Election Regulation
Cases
Ring v Attorney General
[2004] I.E.H.C. 88, Ring v. A.G. [2004] IEHC 14 (20 February 2004)
THE HIGH COURT
RECORD NO. 2003/7096p
BETWEEN/
MICHAEL RING
PLAINTIFF
AND
ATTORNEY GENERAL
DEFENDANT
Judgment of Miss Justice Laffoy delivered on the 20th February, 2004.
The Claim
In these proceedings, the plaintiff, who is currently a member of Dáil Éireann and also a member of Mayo County Council, seeks a declaration that s. 13A of the Local Government Act, 2001 (as inserted by s. 2 of the Local Government (No. 2) Act, 2003), is contrary to the Constitution of Ireland and, in particular, Articles 5, 6, 16, 28A, 40.1 and 40.3 thereof and is void and of no effect.
Section 13A within the legislative framework
The Local Government Act, 2001 (the Act of 2001), which is described in its long title as an act to make further and better provision in relation to local government and, in particular, to consolidate with amendments certain enactments relating generally to local authorities, contains, in Part III, provisions regulating local authority membership. Section 12 deals with eligibility for local authority membership and provides that, subject to s. 14 and to the disqualifications set out in s. 13 and to the provisions of s. 19 relating to co-option, a person is eligible for election or co-option to, and membership of, a local authority, if he or she is a citizen of Ireland or is ordinarily resident in the State and has or will attain the age of eighteen years at the relevant day, which is stipulated.
Section 13 of the Act of 2001 deals with disqualifications from local authority membership. Subsection (1) of s. 13 provides as follows:
“Subject to subsection (2), a person is disqualified from being elected or co-opted to, or from being a member of a local authority if he or she-
(a) is a member of the Commission of the European Community, or
(b) is a representative in the European Parliament, or
(c) is a Judge, Advocate General or Registrar of the Court of Justice of the European Community, or
(d) is a member of the Court of Auditors of the European Community, or
(e) is a Minister of the Government or a Minister of State or the chairman of Dáil Éireann (An Ceann Comhairle), or the chairman of Seanad Éireann, or
(f) is appointed under the Constitution as a Judge or as the Comptroller and Auditor General, or
(g) is a member of the Garda Síochána or a wholetime member of the Defence Forces as defined in section 11(4)(b) of the Electoral Act, 1992, or
(h) is a civil servant who is not by terms of employment expressly permitted to be a member of a local authority, or
(i) is a person employed by a local authority and is not the holder of a class, description or grade of employment designated by order under section 161(1)(b) or deemed to have been made under that section, or
(j) is undergoing a sentence of imprisonment for any term exceeding 6 months imposed by a court of competent jurisdiction in the State, or
(k) fails to pay any sum or any portion of any sum charged or surcharged, by an auditor of the accounts of any local authority, upon or against that person, or
(l) fails to comply with a final judgment, order or decree of a court of competent jurisdiction, for payment of money due to any local authority, or
(m) is convicted of, or has had a conviction confirmed on appeal for, an offence relating to any of the following:
(i) fraudulent or dishonest dealings affecting a local authority;
(ii) corrupt practice;
(iii) acting when disqualified.”
Subsection (2) of s. 13 deals with the commencement or coming into effect of a disqualification under paras. (k), (l) and (m) of s. 13.
Subsection (1) of s. 13 largely re-enacted sub-s. (1) of s. 6 of the Local Government Act, 1994. It omitted one category included in the latter (chairman of certain select committees of the Houses of the Oireachtas), and included a category not found in the latter (certain persons employed by local authorities who are now disqualified by virtue of para. (i) of sub-s. (1) of s. 13). Prior to the enactment of the Act of 1994 (the Act of 1994), a person who was a Minister of the Government or a Minister of State was disqualified from membership of a local authority by virtue of s. 13 of the Local Government Act, 1991.
Section 14 of the Act of 2001 prohibits multiple membership of local authorities.
The statutory provision at issue in these proceedings, s. 13A, was inserted into the Act of 2001 by virtue of s. 2 of the Local Government (No. 2) Act, 2003 (the Act of 2003), which was enacted on the 2nd June, 2003. Section 13A provides:
“(1) A person who is a member of either House of the Oireachtas is disqualified from being elected or co-opted to, or from being a member of, a local authority.
(2) In respect of local elections to be held in the year 2004 and thereafter, section 13(1) shall be read as if the following were substituted for paragraph (e):
‘(e) is a member of Dáil Éireann or Seanad Éireann, or'”
Subsection (2) of s. 2 of the Act of 2003 provides that the section comes into operation and applies with respect to the local elections to be held in the year 2004 and thereafter. Local elections are due to be held in June, 2004.
Eligibility for membership of Dáil Éireann is governed by s. 41 of the Electoral Act, 1992, as amended, which provides as follows:-
“A person who –
(a) is not a citizen or 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 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.”
Under a variety of enactments membership of either House of the Oireachtas disqualifies a person from being a member of a statutory authority or board. For example, the Schedule to the Competition Act, 1991, provides that a person who is, for the time being, entitled under the Standing Orders of either House of the Oireachtas to sit therein shall be disqualified from being a member of the Competition Authority. Counsel for the defendant submitted that in the period between 1985 and 2001, there were at least sixty-three instances of similar statutory disqualifications.
In broad terms, s. 13A has an obvious dual effect: it adds a further category of persons who are disqualified from membership of a local authority to the categories already provided for in s. 13(1) of the Act of 2001; and it introduces a further category of disqualification from holding public office for members of the Dáil and Seanad. In colloquial terms, it abolished the dual mandate.
Section 3 of the Act of 2003 amended the Act of 2001 by the insertion of an additional section, s. 237A, which provides that local authorities shall conduct their dealings with members of either House of the Oireachtas in accordance with regulations under sub-s. (3) of that section. The relevant regulations were made by the Minister for the Environment in July, 2003.
Local Government in the Constitution
Prior to 1999, there were only two references to local authorities in the Constitution: in Article 22, in which, in defining a “Money Bill”, it is provided that the expressions “taxation”, “public money” and “loan” respectively in the definition, do not include any taxation, money or loan raised by local authorities or bodies for local purposes; and in Article 12, dealing with nomination of candidates for election to the office of President, which provides for nomination “by the Councils of not less than four administrative Counties (including County Boroughs) as defined by law” (Article 12.4.2.).
In 1999, the 20th amendment to the Constitution introduced Article 28A which is entitled “Local Government” and provides as follows:
“1 The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.
2 There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of the Constitution, be so determined and shall be exercised and performed in accordance with law.
3 Elections for members of such local authorities shall be held in accordance with law not later than the end of the fifth year after the year in which they were last held.
4 Every citizen who has the right to vote at an election for members of Dáil Éireann and other persons as may be determined by law shall have the right to vote at an election of such of the local authorities referred to in section 2 of this Article as shall be determined by law.
5 Casual vacancies in the membership of local authorities referred to in section 2 of this Article shall be filled in accordance with law.”
Plaintiff’s case and the defendant’s response in outline
In broad outline, the basis on which the plaintiff contends that s. 13A is invalid having regard to the provisions of the Constitution is as follows:
(1) The right of citizens to stand for election to local authorities is constitutionally guaranteed. Section 13A unlawfully interferes with that right.
(2) The right of citizens to stand for election to Dáil Éireann is constitutionally guaranteed. Section 13A unlawfully interferes with that right.
