 of the Schedule sets out the expenses referred to in S 31(1)(b). It is unnecessary to set them out in extenso in this judgment: they comprise advertising, publicity, election posters and other election material, office and stationery expenses, transport and travel, market research and expenses in respect of campaign workers.
6. Paragraph 2, which is the crucial paragraph for the purpose of these proceedings, then provides that
“for the avoidance of doubt, nothing in paragraph 1 of this Schedule extends to-
(a) any of the matters referred to in sub-paragraphs (i) – (v) of Section 22 (2)(b) or, in the case of a presidential election, subparagraphs (i) – (v) of S.46 (2)(b)
(b) expenses incurred in the provision of property, goods or services used at an election where such property, goods or services was or were provided in respect of a previous presidential , Dáil, European or local election and the cost of providing such property, goods or services was included in the statement of election expenses furnished to the Public Offices Commission or to a local authority in relation to the said previous election by the national agent of the party or designated person of the party or election agent of the candidates, or candidate, as the case may be,
(c) any expenses in respect of any property, services or facilities so far as those expenses fall to be met out of public funds,
(d) the payment by or on behalf of a candidate of the deposit under S.13 of the Act of 1997 or S.47 of the Act of 1992, as may be appropriate,
(e) expenditure on the purchase of copies of the Register of Electors or parts thereof,
(f) the reasonable living expenses, (including accommodation) of a candidate or any person or persons working on behalf of the candidate on a voluntary basis, or
(g) any sum dispersed by an individual out of the individual’s own resources for any minor expenses (not exceeding £100.00 in any one payment) lawfully incurred in relation to the election if the said sum is not repaid to the person.”
7. Section 22(2)(b) of the 1997 Act, which is referred to in subparagraph (a) above, deals with “donations” to political parties. Subsection 2(b) provides that the matters specified in sub-paragraphs (i) – (v) are to be deemed not to be a donation. It is agreed that only the following subparagraphs are relevant to these proceedings:
“(i) Free postage provided for a candidate under Rule 22 of the Second Schedule to the Act of 1997 or Section 57 of the Act of 1992 or the said Section 57 as applied to Seanad elections by Section 25 of the Seanad Electoral (University Members) Act, 1937
(ii) Any payment, service or facility provided to a person out of public funds or money provided by an institution of the European Communities or other intergovernmental organisation to which the State is a party (whether pursuant to this Act, the Oireachtas (Allowances to Members) Acts, 1938 – 1996, the Ministerial and Parliamentary Offices Acts, 1938 – 1996, the European Assembly (Irish Representatives) Act 1979 or otherwise) by virtue of being a member of either House of the Oireachtas, a holder of a qualifying office (within the meaning of the Ministerial and Parliamentary Offices Acts, 1938 – 1996), the holder of a position referred to in the Oireachtas (Allowances to Members) (Amendment) Act, 1994, a representative in the European Parliament, a political party, a political group or any group of members in the Dáil, the holder of an elective or other public office or a member of, delegate to or representative in a body established by or under an agreement or arrangement to which the State is a party….”
8. The contention advanced on behalf of the applicant in the High Court was, in essence, that these provisions made it clear that property, goods or services provided for out of public funds, including the free postage and telephone facilities, secretarial services and office accommodation provided to members of the Oireachtas or MEPs, were not to be taken into account in calculating the expenditure by them in an election campaign and determining whether the limitations imposed by the 1997 Act on such expenditure had been observed. This, it was argued, resulted in gross inequality, unfairness and invidious discrimination between such candidates and other candidates.
9. The legislative provisions governing the payment of allowances and expenses to members of the Oireachtas and members of the European Parliament begin with the Oireachtas (Allowances to Members) Act 1938. The long title of the Act – which is still the Principal Act in this particular code – described it as
“an Act to make provision for the payment of allowances to members of each House of the Oireachtas in respect of their duties as public representatives and for the grant to such members of free travelling facilities in connection with those duties.”
10. The Principal Act was amended by the Oireachtas (Allowances to Members) Act, 1962, S. 2 of which, in particular, provided that
“the following facilities shall, subject to such exceptions, restrictions and conditions as may be provided for by regulations be granted to a member of Dáil Eireann or Seanad Eireann:
(a) free telephone calls from Leinster House,
(b) free postal facilities arising out of his parliamentary duties.”
11. Section 3 of the Oireachtas (Miscellaneous Provisions) and Ministerial and Parliamentary Offices (Amendment) Act 1996 provided for the payment of a telephone allowance in respect of telephone calls otherwise than from Leinster House
“arising from the member’s parliamentary duties.”
The same Act also provided for the provision of
“secretarial facilities solely in connection with the member’s parliamentary duties.”
12. It should be noted that S. 33 of the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions) Act, 2001 provided for the deletion of the words “arising out of the member’s parliamentary duties” in S.2(b) of the 1962 Act.
13. The High Court and this court were also referred to the “Guidelines for the General Election to the 29th Dáil”. These guidelines were published by the Commission pursuant to a requirement in S.4(b) of the 1997 Act. Those guidelines, in addition to setting out what were to be regarded as “election expenses”, also contained a section headed “What are not election expenses”.
14. Paragraph 6, under that heading, was as follows:
“any payment, service or facility provided to a person out of public funds or monies provided by an institution of the European Communities or other governmental organisations to which the State is a party, pursuant to specified legislation, by virtue of the person being:
a representative in the European Parliament;
a member of the Dáil or Seanad;
the holder of a qualifying office or position;
the holder of an elective or other public office: or
a member of, delegate to or representative in a body established by or under an agreement or arrangement to which the State is a party.”
The evidence in the High Court
15. The applicant in an affidavit said that he had been selected as a Fianna Fáil candidate for the constituency of Dublin Mid-West in the then imminent General Election. He said that it was possible that the other candidates would include outgoing members of the Houses of the Oireachtas, e.g., Ms. Mary Harney TD., Mr. Austin Currie TD., and Senator Teresa Ridge. He deposed that it was “routine and common practice” for the outgoing members of both houses to avail of the facilities and services provided to them out of public funds, such as the provision of an office, secretarial support, printing facilities, photocopying facilities, telephone facilities, free stationery, free postage, and other office services. He also said that it was his understanding that members of the Oireachtas have an allowance of up to 1,750 prepaid envelopes per month and that it was common practice for such envelopes to be used for electoral purposes following the dissolution of the Dáil. He also said that it was common practice for the outgoing members to stockpile such pre-paid envelopes for the purposes of using them for electoral purposes during the course of an election campaign. While he had no complaint in relation to the use by outgoing members of those facilities and resources, he did take issue with the fact that the outgoing members were exempted from including the cost of such resources in the list of returnable expenses under the legislation.
16. In a replying affidavit by Mr. Peter Greene, a principal officer in the department of the first named respondent, there was exhibited a letter from the Clerk of the Dáil addressed to each member concerning the effect of a dissolution of Dáil Eireann on their entitlement and facilities under the legislation already summarised. It stated that secretarial assistance employed on a contract basis would be paid up to and including polling day and, under the heading “Leinster House Complex”, said
“As has been the long standing established practice following the dissolution, the Leinster House complex will remain open to facilitate the orderly wind-down of public representational activities.”
17. There were also affidavits before the High Court from Professor Richard Sinnott of the Department of Politics and Institute for the Study of Social Change in University College, Dublin and Professor Michael Marsh, Associate Professor of Political Science and Head of the Department of Political Science in Trinity College, Dublin. These dealt in considerable detail with the alleged advantages accruing to outgoing Dáil Deputies and Senators in contesting elections and the effect in electoral terms, if any, of their being exempted from a requirement to include the expenses in question in the returns of expenses incurred by them. However, having regard to the manner in which the appeal was dealt with in this court it is unnecessary, in the view of the court, for them to be referred to any further.
The Judgment in the High Court
18. In his careful and comprehensive judgment, the learned High Court judge (McKechnie J), having summarised the relevant legislation, the evidence on affidavit and the contentions on behalf of the parties, rejected a submission on behalf of the respondents/appellants that, in conformity with well-settled rules of statutory construction, the impugned provisions of the 1997 Act could be construed in a constitutional manner so as not to afford any exemption in respect of the facilities in question. The trial judge said that he was satisfied that such a construction was not reasonably open and that the Oireachtas had intended to exempt the expenditure in question from the categories of election expenses which candidates were required to return.
19. The trial judge went on to find that, in the light of the authorities, and, in particular, the decision of this court in McKenna –v- An Taoiseach and Others (No.2) [1995] 2IR 10, the provisions in question must be regarded as constituting unequal treatment of candidates and that no justification had been, or could be, offered for such discrimination.
20. The trial judge, accordingly, granted a declaration in the following terms:
“THE COURT DOTH DECLARE that paragraph 2(a) of the Schedule to the [1997 Act] insofar as it exempts from the provisions of the Act restricting electoral expenses, those electoral expenses within the terms of S.22(2)(b)(ii) of the Act of any person who is a member of either House of the Oireachtas or who is a representative in the European Parliament is invalid having regard to the provisions of the Constitution
and
THE COURT DOTH DECLARE that paragraph 2 (c) of the Schedule to the [1997 Act] is invalid having regard to the provisions of the Constitution.”
21. The judgment and order of the High Court were given before the holding of the General Election. Following that election, the Oireachtas enacted the Electoral (Amendment) (No. 2) Act, 2002, S.1 of which extended the time for returning the statements as to electoral expenses, required by S.26 of the 1997 Act, by a period of 167 days following the polling day or the 21 days next following the date of pronouncement by this court of its decision on this appeal, whichever was the longer.
Submissions on behalf of the Parties
22. Mr. Eoghan Fitzsimons SC, on behalf of the respondents/appellants accepted that, if the construction adopted by the learned High Court judge of the impugned provisions of the 1997 Act was correct, it followed that unequal treatment was being unjustifiably afforded to candidates and that this was invalid, having regard to the provision of the Constitution and the authorities referred to in the judgment of the trial judge.
23. Mr. Fitzsimons submitted, however, that the construction adopted by the trial judge was not correct. He said these provisions, having been enacted by the Oireachtas, were entitled to the benefit of the presumption of constitutionality, as a result of which the relevant provisions are presumed to be constitutional unless repugnancy to the Constitution is clearly established, citing the decision of the former Supreme Court in In Re Article 26 and the Offences Against the State (Amendment) Bill (1940) IR 470. He further submitted that, in accordance with the decision of this court in McDonald –v- Bord na gCon and Another [1965] IR 217, if in respect of these provisions two or more constructions were reasonably open, one of which was constitutional and the other unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction.
24. Mr. Fitzsimons submitted that the Oireachtas in enacting these provisions must be presumed to have been aware that the allowances and expenses which were afforded to outgoing members of the Oireachtas and MEPs exclusively for the performance of their duties as public representatives could not properly be used by them for the purpose of an election campaign following the dissolution of the Dáil. It followed that the Oireachtas could not have intended expenditure of this nature to be included in the expenses set out in S.31(1)(b): that would be to attribute to the Oireachtas an implicit endorsement of what was clearly not a proper practice.
25. Mr. Fitzsimons submitted that Paragraph 2 of the Schedule had to be read in that context. The inclusion of subparagraphs (a) and (c) did not constitute an exemption of expenditure of this nature from the category of election expenses: it was rather a recognition that expenditure of this nature could never constitute legitimate electoral expenditure and this, he said, was borne out by the use of the words “for the avoidance of doubt” at the beginning of the Schedule.
26. Mr. Fitzsimons further submitted that the evidence adduced on behalf of the applicant that the facilities in question had been used for electioneering purposes in the past was not a relevant consideration, since it was clear that an Act of the Oireachtas could not be treated as having been invalidly enacted simply because of the manner in which it had been implemented, citing the decision of Barrington J in the State (Boyle) –v- The Governor of the Curragh Military Detention Barracks [1980] IRM 242. Mr. Fitzsimons said that the learned High Court judge was wrong in taking account of this evidence, as he clearly did.
27. On behalf of the applicant, Mr. John Rogers SC submitted that it was clear from the provisions of S.31 of the 1997 Act, as amended, that the legislature were of the view that all the matters set out in paragraphs (a) to (g) of Paragraph 2 came within the definition of electoral expenses. He said that, had the legislature not enacted Paragraph 2 of the Schedule, all of the expenditure in issue in these proceedings would have been subject to the requirement that they be included in the returns to the Commission. By enacting Paragraph 2 of the Schedule, the Oireachtas sought to exempt, and did exempt, from the definition of election expenses all the matters listed in sub-paragraphs (a) to (g) of Paragraph 2. Had that not been the intention of the Oireachtas, it would simply not have enacted Paragraph 2.
28. Mr. Rogers further submitted that, far from the expenditure being prohibited by the 1997 Act, or indeed any other legislative provision, the impugned provisions constituted an express recognition that the facilities and services in question were used for electoral purposes by outgoing representatives. The legislature had gone on expressly to exempt those representatives from having to include the facilities in question in the computation of electoral expenses. The inclusion of the expenses in the category of returnable expenses followed by their express exemption was a clear acknowledgement that the expenses in question could and would be used for electoral purposes.
29. Mr. Fitzsimons SC further submitted that, in the event of the appeal not being allowed, this court should rule on whether the effect of the judgment was prospective only, in accordance with the procedure adopted by the court in Murphy –v- Attorney General [1982] IR 241. He submitted that since, following the enactment of the 1997 Act, outgoing Dáil Deputies, Senators and MEPs had acted in accordance with the terms of the legislation and had not treated the expenses in question as election expenses, it would be unjust at this stage to expose them to the possibility of being prosecuted for a criminal offence. He submitted that, in these circumstances, the court should determine that the effect of the finding of constitutional invalidity, if that was the outcome of the appeal, should be prospective only and should not have effect in relation to any expenditure by candidates at the General Election earlier this year.
The Applicable Law
30. It is clear, in accordance with the decision of the former Supreme Court in In Re Article 26 of the Constitution and the Offences Against the State (Amendment) Bill 1940, that where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, such repugnancy, as a matter of construction, must be clearly established.
31. In this case, it is accepted on behalf of the appellants/respondents that, if the impugned provisions fall to be construed in the manner contended for on behalf of the applicant, as the High Court decided they do, they would be clearly invalid, having regard to the provisions of the Constitution, as constituting unequal treatment of candidates for which no justification had been, or could be, offered.
32. In arriving at a conclusion as to whether the impugned provisions are to be construed in the manner contended for on behalf of the appellants, the court must bear in mind the rule of “double construction”, as it has sometimes been called, laid down in the judgment of the court as delivered by Walsh J in McDonald –v- Bord na gCon and Another as follows:
“[The Act], being an Act of the Oireachtas, is presumed to be constitutional until the contrary is clearly established. One practical effect of this presumption is that if in respect of any provisions or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant.”
Conclusions
33. The wording of Paragraph 2(a) and (c) of the Schedule to the 1997 Act is, in the opinion of the Court, plain and unambiguous. It provides that the expenses therein mentioned, including matters such as the provision of office accommodation, secretarial facilities and telephone and postal facilities to members of the Oireachtas and of the European Parliament, are not to be treated as “election expenses” for the purposes of Part V of the 1997 Act. No other construction of the provisions in question is, in the view of the court, reasonably open.
34. It may well be the case, as urged by Mr. Fitzsimons, that the Oireachtas did not contemplate that expenditure of this nature would be availed of by outgoing members of the Oireachtas or members of the European Parliament for the purposes of their election campaigns. It may be that they were intended to be availed of only for the performance of their duties as legislators or public representatives. The fact remains that the Oireachtas, in plain and unambiguous language, said that such expenditure was not to be treated as “election expenses”. The fact, if it be the fact, that the Oireachtas did not contemplate the utilisation of these expenses for the purpose of election campaigns and may even be deemed to have regarded it as, in some sense, improper cannot conceivably justify a construction of the provision which, far from being reasonably open, is directly at variance with what the legislature actually said.