(3) The Constitution guarantees that all citizens shall, as human persons, be held equal before the law. As regards eligibility for membership of a local authority, s. 13A invidiously discriminates between citizens who are eligible to become members of local authorities, on the one hand, and citizens who would be so eligible but for membership of Dáil Éireann on the other hand. As regards eligibility for election to Dáil Éireann, s. 13A invidiously discriminates between citizens eligible to be elected to Dáil Éireann, on the one hand, and citizens who would be so eligible but for membership of a local authority on the other. Thus s. 13A infringes the constitutional guarantee of equality.
(4) Section 13A interferes with the constitutionally protected rights identified in a manner which cannot be objectively justified and which does not comply with the principle of proportionality.
The defendant’s response may be summarised as follows:
(1) There is no constitutional entitlement to stand for election to local authorities; any such entitlement is statutory in origin and, accordingly, subject to regulation in such manner as the Oireachtas deems fit and appropriate. In any event, s. 13A does not prevent any person from standing for election to a local authority.
(2) Section 13A does not impose any constraint on the entitlement of a person to stand for election to Dáil Éireann. Section 13A provides citizens with the choice of being elected to one of the Houses of the Oireachtas or to a local authority. The provision of such a choice is not unconstitutional.
(3) There is no constitutional basis for the assertion that s. 13A infringes the constitutional guarantee of equality.
(4) If s. 13A interferes with any constitutionally guaranteed right, it does so in a manner which is fair, reasonable and proportionate, having regard to the interests of the State in the efficient, orderly and effective conduct of the business of the Oireachtas and of local government, having regard to their separate evolving roles, by inter alia:
(a) Maximising the effectiveness of persons who are members of local authorities by disqualifying persons from simultaneously being members of the Oireachtas and of local government;
(b) Relieving local authorities of the requirement to order their business meetings and the business of committees, groups and bodies to which members of the local authority are co-opted, in a manner which does not conflict with the demands on the time, energy and resources imposed on members of the Oireachtas by simultaneous membership of local authorities; and
(c) Relieving the Oireachtas of the need to order its business and meetings around the requirements of persons who are simultaneously members of local authorities.
The evidence
The plaintiff is a fulltime politician. Currently he is a member of Dáil Éireann and he is also a member of Mayo County Council. He is a member of the Fine Gael Party. If this challenge is unsuccessful and he is constrained to choose between membership of the Dáil and membership of Mayo County Council, he will choose to remain a member of the Dáil. He fears that if he is forced to make that choice, he will lose a major part of his political base and he will lose touch with a major part of his constituency. The plaintiff very candidly acknowledged that he was concerned about his prospects of re-election to the Dáil if he is no longer a member of the local authority. He anticipates that he will be watching over his shoulder to see who is in the constituency and what they are at. He anticipates that he will have to spend more time in the constituency, thus defeating the purpose of the abolition of the dual mandate.
The plaintiff expressed the view that it is unfair that a member of a local authority can stand for election for the Dáil, but a sitting Dáil deputy cannot stand for election for a local authority. He considers that this is an unfair advantage to the member of the local authority who is ‘on the ground’. The plaintiff anticipates a ‘massive changeover’ in the membership of the Dáil after the next but one general election.
The plaintiff’s objection to the abolition of the dual mandate is not solely related to his concerns in relation to re-election to the Dáil. He believes that members of a local authority and membership of the Dáil complement each other. Membership of the Dáil gives ‘clout’. It enables a politician to more effectively represent his constituents at local level. The treatment provided for in the regulations made under s. 237A of the Act of 2001 does not put a member of the Oireachtas in any better position than a representative of the media.
Mr. Tony Gregory, T.D., gave evidence on behalf of the plaintiff. Mr. Gregory is currently a member of Dáil Éireann and also a member of Dublin City Council. He is an independent deputy and currently he is the Whip of the group of deputies who are members of small parties and independents and are known as the Technical Group. Mr. Gregory objects to the abolition of the dual mandate because, in his view, people should have the right to choose who is to represent them at local and national level. He considers that local government in Ireland has a particularly significant role at national level. He referred to the interlinking and the inter-dependency of local government issues: issues that are decided and implemented by the local authority, but are resourced and policy driven from central government. Those issues, at each level of government, are of enormous significance to individuals who live in the relevant area and also organised residents’ groups trying, as is their democratic right, to influence policies and decisions. From his perspective as a member of the Dáil and a member of Dublin City Council, Mr. Gregory does not see how the national parliament and the local authority can have totally separate roles while issues which involve the local authority are dependent on national policy and on funding from central government. The organs of government need to inform one another of what are priority requirements in any local community, particularly in areas of inequality. In Mr. Gregory’s view, the roles of a national representative and a local representative are not merely complementary; they are interdependent and they inform. If one is experienced at local level, one knows what the problems are, what is being neglected by national government. One is in a better position to give voice to those issues. He believes that the dual mandate enables more effective representation, particularly, for disadvantaged areas. The abolition of the dual mandate precludes him from being involved in any aspect of the decision-making process of local government.
Like the plaintiff, Mr. Gregory is a fulltime politician. If he has to choose between membership of the Dáil and membership of Dublin City Council, he will choose to remain a member of the Dáil.
Ms. Joanna Tuffy also gave evidence on behalf of the plaintiff. Ms. Tuffy is a member of Seanad Éireann, having been elected in 2002. At that time she was a member of South Dublin County Council. She is a member of the Labour Party and, in line with her party’s policy, she resigned her membership of the local authority in September, 2003. However, she objects to the abolition of the dual mandate because she considers that the political system, at national level, is losing the perspective of the practising county councillor. A member of the Oireachtas can make a more effective contribution if he or she has the perspective of a practising county councillor. As a member of the Oireachtas, who is not a member of the local authority, one cannot influence decision making at local level and one has no decision-making capacity.
Mr. Patrick Carey, T.D., gave evidence on behalf of the defendant. Mr. Carey is a member of the Dáil. Prior to the enactment of s. 13A he was also a member of Dublin City Council. His constituency, Dublin North West, straddles the jurisdictional areas of Dublin City Council and Fingal County Council, but he was not a member of the latter. He is a member of the Fianna Fáil Party and, in accordance with his party’s policy, he resigned his membership of the City Council effective from the 30th September, 2003. Mr. Carey very candidly acknowledged that it is more than likely that he would not have resigned his membership of the local authority but for the enactment of s. 13A. Initially he was extremely uneasy about the abolition of the dual mandate and he made his views known at his own parliamentary party. He characterised it as a fear of the unknown: a fear that somebody might creep up behind you while you were not on the local authority and build up a base. However, since he has stood down from the City Council he has worked closely with his substitute, who is from his own party. After what he described as a period of trepidation, he now finds that the situation is working very satisfactorily, both for himself, his substitute and for his constituents. Moreover his view is that perversely, stepping down has made him more available at local level because he is not tied up in meetings and such like. Mr. Carey said that he is not opposed in principle to the dual mandate; his current stance is for purely pragmatic reasons.
The Court had the benefit of expert evidence from two political theorists on issues raised by the abolition of the dual mandate.