35. The use of the words “for the avoidance of doubt”, at the beginning of Paragraph 2, does not point to any different conclusion. That expression is, of course, frequently employed in statutes when the legislature is expressly refraining from altering the law in any way and seeks to make it clear beyond doubt that the existing law remains unaltered. If the expression had been used solely by way of introduction to the impugned provisions, their use might have lent some support, however tenuous, to the construction urged on the court on behalf of the applicant. Where, however, they are used by way of introduction to the removal from the category of expenses of all the matters set out in Paragraph 2, they are wholly devoid of any such significance. Thus, to take the most obvious example, the removal by virtue of paragraph (g) of casual expenditure where it did not exceed £100 from the categories of “election expenses” could not, on any view, be regarded as simply a re-statement, for the avoidance of doubt, of an already existing law.
36. The court is, accordingly, satisfied that the decision by the High Court that the provisions in question were invalid having regard to the provisions of the Constitution was correct and should be affirmed.
37. As to the application on behalf of the respondents/appellants that this court, in the event of the appeal being disallowed, should declare that the order of the High Court declaring the relevant provisions to be invalid having regard to the provisions of the Constitution should be prospective only in its effect and should not affect any expenditure by members of the Oireachtas at the recent General Election, this was an issue upon which no ruling was made in the High Court. The jurisdiction of this court is, in general, an exclusively appellate jurisdiction and the question, accordingly, arises as to whether the court has any jurisdiction to grant an order of the nature sought on behalf of the respondents/appellants. It is true that such a course was adopted in Murphy –v- The Attorney General: the court, however, notes that the circumstances in that case were exceptional and, it may be, unique.
38. Assuming however that the court has jurisdiction to make a declaration of the kind sought by the respondents/appellants, the court is not satisfied that it would be appropriate to grant relief of that nature in the circumstances of the present case.
39. As was made clear in Murphy –v- The Attorney General, the effect of the decision of the court in this case is that the impugned provisions were invalid ab initio and have never had the force of law. It is true that, in that case, this court held that the plaintiffs were the only taxpayers entitled to maintain a claim for restitution of tax in pursuance of the court’s decision, unless proceedings had been instituted by any other taxpayer challenging the validity of the impugned sections. That case was, however, concerned with the possible repayment by the State to taxpayers of substantial sums of money which had been collected by the State for many years in pursuance of statutory provisions presumed to be constitutional. It was held that, applying the normal principles of the law of restitution, the monies, save in the case of the plaintiffs, were not recoverable. No such considerations arise in the present case: all that is prayed in aid in support of making the proposed declaration is the possible exposure of the deputies and senators concerned to criminal prosecutions, even though they participated in the General Election on the basis of the provisions of an Act ostensibly in force at the time and, moreover, when the Commission in its guidelines advised them that they could so act. Whether, in such circumstances, any such prosecutions should be instituted and, if so, how they should be dealt with by the courts are not matters which this court feels it should anticipate.
40. The court, accordingly, is satisfied that it should not make any declaration of the nature sought on behalf of the respondents/appellants.
Redmond v the Minister for the Environment and the Attorney General, unreported,
High Court, July 31, 2001
Redmond v. Minister for the Environment [2001] IEHC 128 (31st July, 2001)
THE HIGH COURT
1997 No. 4318P
BETWEEN
THOMAS REDMOND
PLAINTIFF
AND
THE MINISTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS
JUDGMENT of Mr. Justice Herbert delivered on the 31st day of July, 2001.
The Plaintiff is a citizen of the State and resides at Coolree, County Wexford.
1. In his pleadings, amended by consent at the commencement of the trial of this action, the Plaintiff claims:-
A declaration that Section 47 of the Electoral Act 1992 is invalid having regard to the provisions of Article 5, Article 6 and Article 16 1.1 and/or Article 40.1 and/or Article 43.1 of the Constitution of Ireland.
A declaration that Section 13 of the European Parliament Elections Act 1997 is invalid having regard to the provisions of Article 40.1 and/or Article 40.3.1 of the Constitution of Ireland.
A declaration that any condition on candidature for election to Dail Eireann is ultra vires and void, or in the alternative a declaration that any condition imposed must be equal for all eligible persons.
A declaration that any condition on candidature for election to the European Parliament which cannot be satisfied by all eligible persons is ultra vires and void.
Such further and other declaratory order as to this Honourable Court shall seem neet and just.
Damages.
Costs.
2. The particulars of this alleged invalidity are set out in the Statement of Claim as follows:-
Failing to allow all eligible persons to offer themselves for election;
Imposing a condition on a right conferred by the Constitution of Ireland;
Imposing a monetary condition on candidature which in effect excludes or inhibits large numbers of eligible persons from seeking election to Dail Eireann and/or the European Assembly;
Imposing a condition which cannot be satisfied by all eligible persons;
Failing to hold all citizens as human persons equal before the law;
Failing to respect, defend, or vindicate the personal rights of the citizen;
Failing to vindicate the Plaintiff’s right to offer himself for election for membership of Dail Eireann conferred by Article 16 1.1 of the Constitution of Ireland;
Invidiously discriminating between eligible citizens who do not have the means or the backing to pay the deposits required.
Setting an arbitrary precondition for candidature in Dail and European elections;
Failing to provide alternative means by which an eligible person can meet any conditions for candidature.
3. It is pleaded in the Statement of Claim that:-
4. On the 16th of November, 1992 the Plaintiff as an eligible person submitted nomination papers as a candidate for election to membership of Dail Eireann for the constituency of Wexford in the General Election which took place on the 25th of November, 1992.
5. The returning officer wrongfully decided that the nomination paper was invalid because no deposit had been paid and refused to include the Plaintiff as a candidate for election on the ballot paper.
6. On the 13th May, 1994 the Plaintiff as an eligible person submitted nomination papers as a candidate for election to membership of the European Assembly for the constituency of Leinster in the election which took place on the 9th June, 1994.
7. The returning officer accepted the Plaintiff’s nomination but refused to include him as an candidate on the ballot paper by reason of his failure to pay a deposit of £1,000 as required by Section 10 of the European Assembly Elections, Act, 1977.
8. The Plaintiff is and was at all material times unemployed and without suffering undue hardship does not have the means to provide the deposits required to allow him to stand for election either to the Dail or the European Assembly.
9. The Plaintiff wishes to offer himself for election for the constituency of Wexford at the forthcoming general election and is by reason of the aforesaid provisions unfairly precluded and/or inhabited from so doing.
10. The Defendants in their defence, amended at the commencement of the trial to take account of the amendment of the Plaintiff’s pleadings to which I have already made reference, join issue with the Plaintiff on every matter pleaded in the Statement of Claim and in addition deny that the Plaintiff has sufficient locus standi to maintain this claim.
11. Paragraph 7 of the defence delivered by the Defendants is in the following terms:-
“It is denied that the Plaintiff is and/or was at all material times unemployed and/or without suffering undue hardship did not and/or does not have the means to provide the deposits required to allow him to stand for election either to the Dail or to the European Assembly as alleged or at all and in the premises the Defendant does not have locus standi to seek the reliefs claimed or any of them.”
Section 47 of the Electoral Act 1992, which the Plaintiff impugns, provides as follows:-
A candidate at a Dail Election, or someone on his behalf, shall, before the expiration of the time appointed by this Act for receiving nominations, deposit with the returning officer the sum of three hundred pounds and if he fails to do so his candidature shall be deemed to have been withdrawn.
The deposit to be made by or on behalf of a candidate pursuant to this Section maybe made by means of legal tender or, with the consent of the returning officer, in any other manner.
Section 49 of the Act provides that the latest time for delivery of nomination papers to the returning officer shall be 12 noon on the 9th day (disregarding any excluded day) next following the day on which the writ or writs for the election is or are issued. By Section 45 it is provided that a person shall not be entitled to have his name included in a ballot paper as a candidate at a Dail Election unless nominated as provided by the Act and the nomination papers ruled valid by the returning officer. This ruling is governed by Section 52 of the Act. By Section 46(1) of the Act at a Dail Election a person may nominate himself as a candidate or with his consent be nominated by a person registered as a Dail elector in the constituency for which he proposes to nominate the candidate.
By Section 48(2) of the Act a deposit is forfeited unless as provided by Section 48(1) the candidate is elected or if not elected is credited at any stage of the counting of votes with more than one quarter of the quota, or dies before the poll is closed or withdraws his nomination in the manner provided by Section 54 of the Act, or has not been validly nominated within the time provided for the receipt of nominations.
Section 13 of the European Parliament Elections Act 1997, which the Plaintiff also impugns provides:-
“A candidate at a European election or someone on the candidates behalf shall, before the expiration of the time appointed by this Act for receiving nominations deposit with the returning officer the sum of £1,000 and if the said sum is not so deposited the candidature may be deemed to have been withdrawn.”
Section 10 of the European Assembly Elections Act, 1977, (repealed), which was the law in force on the 13th May, 1994 and at the date of the pleadings in this case was in essentially identical terms to Section 13 of the European Parliament Elections Act 1997 but was gender positive.
12. A deposit under Section 13 of the European Parliament Elections Act 1997 is forfeited on the same terms as Section 48 of the Electoral Act 1992 except that the candidate must have obtained votes exceeding one third rather than one quarter of the quota.
13. In neither the Electoral Act 1992 nor the European Parliament Elections Act 1997 is any power given to the returning officer to waive or to reduce the deposit required and the same was true of the repealed European Assembly Elections Act 1977.
14. An issue arose on the pleadings as to whether the returning officer for the Wexford Dail constituency on the 16th November, 1992 wrongfully withdrew his acceptance of the Plaintiff’s nominations papers because the Plaintiff could not make the deposit of £300 at the same time and issued in lieu a ruling that the nomination was not acceptable. At the commencement of this trial Counsel for the Plaintiff indicated that this issue which was contested by the Defendants on the facts and in law was no longer being persued.
15. The Plaintiff was born in 1932. It is not disputed that he is a citizen of the state it is not disputed by the Defendants is not placed under disability or incapacity as regards eligibility for membership of Dail Eireann by the terms of the constitution itself or by law, meaning the provisions of Section 41 of the Electoral Act 1992 which enumerates the classes of persons who are not eligible for election as members of Dail Eireann. It is not disputed by the Defendants that the Plaintiff is not excluded by the provisions of Section 11 of the European Parliament Elections Act 1997 from candidature for membership of the European Parliament. This action was brought by the Plaintiff as an individual citizen. It is not a representative action.
16. In 1993 the Plaintiff returned to Ireland having spent the previous six years as a construction worker in British Colombia and England. He had savings of about £700. He purchased a site outside the town the Wexford and built a dwelling house on it. He set up a building company with his brothers, building mostly local authority houses and schools. In 1975 he suffered an injury to his back and soon thereafter had to retire from the business. At that time he had savings of £2,000 and some land which he sold for £110,000 nett.
17. In 1979 he purchased a field at Tagoath County Wexford. In 1980 he built a house on the field for approximately £31,000. His wife carried on a guesthouse business at this house until they separated in 1985 and thereafter she retained this property as part of the separation agreement.
18. In 1980 he also purchased 19 acres at Coolree County Wexford. He built a house on this land for approximately £17,000. In 1988 he sold this house and half an acre of land for £37,000 nett. He used £10,000 in building a poultry unit on the remainder of the land. As he was unable to obtain planning permission for an additional dwelling house on the land he lived in a single room within the poultry shed. His poultry business failed because of a market recession related to a series of outbreaks of salmonella poisoning nation-wide. He then spent an additional sum of £5,000 converting half of the shed into a living area.
19. In 1991 he inherited a sum of £5,000 on the death of his father. He used this money in purchasing materials to fit out a kitchen and a bathroom in the shed doing the work himself. In 1992 the balance remaining of the £37,000 had been used up. In 1992 his only income was from the land of which nine acres was suitable for pasture the remainder being covered in rock and scrub. He received £900 per annum from the Rural Environment Protection Scheme and between £500 and £700 per annum from the sale of hay from the nine acres. He lived and lives he said very frugally. His daughter, his own child, provides him with his main meal every day. He has no debts. He allows himself one beer on Saturday nights. He has no savings.
20. Though unemployed since 1980, he is not in receipt of any form of social welfare payments because he said he declined to furnish the relevant authorities with an authorisation to make enquiries concerning him from financial institutions though he stated that he had informed the authorities that he was willing to accompany an officer of the Department to any bank of their choosing and to answer any queries.
21. In the mid 1980’s he became interested in becoming a member of Dail Eireann with the intention of representing the unemployed and people at the lower end of the socio-economic scale whom he believed were not being adequately represented by the existing political parties. He did not put himself forward as a candidate in the Dail elections of 1982 and 1989. In 1991 he tried to form a political party with the name,” Natural Justice Party”. He placed some advertisements in newspapers inviting interested persons to contact him. Some persons from Wexford. Limerick and Galway did contact him but the party never came to be formed. He decided thereafter to contest the election for the 27th Dail on the 25th of November, 1992 in the Wexford constituency as an independent candidate. It was not disputed by the Defendants that Mr. Redmond a man of very strong and genuinely held political views.
22. On the 5th November, 1992 the Electoral Act 1992 was passed into law. By Section 47 of that Act the amount of the deposit required to be made by candidates at Dail elections was increased to £300 from £100 at which level it had been fixed by Section 20(1) of the Electoral Act, 1923. It is interesting to note the other provisions of Section 21 of the Electoral Act, 1923 regarding deposits:-
“the deposit may be made by the deposit of any legal tender or, with the consent of the returning officer, in any other manner.
If after a deposit is made the candidate is withdrawn the deposit shall be returned to the person by whom the deposit was made, and if the candidate dies after the deposit is made and before the poll is closed, the deposit, if made by him, shall be returned to his legal personal representative, or if not made by him, shall be returned to the person by whom the deposit was made.
If a candidate is not elected the deposit made by him or his behalf shall be returned to the person by whom the deposit was made as soon as practicable after the result of the election is declared, unless the number of votes polled by the candidate does not exceed one third of the quota as ascertained in accordance with the rules contained in the Third Schedule of this Act, and in such case the deposit shall be forfeited to Saorstat Eireann. For the purposes of this subsection the number of votes polled by the candidate shall be deemed to be the greatest number of votes at any time credited to him in accordance with the Rules contained in the Third Schedule to this Act.
If a candidate is elected the deposit made by him or on his behalf shall be dealt with as follows:-
If the candidate takes the oath as a member of the Oireachtas to which he is so elected the deposit made by him or on his behalf shall be returned to him as soon as he has taken such oath.
If a candidate does not take the oath as a member of the Oireachtas to which he is so elected the deposit made by him or on his behalf shall, on the dissolution of such Oireachtas, be forfeited to Saorstat Eireann unless the candidate shall, before the dissolution of such Oireachtas have died without having taken such oath, and without having regained membership or become disqualified, in which case the deposit aforesaid shall, as soon as practicable after his death, be returned to his legal personal representative.
If a candidate is nominated at a general election in more than one constituency he shall in no case be entitled to have more than one deposit returned to him, and if but for such subsection such candidate would be entitled under this section to have more than one deposit returned to him, only such one as the Minister for Finance shall direct of such deposits shall be returned to him, and the other deposit or deposits shall be forfeited to Saorstat Eireann.”
23. Considerable emphasis was placed by Counsel for the Plaintiff on the timing and threefold amount of this increase.
24. On the 16th November, 1992, the Plaintiff in person delivered his nomination papers to the returning officer. The details of what occurred thereafter are no longer an issue in these proceedings and suffice it to record that the returning officer refused to accept the nomination papers as the Plaintiff was unable to provide the deposit of £300. The Plaintiff’s name did not therefore appear on the ballot paper. Unfortunately by way of protest he chose to picket the Polling Station and was arrested and charged with obstructing an election.
25. In the course of cross examination the Plaintiff accepted that he was aware in 1991 that a deposit would be required if he wished to stand as a candidate in the Dail Eireann Election. When asked why he did not make provision for this deposit out of his inheritance in 1991 of £5,000, he responded that the provision of a bathroom and kitchen were urgent necessities and the purchase of the materials alone absorbed the whole of his inheritance. He said that he had no other resources and was living, “on the breadline”. He stated that he had gone to a bank in Wexford town where he was known and sought a loan for the purpose of fighting the election. He said that although he was prepared to offer the shed and the land as security for the loan the bank refused to make the loan on, he believes, policy grounds. He rejected the suggestion by Counsel for the Defendants that he had sought this loan in a manner which invited refusal.