Professor Richard Sinnott, Associate Professor of Politics in University College Dublin, and Director of the Research Programme on Public Opinion and Political Behaviour at the Institute for the Study of Social Change at University College Dublin, testified on behalf of the plaintiff. Professor Sinnott gave his assessment of the implications and the likely consequences of the enactment of s. 13A. His analysis of the Irish electoral system as provided for in the Constitution, the system of proportional representation by means of single transferable vote provided for in Article 16.2.5, is that it is primarily a candidate-based system. The system does not impose any criterion of choice, whether party or otherwise, on the citizens. The voter is free to apply whatever criterion or combination of criteria he or she deems appropriate. Professor Sinnott then considered such empirical evidence as is available as to the criteria which voters have applied in making their choice. He referred to two sources of evidence: opinion polls conducted for the media during election campaigns over successive elections; and research conducted by the Economic and Social Research Institute for the Irish National Elections Study in the aftermath of the general election held in 2002. The evidence from both sources indicates the predominance of “candidate-related” and, specifically, “local constituency-service related” qualities and criteria in the assessments that voters make of candidates putting themselves forward for election to Dáil Éireann. In the light of this, Professor Sinnott commented that it is not surprising that, in the 29th Dáil, “three-quarters of all T.D.s (one hundred and twenty four of them) were elected to a council before becoming a deputy and a further 20 became councillors after they had become T.D.s, leaving only 22 (13%) who have never belonged to a local authority. At the time of the [2002] election, 102 T.D.s (61%) belonged to a council” (Gallagher, Michael [2003] ‘Stability and Turmoil: Analysis of the Results’ in Michael Gallagher, Michael Marsh and Paul Mitchell (eds.) How Ireland Voted, 2002. Basingstoke: Palgrave at p. 114). Professor Sinnott testified that the evidence shows that membership of a local authority is a route of entry to Dáil Éireann because voters turn to candidates with a record of service in the local council to represent them in the Dáil.
Based on the clear evidence of the predominance of a “constituency-service” orientation amongst voters, Professor Sinnott concluded as follows:
(1) Section 13A significantly curtails the freedom of choice of voters by depriving them of the right to exercise that freedom to select as a member of the Dáil a person who, because of his or her continuing membership of the local authority, seems to them to be best equipped to look after the needs of the constituency.
(2) Voters are likely to continue to be attracted to candidates who provide local constituency service and are likely to prefer the local councillor over a member of the Oireachtas who is prevented from exercising the dual mandate. If voters respond in this way, it will result in a greater turnover in membership of the Oireachtas than has previously been experienced, which will lead to a diminution in the level of expertise in the Dáil.
(3) The incentive for incumbents will be to spend more, rather than less, time in their constituencies.
While Professor Sinnott expressed the opinion that the change wrought by s. 13A on the nature of the electoral choice hitherto exercised by voters will not necessarily achieve the objective of greater expertise among members of the Oireachtas or greater allocation of time by members to legislative activity, he did acknowledge that the abolition of the dual mandate would bring “new blood” into the Oireachtas and would avoid, in scheduling meetings and sittings, the competing requirements of the Oireachtas and the local authority. He also acknowledged that the abolition of the dual mandate can have no impact on the ability of a member of the Oireachtas to make representations, for example, representations to government departments, on behalf of his or her constituents.
Professor Michael Laver, Professor of Political Science in Trinity College Dublin, who gave evidence on behalf of the defendant, outlined the rationale for abolishing the dual mandate against the historical background of a weak system of local government in Ireland prior to the insertion of Article 28A into the Constitution, which he attributed to the high reliance of local authorities on central government funding since the abolition of domestic rates, the fact that the Government could postpone local elections more or less at will, and the existence of the dual mandate. On the contribution of the existence of the dual mandate to the malaise, he quoted from the Report of the Advisory Committee on Local Government Reorganisation and Reform (the Barrington Report) published in 1991 which, at para. 7.2. recommended that to –
“. . . distinguish clearly between the roles of national and local government there should be a statutory prohibition on members of the Oireachtas and on M.E.P.s from simultaneous membership of local authorities.”
In summary, Professor Laver expressed the view that, from a political science perspective, it is difficult to see any principled argument against the abolition of the dual mandate system. He summarised the arguments in favour of its abolition as follows:
(1) It is designed to enhance the separation of local and national government systems to the clear benefit of both. It removes representational anomalies, for example the representation of some electors at local level by a member of the local authority who is also a member of the Oireachtas, with the perceived ‘clout’ which that carries, while other electors are not so represented. A distinctive role and status is provided for members of local authorities, thus improving the local government system. On the other hand, the temptation for members of the Oireachtas to be involved at local level in matters more appropriately dealt with by local councillors, whether for defensive or other reasons, is removed, thus improving the national government system. Each system is improved by being enabled to organise its business without regard to the potential conflicts of interest at local level (for example, arising from the fact that electoral areas for local authority elections are smaller than parliamentary constituencies) and at national level (for example, in relation to the possible enactment of legislation to reform the local government system involving redrawing boundaries, redefining powers and such like).
(2) Competitiveness of the Irish political system is increased.
Professor Sinnott expressed the view that a member of the Oireachtas can continue to be an active local politician, notwithstanding the enactment of s. 13A.
The right to stand for election to local authority?
The central plank in the plaintiff’s case is that he has a constitutional right to stand for election to Mayo County Council. Accordingly, the core issue for determination in these proceedings is whether the right of a citizen to stand for election to a local authority is a constitutionally guaranteed right.
The Plaintiff’s Submissions
The plaintiff’s contention is that such right exists and that it stems from a variety of interlocking provisions of the Constitution which complement each other. In particular, counsel for the plaintiff based his argument on the following provisions of the Constitution:
(1) Article 5.
This Article provides that Ireland is a sovereign, independent, democratic state. It was submitted that to conclude that the Oireachtas enjoys a virtual untrammelled power to determine eligibility for, and disqualification from, membership of a local authority would be inconsistent with the guarantee in Article 5 of the democratic nature of the State. The right of citizens to stand at a local election is implicitly constitutionally guaranteed. Support was drawn for this proposition from the decision of this Court in Redmond v. Minister for the Environment [2001] 4 I.R. 64, in which Herbert J. relied on the description in Article 5 of the democratic nature of the State to invalidate the statutory requirement that, in order to be eligible to contest Dáil and European elections, candidates were required to pay a deposit. Herbert J. drew no distinction between elections to the Dáil and elections to the European Parliament. Therefore, as I understand the argument, no distinction should be drawn between elections to the Dáil and elections to local authorities.
(2) Article 6
This Article provides that 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.
Counsel for the plaintiff emphasised that Article 6 underlines that the ultimate power of the State rests with the people. The people exercise their power through voting. The power of the legislature to circumscribe the residual authority reserved to the people regarding the manner in which they exercise their votes or the consequences of such voting must, as a result, be limited. The power of the people to designate the rulers of the State and, in final appeal, to decide all questions of national policy, must, it was suggested, extend to local government level.
(3) Article 28A
The entire text of Article 28A was quoted earlier.
The constitutional recognition of the role of local government in providing a forum for the democratic representation of local communities contained in Article 28A.1 would be rendered wholly nugatory if the local communities and the people in the local communities did not have a right to stand at local elections. Directly elected local authorities are mandated by Article 28A.2. How would such local authorities be directly elected, counsel for the plaintiff rhetorically asked, unless there is a right to stand for local elections? Article 28A.3 mandates that elections for members of such local authorities shall be held at five-yearly intervals. How would local authorities be elected in a democratic fashion, counsel for the plaintiff rhetorically asked, if there was not a right to stand for election? The answer, it was submitted, is that it is necessarily implicit in the Constitution that there is a right to stand for election to a local authority. Article 28A.4 confers on citizens the right to vote at local authority elections. The Constitution equally confers the right to stand for election to a local authority. It was submitted that, as local authorities constitute an emanation of the democratic nature of the State, the logic applied by Herbert J. in Redmond v. Minister for the Environment applies equally to the right of citizens to stand for election at local authority level. It follows, it was submitted, that the Oireachtas can only interfere with the entitlement of citizens to vote for members of local authorities and the entitlement of persons to seek election to local authorities for “objective and weighty reasons”.
(4) Article 16.1.1
This Article provides as follows:
“Every citizen, without distinction of sex, who has reached the age of twenty-one years, and who is not placed under a disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann.”
The nub of the plaintiff’s argument is that what is stated in express terms in Article 16.1.1 is necessarily implied in the Constitution by virtue of the provisions of Articles 5, 6 and 28A.
Counsel for the plaintiff also submitted that, applying the expressio unius exclusio alterius principle of construction, the Constitution necessarily excludes by implication a prohibition on the dual mandate. Counsel referred to various provisions of the Constitution which prohibit office holders from holding another or other offices. Article 15.14 precludes membership of both Houses of the Oireachtas. The Comptroller and Auditor General (Article 33.3) and judges (Article 35.3) are precluded from membership of either House of the Oireachtas and from holding any other office or position of emolument. The President is precluded from holding any other office or position of emolument (Article 12.6.3). Against the background of those provisions, and against the background that the dual mandate the subject of these proceeding, was well known in 1937 and 1999, it was submitted that it is necessarily implicit that the Constitution permits ex facie the existence of a dual mandate between the Dáil and local authorities.
The Defendant’s Submissions
On behalf of the defendant it was submitted that, in considering whether there is a constitutional right to stand for election to a local authority, it is necessary to consider two distinct questions: whether the Constitution as originally enacted secured any such constitutional entitlement; and whether the position changed following the 20th amendment and the insertion of Article 28A.
In outlining the position of local government in the Constitution earlier, I have referred to the only two references to local authorities in the Constitution prior to the introduction of Article 28A. The submission made on behalf of the defendant, that it cannot be credibly contended that prior to the introduction of Article 28A there was a constitutional entitlement to stand for election to local authorities, in my view, cannot be gainsaid.
In relation to Article 28A, counsel for the defendant submitted that, while that provision is undoubtedly significant in realising the desire that the role and function of local government be reflected within the Constitution, it reflects the debate which preceded its promulgation, favouring a preference not to create local authority structures with independent constitutional powers and functions, but instead to subordinate those bodies to the Oireachtas. The range of matters which Article 28A expressly reserves for determination by the Oireachtas was emphasised, as were matters which are not alluded to at all in Article 28A. It was submitted that the absence of any reference to the right of persons to stand as candidates for local elections, or any provision similar to Article 16.1.1, is significant, particularly, given that the right to vote is provided for in Article 28A.4. The omission, it was submitted, strongly suggests that it was never intended that such a right should exist. This argument, in effect is an application of the expressio unius exclusio alterius principle which, counsel for the defendant submitted, has been adopted in a number of decisions in which similar issues of constitutional interpretation have arisen. In Byrne v. Ireland [1972] I.R. 241, it was contended that the Constitution implicitly recognised the existence of a State immunity from suit Budd J. rejected that argument in the following passage (at pp. 298-299):
“It is to be observed that under the terms of Article 13, s. 8, sub-s. 1, it is provided that the President shall not be answerable to any court for the exercise and performance of the powers and functions of his office, or for any act done or purporting to be done by him in the exercise and performance of those powers and functions; that article shows that the framers of the Constitution had before their minds the matter of providing expressly for immunity from suit in at least this instance, but in sharp contrast they did not see fit to provide directly for any such immunity in the case of the State. This would seem to me to carry an implication of some weight that it was not intended to confer any such immunity on the State.”
By analogy, it was submitted, given that Article 28A.4 expressly equates the right to vote at local elections with the right to vote at Dáil elections (Article 16.1.2), it is difficult to ignore the omission of an equivalent of 16.1.1 and conclude that a right equivalent to the right conferred by Article 16.1.1 is implicit in Article 28A.
Conclusion
In my view, whether there is a constitutionally protected right of election to membership of a local authority turns on the proper construction of Article 28A, in the context of all of the provisions of the Constitution. An analysis of Article 28A indicates limited constitutional protection for local government and local representative assemblies. The role of local government is recognised, rather than guaranteed. Significantly, insofar as the role of local government is recognised in exercising and performing at local level powers and functions, s. 1 stipulates that such powers and functions are “conferred by law”. While the constitutional protection is limited, nonetheless, Article 28A contains the following mandatory provisions which are fundamental in ensuring that the democratic representation of local communities is safeguarded:
(a) that local authorities exist
(b) that they shall be directly elected;
(c) that elections shall be held at five-yearly intervals; and
(d) that, as regards a core element of the electorate, eligibility to vote at such elections shall correspond with eligibility to vote at elections for the Dáil.
That the function of defining the parameters of the role of local government and how it operates in certain respects is left to the Oireachtas is clear on the face of Article 28A. As I have already mentioned, the powers and functions of local authorities are to be determined by the Oireachtas (Article 28A.1). Even in relation to the mandatory provisions a vast area of regulation is left to the Oireachtas. The number, the territorial extent and the demographic features of the local authority areas are matters for the Oireachtas, as are their powers and functions (Article 28A.2). The elections which are to be held at five-yearly intervals are to be regulated by law. The right to vote, even in relation to the core element of the electorate, is to be regulated by law (Article 28A.4). Other matters which Article 28A expressly leaves for regulation by the Oireachtas are the expansion of the core element of the electorate (Article 28A.4) and the filling of casual vacancies in membership of local authorities (Article 28A.5).
It is instructive to compare and contrast Article 28A with Article 16 which in Re The Electoral (Amendment) Bill, 1983 [1984] I.R. 268, O’Higgins C.J. described as “a constitutional code for the holding of an election to Dáil Éireann, subject only to the statutory regulation of such election”. Describing the code at p. 275, O’Higgins C.J. said:
“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 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 in 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 contradistinction to Article 16, Article 28A only provides for two of the foregoing ‘essential features of elections’ (per O’Higgins C.J.): entitlement to vote, which is partially provided for; and the maximum term of a local authority.
It is also instructive to compare Article 28A and Article 16 by reference to the matters which in each are expressly left to be regulated by law. In relation to Article 16, the paragraph of the judgment of O’Higgins C.J., which succeeds the paragraph which I have just quoted, was in the following terms:
“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 the General Election subject to a restriction as to the maximum period after the dissolution of the Dáil; (f) the period during which the Dáil may continue subject to the constitutional maximum of seven years, and (g) the details of the mandatory re-election of the Chairman of Dáil Éireann.”
I have already outlined the matters which have been expressly left to be regulated by law in Article 28A. They relate to the mandatory requirements stipulated in the Article – that local authorities should exist and that they should be directly elected at five-yearly intervals by an electorate which includes a core element which corresponds to the electorate for Dáil elections. A comparison of Article 28A and Article 16 indicates that, in the area of local authority elections, there is a considerable range of matters, both in relation to matters which O’Higgins C.J. described as “essential” in the context of elections to the Dáil and other matters not so described, which are not referred to in Article 28A in respect of which regulation would be required to be put in place.