26. In 1993 he published a 127 page booklet entitled, “The Rules of Natural Justice”. He gave evidence that all the typing for this work was done by his daughter who also provided the £600 or thereabouts necessary for printing and publishing. I have read this booklet which despite its title is not an academic treatise on moral philosophy of political theory but sets out Mr. Redmond’s own social, moral and political opinions and his proposals for reform including indeed constitutional reform.
27. The text is divided into 22 chapters with the following headings: Constitution and Artificial Laws: Antiques and Diamonds: The Arms Industries: The New Electoral System based on Natural Justice: Constitutions based on Natural Justice: How Natural Law Works and Guarantees our Survival: Fundamental Natural Rights of All Life: Natural Rights and Duties of Citizens under Natural Law: Contracts, Agreements, etc, to comply with Natural Justice: State Employment and Family Incomes: Health Care and Competitive Services: Education Policy and the Rules of Natural Justice: Tax Revenues, Licences Levies and Social Welfare Contributions: Unemployment, Pensions and Social Welfare Entitlements: Inflation, its Causes Effects and Possible Remedies: Bottom Up Investment Alternatives: Media, News, Reports, Selective Interviews, Corrections: Inflation-Devaluation: Foreign Borrowings and Debt: Restrictions on Growth and Market Quotas: Nationalism: United Nations. At p.42 of the Booklet, the Plaintiff makes the following statement:-
“The illegal practice of demanding Election Fees or so called Deposits from Candidates, which only the wealthy can afford and all forms of political censorship would be abolished, (under a new Electoral System based on Natural Justice for General Elections; Ireland and the European Community).”
28. On the 29th November, 1993 the Plaintiff was convicted on a charge of interfering with and obstructing an election and was fined £300. On the 9th of December, 1993 the Plaintiff issued a Civil Bill, No. 791 – 93 Eastern Circuit County of Wexford, naming the County Registrar and Returning Officer, the Attorney General, the Government and State of Ireland and their Agents as Defendants. These proceedings were issued by Mr. Redmond in person and claimed:-
“£30,000 damages and loss of earnings, suffered to date as a result of the Defendants actions which denied me my natural right to stand as a candidate to freely contest the Leadership in the Irish General Elections of November 1992 at the Courthouse Co. Hall, Wexford.
After legislating for and demanding candidate fees or deposits knowing that such fees are well beyond the financial means of nearly one third of all Irish Citizens, most of whom are forced to live on or below the poverty line failing to provide a reasonable alternative for Irish citizens with no financial means, wishing to contest the Elections to represent their constituencies.
Attempting to manipulate the voters, and their dependants, by electoral fraud, and predetermining the results of the Elections in their own favour.
Kidnapping and holding me as a political hostage at “Johns Road Wexford” to facilitate the Electoral Fraud.
Wrongful imprisonment.”
29. A defence was entered on behalf of the Defendants to this Civil Bill on the 24th March, 1994. On the 30th March, 1994 the Plaintiff was arrested for failure to pay the fine imposed by the Court. He was taken to Mountjoy Prison where he went on hunger strike and refused to wear prison clothes. He served 4 days of the default term of 10 days. His Civil Bill action came on for hearing at Wexford Circuit Court in May 1996 and was dismissed.
30. In April 1997 the Plaintiff sought a loan of £300 from the Bank of Ireland in Wexford town as a deposit to fight the then anticipated General Election. What was subsequently called for the 6th June, 1997. His application was refused as the bank considered that he did not have the capacity to repay the loan. He attempted to obtain a loan from other financial institutions utilising the services of Finbar Gahan and Company Accountants, but his application was refused in all cases on grounds of insufficient capacity to service the loan. He denied that he had sought these loans in such a manner as to guarantee a refusal. On the 15th April, 1997 the Plenary Summons in these Proceedings was issued, and the Statement of Claim followed on the 23rd April, 1997.
31. On the 13th May, 1997 the Plaintiff obtained an Order abridging the time for the service of a Notice of Motion returnable for the 15th May, 1997 seeking an Order, “directing the Defendants their servants or agents to place the Plaintiff on the ballot paper when duly nominated as a candidate in the forthcoming General Election for the constituency of Wexford without the requirement of him furnishing £300 deposit.
32. This Motion came on for hearing before Mr. Justice Shanley who, I am informed, by Counsel for the Plaintiff, without contradiction by the Defendants, held that though there was a serious issue to be tried the balance of convenience lay in permitting the election to proceed and that in addition there had been considerable delay on the part of the Plaintiff in seeking relief following upon the dismissal of his Circuit Court Proceedings in May 1996.
33. On the 23rd May, 1997 the Plaintiff presented a signed nomination form to the Returning Officer for the Dail Constitutency of Wexford but as he did not pay the required deposit of £300 by 12 noon on the 26th May, 1997 his name was not entered on the ballot paper.
34. After two motions for Judgment in Default of Defence, the Defence of the Defendants was delivered in these proceedings on the 13th October, 1997.
35. In 1998 the Plaintiff transferred the lands and shed to his daughter while retaining a right of residence in the shed and the income from the land. This transfer was effected through the offices of M.J. O’Connor and Company, Solicitors, Wexford. His daughter is single and works as a part time secretary for a Building Contractor. She lives nearby at Clonard, County Wexford. The Plaintiff denied that he made this transfer with the intention of rendering himself without assets for the purposes of these proceedings.
36. The Plaintiff stated that he last held a bank account in the early part of the decade 1980/1990. He said that he had no need for such an account since then. He recalled that he had obtained the £37,000 on the sale of the house and half acre of land at Cloonree in the form of a cheque from the Solicitors for the purchaser. He believed that he had taken the cheque to the branch of the bank on which it was drawn and had obtained cash and bank drafts for the total amount.
37. Mr. Redmond said that he had not sought to become a member of the County Council or the Urban District Council. He said that he considered this to be a waste of time as power was concentrated in the hands of the County Manager. He also claimed that statistics showed that an involvement in local politics could be a disadvantage in seeking election to membership of Dail Eireann. He believed that it was better to concentrate upon seeking such membership. He said that if no deposit was required he would stand for election to Dail Eireann in the next Dail Elections. His programme would be to highlight the problems of poor people and the unemployed who he was convinced had no voice in the government of the country.
38. On the 23rd March, 1999 a Notice of Intention to Proceed was served by the Plaintiff and these proceedings were set down for trial in April 1999. I have been furnished with a Book of Affidavits which were sworn on behalf of both sides for the purpose of the Interlocutory Application. They are not evidence in these proceedings other than prima facie evidence of the fact that they were sworn by the individual deponents and filed on behalf of the indicated party on the dates set out.
39. No evidence was called by the Defendants relative to these matters. I state this merely as a fact without any criticism whatsoever intended.
40. For a person deliberately and consciously to dispossess himself of assets or to neglect to avail without some reasonable cause of a lawful and readily available means of bettering his financial position unattended by any unacceptable risk with the sole or principle object of pleading impoverishment would be an abuse of the legal process. A necessity thus arising, however genuine, could not legitimately form the basis of a cause of action or a defence to an action. Having had the opportunity of observing the Plaintiff giving his evidence, and his bearing under a very fair but rigorous cross examination, and having carefully considered that evidence I make the following findings:-
41. The Plaintiff is now and has been unemployed since in or about 1980.
42. The Plaintiff now exists and in 1992, 1994 and 1997 existed in very impoverished circumstances.
43. His unemployment and impoverishment are not due to any deliberate act or omission on his part.
44. He was in 1992, 1994 and 1997, and he would now be, unable without undue hardship to provide the deposit of £300 and £1,000 required by law.
45. As a citizen otherwise eligible for membership of Dail Eireann and membership of the European Parliament he was unable in 1992, 1994 and 1997 and would now be unable to have his name inserted in a ballot paper solely by reason of this inability.
46. The impact of the legal requirement for a deposit of £300 in Dail elections and £1,000 in European Parliament elections in the Plaintiff’s very impoverished circumstances has resulted in prejudice to the Plaintiff as depriving him of a constitutional right to stand for election to those Institutions.
47. Having made these findings I am satisfied that the Plaintiff, as an individual citizen has a sufficient locus standi to maintain these proceedings, ( East Donegal Co-operative Livestock Mart Limited -v- The Attorney General (1970) I.R. 317: Cahill -v- Sutton, (1980) I.R. 269: Norris -v- The Attorney General (1984) IR 36).
48. In these circumstances I do not consider it necessary or appropriate to set out a full statement of the evidence of Professor Nolan the distinguished expert in demography who gave evidence in the Plaintiff’s case. This evidence addressed the question of defining, “poverty”: the eight criteria and the income threshold levels adopted for this purpose by the National Anti Poverty Strategy: the national percentage of actual households living in poverty in the years 1987, 1994 and 1997 based upon surveys: and derived from these figures, the number of citizens over the age of 21 living in poverty in each of these years.
49. No evidence was adduced by the Plaintiff from which the Court could determine whether or not the Plaintiff was, “poor” by reference to these eight criteria. However what may fairly be said is that in 1994 and 1997 his average weekly income of between £26.84 and £30.68 was very substantially below the income threshold for poverty for a single adult household.
50. Professor Nolan also gave evidence that a person on a low threshold income would have a very limited capacity to raise a sum of £300 and would be most unlikely to have savings of that amount. He stated that while it was generally possible for even poor persons to raise money through Credit Unions or from Money Lenders, the repayment of such borrowings would impose another severe burden on persons who were already in difficulty. He gave evidence that the number of poor households in the state remained unchanged between 1987 and 1994, at 15% of the population. This had been reduced to 10% in 1997. He agreed that this reduction of 5% represented a significant number of people.
51. I shall first consider the submission by the Plaintiff that Section 47 of the Electoral Act 1992 is unconstitutional having regard to Article 5, Article 6 and Article 16 Section 1 subsection 1 of the 1937 constitution.
Article 16 section 1 and Article 16 section 7 of the constitution provide as follows:-
“Every citizen without distinction of sex who has reached the age of 21 years and who is not placed under a disability or incapacity by this Constitution or by law, shall be eligible for membership of Dail Eireann.
I. All citizens
II. Such other persons in the State as may be determined by law, without distinction of sex who have reached the age of 18 years who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dail Eireann, shall have the right to vote at an election for members of Dail Eireann.
No law shall be enacted placing any citizen under disability or incapacity for membership of Dail Eireann on the ground of sex or disqualifying any citizen or other person from voting at an election for members of Dail Eireann on that ground.
No voter may exercise more than one vote at an election for Dail Eireann, and the voting shall be by secret ballot.
Subject to the foregoing provisions of this Article, elections for membership of Dail Eireann, including the filling of casual vacancies shall be regulated in accordance with law.”
52. The official text of the Constitution in the English Language uses the expression, “shall be eligible for membership of Dail Eireann”. The Official Text in the National Language uses the words, “Ta se intofa ar chomhaltas Dhail Eireann”, which the parties agreed, literally translated, means “shall be electable to the membership of Dail Eireann”, (Bunreacht na hEireann: a study of the Irish Text” Micheal O’ Cearuil, page, 264). This latter more clearly expresses the limited right guaranteed to citizens of the State by Article 16 Section 1 subsection 1 of the Constitution. Since it is manifest from a consideration of Article 16 as a whole and in particular Article 16 Section 2 subsection 5 that only the member who was Chairman immediately before the dissolution of the Dail can attain to membership without being elected in the manner provided, I do not consider that there is any real lack of correspondence between the two Official Texts.
53. In a case entitled, In Re: The Matter of Reference under Article 26 of the Constitution to the Supreme Court of the Electoral (Amendment) Bill, 1983, (1984) I.R. 268, O’Higgins C., J., delivering the decision of the Supreme Court held as follows at page 274:-
“The construction of Article 16 s.1 sub-s. 2, must first be approached by a consideration of other provisions contained in that Article and, further, of course, by a consideration of other provisions contained in the Constitution.
These other provisions of that Article (1) prohibit the enactment of any law placing a citizen under disability or incapacity for membership of Dail Eireann on the grounds of sex, or disqualifying on the same grounds any citizen from voting at an election for Dail Eireann; (2) prohibit the exercise by any voter of more than one vote at an election for Dail Eireann; (3) provide for the secrecy of the ballot; (4) provide for the ratio between members of Dail Eireann and the population; (5) impose upon the Oireachtas an obligation to revise constituencies at least one in every 12 years, with due regard to changes in distribution of the population; (6) provide for elections to be on the system of proportional representation by means of a single transferable vote; (7) prohibit the enactment of any law providing for the number of members to be returned for any constituency being less than three; (8) provide that a general election shall take place not later than 30 days after the dissolution of Dail Eireann; (9) provide that the same Dail Eireann shall not continue for a longer period than seven years from the date of its first meeting; (10) provide that polling at every election for Dail Eireann shall, as far as practicable, take place on the same day throughout the country; (11) impose an obligation to make provision by law to enable the member of Dail Eireann who is the Chairman immediately before the dissolution to be deemed, without an actual election to be elected a member of Dail Eireann at the ensuing general election; (12) finally, by Article 16, s. 7, they provide that, subject to the foregoing provisions, elections for memberships of Dail Eireann, including the filling of casual vacancies, shall be regulated in accordance with law.
These provisions indicate a total code for the holding of elections to Dail Eireann setting out the matters which would appear to be necessary other than minor regulatory provisions. This code provides for the eligibility of candidates; the persons entitled to vote; the limitation of one vote for each voter; the standards for determining the number of members; the obligation to revise constituencies; proportional representation, the single transferable vote and a secret ballot as the method of election; a minimum of three members for each constituency; a limit in time within which general elections must take place after a dissolution; the maximum term of a Dail; a provision for the timing of polling throughout the country; and an obligation to provide for the automatic election of the Chairman of the Dail.
In contrast with this code of essential features of elections for Dail Eireann, the matters which are left to be regulated by law would appear to be; (a) the disqualification of citizens from voting; (b) the provisions with which citizens must comply in order to have the right to vote; (c) the fixing of the number of members of Dail Eireann within the ratio laid down by the Constitution; (d) the provision, subject to the minimum of three, of the number of members for each constituency; (e) the fixing of the date of a general election subject to a restriction as to the maximum period after the dissolution of the Dail; (f) the period during which the same Dail may continue subject to the Constitutional maximum of seven years; (g) the details of the mandatory provision for the re-election of the Chairman of Dail Eireann.
Viewed in this way the entire provisions for Article 16 would appear to form a constitutional code for the holding of an election to Dail Eireann, subject only to the statutory regulation of such election.”
And at page 276:-
“It is the view of the Court that the argument fails by reason of the clear distinction between the provisions of Article 16, Article 12 and Article 47, which provide the mechanism by which the people may choose and control their rulers and their legislators, and Articles such as Article 40 and Article 44 which grant to individuals particular rights within society in relation to the organs of the State.”
54. The limited right of citizens to be electable to membership of Dail Eireann is thus clearly identified as deriving from and constituting an essential feature of this Article 16 code and not from any regulatory laws authorised by Article 16 Section 7. O’Higgins C., J., expressly contrasts this essential feature of the Article 16 code with what he termed the, “minor regulatory provisions”, authorised by Article 16 Section 7 and which he enumerates in his Judgment.
55. The fundamental entitlement of citizens to participate in government as a right must follow from the declaration in Article 5 of the Constitution that, “Ireland is a ………… democratic State.” Article 6 of the Constitution additionally proclaims the right of the Irish people to designate the rulers of the State. The right of all adult citizens to stand for election to the national legislature is an essential feature of a democratic State. The power therefore granted to the Oireachtas by the Constitution to place citizens under disability or incapacity for eligibility for membership of Dail Eireann must be limited in its application.