In my view, it must be assumed that where Article 28A is silent as to the regulation of local government and local authority elections, including the criteria for eligibility for membership of a local authority, such regulation has been left to, and is within the competence of, the Oireachtas. It is neither necessary nor logical that there should be implied in Article 28A a provision which corresponds to Article 16.1.1. The whole thrust of Article 28A is that constitutional regulation of local government is minimal and that regulation is to be by statute. I cannot discern any imperative anywhere in the Constitution which necessitates that regulation of eligibility to stand for election to a local authority should not be regulated by statute. Nor can I discern any basis in logic for the proposition that the framers of Article 28A, and the people enacting it, intended that eligibility to stand for a local election should be regulated in precisely the same manner as eligibility for membership of the Dáil. As constitutionally established, in the case of the Dáil, and, as constitutionally mandated in the case of a local authority, the two representative assemblies are not the same. Indeed, in s. 12 of the Act of 2001, the Oireachtas, as it was entitled to do, in my view, regulated eligibility to stand for a local authority election on a basis which differs from Article 16.1.1 in that it fixed the age threshold for eligibility at eighteen years and did not limit it to citizens.
Although not determinative, it seems to me that the express linkage in Article 28A.4 of the right to vote at local elections to Article 16.1.2, coupled with the absence of any reference in Article 28A to entitlement to stand for election to a local authority and, in particular, the omission to provide for entitlement similar to the entitlement to stand for an election to Dáil Éireann provided in Article 16.1.1, must carry an implication of some weight that it was not intended that such an entitlement should be provided for constitutionally in Article 28A.
On the other hand, in my view, the calling in aid of the principle expressio unius exclusio alterius cannot give rise to an implication that there is enshrined in the Constitution a proscription on the abolition of the dual mandate at issue in these proceedings other than by constitutional amendment. The rationale which underlies the prohibition on simultaneous membership of both Houses of the Oireachtas and the rationale which underlies the prohibition on membership of either House and the holding of any other office in the case of constitutional office holders, being concerned, as they are, with concepts of separation of powers, independence, avoidance of conflicts and such like, are fundamentally different from the rationale underlying s. 13A. Moreover, in the case of the constitutional office holders, the effect of the constitutional prohibition is fundamentally different from the effect of s. 13A: the former are precluded from holding any other office or position. In the circumstances, an argument, by reference to the presence of Article 15.14, Article 33.3, Article 35.3 and Article 12.6.3, in the Constitution, that it must have been the intention of the framers of the Constitution in 1937, or the framers of Article 28A in 1999, that entitlement to dual membership of the Oireachtas and a local authority would be immured against abolition other than by constitutional amendment, on the ground that it was not expressly proscribed, is not tenable.
For the foregoing reasons, I conclude that Article 28A of the Constitution is not open to the construction that there is implicit therein a right to stand for election to a local authority on terms similar to Article 16.1.1. Moreover, I conclude that the right of a citizen to stand for election to a local authority is not constitutionally guaranteed.
Section 13A – interference with the right of election to the Dáil.
It is not in issue that there is a constitutionally guaranteed right to stand for election to the Dáil. What is in issue is whether s. 13A interferes with that right.
The plaintiff’s submissions
The plaintiff’s contention is that, under Article 16.1.1 he is eligible for membership of the Dáil, and not placed under any disability or incapacity by the Constitution. Nonetheless, he cannot simultaneously be a member of both the Dáil and Mayo County Council. If he wishes to continue as a member of Mayo County Council, he must resign his Dáil seat. Thus it is argued, s. 13A impacts on the right conferred on him by Article 16.1.1 in substance. Reliance on Article 16.7, which provides that, subject to the previous provisions of Article 16, elections for membership of the Dáil shall be regulated in accordance with law, is not an answer: Article 16.7 cannot be used to justify impediments to eligibility of candidates to stand for election (per Herbert J. in Redmond v. Minister for the Environment)
The defendant’s submissions
The defendant advanced two distinct lines of argument in answer to the challenge based on Article 16. On one line of argument, counsel for the defendant, took as the starting point the proposition that the plaintiff’s argument, based on an infringement of his right under Article 16.1.1, was posited on a mistaken assumption as to the meaning and effect of Article 16. In particular, it was submitted that one of the bases on which Herbert J. decided that the provisions of s. 47 of the Electoral Act, 1992, imposing a deposit requirement on prospective candidates for elections to the Dáil in Redmond v. Minister for the Environment – the interaction between Article 16.1.1 and Article 16.7 – was misinterpreted by the plaintiff or, alternatively, was not correct.
The other line of argument advanced was that, in reality, s. 13 does not constitute any interference with the right to stand for election to the Dáil. Counsel for the defendant recognised that s. 13A gives rise to some indirect effect on the plaintiff as an Oireachtas member, but not such as to offend against Article 16. The indirect effect would arise if the plaintiff wished to contest the local election to be held in June, 2004. In that event, he would be faced with the fact that he is disqualified from being elected or being a member of a local authority, unless he chooses to resign his Dáil seat. This consequence of s. 13A, it was submitted, is not an interference with Dáil membership, but rather it is a prohibition on him simultaneously being a member of the local authority and the Dáil. Counsel for the defendant cited decisions of the Courts of Ontario as supporting this reasoning: Nunziata v. Wong (June 16, 2000 – Divisional Court; September 15, 2000 – Ontario Court of Appeal). It was submitted that, absent a constitutionally guaranteed right to stand for election to a local authority, s. 13A does not violate the plaintiff’s right under Article 16.1.1. If it were otherwise, it was submitted, the myriad of statutory provisions which disqualify a person who is a member of the Oireachtas from being a member of a statutory authority or board would, presumably, fall foul of the Constitution.
Conclusion
It is to be assumed that s. 13A was crafted and structured in such a way as to avoid interfering with the entitlement of a citizen to stand for election to the Dáil, which is a constitutionally protected right. There is no doubt that, ex facie, that objective was achieved in that, unlike the provisions of s. 41 of the Electoral Act, 1992, s. 13A is not expressed so as to render a person in the plaintiff’s position ineligible for membership of the Dáil. That, of course, is not the end of the matter. The issue for present purposes is whether s. 13A constitutes, in substance, a constraint on the right to stand for election to the Dáil.
In my view, there being no constitutionally protected right to stand for election to a local authority, s. 13A imposes no constraint on the plaintiff’s eligibility for membership of the Dáil. It is not an impediment to him remaining in the Dáil until the next general election nor to him standing at the next general election. He does, however, have to choose between his desire to be a member of the Dáil and his desire to be a member of Mayo County Council. However, in that regard he is not in any different position from a member of, say, the Competition Authority or, indeed, a member of any of the other statutory authorities or boards to whom membership of the Houses of the Oireachtas is not open while remaining a member of the authority or board. If such a person is eligible under Article 16.1.1 to stand for the Dáil, stands and is elected to the Dáil, he or she must resign membership of the authority or board before taking his or her seat.
As the plaintiff has failed to establish that s. 13A imposes any constraint on, or is an impediment to the exercise of, the constitutionally guaranteed right of a person to stand for election to the Dáil, his argument based on Article 16.1 fails in limine. In the circumstances it is unnecessary and, in my view, it would be inappropriate to consider the alternative line of argument advanced by the defendant in response to the Article 16 submission.
Section 13A and the Constitutional Guarantee of Equality
The final basis on which the plaintiff challenges the constitutionality of s. 13A is that it infringes the guarantee of equality contained in Article 40.1 of the Constitution, which provides 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.”