56. In my judgment this power conferred on the Oireachtas is only to be exercised for objective and weighty reasons, for example to maintain in changing circumstances the tripartite division of the powers of government upon which our democratic system is based and perhaps to safeguard the security of the State. I am satisfied that the Oireachtas does not have power under Article 16 Section 1 subsection 1 to create impediments to, or impose conditions on, eligibility for membership of Dail Eireann in the nature of deposit requirements.
57. The only citizens placed under disability or incapacity by the Constitution itself are those exercising a particular social function, – The President (Article 12 Section 6 subsection 1); the Comptroller and Auditor General, (Article 33 Section 3); the Judges, (Article 35 Section 3),- who are incapacitated solely by reason of their office. Article 16 Section 1 subsection 3 provides that a citizen may not be placed under such disability
or incapacity by a reason of sex and Article 44 Section 2 subsection 3 provides that the State shall not impose any disabilities on the ground of religious profession belief or status. These expressed references in the Constitution are probably an incident of Irish history and what Kenny, J., termed, “the constitutional intellectual climate of 1937,” ( Crowley and Others -v- Ireland and Others , (1980) I.R. 102 at 126).
58. Power to render citizens ineligible for election to Dail Eireann is expressly conferred upon the Oireachtas by Article 16, Section 1 subsection 1 of the Constitution. It is therefore totally unlikely that the framers of the Constitution intended to confer the self-same powers by Article 16 Section 7. That this is so is clearly observable by a consideration of the provisions of Article 16 Section 7 itself. It is first stated to be “subject to the foregoing provisions of this Article”, and then it confers nothing more than a right to regulate elections. The Oireachtas is empowered to establish by law procedural and administrative rules and measures for the proper and orderly conduct of elections. The requirement of a deposit is not just a matter of rules and procedures. Such a requirement involves the imposition of an impediment to participation in the election and is not, as was clearly intended by Article 16 Section 7, nothing more than the ordering of such participation.
59. I am driven therefore to the conclusion that as contended by the Plaintiff the provisions of Section 47 of the Electoral Act, 1992, are ultra vires the powers of the Oireachtas and are unconstitutional.
60. I now come to deal with the Plaintiff’s main argument as regards Section 13 of the European Parliament Elections Act, 1997 and his alternative argument with regard to Section 47 of the Electoral Act, 1992, that both are repugnant to the provisions of Article 40, Section 1 of the Constitution as infringing his fundamental right as a human being to be held equal before the law.
61. These impugned sections apply to all citizens electable to membership of Dail Eireann or the European Parliament without distinction or qualification. That they will impact upon such persons differently according to their means, or perhaps, more accurately, their disposable income hardly admits of argument. On the evidence the majority of citizens would not be deterred from standing for election to Dail Eireann or the European Parliament by the requirement to make such a deposit. However, on the evidence a considerable percentage of the adult population of the State who would otherwise be eligible to stand for election to Dail Eireann or the European Parliament would be prevented by these requirements from putting themselves forward for election.
62. This right to stand for election to Dail Eireann, though it is subject to certain limitations remains a most basic and important right guaranteed to all citizens over the age of 21 years by Article 16 Section 1 subsection 1 of the Constitution and is an essential aspect of the nature of this State, which is proclaimed by Article 5 of the Constitution to be a democratic State (as to the characteristics of which see McKenna -v- An Taoiseach and Others (1995) 2 IR 10 at 52 per Denham, J.). It is contended by the Plaintiff that these statutory requirements discriminate invidiously between eligible citizens such as the Plaintiff without means and eligible citizens with sufficient or ample means. The plaintiff contends that this is a breach of the fundamental right guaranteed to him by Article 40 Section 1 of the Constitution which provides that:-
“All citizens shall, as human persons, shall be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
63. It is essential to note, as has time and again been emphasised by the Courts that what is guaranteed by Article 40 Section 1 to every citizen is a right to be treated equally by the laws of the State as human persons.
In the case of Quinn’s Supermarket Limited and Another -v- The Attorney General and Others , (1972) I.R. 1 at 13, Mr. Justice Walsh with whom Ó Dálaigh C.J., Budd J., and Fitzgerald J., concurred held as follows:
“The provisions of Article 40, s. 1, of the Constitution were discussed in the decision of this Court in The State (Nicolaou) -v- An Bord Uchtála , (1966) I.R. 567 at 639. As was there decided this provision is not a guarantee of absolute equality for all citizens in all circumstances but is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. This list does not pretend to be complete; but it is merely intended to illustrate the view that this guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow. Furthermore, it needs scarcely be pointed out that under no possible construction of the Constitutional guarantee could a body corporate or any entity but a human being be considered to be a human person for the purpose of this provision. In my view this provision has no bearing whatsoever upon the point to be considered in the present case, as no question of human equality or inequality arises. It is also quite clear that the provision cannot be invoked to support the terms of the Order of 1948 by reference to differences of capacity, physical or moral, and of social function.”
64. And at page 31 of the Report, Kenny, J., held that:-
“This guarantee, however, is one of equality before the law insofar as the characteristics inherent in the idea of human personality are involved: it does not relate to trading activities or to the hours during which persons may carry on business for neither of these is connected with the essentials of the concept of human personality. The qualifying clause in the Article which provides that the State may in its enactments have regard to differences of capacity and social function shows that the Article is not a guarantee of equality before the law in all matters: see the decision of this Court in The State (Nicolaou) -v- An Bord Uchtála .”
65. In my Judgment a law which has the effect, even if totally unintended of discriminating between human persons on the basis of money is an attack upon the dignity of those persons as human beings who do not have money. This is far removed for instance from issues such as alleged rights to wage parity or increases or issues of the uneven impact of taxation upon citizens in various marital or non-marital relationships or on farmers or householders or occupiers. The history of poverty and of social deprivation in Ireland, but by no means exclusively in Ireland, demonstrates overwhelmingly the extent to which the essential dignity of persons as human beings is involved. In my Judgment this is exactly the type of discrimination for which the framers of the first sentence of Article 40 Section 1 of the Constitution were providing.
66. But there is no absolutism involved here: it is clear from the second sentence of Article 40 Section 1 itself that the State in its enactments may discriminate between citizens in the interest of the common good. But there is a limit to such discrimination. In the case of O’B -v- S . (1984) I.R. 316 at 335, the Supreme Court, per., Walsh, J., held that:-
“Thus, it may be seen from the decisions of this Court referred to above that the object and the nature of the legislation concerned must be taken into account, and that the distinctions or discriminations which the legislation creates must not be unjust, unreasonable or arbitrary and must, of course, be relevant to the legislation in question. Legislation which differentiates citizens or which discriminates between them does not need to be justified under the proviso if justification for it can be found in other provisions of the Constitution. Legislation which is unjust, unreasonable or arbitrary cannot be justified under any provision of the Constitution conversely if legislation can be justified under one or more Articles of the Constitution, when read with all the others, it cannot be held to be unjust within the meaning of any Article: see the decision of this Court in Dreher -v- The Irish Land Commission and also Quinn’s Supermarket Limited -v- The Attorney General at p. 24 of the report.”
67. Such unjust, unreasonable or arbitrary distinctions or discriminations are commonly referred to in reported cases as, “invidious”. In my Judgment the terms unjust, unreasonable or arbitrary are used disjunctively by Walsh. J., so that the existence of any one of these circumstances would be sufficient to render the particular discrimination or distinction unconstitutional.
In the case of Cox -v- Ireland (1992) 2. I.R. 503, the Supreme Court per Finlay, C.J., at 523 held that:-
“The State must in its Laws as far as practicable in pursuing these objectives continue to protect the constitutional rights of the citizen. (This case related to crime deterrent measures.)”
68. In the case of de Burca and Anor -v- The Attorney General (1976) I.R. 38, (a case relating to the Juries Act, 1927), O’Higgins C.J., in the course of his Judgment at p. 61 said:-
“I come now to the provisions of the Act which lay down a minimum property qualification. These provide that, in order to be eligible for jury service, a citizen must not only be within the statutory ages but must also be rated, either alone or jointly, in respect of land in a jury district for a rateable value which equals or exceeds the minimum rating qualification declared by the Minister. Here again there is a discrimination amongst citizens. Is this discrimination permissible, or is it of such a nature as to be regarded as being invidious? This is a discrimination based not only on property but necessarily on a particular kind of property, viz, an interest in lands, tenements and hereditaments, the possession of which constitutes the person concerned a ratepayer. The operation of such a qualification means, in effect, that the vast majority of male citizens in each jury district are excluded from jury service. If service be regarded as a right, then this means the exclusion of many thousands of citizens merely because they do not possess a particular type of property. On the other hand if service be regarded as a duty, these provisions mean that the obligation to discharge this duty is confined to a particular section of citizens not because they are property owners but because they have a particular interest in a particular type of property. Without question, this is not holding all citizens as human persons to be equal before the law, such as would be the case with an age discrimination, generally applied. I cannot see that this discrimination can be excused or condoned by the second sentence of s. 1 of Article 40. This is not a question of having due regard to the differences of capacity, physical or moral, or of social functions because it is based on a particular type of property qualification. Therefore it appears to me that the inclusion in s. 3 of the Act of 1927 of a minimum rate in qualification is not consistent with the provisions of Article 40, s. 1 of the Constitution.”
69. In the same case, in the course of his Judgment Walsh, J., at p. 68/69 said:-
“The property qualification in the Act of 1927 has been impugned as being inconsistent with the provisions of Article 40. It is true that for a long time before the foundation of the State and since then, jury service was based upon a property qualification. So also was the franchise in other periods. Up to comparatively recent times, the franchise in local government elections in this State was based upon a property qualification. The fact of the existence of property qualifications in such circumstances, now or in the past, is not a valid argument to rebut a claim of inconsistency with the provisions of Article 40 of the Constitution. The property qualification undoubtedly discriminates between those citizens who have the qualification and those who have not and does so solely upon the basis on the amount of the poor-law valuation of property in a particular district. This property qualification could not conceivably be said to refer to the physical or moral capacity of a prospective juror. Can it seriously be suggested that a person who is not the rated occupier of any property, or who is not the rated occupier of property of a certain value, is less intelligent or less honest or less impartial than one who is so rated? The answer can only be in the negative. Can such a discrimination be based on social function? Just as a man’s intelligence and honesty is not directly or at all proportionate to the poor-law valuation of his houses or lands, which seems to be the underlying assumption of the property qualification, so it cannot be said that such a qualification marks him out as having a social function which makes him more fitted for jury service than another-if, indeed it does in any way constitute a social function within the meaning of Article 40, s. 1, of the Constitution.
If a case could be made for having a property qualification, it could not reasonably be confined to one particular type of property. It would be just as rational to suggest that jury service should be confined to the owners of motor cars exceeding a certain horse-power, or motor cars of more than a certain value. This particular type of property qualification totally ignores the realties of wealth. A man may be a most highly qualified person for jury service and may be a very wealthy man and yet he may not be the rated occupier of any property. On the other hand, the rated occupier of property may be illiterate and poverty stricken; he may be even a person of unsound mind. For the reasons I have stated I am of opinion that such discrimination as is created by the distinction between the rated occupier of property of a certain value and everybody else is one which is inconsistent with and violates Article 40, s. 1, of the Constitution and, therefore, is a distinction which could not be validly the subject of legislation by the Oireachtas.”
70. This passage from the Judgment of Mr. Justice Walsh disposes of what I might term the long pedigree argument advanced by the Defendants in support of the impugned sections. I adopt what was held by Mr. Justice Walsh and I will not refer further to this aspect of the case.
71. I accept the argument of the Defendants that Article 16 Section 7 of the Constitution confers on the Oireachtas a power to regulate elections by law which imposes on the Oireachtas a corresponding duty so to do. But, on an integrated construction of the Constitution, such a power, which in any event has been categorised in the Judgment of Chief Justice O’Higgins to which I have already referred as, “minor”, and, “regulatory”, could not entitle the Oireachtas to impose on prospective candidates for membership of Dail Eireann conditions of entry to the poll which are repugnant to Article 40, Section 1 of the Constitution.
72. The Defendants contended that an essential feature of the Regulation of Elections was the necessity to protect the system in all its aspects from abuse by frivolous or vexatious persons, and from commercial or other improper exploitation.
73. Professor Richard Sinnott of University College Dublin, an acknowledged expert in the matter of elections and voting behaviour on which he has written a number of acclaimed works gave evidence during the course of the case for the Plaintiff. Professor Michael Laver, Professor of Political Science at Trinity College Dublin, and author and editor of numerous leading texts on voting, elections, and representative government was called in evidence during the course of the Defendant’s case. Both Professors addressed this issue. I shall now set out the aspects of their evidence which I consider to be relevant to my determination.
74. Professor Sinnott dealt with the history of payments by candidates for election in Ireland and Britain from the 19th Century to the present day. He considered and compared the requirements to secure a place on the ballot paper in Germany, India, Canada and Ireland.
75. In his opinion, there was no real evidence to establish that the deposit requirement has acted as a deterrent to frivolous, vexatious and exploitive persons. He did not believe he said, that the removal of the deposit requirements would result in a proliferation of candidates in Dáil Eireann and European Parliament elections. In considering who might be described as frivolous or vexatious candidates, – in more common parlance often referred to as, “spurious” or “no hopers”, – one had to exercise particular care because candidates were seldom elected on the first occasion of standing for membership of Dáil Eireann, and a not inconsiderable number of distinguished parliamentarians and persons who achieved ministerial office in various Governments had lost their deposits on numerous occasions before being elected.
76. In his opinion a system of nomination with additional assessors or supporting signatures would be just as, if not more effective as a deterrent to the frivolous the vexatious and the exploitive. He accepted that no European or other accepted democratic system permitted an entirely open access to the ballot paper: all had some provisions designed to protect the system from abuse. He accepted that apart from the deposit requirement the Irish system was exceptional open. In his opinion, some form of deterrent to the abuse of the electoral system was desirable. He believed that a system which provided an alternative route to entry onto the ballot paper, even if retaining a deposit option, was less objectionable than the present system of deposit alone.
77. He agreed that the larger the number of candidates on a ballot paper the higher the cost to the State in providing free postal communication to candidates and in the effective supervision of the poll and the counting of the votes. He said that he believed that the likelihood of confusion arising amongst voters from increased numbers of candidates on a ballot paper was at best marginal. He did not accept that an increase in the number of persons standing for election would in any way undermine the effective operation of the system of proportional representation mandated by the Constitution.
78. Professor Sinnott gave his opinion that a system of refundable deposits was less open to objection than a system were there is a highly predictable risk of loosing a deposit despite the reduction of the non-return threshold from one third to one quarter of the quota. He accepted that the deposit for candidature in Britain had been £500 since 1985, but he pointed out that this was a parliamentary system where Parliament was supreme and could control the conditions of election to itself, and, also that the system of election there was a, “first past the post” system, so that the issue of wasted votes was important which was far from the situation under the proportional representation single transferable vote system in this jurisdiction. He stated that lost deposits affected small parties and independent candidates most and recalled that in the 1997 Dáil Eireann elections 37% of all candidates lost their deposits.
79. He agreed that the sum of £300 was small by comparison with the overall cost of election campaigns but he pointed out that this was entirely a factor of the funds available. He was emphatic in his opinion that the present deposit requirements of £300 for Dáil Eireann elections and £1000 for European Parliament elections was unfair and unjust.
80. Professor Laver agreed with his distinguished colleague that all western democracies insisted upon some earnest of bona fides being shown by prospective candidates for membership to the national legislature. As respects this jurisdiction, the Professor considered that there were a number of considerations which merited such an imposition and I summarise these as follows:-
1. Excessively, (Professor Laver’s term), large numbers of citizens offering themselves for election to membership of Dáil Eireann would undermine the democratic nature of the State.
2. The presence of a large number of names on a ballot paper would serve to confuse the electorate.
3. Voters would be likely to make a choice before reading a long list of candidates to the end and this would not serve democracy.
4. The more unsuccessful candidates there are in an election the more difficult it is to achieve proportional representation so that a major (his term) increase in the number of candidates would serve to undermine the proportional representation single transferable vote system of election mandated by Article 16 Section 2 subsection (5) of the Constitution.
5. The greater the number of unsuccessful candidates the more difficult it becomes for voters to predict the outcome of the election so that their ability to properly manage their vote is lost or impaired.
6. The counting of votes would take longer as the numbers of candidates increased and with more candidates there was a greater scope for more and longer recounts.
7. With many candidates seeking to persuade the electorate within the maximum period of 30 days allowed by Article 16 Section 3 subsection (2) of the Constitution, election campaigns would become disruptive and the electorate could become confused or apathetic.
8. The process of nomination, delivering nominations, and ruling on the validity of nominations would become overwhelmed if large numbers of candidates were to stand for election.
81. Professor Laver said that in his opinion it was reasonable that there should be some test of bona fides to entry onto the ballot paper. He believed that the deposit system had exercised an effective control over the number of candidates standing in Dáil Eireann elections since 1937. He considered that the existence of a deposit requirement in which the deposit is not guaranteed returnable had not acted as a deterrent to bona fides candidates. He believed that a nomination and signatures system would interfere with freedom of expression and favour persons who could afford to pay others to obtain the necessary number of endorsements on their behalf, and, would also favour the larger political parties with a considerable availability of manpower.
82. Under cross examination he accepted that the Irish electorate had demonstrated great sophistication in political matters but he added that until now they had only to choose as between a reasonable number of candidates. He accepted that the deposit requirements would prevent some persons from standing for election but in this regard he said that a most important consideration was the amount of the deposit. He accepted that the present system of deposit requirements presented problems for some but he argued that the amount of the deposits were reasonable particularly having regard to the fact that the European Parliament Constituencies were approximately 10 times the size of Dáil Eireann constituencies. The deposit requirements in his view prevented the system of election from been overwhelmed by large numbers of candidates standing for election. He accepted that the present deposit system does bear unequally on low income persons and that a nomination system with signatures would bear less hard on poor persons.
83. Professor Laver denied that the lower socio-economic classes were not properly represented in Dáil Eireann and, that this had led to an unstable political situation. He felt that a nomination and signatures system could cause problems as regards the verification of the signatures within the very limited time frame allowed for Dáil Eireann elections. He agreed that a nomination and signatures system, if it could be operated in an orderly manner within our electoral system, would be a fair alternative to a deposit system. He considered that if many candidates ran for election the electoral system, would administratively speaking be unable to cope. He said that one had to balance the right to stand with the right to preserve the electoral system from abuse.
84. I find that both Professors agree that a test of bona fides , provided it is fair and reasonable, should be imposed on prospective candidates for election to Dáil Eireann and the European Parliament. Both agree that a nomination and signatures system would provide an alternative to, or an option with, the deposits system and would bear less unequally on low income persons. However, Professor Laver had reservations as to whether such a system could operate in an effective and orderly manner in the event of a considerable increase in the number of persons seeking election. Professor Sinnott was of the opinion that the deposit system standing alone is unjust and unfair, but Professor Laver, while accepting that it bore unequally on low income persons and prevented some persons who might wish to stand from offering themselves for election, considered that the system was not unjust, unreasonable or arbitrary in the context of the electoral system in this State.
85. Mr. Thomas Owens, Solicitor, County Registrar for Cavan and Returning Officer for the Dáil Constituency of Cavan-Monaghan, and, the European Parliament Constituency of Connaught-Ulster, gave evidence during the course of the case for the Defendants. Mr. Owens was accepted by both sides as a Returning Officer of enormous experience. He gave evidence as to the administrative programme which must be carried out and the very many practical problems which may arise and which require solutions in the relatively short period following the dissolution of Dáil Eireann.
86. He said that a person had never come to him who wished to stand in an election but who did not have the necessary deposit. People, he said, would telephone his office and make enquiries in advance about the requirements for entry onto the ballot paper. He said that he had never been obliged to turn down a candidate or to defer a ruling on the validity of a nomination because of the absence of a deposit.
87. In cross-examination he stated that he implemented to the best of his ability whatever electoral programme was set out by the Oireachtas. He had an entitlement to retain extra staff but this was limited by the Fees Order within which he had to operate. He agreed that candidates had at least eleven days to collect signatures and could have made full arrangements for nomination and supporting signatures before Dáil Eireann was dissolved. If the duty of verifying such signatures devolved to Returning Officers it could create an additional burden. However, he believed, that provision could be made in an Act of the Oireachtas providing that a Returning Officer should deem good without further inquiry signatures verified in some appropriate manner, for example, by countersigning or stamping, by some other person such as a member of An Gárda Siochána.
88. No other witnesses were called by either side.
89. I am satisfied, having considered the evidence, and the submissions of Counsel, that the deposits systems required by Section 47 of the Electoral Act, 1992, and Section 13 of the European Parliament Elections, Act, 1997, are not equal or fair in the manner in which they discriminate between the Plaintiff and other citizens of the State as regards electability to membership of Dáil Eireann and the European Parliament. In my judgment none of the matters advanced by the Defendants as stated to be necessary to prevent abuse of the electoral system are sufficient to justify such discrimination and unfairness.
90. What might be categorised as a type of “floodgates” argument, that is, that but for these deposit provisions an excessively large number of citizens would stand for election for membership of Dáil Eireann and the European Parliament and thereby overwhelm the system of election, and in the case of Dáil Eireann elections undermine the democratic nature of the State, is not supported by any evidence other than the opinion of Professor Laver that this is so.
91. There was evidence that persons genuinely interested in becoming members of Dáil Eireannn and who, one assumes, had sufficient means themselves or had access to monetary assistance were not deterred by these deposit provisions or by their predecessors and despite the loss of their deposits, often on several occasions, persisted until they had achieved such membership. In the interests of brevity I decided not to set out this evidence in the judgment. In my judgment, no connection has been established between the existence of these deposit requirements and the numbers of citizens who have stood for election to Dáil Eireann or the European Parliament over the past 64 years.
92. It is altogether improbable that the percentage of poor adult citizens likely to offer themselves for election to these Institutions would be any greater than has been the case with respect to their more fortunate fellow citizens in the same period. In my judgment all the arguments which postulate the emergence, but for these deposit requirements, of “excessively large” numbers of candidates or suggest that but for these requirements there would be, “major” increases in the numbers of adult citizens wishing to stand for election to Dáil Eireann or the European Parliament appear to be based upon surmise and no evidential link has been shown to exist between the number of persons in fact standing for election and these requirements.
93. Likewise, I find no evidence to support the proposition that individual voters would be confused or confounded by an increase in the number of candidates on a ballot paper. It was accepted by the Defendants that Irish voters have shown a high degree of sophistication in making political decisions within what some political theorists consider to be a very complex system of voting. I see no reason why I should accept that such an electorate would suddenly become bereft of this capacity of discernment in the face of a larger choice of candidates on a ballot paper. In the absence of some compelling evidence I simply could not accept such an argument.
94. No evidence has been adduced that an increase in numbers of candidates for membership of Dáil Eireann or the European Parliament would result in insoluble problems in the management of elections or unacceptably long delays in the checking and counting of votes. In any event, in my judgment, it behoves the Oireachtas which has the power and the corresponding duty under Article 16 Section 7 of the Constitution to regulate elections, to adapt the regulatory and administrative system to accommodate this supposed increase in the number of candidates and not to seek to restrict the number of candidates by reference to the capacity of the existing system. The electoral system must be the servant of democracy not its master.
95. It was urged upon the Court by the Defendants that these deposit provisions are necessary and justified as protection to the electoral system from abuse, that is, from misuse by the outlandish, the eccentric, the frivolous, the obsessive, the anti-democratic, and, those wishing to exploit the system for commercial gain. It has not been demonstrated by evidence that these deposits have provided or would provide a deterrent of this nature. It seems trite to comment that these potential abusers of the electoral system would have to be persons of limited means in order to be so discouraged. No evidence was adduced to indicate any tendency to such abuses of the electoral system in this State.
96. If the Court was prepared to accept that such deposits might have such deterrent effect in this regard, and, that the existence of such deterrents was considered to be necessary regardless of whether there was any actual evidence of attempted abuse of the electoral system, the Court would still have to consider whether such a system is just, reasonable and non arbitrary so as to be rationally connected to this declared objective in the context of a democratic State.
97. In my judgment, in the absence of some reasonable alternative route to the ballot paper, such as the nomination and signatures system, to which reference has already been made, the fact that the deposit system, on the evidence, has the effect, even if unsought, of excluding from the ballot paper a considerable percentage of the adult citizens of this State who would be otherwise eligible to stand for membership of Dail Eireann and the European Parliament renders that system unjust, unreasonable and arbitrary. ( Figueroa -v- Canada (Attorney General ), Ontario Court of Justice, per Molloy, J., paragraphs 40 to 49 of the Judgment: Bullock -v- Van Phillip Carter and Others , (1972) Supreme Court of the United States, (US SCR, 31 L.E.d. ii d. 92): Lubin -v- Panish , (1974) Supreme Court of the United States, (US SCR 39 L.E.d. ii d. 702).
98. The decision of the Supreme Court in the case of Finnegan -v- An Bord Pleanala and Others (1979) I.L.R.M. 134 is distinguishable as relating to the exercise of a statutory right and not a constitutional right and in any event two of the reasons given by the Court for upholding as constitutional the deposit provision in Sections 15 of the Local Government (Planning and Development) Act, 1976, which provided for the lodgment of a deposit of £10 with an appeal to An Bord Pleanala, were the fact that the deposit was not so high as to deter genuine appeals and was returnable regardless of the outcome of the appeal.
99. In the circumstances, I find Section 47 and Section 48 of the Electoral Act, 1992, and Section 13 and Rules 8 and 9 in the Second Schedule of the European Parliament, Elections, Act, 1997, to be repugnant to the provisions of Article 40 Section 1 of the Constitution and this is without prejudice to my previous finding with regard to Section 47 of the Electoral Act, 1992. In my Judgment Section 47 and Section 48 of the Electoral Act, 1992, and Section 13 and Rules 8 and 9 of the Second Schedule of the European Parliament Elections Act, 1997, are severable from the remainder of these acts so that this finding of the Court does not impact in any way on the remaining provisions of those Acts. ( Desmond and Dedeir -v- Glackin and Others (1993) 3.I.R. 67 at 107 per Finlay, C.J., in these circumstances.
100. I do not consider it necessary to determine whether there is also an infringement of Article 40 Section 3 subsection 1 of the Constitution whereby 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.
Cooney King Riordan v Minister for the Environment
[2006] I.E.S.C. 61
JUDGMENT of the Court delivered on the 13th day of November 2006, by Murray C.J.
The appellants in each of these proceedings challenged the constitutionality of certain statutory provisions governing the nomination of candidates for election to Dáil Éireann.
The statutory provisions for the nomination of candidates for election to Dáil Éireann are contained in the Electoral Act, 1992 as amended by the Electoral (Amendment) Act, 2002.
The appellants claim that the statutory requirements and procedures laid down in the Act of 1992, as amended, for the nomination of eligible persons as candidates in Dáil elections are incompatible with the provisions of the Constitution, in particular Article 16 and Article 40, because, in general terms, those conditions and procedures are not permitted by Article 16 of the Constitution, are unduly onerous so as to be an impermissible impediment to their constitutional rights to be nominated as candidates and also constitute an invidious discrimination against non-party candidates as compared with candidates who are affiliated to a registered political party and are nominated by that party. The relevant impugned sections are s. 46(4A) and (4B) of the Electoral Act, 1992 as inserted by s. 1(a) of the Electoral (Amendment) Act, 2002.
The appellants in the first and second action each brought separate proceedings before the High Court. However by agreement the actions were heard together, along with a third action which is not the subject of this appeal, by Kearns J. who delivered one judgment dismissing the claims of each of the appellants. These appellants have appealed against the judgment and order of Kearns J.
The appellant in the third action brought similar proceedings before the High Court which were heard and determined subsequent to the aforementioned judgment and decision of Kearns J. He similarly sought to impugn the constitutionality of the aforementioned sections of the Act of 1992, as amended. In addition he claims that s. 46 ss. 5 of the Act of 1992 is unconstitutional because it requires that he be described as “non-party” on the ballot paper rather than as “independent”. In this respect he claims that this is a restriction on him which is not permissible under the Constitution and in particular it is a denial of his right to freedom of expression pursuant to Article 40.6.1.i.
This appellant’s claim was heard and determined in the High Court by Carney J. who, in dismissing the claims of this appellant, relied upon and applied the judgment and decision of Kearns J. in the earlier determined proceedings. In addition he dismissed this appellant’s claim that his constitutional rights were infringed by virtue of the provision which required him to be described as “non-party” on the ballot paper. This appellant appealed against the judgment of Carney J. and this appeal was heard in conjunction with the other appeals.
This is the judgment of the Court in each of the aforesaid appeals.
Relevant Law
The most relevant provisions of the Constitution relied upon by the appellants are:
“Article 5:
Ireland is a sovereign, independent, democratic state.
Article 6:
1. 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.
2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”
The most relevant provisions of Article 16 of the Constitution provide:-
“Article 16:
1.1° Every citizen without distinction of sex who has reached the age of twenty-one years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann.
2° (i) All citizens, and
(ii) such other persons in the State as may be determined by law,
without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dáil Éireann, shall have the right to vote at an election for members of Dáil Éireann.
3° No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of sex or disqualifying any citizen or other person from voting at an election for members of Dáil Éireann on that ground.
4° No voter may exercise more than one vote at an election for Dáil Éireann, and the voting shall be by secret ballot.
16.7. Subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law.”
Articles 40.1 and 40.3 of the Constitution provide as follows:
“1. All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
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.
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.”
As earlier indicated the primary legislative provisions governing elections to Dáil Éireann are contained in the Electoral Act, 1992 as amended by the Act of 2002 and the impugned provisions are found in Part X of the Act of 1992 and in particular s. 46 ss. (4A) and (4B). The relevant portions of s. 46 now provide as follows:
“46(1) At a Dáil election a person may nominate himself as a candidate or may, with his consent, be nominated by another person (being a person registered as a Dáil elector in the constituency for which he proposes to nominate the candidate) as proposer.
…
(4) A candidate may include in his nomination paper the name of the political party registered in the Register of Political Parties as a party organised to contest a Dáil election of which he is a candidate, provided that, at the time the nomination paper is delivered to the returning officer, a certificate in the form directed by the Minister (in this Act referred to as a “certificate of political affiliation”) authenticating the candidature is produced to the returning officer, being a certificate signed by the officer or officers of such party whose name or names appear in the said Register pursuant to section 25(4)(c) …
4A) In the case of a candidate whose candidature is not authenticated by a certificate of political affiliation under subsection (4), the candidate’s nomination shall, before delivery of his nomination paper to the returning officer in accordance with section 50, be assented to by 30 persons (excluding the candidate and any proposer) who are registered as Dáil electors in the constituency.
(4B) The following provisions apply in respect of the assents required by subsection (4A) to the nomination of a candidate referred to in that subsection:
(a) the candidate or the candidate’s proposer, if any, shall complete part of a nomination paper as directed on that paper and lodge the paper in the prescribed local authority offices for the constituency;
(b) the local authority shall number any nomination papers lodged under paragraph (a) in the order in which they are lodged;
(c) where more than one nomination paper for the same candidate is lodged with the local authority, the first such nomination paper shall be deemed to be the nomination paper for that candidate for that election unless the candidature is withdrawn under section 54 or is deemed under section 62(1) to have been withdrawn;
(d) to assent to the nomination, a person registered as a Dáil elector in the constituency shall sign the candidate’s nomination paper and produce a prescribed photographic identification to the local authority official;
(e) the local authority official shall note the following details on the nomination paper and then sign the note:
(i) the assentor’s number on the register of electors;
(ii) the form of identification produced by the assentor, including any number on it;
(iii) the time and date of the assentor’s signature on the paper;
(f) where the nomination paper bears the signatures of more than the required number of qualified assentors, the signatures (up to the required number of those assentors) appearing first on the nomination paper shall be taken into account to the exclusion of any others;
(g) where a person registered as a Dáil elector in the constituency signs as assentor the nomination papers of 2 or more different candidates in the same election, that person’s signature on the first such nomination paper lodged with the local authority shall alone be regarded and that person’s signature on every other nomination paper shall be disregarded.”