The Plaintiff’s Submissions
As has been stated earlier in outlining the plaintiff’s case, the discrimination contended for by the plaintiff as giving rise to an infringement of Article 40.1, as regards eligibility for membership of a local authority, is discrimination as between citizens who are eligible to become members of local authorities, on the one hand, and citizens who would be so eligible but for membership of the Oireachtas, on the other hand. The route by which counsel for the plaintiff asserts that the alleged discrimination constitutes an infringement of Article 40.1 is somewhat circuitous. First, the plaintiff calls in aid the decision of the Supreme Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10, as underscoring the role of Article 40.1 in ensuring that voting rights of one class of citizen are not put above the voting rights of another class of citizen. Secondly, the plaintiff contends that the effect of s. 13A is to preclude voters from choosing, if they so wish, to be represented by the same person both at local and national level. Finally, it is asserted that, in consequence, s. 13A interferes with a related right, which the plaintiff is entitled to assert, to be voted for by persons wishing to have him represent them at both local and national level.
The defendant asserted that there is a fundamental problem with this submission as a constitutional argument. It is an argument available to a prospective voter, rather than to a prospective candidate. In these proceedings no citizen has asserted such a right or the violation of Article 40.1 on account of being deprived of such right. Secondly, it involves the court in second guessing the merits of a policy and the means of its achievement, which the Oireachtas, in the proper exercise of its constitutional function, has decided on.
The plaintiff also cited in support of his challenge based on Article 40.1 the decision of this Court (McKechnie J.) in Kelly v. Minister for the Environment [2002] 4 IR 191, and, in particular, the following passage from the judgment at p. 218:
“[it] . . . now seems clear that the State must in its electoral laws have regard to the concept of equality and must ensure that with any provisions passed into law the guarantee of equality as contained in Article 40.1 of the Constitution will be respected. It cannot, therefore, by any provision of a statute, or by any manner and way in which it might implement such a provision, cause unjustified advantage to accrue to one person, class or classes of the community as against or over and above another person or class of that same community. Equals must be treated equally.”
The principles enunciated by McKechnie J. were derived from an analysis of a number of recent cases on referendums and elections: McKenna v. An Taoiseach; Coughlan v. Broadcasting Complaints Commission [2000] 3 IR 1, and Redmond v. Minister for the Environment.
As regards eligibility for membership of the Dáil, the plaintiff’s contention is that he is discriminated against because membership of a local authority disqualifies him from such membership, whereas no other occupation or profession, for example, general medical practitioner, solicitor, or fulltime businessman, renders one ineligible for membership.
The Defendant’s Submissions
In defending the challenge on the basis of infringement of Article 40.1, counsel for the defendant argued that Article 40.1 is directed in its operation towards prohibition of discrimination based on essential human attributes, in accordance with the principles enunciated by the Supreme Court in Quinn’s Supermarket Ltd. v. Attorney General [1972] I.R.1. Section 13A does not arbitrarily or invidiously discriminate, it was submitted: it discriminates on the ground of function – sometimes classed by counsel as social function and sometimes as constitutional function.
The relevance of the “essential human attributes” principle in this context was disputed by counsel for the plaintiff. However, because of the view I have taken of the application of Article 40.1, it is not necessary to address the issue.
Conclusion
I consider that the passage from the judgment of McKechnie J. in Kelly v. Minister for the Environment quoted above to be a correct statement of the law. It is well settled that there must be equality in the democratic process, as the authorities analysed by McKechnie J. clearly illustrate. The question for consideration here is whether s. 13A has caused unjustified advantage to accrue to a third party, or a class of persons to the disadvantage of the plaintiff.
The plaintiff’s contention that he has been meted unequal treatment and disadvantage by reason of the fact that voters in County Mayo, who would wish, but will not be able, to vote for him in the upcoming local election, because he intends to retain his Dáil seat, and as a result, will be ineligible to stand for election to the local authority, is unsustainable. The plaintiff is in a similar position to every member of the Oireachtas who would wish to stand for membership of a local authority, but because of s. 13A, must exercise a choice between membership of the Dáil and membership of a local authority. The plaintiff, in having to exercise that choice, may feel that he is disadvantaged by comparison with the situation which prevailed a year ago, before the enactment of s. 13A, and, understandably, may feel aggrieved. But that is not relevant.
In relation to the plaintiff’s contention that he has been treated unequally because the generality of members of the Oireachtas are not precluded by law from carrying on an occupation, profession or business in tandem with membership, whereas he is precluded by s. 13A from holding office as a member of a local authority, it does not stand up either. In terms of the value at issue here, that is to say, the opportunity to present oneself to the voters at local level, the plaintiff has not been disadvantaged to any greater extent than any of his colleagues who, prior to the enactment of s. 13A, were members of local authorities. Moreover, in those terms, no advantage has accrued to any of his colleagues, who were not members of a local authority prior to the enactment of s. 13A, whether currently involved in an occupation, profession or business concurrently with membership of the Dáil, or otherwise.
If I am incorrect in my view on the application of Article 40.1, and if s. 13A in some way interferes with the guarantee of equality afforded to the plaintiff by that Article, I am satisfied that such interference is reasonable and proportionate, applying the test of proportionality in accordance with the classic formulation of it by Costello J. as he then was, in Heaney v. Ireland [1994] 3 I.R. 593. That formulation is as follows:
“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally-protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational consideration;
(b) impair the right as little as possible; and
be such that their effects on rights are proportional to the objective”.
On the evidence, I find that the objective of the Oireachtas in abolishing the dual mandate was to strengthen governance at both national and local level in Ireland, in the manner represented by the defendant in defending these proceedings. If the plaintiff’s constitutional right under Article 40.1 has been interfered with, I am satisfied that the stated objective is sufficiently important to justify such interference. Further, I am satisfied that the objective, relating as it does to enhancing the democratic process, is of pressing and substantial importance in a free and democratic society. As to the means chosen to achieve the objective, the enactment of s. 13A is one of a number of measures introduced to fulfil that objective: other means include the insertion of Article 28A in the Constitution and the enactment of the Act of 2001. I am satisfied:
(a) that the provisions of s. 13A are rationally connected to the objective, in the manner outlined in the summary of Professor Laver’s evidence of arguments in favour of abolition set out above; and
(b) that s. 13A impairs the plaintiff’s right to equality as little as possible, although, in truth, in terms of the value at issue here, I cannot see that there is any impairment of the plaintiff’s right consequential on the enactment of s. 13A.
I am also satisfied that such, if any, impairment that there is, is proportional to the stated objective.
Proportionality
Counsel for the plaintiff launched a robust attack on the justification put forward by the defendant for the enactment of s. 13A, characterising the abolition of the dual mandate as reflecting a form of intellectual conceit and elitist attitude to politics. He contended that it was an attempt to effect a piece of social engineering in the political sphere. Having found that there is no constitutionally protected right to stand for membership of a local authority and that s. 13A does not, in substance, interfere with eligibility to stand for election to Dáil Éireann, the question of proportionality does not arise beyond the extent to which I have dealt with it in relation to Article 40.1.
Decision
The plaintiff’s claim is dismissed.
Riordan v. Ireland
[2002] IESC 70 (15th October, 2002)
THE SUPREME COURT
Murphy J.
Geoghegan J.
Fennelly J.
120/20.