Section 52(1) of the Electoral Act, 1992, as amended, confers on a returning officer the function of ruling on the validity of each nomination paper lodged by any candidate and he is authorised to treat a nomination paper as invalid if he, as returning officer, considers that “(a) in the case of the nomination paper of a candidate referred to in s. 46(4A),[a non-party candidate] the nomination is not assented in the manner required by s. 46 …”.
The Electoral Regulations, 2002 (S.I. No. 144/2002) made by the Minister pursuant to powers conferred on him by, inter alia, s. 46 of the Act of 1992 provide for the photographic identification which an assentor must produce for the purpose of authenticating his assent to the relevant local authority officials. Article 5 of the Regulations, in conjunction with the Second Schedule, prescribes the local authority offices for each constituency at which a non-party candidate must lodge the nomination paper, incorporating the 30 assents, as required by s. 46(4B). The Regulations also set out, in the First Schedule, the prescribed form of nomination paper at Dáil Éireann with accompanying explanatory notes.
Arguments and submissions of the appellants
Factual matters:
The appellants first of all gave or called evidence concerning the burden which the relevant statutory provisions imposed on them for the purpose of their contention that they constituted an impermissible impediment to their constitutional right to be nominated as candidates for Dáil Éireann and, with regard to their second main ground of appeal, that they amounted to an invidious discrimination against non-party candidates as compared to party candidates who are not subjected to the same requirements for the lodgment of nomination papers.
The factual elements of their case may be summarised as follows. First of all, as regards the requirement that a prospective candidate must obtain the signature of thirty assentors it was claimed that this was a time consuming task, a task which could only be commenced after an election had been called and meant that a prospective candidate had to devote a significant period of time to seeking out and persuading thirty persons to sign the nomination paper when he or she could otherwise have been working on the electoral campaign to win votes. It was also said to be demeaning for a candidate to have to go out and canvass persons to sign his nomination paper. On the other hand the appellant in the first action, Mr King, said some persons were offended that they had not been approached to sign the nomination papers. There was also a problem created by the fact that some persons who were resident in a constituency did not meet the requirement that they be registered as Dáil electors in that constituency, either because they were not registered at all or they were registered in another constituency.
The Electoral Regulations 2002 specify the photographic identity which an assentor must produce at the Local Authority office for the purpose of identification when subscribing to the nomination papers. These are specified to be one of the following: a passport, a driving licence, an employee identity card containing a photograph, a student identity card issued by an education institution and containing a photograph, a travel document containing name and photograph or a bank card with a photograph. It was complained in evidence that some older constituents did not have such photographic identity.
There was significant evidence concerning the burden and difficulty encountered in fulfilling the obligation that each of the thirty assentors would have to travel to the Local Authority Office designated for the constituency for the purpose of authenticating their signature to the nomination paper. Evidence was given of multiple difficulties which this entailed. The offices in question are designated or prescribed by the aforementioned Regulations of 2002. They are set out in a schedule to those Regulations. For example, for the two constituencies of Donegal North East and Donegal South West the prescribed Local Authority Office is in Lifford; for the constituencies of Kerry North and Kerry South it is in Tralee; for the constituency of Limerick West it is in Limerick city; for the constituency of Mayo it is in Castlebar and for the constituency of Wicklow it is in Wicklow town. It was pointed out that each assentor had to attend at the designated office during normal office hours. In the many instances the assentors would have to travel substantial distances (a seventy kilometres one way trip was one example given) often where there was no public transport or no convenient public transport. This would involve many persons having to devote several hours or most of a day to travel to and from their homes or workplace and the designated office. This meant that many would have to give up a day’s work and probably lose a day’s pay. Those who worked in the home had difficulty finding childminders. There was evidence that some candidates felt it necessary to arrange collective travel to the offices, as in a mini bus, and bear the cost of providing food or refreshments for those who gave up most or all of their day to make the trip from parts of a constituency that were a long distance from the prescribed offices. These were usually the central headquarters of the Local Authority in the constituency. Although there was evidence that a significant number of candidates appeared to have no great difficulty in complying with the conditions, there was evidence from one or two witnesses that they were unable to obtain thirty assentors in time before the close of nominations due to difficulties, compounded in particular by the obligation to travel to the prescribed office, in complying with the requirements.
It should be noted at this stage that some of the difficulties described in evidence stemmed from the fact that the statutory provisions and regulations in question came into force and effect very shortly before the last general election and some of the witnesses were not aware of the new requirements until just before the taking of nominations opened for the purposes of the election or just after that. Since the issues in this appeal only concern the prospective effects generally of the legislation in questions nothing turns on that aspect of the matter.
From a factual point of view it was pointed out that candidates for registered political parties are spared the necessity of obtaining thirty assentors to sign their nomination papers. Such a candidate can nominate himself or herself or obtain one other person to do so. The only additional requirement is that he or she must provide a certificate in the appropriate form, a “certificate of political affiliation”, authenticating the candidature, and signed by an officer or officers of the political party whose name appears on the register of political parties.
Legal submissions
The appellants submitted that Article 16, and in particular Article 16.1 conferred upon them a right to stand for election to Dáil Éireann. They were eligible to stand for election to Dáil Éireann, not being under a disability or disqualification. Article 16 did not permit any other preconditions to nomination being enforced on persons eligible to stand for election to Dáil Éireann. They were not, it was submitted, disqualified from standing for Dáil Éireann by reason of any disability or incapacity. The effect of the statutory provisions in issue was to prevent persons who could not obtain thirty assentors from standing in a Dáil election and in that sense disqualified them from membership of Dáil Éireann in a manner not compatible with Article 16, and in particular Article 16.1.1. As regards Article 16.7 the appellants relied on the judgment of Herbert J. in Redmond –v- Minister for the Environment & Ors [2001] 4 IR 61 and in particular relied on his statement at page 78 of his judgment:-
“Power to render citizens ineligible for elections to Dáil Éireann is expressly conferred upon the Oireachtas by Article 16.1.1. of the Constitution. It is therefore totally unlikely that the framers of the Constitution intended to confer the said same powers by Article 16.7. That this is so is clearly observable by a consideration of the provisions of Article 16.7 itself. It is first stated to be ‘subject to the foregoing provisions of this article’, and then it confers nothing more than a right to regulate elections. The Oireachtas is empowered to establish by law procedural and administrative rules and measures for the proper and orderly conduct of elections. The requirement of a deposit is not just a matter of rules and procedures. Such a requirement involves the imposition of an impediment to participate in the elections and is not, as was clearly intended by Article 16.7, nothing more than the ordering of such participation.”
Accordingly it was submitted on behalf of the appellants that the statutory provisions in issue and in particular S. 46(4A) imposes constitutionally impermissible conditions upon the eligibility of the appellants for membership of Dáil Éireann. These conditions do not fall within the scope of Article 16.1.1. Furthermore, it was submitted that Article 16.7. is only intended to provide for the “minutiae” of the electoral process or, as Herbert J. put it, purely procedural and administrative rules. Accordingly there was no constitutional basis for a “filtering system” in order to exclude frivolous candidates or any surfeit of candidates so numerous as to undermine or bring into disrepute the integrity of the electoral process. Since the appellants were not disqualified pursuant to Article 16.1.1. and Article 16 as a whole must be considered as “a total code for the holding of elections to Dáil Éireann”, citing O’Higgins C.J. in Re. Article 26 and the Electoral (Amendment) Bill, 1983 [1984] I.R. 268, with sub-article 7 permitting regulation of administrative and procedural matters only, there was no constitutional basis for the requirements regarding the nomination of non-party candidates set out in the impugned provisions.
It was also submitted that in any event, that the conditions imposed on non-party candidates were unduly burdensome, unnecessary and disproportionate so as to amount to unconstitutional impediment to the appellants’ right to stand for election to Dáil Éireann.
In the second main aspect of the case made on behalf of the appellants it was submitted that non-party candidates were entitled to equal treatment with party candidates. Article 40 of the Constitution guaranteed, inter alia, their right to equal treatment and there was no basis to be found therein for discriminating between such candidates and party candidates. It was also submitted that nowhere in the Constitution is the existence of political parties recognised nor are they given any special status. Accordingly, the provisions in question were incompatible with the Constitution by virtue of their discriminatory character.
Finally, it was submitted by the appellant in the third action, Mr Riordan, that S. 46, in denying him the right to have the description of “independent” after his name on the ballot paper rather than the description “non-party” was a denial of his constitutional right to freedom of expression and freedom of speech. General election candidates who did not belong to a political party were generally known as and referred to in the media as “independent” candidates. Independent candidates had a right to being so described on the ballot paper.
Submissions of the respondents
On behalf of the respondents it was submitted that it was essential that the integrity of the electoral process was protected by the State. To this end, both as a matter of principle and common sense, the State was entitled to provide by law reasonable conditions governing the nomination of candidates for election which ensured a minimum of genuine commitment to the electoral process and that elections in the various constituencies were not undermined by frivolous candidates or the swamping of a ballot paper, deliberately or fortuitously, by an excessive number of candidates.
It was also submitted that persons who stand for election to Dáil Éireann obtain many privileges and provision of resources such as free postage for election literature and the right of access to public service broadcast air time. Statutory provisions regulating the electoral process which concerned the regulation and registration of political parties in the interest of establishing that there they were bona fide political parties were upheld by the Supreme Court for analogous reasons in Loftus –v- Attorney General [1979] I.R. 221 stating at 242:-
“It seems proper and in the public interest to regulate such statutory rights and facilities as are given by this legislation. If some control and regulation were not provided, genuine political action might be destroyed by a proliferation of bogus front organisations calling themselves political parties but with aims and objects far removed from the political sphere.”
Similarly, it was submitted, the regulation of the process for the nomination of candidates is necessary if genuine political action is not to be undermined by a proliferation of bogus or frivolous candidates, with aims and objectives outside of the political sphere. The minimum requirement of thirty assenting signatures is a means of regulating elections in a proportionate and rational manner. It was further submitted that the interests of the State in protecting the integrity of the political process from candidatures which are not bona fide or from the deliberate swamping of an election in an individual constituency is even greater in the case of elections held, as the Constitution requires, under proportional representation with single transferable votes in multi seat constituencies. The decision of the High Court, which was not appealed to the Supreme Court, in Redmond –v- Ireland [2001] 4 IR 61 properly interpreted, does not mean that the State were not entitled, by virtue of Article 16.7, to adopt the statutory provisions in issue in this case for the purpose of regulating by law the holding of elections to Dáil Éireann. A correct view of the decision of the High Court in that case is that requirements imposed on candidates are lawful and constitutional provided they are not arbitrary or otherwise invidious. In any event it was the submission of the State that on a correct interpretation of Article 16 there is nothing in the language of Article 16.1.1. which precludes the Oireachtas from regulating by law, pursuant to Article 16.7, elections to Dáil Éireann including the nomination of candidates in the manner done by the impugned provision.
Furthermore it was submitted that since the Constitution of 1922 was adopted there was a filtering system, by way of monetary deposit, governing the nomination of candidates for elections to Dáil Éireann. The imposition of conditions for the nomination of candidates to a democratically elected legislature is an essential feature of democratic systems generally and consistent with best international standards. All of which apply for the purpose of ensuring a fair and properly regulated election process. If the appellants’ contentions are correct it would mean that the People, in adopting the Constitution, intended to single out Ireland as a State which could not regulate the nomination of candidates in a manner which was rational and proportional.
On the basis that the State was entitled to regulate by law the manner in which candidates are nominated for Dáil elections the Electoral Act 2002 enjoys the presumption of constitutionality and the appellants are required to discharge the burden of demonstrating that the invalidity of the impugned provisions is “clearly established” (in Re. Article 26 and the Offences Against the State (Amendment) Bill [1940] I.R.470). In regulating such matters by law the Oireachtas enjoys a measure of discretion and the Court should only interfere with the choices made by the legislature if it is satisfied that a threshold of irrationality has been established in connection with that decision or they were disproportionate. It was submitted that the measures in question serve a legitimate State interest and the interests of the common good in the proper regulation of the electoral process and met the criteria of rationality and proportionality.
It was also further submitted that the provisions did not impinge upon the secrecy of the ballot. The giving of assent, in order to enable a person to stand as a candidate in an election was quite distinct from the manner in which any individual subsequently cast his or her vote. There was no connection between the two. There were other instances where, as a result of the operation of a Statute, a person might be identified or associated with a candidate. Reference was made to Part VI of the Electoral Act 1997, and in certain cases requiring, the publication of the identities of those who have donated to a candidate’s Dáil election expenses. Furthermore, under the various Electoral Acts there are circumstances where a person may be appointed as an election agent or as personation all of which involve a degree of public identification with a candidate but could not be said to reveal how a person in such a position actually voted.
As regards the submissions of the appellants concerning discrimination and unequal treatment as compared with political parties this was a flawed argument. Non-party candidates and the candidates of registered political parties were not in the same or equal positions such as would require equal treatment. Political parties were subject to statutory regulation which had, as one of its effects, that of maintaining the integrity of the electoral process by minimising the risk of frivolous candidates seeking to exploit the electoral process for non-political causes or an abuse of the system through the nomination of an excessive number of candidates. Political parties are governed by s. 25 of the Electoral Act 1992, as amended, which provides, in respect of the registration of political parties for Dáil elections that a political party may apply to be registered as a political party for these purposes if:
(a) the party is organised in the State or in a part thereof specified to contest Dáil elections;
(b) has not less than three hundred recorded members or, in the case of a party applying for registration as a party organised to contest elections in part of the State one hundred recorded members, each of whom (in all of the foregoing cases, has reached the age of eighteen years, and at least fifty per cent of the recorded members are registered in the register of electors; or
(c) the party has at least one member who at the time of the application for registration is made, is a member of the Dáil or is a representative in the European Parliament; and
(d) the organisation and direction of the party are governed by a Constitution, a memorandum of association or other such document or other written rules which have been adopted by the party.
It was submitted that the Courts have accepted a distinction between those representing political parties and those who do not, provided there is some rational relationship between the nature and extent of the difference of treatment. This is evidenced by the judgment in Loftus –v- Attorney General [1979] I.R. 221 which concerned the refusal of registration of a political party. In that case the Supreme Court held that the right to have a political party registered under the 1963 Electoral Act, which then applied, was not a personal right of the citizen within the meaning of Article 40.3 of the Constitution and that discrimination between political parties represented in Dáil Éireann in that year and political parties not represented in that year was not an invidious discrimination contrary to Article 40.1 of the Constitution.
Furthermore the securing of a nomination through some internal selection process within a political party as well as establishing a level of bona fides, is clearly within the political sphere and illustrates an element of some support in the constituency – or at a minimum requires an assessment by a competent body within the party, whether local to the constituency or national, that the person is likely to attract an element of support within the constituency in a Dáil election. In these circumstances it would be irrational to suggest that those who have undergone the rigorous requirements demanded of party registration must, of constitutional necessity, be treated in the same way as persons who by their own unilateral decision decide to put themselves forward as candidates. The contention that non-party candidates and candidates who have gone through the process of obtaining a nomination through a registered political party must be treated in exactly the same manner would be in complete contradiction with the approach adopted by this Court in Loftus –v- The Attorney General [1979] I.R. 221.
As regards the submission by the appellant in the third action that the prohibition on a non-party candidate being described as an “independent” on a ballot paper is unconstitutional, it is submitted that no constitutional issue touching on a constitutional right to freedom of speech or expression or otherwise arises with regard to it. The designation of how candidates may be described on a ballot paper is clearly a matter for the Oireachtas pursuant to Article 16.7 of the Constitution by which it is expressly granted the power to regulate elections by law. Persons whose candidature are authenticated by a registered political party may have their party’s name appear opposite their name on the ballot paper but are not permitted to use any other words or description. A non-party candidate has the option, under the provisions of the Act of 2002, to have no description attached to his name on the ballot paper or to have the description “non-party”. There is no evidence that candidates are disadvantaged by the use of that term rather than the term “independent”. Neither is there anything misleading about the description “non-party” and the provision in question falls well within the discretion of the Oireachtas to regulate elections by law.
Evidence concerning electoral systems generally
In the proceedings in the High Court in the first and second action evidence was given by Professor Sinnott and Professor Laver, the former a political scientist in the Department of Politics in University College Dublin and the latter Professor of Political Science at Trinity College, Dublin. They gave expert opinion concerning the need to preserve the integrity and efficacy of elections and the manner in which this is done in other electoral systems as well as some relevant internationally approved criteria designed to minimise the presence of frivolous candidates on a ballot paper or a seriously excessive number of candidates which could distort the electoral process. The Court does not consider it necessary to analyse this evidence in detail much of which might be said to be self-evident as a matter of common sense and practicality and other aspects of it not material to the issues.
The learned trial judge accepted the evidence of these two experts other than a part of the evidence of Professor Sinnott concerning his objection to “fringe” candidates which need not concern us. It is sufficient for present purpose to refer to the learned trial judge’s summary, at pages 14-16 of his judgment, of certain relevant portions of the evidence which included the following:
“He [Professor Sinnott] carried out a comparison between the requirements imposed by the new Irish legislation and those imposed in other jurisdictions. Taking the current membership of the European Union as one suitable range of comparable cases, he found that, either by way of deposit or by way of signature or by way of a combination of both, the majority of the fourteen other Member States impose more restrictive conditions on access to the ballot paper than does current Irish legislation. Only one State (Sweden) has neither a signature nor a deposit requirement. Two States, (France and Greece) use a deposit – only system. The remaining eleven other Member States (not including Ireland) use a signature system either on its own (eight States) or in conjunction with a system of deposit (three States), i.e. Austria, The Netherlands and the United Kingdom. Among the States that use the signature system, only two (Luxembourg and the United Kingdom) require a lower number of signatures than that specified by the Electoral (Amendment) Act 2002 and one of those States (the U.K.) has a deposit requirement as well.
A comparison of Irish nomination requirements with the requirements obtaining in a selection of other similarly constituted democratic States outside the E.U. confirmed his view that the Irish signature requirement was modest. Australian law requires both a deposit and fifty supporting signatures. Canadian law requires one hundred signatures, except in remote areas where the requirement is reduced to fifty…
Professor Sinnott referred to a number of international surveys in relation to electoral administration, including the Administration and Cost of Elections (ACE) Electronic Publication (1999-2003) which is a globally accessible information resource on election administration…. He cited a passage from the survey which noted:-
‘Unquestionably, democracy should encourage citizens to put themselves forward as candidates for election to public office. Yet, voters are also entitled to an assurance that those that present themselves for election do so in a serious and responsible spirit. Furthermore, it is undesirable for voters to be presented with such a large number of candidates that it becomes almost impossible to make an informed choice among them’…
Support for demanding signature requirement could also be found in the European Commission for Democracy Through Law (the Venice Commission (2002)), whose code of good practice in electoral matters stated that the obligation to collect a specific number of signatures in order to be able to stand is theoretically compatible with the principle of universal suffrage. The Commission had noted that the rules on signatures should not be used to bar candidates from standing for office and in that context that the law should set a maximum one per cent signature requirement. It also required that there be clear rules for signature verification.
Professor Sinnott emphasised that the point of these international studies was to underline the fact there existed widespread agreement on the need to have some means of deterring individuals from putting themselves forward in an election for frivolous reasons, and to ensure that voters would not be faced with such a large number of candidates that it became impossible to make an informed choice among them.”
The learned High Court judge also summarised material portions of Professor Laver’s evidence in the following terms at pages 20 – 21:
“He was concerned that if there was no threshold requirement on candidature there was always the possibility that a particular group could usurp an election result by nominating a very large number of candidates so as to undermine the transferable vote system or collapse an election in a particular constituency. In a hypothetical situation, where there are no restrictions, it would be possible for a thousand people of a particular group to nominate a thousand candidates in a constituency, so that the ballot paper would have a thousand names on it. [This would] cause enormous confusion …
As far as nomination requirements were concerned, best practice under the Venice Commission requires that one per cent of registered voters in a particular constituency should support a candidature. That being so, Ireland was at the very lower end of the European scale of requirements. He pointed out that in certain European systems it was quite common for non-party candidates to be denied access to the ballot altogether. Taking the European comparison, independent candidates in Ireland enjoyed favourable treatment. Although in the present case it was being alleged that the new regime was more restrictive, the 2002 election produced exactly the same percentage of candidates as in the previous election. Furthermore, there was in fact a sharp increase in the number of non-party T.D.s returned in 2002, up to thirteen in 2002 from six in 1997.
Professor Laver concluded that the rational operation of the STV [single transferable vote] electoral system prescribed by the Irish Constitution generates a particular need to ensure that there is not an excessive number of candidates, and that some requirements must be put in place where putative candidates demonstrate their bona fides…He felt that if the number of candidates went over twenty five or thirty in any constituency, then there would be serious difficulties in terms of the rationality of the ballot.”
Decision
The Court is satisfied, and considers it self-evident that the State has a legitimate interest in regulating the conduct of elections by law, subject to the Constitution, in the interests of, inter alia, protecting and maintaining the integrity and efficacy of the electoral process for Dáil Éireann as well as ensuring that those elections are conducted free from abuse and in an orderly fashion consistent with democratic values acknowledged by the Constitution including Article 5 which declares Ireland to be “a sovereign, independent, democratic State”.
It is also a fact that since 1923, including at the time of the adoption of the Constitution by the People in 1937, there has existed legislative provisions, requiring a monetary deposit by candidates, which was designed to protect the electoral system from being exploited by frivolous candidates who may not have any genuine commitment to the political process. That measure was also intended to protect the electoral process from potential abuse from a seriously excessive number of candidates on a ballot paper which could result in the process being undermined or denigrated if groups or large numbers of persons could place their name on a ballot paper for election willy-nilly without a minimum of commitment to the purpose of the process itself. While such a measure could not be said to be an absolute protection against such abuse, that would be impossible to achieve, it did represent, in its own terms, (and leaving aside for the moment the fact that the monetary deposit was found unconstitutional by a decision of the High Court, to which reference will be made later) an attempt to ensure by way of a moderate measure that a candidate which presented him or herself for election had some level of commitment to the process. Measures which are designed to protect and maintain the integrity of the electoral process in this respect may also be considered important as conveying to all citizens eligible to stand for Dáil Éireann that as a matter of public policy when a citizen goes forward as a candidate for election he or she must do so as a bona fide participant in the electoral process.
That is the historical background which preceded the introduction of the current measures which replaced the deposit system.
A considerable amount of evidence was given by the two professors called as expert witnesses in the High Court proceedings heard by Kearns J. The Court does not consider that all of this evidence is pertinent or necessary for the issues which it has to decide. It is not necessary for example to consider the different electoral systems in the many and varied countries referred to and examine how they have, by a variety of methods, adopted measures to ensure that the electoral system was not abused or undermined by the nomination of frivolous candidates or a surfeit of candidates.
It is sufficient to say that one general incontrovertible and uncontroverted conclusion emerges from the body of this evidence namely that in the very large number of countries on different continents referred to in the evidence it has been considered as an appropriate and necessary element in the electoral process that measures be put in place to ensure that the holding of orderly and democratic elections is not undermined by the unfettered participation of frivolous candidates or an excessive number of candidates. It is also incontrovertibly the case that measures of that nature are consistent with the code of good practice in electoral matters approved by the European Commission for Democracy (the Venice Commission).
While these matters are not in any sense definitive of what is permissible under our Constitution they do so support and corroborate the underlying rationale of the case made by the State namely that it has first of all a legitimate interest in maintaining and protecting the integrity of the electoral process and secondly for that purpose it is a legitimate objective of State policy to take measures which will reduce or minimise the risk of frivolous candidates being nominated for election or the presence of such a number of candidates on a ballot paper that could undermine or distort the electoral process.
A cogent example and expression of that legitimate interest is to be found in Jenness –v- Fortson 403 US.431 (1971) in a judgment of the United States Supreme Court where it was stated at 442:-
“There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organisation’s candidate on the ballot – the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election”.
In the view of the Court the State has a legitimate interest, founded on rational considerations, in being concerned that the integrity of the electoral process is not tainted by frivolous candidates or a seriously excessive number of candidates on the ballot paper.
It was argued on behalf of the appellants that no evidence had been tendered in the High Court as to the prevalence of frivolous or any significant number of frivolous candidates or any excessive number of candidates seeking to stand for elections to the Dáil. However, for the reasons stated above the Court considers that the State has a legitimate interest based on rational grounds for adopting preventative regulatory measures to reduce the risk of such abuses occurring. Once there are material considerations upon which the Oireachtas is reasonably entitled to conclude that such regulatory or preventative measures are desirable then whether to enact them or not is a matter of judgment for the Oireachtas and not for the Courts provided, of course, they are otherwise consistent with the Constitution and proportionate to the aim to be achieved. As Kearns J. pointed out, the Oireachtas is not prohibited from enacting legislative or regulatory measures until after a mischief or abuse has occurred. The fact is, since the foundation of the State some such measures have been in place which not only provided some protection against abuse but, as was also mentioned above, underlined for the benefit of potential candidates an important public policy that those seeking election should have some bona fide commitment to the electoral process. That monetary deposit system under the legislation which existed prior to the Electoral Act, 1992 required a deposit of £300. In contemporary Ireland it is difficult to comprehend how a sum anywhere in the region of £300 or its equivalent in Euro (or more if inflation is allowed for in the meantime) could be considered a disproportionate measure for such a legitimate purpose or to involve invidious discrimination, given the costs necessarily otherwise incurred by candidates and the possibility, at least in certain circumstances, of a refund of the deposit.
Of course any intervention by the State by way of legislation in the electoral process must serve a legitimate purpose, be proportionate to that purpose and avoid invidious discrimination. Before addressing these questions it is appropriate to consider under which provision of the Constitution, more specifically which provision of Article 16, the Oireachtas may derive a power to legislate so as to regulate Dáil elections and in particular the nomination of candidates for them.
The power to regulation elections in accordance with law
The learned High Court Judge was correct in acknowledging that the Oireachtas is expressly entitled to adopt measures for the purpose of regulating candidature at Dáil elections. In fact this was not really in issue in the proceedings. The issues in this context turned on the provision of the Constitution pursuant to which laws regulating elections may be enacted and the nature of the matters which may be so regulated by law. The learned High Court Judge concluded that the power to regulate the manner in which eligible candidates may be nominated derived from Article 16.1.1. The Court is satisfied that that is not a correct interpretation of the Constitution. Certainly, Article 16.1.1. confers on the Oireachtas the power to determine which categories of persons may, by law, be placed under a disability or incapacity for the purposes of membership of Dáil Éireann so as to render them ineligible from membership of Dáil Éireann and thus in becoming candidates at all. Article 16.1.3. expressly excludes the sex of the person as being a ground for placing a citizen under disability or incapacity for membership of Dáil Éireann. That is not to say that the Oireachtas is otherwise unfettered as to which category or kind of person should be placed under a disability or incapacity for membership of the Dáil. The exercise of any such power may be subject to other constitutional considerations such as the pursuit of a legitimate State interest and the principle of proportionality.
Article 16.1.1. is concerned with persons who by reason of their condition or status belong to a category of persons whose membership of Dáil Éireann could legitimately be considered as undermining or conflicting with, inter alia, such matters as the legitimacy and integrity of Dáil Éireann exercising the traditional and constitutional functions of a democratic legislature.
In this respect the Oireachtas must be considered to have a reasonable degree of discretion to determine the categories of persons who may be excluded from eligibility from membership of Dáil Éireann on the basis of Article 16.1.1 provided that the categories of persons concerned are so determined in a manner which is rational and not arbitrary and which serves a legitimate interest of the proper functioning of the Dáil as the legislative organ of government, independent of other organs of government, State institutions and similar bodies. Section 41 of the Electoral Act 1992 sets out a list of categories of persons who are disqualified from membership of Dáil Éireann. It provides as follows:
“41.—A person who—
(a) is not a citizen of Ireland, or
(b) has not reached the age of 21 years, or
(c) is a member of the Commission of the European Communities, or
(d) is a Judge, Advocate General or Registrar of the Court of Justice of the European Communities, or
(e) is a member of the Court of Auditors of the European Communities, or
(f) is a member of the Garda Síochána, or
(g) is a wholetime member of the Defence Forces as defined in section 11 (4), or
(h) is a civil servant who is not by the terms of his employment expressly permitted to be a member of the Dáil, or
(i) is a person of unsound mind, or
(j) is undergoing a sentence of imprisonment for any term exceeding six months, whether with or without hard labour, or of penal servitude for any period imposed by a court of competent jurisdiction in the State, or
(k) is an undischarged bankrupt under an adjudication by a court of competent jurisdiction in the State,
shall not be eligible for election as a member, or, subject to section 42 (3), for membership, of the Dáil.”
(The above provision is cited for illustrative purposes. It has been subject to subsequent limited amendments not relevant for present purposes.)
In short Article 16.1. is concerned with persons who by reason of their status or capacity belong to a defined category who are disqualified by law from membership of Dáil Éireann. Thus it is persons who are so disqualified from membership of Dáil Éireann by reason of their disability or incapacity as defined by the Constitution or by law who are governed by that provision. The question of the eligibility of such persons to stand as Dáil candidates does not arise since they are disqualified from membership.
On the other hand it is common case that the appellants are not disqualified from membership of Dáil Éireann by reason of any disability or incapacity. They are eligible not only for membership of Dáil Éireann but they are eligible to be candidates in a Dáil election. What the impugned measures purport to do is to require them to fulfil certain conditions so as to demonstrate, as claimed by the State, a real or bona fide commitment to the electoral process. Article 16.7. provides:
“Subject to the foregoing provisions of this article, elections for membership of Dáil Éireann, including the very filling of casual vacancies, shall be regulated in accordance with law.”
Accordingly, when the State, by means of legislation adopted by the Oireachtas, exercises a power to regulate the manner and conditions according to which persons may seek to be nominated as candidates for Dáil Éireann it is exercising a power pursuant to 16.7. of the Constitution and not 16.1.1.
In support of their contention that such a power could only be exercised by the Oireachtas under Article 16.1.1., which, they submit, did not in any event envisage the kind of measures in issue in this case, the appellants relied on the decision of the High Court in the case of Redmond –v- Minister for the Environment & Ors [2001] 4 IR 61 and, of course, the learned High Court Judge in this case came to his decision on the premise that such powers derived from that Article. Therefore before leaving this point it is appropriate to give some consideration to the decision of the learned High Court judge on that point.
In considering that Article 16.1.1. is the provision of the Constitution which confers on the Oireachtas the power to regulate Dáil elections including the nomination of candidates, the learned trial judge may have felt himself constrained to follow the decision of the High Court in Redmond –v- Minister for the Environment and Ors [2001] 4 IR 61 and in particular the manner which Herbert J. interpreted and applied the decision of this Court in Re. Article 26 of the Constitution and The Electoral Amendment Bill, 1983 [1984] I.R. 268.
In that latter case, O’Higgins C.J., delivering the judgment of the Court, stated at 274 – 275:
“The construction of Article 16, s. 1, sub-2, must first be approached by a consideration of other provisions contained in that Article and, further, of course, by a consideration of other provisions contained in the Constitution.
These other provision of that Article (1) prohibit the enactment of any law placing a citizen under disability or incapacity for membership of Dáil Éireann on the grounds of sex, or disqualifying, on the same grounds any citizen from voting at an election for Dáil Éireann; (2) prohibit the exercise by any voter of more than one vote at an election for Dáil Éireann; (3) provide for the secrecy of the ballot; (4) provide for the ratio between members of Dáil Éireann and the population; (5) impose upon the Oireachtas an obligation to revise constituencies at least once in every 12 years, with due regard to changes in distribution of the population; (6) provide for elections to be on the system of proportional representation by means of the single transferable vote; (7) prohibit the enactment of any law providing for the number of members to be returned for any constituency being less than three; (8) provide that a general election shall take place not later than 30 days after the dissolution of Dáil Éireann; (9) provide that the same Dáil Éireann shall not continue for a longer period than seven years from the date of its first meeting; (1) provide that polling at every election for Dáil Éireann shall, a far as practicable, take place on the same day throughout the country; (11) impose an obligation to make provision by law to enable the member of Dáil Éireann who is the chairman immediately before the dissolution to be deemed, without any actual election, to be elected a member of Dáil Éireann at the ensuring general election; and (12) finally, by Article 16, s. 7, they provide that, subject to the foregoing provisions, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law.