Between:
Denis Riordan
Applicant/Appellant
AND
Government of Ireland, Minister for the Environment and Local Government,
Attorney General & Ireland
Respondents
Judgment of the Court delivered by Mr Justice Francis D Murphy on the 15th day of October 2002
1. Sections 46 (4A), (4B) and (4C) of the Electoral Act, 1992 as inserted by s.1 (d) of the Electoral (Amendment) Act, 2002 provide in effect that any person wishing to stand for election for membership of Dáil Eireann who is not affiliated to a registered political party is required to secure the assent to his nomination for such election of 30 persons registered as Dáil electors in the constituency in which such person proposes to seek election.
2. Section 52 of the Electoral Act, 1992 as amended by s.1 of the Act of 2002 so far as material provides as follows:-
“52(1) The returning officer shall rule on the validity of each nomination paper within one hour after its delivery and may rule that it is invalid if, but only if, the returning officer considers that:
(a) in the case of the nomination paper of a candidate referred to in section 46(4A), the nomination is not assented to in the manner required by section 46, and
(b) in the case of the nomination paper of any candidate, the paper is for any other reason not properly made out or signed.”
3. The above named Denis Riordan (the applicant) was desirous of presenting himself as a candidate for election to Dáil Eireann at the election to be held on Friday, 17th May, 2002. In accordance with the legislative provisions, nominations for that election closed at 12:00 am on the morning of Friday 3rd May, 2002. As the candidature of the applicant was not authenticated by a certificate of political affiliation as required by s.46 of the Act of 1992 (as inserted by the Act of 2002) he was required under the terms of the Act to have his nomination paper assented to by 30 persons registered as Dáil electors in the constituency for which he proposed to stand for election. The applicant did not procure the assents aforesaid. It appears that on Wednesday the 1st May, 2002, the applicant submitted his nomination paper without such assents to the returning officer of the Limerick East Dáil election constituency and that such nomination paper was rejected as being invalid by the returning officer on tbe grounds that the minimum number of assents had not been obtained therefor. By order of the High Court dated the 30th April, 2002, McKechnie J. gave liberty to apply to the High Court by way of an application for judicial review for first, a series of declarations that the provisions of the Electoral Act, 1992 as amended by the Electoral (Amendment Act, 2002, were repugnant to the Constitution and, secondly, for an injunction in the following terms:-
“An order requiring the returning officer of the constituency of Limerick East to accept the nomination paper of Denis Riordan, citizen of Ireland, as a candidate for election to Dáil Eireann in the general election taking place on Friday the 17th day of May 2002 subject to the nomination paper meeting the requirements of subsections (1)(b) and subsections 2 to 7 inclusive of s.52 of the Electoral Act 1992 as amended by the Electoral (Amendment) Act, 2002.”
4. The matter came on for hearing before Kearns J on the 2nd May, 2002. For the reasons set out in an ex tempore judgment delivered on that date the learned trial judge refused the application for an injunction, adjourned the matter to the next judicial review list to fix dates and reserved the costs of the application. From that judgment and order the applicant appealed to this Court by way of notice of motion dated the 7th May, 2002.
5. On the 10th May, 2002, this Court dismissed the appeal by the applicant and refused the injunctive relief sought by him. It was then indicated that the Court would give its reasons for its decision this term.
6. First, it must be emphasised that the contention of the applicant that various sections of the Electoral (Amendment) Act, 2002, are repugnant to the Constitution has not been judicially determined. That matter is still outstanding and may be pursued in the High Court in whatever manner may be appropriate. Secondly, it must be recognised that the granting of a mandatory injunction on an interlocutory application is exceptional though not unknown. Thirdly, subject to the recognition of the propositions established in Campus Oil Ltd. v. Minister for Industry and Energy (No. 2) [1983] I.R. 88, the application of the general equitable principles confers upon the trial judge a wide discretion as to whether he or she will grant injunctive relief and that is a discretion with which this Court will not lightly interfere. Fourthly, this Court accepts that the courts may, in accordance with the decision in Pesca Valentia Ltd v. Minister for Fisheries [1985] IR 193, grant injunctive relief where it is contended that particular legislation is unconstitutional.
7. Fifthly, this Court rejects the submission of the applicant that the urgency or expedition with which the Electoral (Amendment) Act, 2002 was enacted is material to the relief claimed herein.
8. Sixthly, this Court would find it difficult to imagine any circumstances in which a public official would be directed by means of an interlocutory mandatory order to carry out an act which would be in direct breach of the express terms of legislative provisions unless and until those provisions had been condemned by a court of competent jurisdiction.
9. In the course of his judgment Kearns J. having commented on the very late stage at which the application was brought and the consequences of granting the relief sought went on to say :-
“What, effectively, the Court is being asked to do is at an interlocutory stage to, effectively, declare the 2002 Electoral Act unconstitutional. There is not two ways about it, that is what the Court is being asked to do at an interlocutory stage and, in effect, to go further and by mandatory injunction insert or add names on to ballot papers without any road map or rules as to how that situation is to be addressed or as to what limitations or organisational arrangements should have obtained in those circumstances. Quite frankly, I do not believe the Court should, absent the most extraordinary circumstances, go down that road.”
10. The learned trial judge was entitled to exercise his discretion to refuse the far-reaching relief sought and in the opinion of this Court was correct in so doing. For these reasons the appeal has been dismissed and the order of Kearns J. affirmed.
Riordan v Minister for the Environment, Heritage and Local Government
[2004] I.E.H.C. 89
Judgment of Finnegan P. delivered on the 26th day of May 2004
This is an application for injunctive relief and while several reliefs are sought in the Notice of Motion only two of the same were pursued at the hearing and these are as follows –
(1) An Injunction or Order requiring the Minister for the Environment, Heritage and Local Government to insert, or order the Returning Officer for the European Parliament Election Constituency South to insert, the Plaintiff’s name on the ballot paper for the Constituency South for the European Parliament Elections due to take place on the 11th June 2004.
(2) An Order to restrain the Minister for the Environment, Heritage and Local Government from holding elections for membership of local authorities until such time as legislation has been enacted by the Oireachtas to require the conduct of the elections as required by Article 28A.3 of the Constitution.
Relevant on this application are the following dates. The date for the holding of European Parliament elections and local elections was announced on the 2nd December 2003 the date being the 11th June 2004. The Plaintiff issued a Plenary Summons on the 19th March 2004 seeking a number of reliefs but those relevant to the present application are as follows –
(1) A declaration that section 12(1A) of the European Parliament Elections Act 1997 as inserted by the Electoral (Amendment) Act 2002 section 2 is repugnant to the Constitution.
Section 12(1A) provides as follows –
“In the case of a candidate whose candidature is not authenticated by a certificate of political affiliation under Rule 5(3) of the Second Schedule, the candidate’s nomination shall, before delivery of his or her nomination paper to the Returning Officer in accordance with Rule 11 of that Schedule, be assented to by sixty persons (excluding the candidate and any proposer) who are registered as European Electors in the constituency.
(2) Section 27(2) of the Local Government Act 2001 is repugnant to the Constitution.
The Local Government Act 2001 section 27 provides as follows –
“27(1)(a) Local Elections shall be held in accordance with Regulations made by the Minister under this section.
(2) Without prejudice to the generality of sub-section (1) regulations under this section may in particular include provision for all or any of the following matters in relation to local elections:
(a) Nominations.”
The Plaintiff delivered his Statement of Claim on the 20th April 2004. The Order fixing the time and date for the European Parliament Election was signed by the Minister on the 7th May 2004 and the Order for the Local Elections on the 13th May 2004. On the 13th May 2004 he applied to the Court (McKechnie J.) for an Order abridging the time for the bringing of a Notice of Motion which relief was refused. The Notice of Motion was issued on the 18th May 2004 returnable for the 24th May 2004 and was heard on the 25th May 2004.