These provisions indicate a total code for the holding of elections to Dáil Éireann, setting out the matters which would appear to be necessary other than minor regulatory provision. This code provides for the eligibility of candidates; the persons entitled to vote; the limitation of one vote for each voter; the standards for determining the number of members; the obligation to revise constituencies; proportional representation, the single transferable vote and a secret ballot as the method of election; a minimum of three members for each constituency; a limit in time within which general elections must take place after a dissolution; the maximum term of a Dáil; a provision for the timing of polling throughout the country; and an obligation to provide for the automatic election of the chairman of the Dáil.
In contrast with this code of essential features of elections for Dáil Éireann, the matters which are left to be regulated by law would appear to be (a) the disqualification of citizens from voting; (b) the provisions with which citizens must comply in order to have the right to vote; (c) the fixing of the number of members of Dáil Éireann within the ratio laid down by the Constitution; (d) the provision, subject to the minimum of three, of the number of members for each constituency; (e) the fixing of the date of a general election subject to a restriction as to the maximum period after the dissolution of the Dáil; (f) the period during which the same Dáil may continue subject to the constitutional maximum of seven years; and (g) the details of the mandatory provision for the re-election of the chairman of Dáil Éireann.
Viewed in this way, the entire provisions of Article 16 would appear to form a constitutional code for the holding of an election to Dáil Éireann, subject only to the statutory regulation of such election.”
In relation to that case it is first of all important to note that the Bill which was referred to the Court pursuant to Article 26 was one which purported to confer the right to vote in Dáil elections on foreign citizens, namely those of the United Kingdom. Thus the issue with which the Court was concerned was whether the Constitution permitted the right to vote to be extended to persons other than citizens. In concluding that the Bill was incompatible with the Constitution the Court was concerned primarily with an interpretation of Article 16.1.2 which specifically concerned the right to vote in Dáil elections albeit, inter alia, in the context of Article 16 as a whole and in conjunction with Article 12.4.1. In that context the general observations of the Court with regard to Article 16 generally must be seen as that, namely, general observations since no issue arose or was argued concerning, for example, the powers which might generally be exercised in regulating elections pursuant to 16.7. As the Court in that judgment made quite clear Article 16 does contain the core or the essential elements for the holding of elections for Dáil Éireann. Those elements cannot be altered except by way of amendment to the Constitution, as indeed happened following the Court’s decision in that case. When the Court in that judgment stated that Article 16 “indicates” a total code for the holding of elections through the Dáil subject to “other minor regulatory provisions” it is quite clear that it was speaking in relative terms and not excluding subsidiary matters, which are not necessarily essential features but are nonetheless in themselves important matters requiring regulation. The Court referred to some of these in the next ensuing passage when it referred generally to “the matters which are left to be regulated by law” and which “would appear to be …” It then goes on to cite some seven matters of varying degrees of importance, but none the less significantly important in themselves, including of course the disqualification of citizens from voting and also “provisions with which citizens must comply in order to have the right to vote;”. It cannot be said that this list was intended to be definitive. The matters listed were exemplary.
Moreover, neither the O’Higgins C.J. nor other members of the Court could have been oblivious to the fact that the lodging of a monetary deposit by a candidate, refundable in certain circumstances was and had been a feature of the electoral system since 1923. At no point was it suggested by the Court, implicitly or otherwise, that that was a matter which could not be regulated by law,
The Court is quite satisfied that Article 16.7 of the Constitution, in providing that elections for membership of Dáil Éireann may be regulated in accordance with law, conferred on the Oireachtas the power to regulate, inter alia, matters with which citizens must comply in order to be nominated.
For the reasons outlined above, the conclusions expressed in Redmond –v- Minister for the Environment & Ors [2001] 4 IR 61 to the effect that the Oireachtas does not have powers pursuant to Article 16.7. to regulate by law the conduct of elections by establishing conditions, monetary or otherwise, for the nomination of candidates is not a correct statement of the law.
Of course the right to make laws regulating the nomination of candidates for election to Dáil Éireann is not an unfettered power but is one which is derived principally from Article 16.7. The question raised in these appeals is whether the statutory regulation of the nomination of non-party candidates has been exercised within the ambit of the powers conferred by the Constitution.
The measures in issue
In this context the first issue is the requirement simpliciter for an independent or non-party candidate to obtain thirty assentors to sign his nomination paper. The Court has already concluded that the State has a legitimate interest in adopting measures to ensure that potential candidates for Dáil elections demonstrate some level of bona fide commitment to the electoral process. The Oireachtas has sought to achieve that by adopting the legislation in question.
The Electoral Act, 1992, as amended, like all other Acts enjoys the presumption of constitutionality and as this Court has in a succession of cases found the onus is on a claimant to clearly establish a claim that an Act is incompatible with the Constitution. The Court cannot see any rational basis for considering it to be unduly burdensome to require a candidate to obtain thirty assentors for the purpose of ensuring the proper regulation of elections. Given the size of an electoral roll of many thousands in even the smallest of constituencies the Court is satisfied that a requirement that a candidate should seek from among those electors a rather modest number of thirty persons could not from any standpoint be said to be excessively burdensome or disproportionate. This conclusion could not be affected by the fact that some residents in a constituency may not be registered as electors there or that even in contemporary times some limited number of electors might not have the photographic identification required. There still remains the vast number of electors among which the signature of thirty voters may be sought.
Nor does the Court consider that the requirement that the assentors attend some designated place, leaving aside the questions of proximity of and travelling to that place, to authenticate an assentors signature so disproportionate a burden on the putative candidate as to be in some way unconstitutional. It serves the legitimate purpose of ensuring that there is no abuse of the process and that the legitimate purpose of obtaining thirty assentors is authenticated.
Insofar as the appellants have complained about the time that they would have to devote to collecting the thirty signatures the same considerations apply. Apart from the fact that non-party candidates, like party candidates, are in a position to take steps in anticipation of the formal calling of a General Election such as seeking out persons who in due course would be willing to give their written assent, the number of asssentors involved is, as already indicated above, modest and reasonable. The Court does not consider that the appellants have established that the need to obtain the signatures of assentors, even after the formal calling of a General Election, is in itself so burdensome as to be disproportionate.
Furthermore the Court also considers as unfounded the argument that where a person agrees to assent to the nomination of a candidate that a breach of the secrecy of the ballot box is involved. The right to secrecy of the ballot is a right of the elector to vote free from outside pressure without disclosure as to how he or she voted. It is a materially distinct matter from giving one’s assent to the candidacy of another person.
The Court has difficulty in following the point made by one of the appellants that it was demeaning to have to seek the assent of other persons to his candidature when it is part and parcel of the electoral process that candidates seek the support of members of the electorate for one purpose or another. It was also said in evidence by that appellant that some persons were offended by not being asked to be one of the assentors. That is hardly a ground for considering measures which are otherwise justified as unconstitutional and does indicate that there are persons who are more than anxious to provide their assent.
Finally, on this aspect of the matter there is the evidence relating to the requirement that all thirty assentors must attend at the office in the constituency as specified in the 2002 Regulations. The Court considers that there is a great deal of substance in the arguments of the appellants in this regard. Under the existing statutory arrangements each non-party candidate must arrange for each of the thirty assentors, either individually or collectively, to attend at the designated office to authenticate personally their signature on the nomination paper. These offices are usually the local authority headquarters in the constituency. Many of them are long distances from the locality in which electors either reside or work. Evidence was given of one instance of a journey of 70 kilometres being required. Until each potential candidate gets every one of the assentors to turn up at the designated office his or her candidature is not valid. The candidature is left in a state of suspense in that regard. In certain constituencies, particularly constituencies comprising almost exclusively of urban areas, this may not be a major problem. On the other hand, as the evidence discloses, assentors in some areas would have a long distances to travel and would in effect have to give up a day’s work or engage childminders as the case may be in order to travel to and from the designated office. The loss of a day’s pay may be involved. Assentors living in West Wicklow would have to travel to Wicklow town in east Wicklow. Those on the extremities of North Mayo to Castlebar and those on the boundaries of West Limerick to Limerick City, which is not even in the constituency, to give but a few examples. The authentication by assentors of their signatures to the candidates nomination paper can only take place from an appointed date after an election has been called. The marshalling of thirty persons either individually or collectively or in separate groups to commit up to a day travelling to and from the designated office is, in the view of the Court, a heavy burden to impose on a person seeking to validate his nomination papers.
The Court is also satisfied that this aspect of the statutory provisions, imposed by virtue of s. 46(4B) carries a real risk of impeding a candidate from lodging validated nomination papers within a reasonable time after the first date for the lodgment of such papers. There is a further real risk that a potential candidate would have to devote a disproportionate amount of time over a disproportionate period of the election campaign to making such arrangements. The Court considers that such an imposition is prima facie disproportionate to the particular objective to be achieved namely the due authentication of the nomination papers. There was evidence tendered by the State in the High Court to the effect that the designation of the Local Authority headquarters as the office at which such nomination papers had to be authenticated was necessary in order to carry out such authentication in a secure manner since that is the location not only of the electoral register but the only place at which an updated version of the electoral register is to be found. Considering that this aspect of the measures in question is prima facie disproportionate to the objects sought to be achieved that provision must be considered incompatible with the Constitution in imposing an undue impediment on the otherwise lawful right of the candidate to be nominated unless the State can establish there are objective reasons why this is necessary. Notwithstanding the evidence given on behalf of the State the Court is not satisfied by that evidence that there are no other administrative arrangements which are significantly less onerous regarding the verification of a signature on a nomination paper. It is not for the Court to designate what other form of administrative arrangements might be provided for in legislation.
In the circumstances the Court finds that S. 46 (4B) in requiring each assentor to attend personally at the designated office is incompatible with the Constitution.
The second principal ground relied upon by the appellants for the purpose of impugning the compatibility of the relevant statutory provisions with the Constitution is a contention that the legislation in question constitutes an invidious discrimination against non-party candidates as compared with candidates of registered political parties since the obligation of obtaining thirty assentors to sign the nomination paper applies to former only.
Counsel for the State submitted that the contention of the appellants was founded on an incorrect premise since non-party candidates and candidates of registered political parties could not be considered to be in the same or similar positions. The Court considers that the argument of the State is well founded. Registered political parties are governed by separate statutory provisions and in particular S. 25 of the Electoral Act 1992, as amended. Before a political party may function as such for the purposes of an election to Dáil Éireann it must be registered pursuant to S. 25 of the Act of 1992. In order to do so it must fulfil certain criteria which include that it is a party which is organised in the State or part of the State to contest Dáil elections, that it has a minimum number of members, at least one member who at the time of the application is a member of Dail Éireann and that it is governed by a constitution or other written rules which have been adopted by the party. One of the objects of S.25 is to ensure that political parties which participate in elections to Dail Éireann, including participation by nominating candidates in an election, are bona fide political parties.
The underlying rationale for the statutory registration of political parties, which bears repetition at this point, was that referred to by this Court in its decision in Loftus –v- Attorney General [1979] I.R. 221 where it was stated at 242:
“It seems proper and in the public interest to regulate such statutory rights and facilities as are given by this legislation. If some regulation were not provided, genuine political action might be destroyed by a proliferation of bogus front organisations calling themselves political parties but with aims and objects far removed from that political sphere.”
That was the rationale underlying a comparable provision of the Electoral Act, 1963 and the same rationale applies to S. 25 of the Act of 1992.
Furthermore there was evidence given in the High Court of the general process according to which candidates are chosen by political parties. That process was shown to be, as is well known, a highly competitive one. It would appear that the Oireachtas came to the conclusion that candidates who have gone through the internal processes of a political party, which is registered pursuant to statute as a bona fide political party, in accordance with its internal rules may be considered to have demonstrated a minimum level of commitment to the political process.
In these circumstances the Court is satisfied that there is a rational basis upon which the Oireachtas was entitled to make a distinction between the two categories of candidates for election to Dáil Éireann namely non-party candidates and candidates of registered political parties whose bona fide commitment to the political process has already been tested by virtue of the registration requirement. Non-party candidates may unilaterally decide to stand as candidates and party candidates must go through a process of obtaining approval and support from the registered party. Therefore in the view of the Court the Oireachtas was entitled to treat non-party candidates and candidates of registered parties as being in different and dissimilar situations for the purposes of nomination as candidates to Dáil Éireann.
In the submissions on behalf of the appellants reference was made to Article 40.1. which provides that all citizens shall, as human persons, be held equal before the law. In addition it was submitted that the constitution makes no mention of political parties and confers no special status on them. Apart from the fact that the legislation in question does not distinguish between citizens “as human persons” but makes the distinction between different categories of candidates standing for election to Dáil Éireann, the absence of a reference to political parties in the Constitution does not, no more than does the absence of a reference to many kinds of institutions, organisations or activities of persons in the Constitution prohibit the Oireachtas from exercising its legislative powers for the purpose of regulating matters or activities in which the State has a legitimate interest.
Invidious discrimination may arise where legislation treats persons in the same situation differently, or persons in different situations the same. Accordingly the Oireachtas being entitled to make a distinction between non-party candidates and the candidates of registered political parties it cannot be said that the particular measures constitute invidious discrimination against non-party candidates. The measures affecting non-party candidates fall to be considered objectively in their own right as to their compatibility with the provisions of the Constitution and in particular their proportionality to the objective to be achieved, which the Court has already addressed in the earlier part of its judgment.
Finally, there was a submission made by the appellant in the third action, Mr Riordan, that S. 46, by giving non-party candidates the sole option of being described on the ballot paper as a “non-party” candidate or with no description after the candidate’s name is a denial of his constitutional right to freedom of expression and/or his liberty to describe himself on the ballot paper as “independent”. In support of his argument he referred to the fact that newspapers and the media generally referred to non-party candidates as independent candidates and this is the description which he uses with regard to himself. The term “non-party” is misleading.
As Carney J. pointed out in his judgment ruling on this point in the High Court, efforts have been made in the past by candidates to get political statements on to the ballot paper by exploiting the kind of name or description they wished to have placed on the ballot paper. The appearance of names and descriptions on ballot papers is clearly a matter which the Oireachtas is entitled to regulate by law pursuant to Article 16.7. They are there to enable the voter to simply identify the candidate for whom they may wish to vote. Each candidate will have his name on the ballot paper and obviously there is no complaint about that. Candidates for registered political parties will invariably have the name of their party after their names. The description for other candidates as “non-party” candidates is a correct one and could not be said to be misleading. Obviously Mr Riordan would prefer to be described as an “independent” and even if he is correct that it would in some way be preferable if he, and other candidates like him, were described as independent, that is a policy matter and does not make the provision unconstitutional. The Oireachtas were entitled to make a choice as to the manner in which independent or non-party candidates should be described on a ballot paper for the purposes of identification. The ballot paper is not intended to be one which goes beyond enabling the candidates to be identified by voters and contain a political message. Every candidate, including independent or non-party candidates have the freedom during the course of the election campaign to convey to the electorate who they are and what they stand for. There is no reason to conclude that the description “non-party” on the ballot paper is misleading. Neither is there any evidence suggesting that this might be so. Accordingly this ground of appeal also fails.
Order of the Court
The Court has dismissed most of the grounds of appeal in this matter and upheld one. The Court has concluded that the particular requirement that requires the assentors who wish to sign the nomination paper of a non-party candidate to attend and authenticate their signature at the prescribed office as provided for in S. 46(4B), and in particular paragraph (d) thereof, is incompatible with the Constitution. While subsection (4B) is severable from the remainder of the section the entirety of subsection (4B) must be declared unconstitutional. Accordingly the Court will make a declaration to that eff