In respect of the first relief claimed on this Notice of Motion the Plaintiff relies on Article 40.1 of the Constitution which provides:-
“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 the differences of capacity physical and moral and of social function.”
The Plaintiff wished to be a candidate for the European Parliament Election. For a number of reasons he was unable to satisfy the requirement of section 12(1A). This was due firstly to time constraints. The effective period available to him to obtain 60 persons was seven days. Work commitments reduced this. In any event he did not know 60 persons and was reluctant to approach persons he did not know. Further the requirement in section 12(1A) discriminated against him as against candidates whose candidature is authenticated by a certificate of political affiliation under Rule 5(3) of the Second Schedule to the Act and who do not require assentors.
There are no authorities directly in point on the issue raised. However the Plaintiff did refer me to a passage in the Judgment of Herbert J. in Thomas Redmond v The Minister for the Environment, Ireland and the Attorney General Unreported 31st July 2001. While that case dealt with the requirement of a deposit at page 36 of his Judgment Herbert J. said –
“In my judgment the absence of some reasonable alternative route to the ballot paper, such as the nomination and signature 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 a considerable percentage of the adult citizens of this State who would otherwise be eligible to stand for membership of Dail Eireann and the European Parliament renders that system unjust, unreasonable and arbitrary.”
The passage is obiter.
Having carefully considered the matter I am satisfied that the Plaintiff on this issue raises a fair question to be tried. I am aware of the decision of Kearns J. in King and Others v The Minister for the Environment, Ireland and the Attorney General (19th December 2003) which weighs heavily against the Plaintiff but which is under appeal to the Supreme Court.
The Plaintiff’s argument in regard to the second relief claimed is as follows –
The Constitution Article 28A3 provides as follows –
“Elections for members of such local authorities shall be held in accordance with law not later than the end of the fifth year after the year in which they were last held.”
“In accordance with law” he argues means in accordance with primary legislation. The provisions of section 27 which permit elections to be held in accordance with regulations made by the Minister are accordingly unconstitutional. He further calls in aid the provisions of the Constitution Article 15.2.1 and 2 which provide as follows:-
“2.1 The sole and exclusive power of making laws in the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.
Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.
While the Plaintiff did not rely on any decisions of the Courts of this jurisdiction there are a number of cases dealing with the provisions of Article 15.2.2 namely NUR v Sullivan 1947 I.R. 77 and Cityview Press v AnCO Supreme Court Unreported 20th December 1978. In relation to delegation to a Minister see de Burca v Attorney General 1976 I.R. 38 at 52 –
“Mr. Barrington’s fourth submission dealt with the provisions of section 2 of the Act of 1927 which empowered the Minister for Justice, without restriction, to prescribe and vary from time to time the minimum rate and qualifications for jurors in each jury district, and to prescribe different rateable values in respect of different classes of land. Counsel contended that these provisions were inconsistent with the Constitution on two grounds. First, because they delegate to the Minister the legislative power which is vested solely and exclusively in the Oireachtas under Article 15.2 of the Constitution. I do not consider that the Minister, in exercising the powers given to him by this section can be said to be exercising in any sense the legislative powers of the Oireachtas. He is simply implementing the policy and provisions of the Act of 1927 as laid down by the Legislature.”
Notwithstanding this it seems to me that an issue arises as to whether the Regulations in this case can be said to be simply implementing the policy and provisions of the Act in question. Again I am satisfied that the Plaintiff raises a fair issue to be tried.
It therefore falls for me to consider whether or not the injunctive relief sought should be granted. In this regard it seems to me that the following fall for consideration:-
(1) The balance of convenience.
(2) Delay on the part of the Plaintiff.
(3) The adequacy of an undertaking as to damages.
With regard to the balance of convenience the Defendant relies upon the very considerable inconvenience and disturbance to the election process in the European Parliament Election and the Local Elections which would result from the granting of the relief sought. In relation to the European Parliament Election the Order of the Minister fixing in law the time and date of the election was signed on the 7th day of May 2004. Nominations for all constituencies closed at 12 noon on Monday the 17th May 2004. The Returning Officer adjudicated on the nominations in the South Constituency and published the list of nominated candidates on Tuesday the 18th May 2004. Notices have been published in the National newspapers and elsewhere detailing the nominated candidates and their designated replacements. The process for the production of ballot papers has been put in train. With regard to the Local Elections the Order of the Minister was signed on the 13th May 2004. Nominations closed at 12 noon on Saturday the 22nd May 2004. Steps have been taken to publicise the list of nominated candidates. Production of ballot papers is in train. These are all matters which I must take into account. Considerable expense must have been incurred particularly in relation to the printing of ballot papers.
In addition there is inconvenience and expense incurred by other candidates. They will have incurred expense in the preparation of election literature. Their election campaigns are no doubt by now well underway. The delay which I mention hereafter has contributed to this and is a factor which I also take into account: Maythorn v Palmer (1864) 11 L.T. 261.
With regard to the issue of delay the Plaintiff submits that he could not have brought this application until after the 7th May 2004 in relation to the European Parliament Election and the 13th May in relation to the Local Election. I am not satisfied that this is indeed the case. The dates for the Elections were announced on the 2nd December 2003 and I can see no reason why proceedings should not have been instituted immediately following that time. The Plenary Summons was issued on the 19th March 2004. This delay militates against granting the reliefs sought. The Plaintiff argued that he could not have issued a motion for injunctive relief prior to the Minister signing the Orders of the 7th May 2004 and 13th May 2004. I do not accept this. There was an obligation on the Plaintiff to issue proceedings and the motion seeking interlocutory relief promptly after the announcement of the date for the elections. Had the proceedings been instituted promptly and an application been made to me at any time thereafter I would have ensured that any interlocutory application would be dealt with promptly and that the matter received an appropriately early trial date. Immediately preceding the most recent Dail Elections proceedings were instituted by a number of persons and in each case hearing dates were allocated within a matter of days and in advance of polling day and the same facility having regard to the importance of the electoral process would have been afforded to the parties here. No such application was made. Had such application been made the balance of convenience might well have been found to lie elsewhere. As matters stand the balance of convenience lies heavily in favour of refusing the application.
Finally I take into account the following circumstance. The Plaintiff frankly admits that an undertaking as to damages would be worthless in that he has not the means to satisfy the same if called upon to do so. While not determinative of the application it is a factor which I must take into account. I take into account the expense which has been incurred by the Defendants and I also take into account the expense which has been incurred by other candidates and indeed their efforts in their election campaigns. They will not be recompensed for these should the Plaintiff ultimately fail in these proceedings.
Having regard to the three matters which I have taken into account that is the balance of convenience, the factor of delay and the inadequacy of any undertaking as to damages I am satisfied that the Plaintiff must be refused the reliefs which he seeks.
Riordan v Ireland
[2005] I.E.H.C. 44
JUDGMENT of The Hon. Mr. Justice Carney delivered on the 23rd day of February, 2005
From the foundation of the State, there was a requirement that a candidate for parliamentary election in order to be validly nominated had to lodge a financial deposit. From 1923 until 1992 the amount of the deposit was £100. This was increased to £300 by the Electoral Act, 1992. The deposit was returned to the candidate after the election if he or she obtained a certain proportion of the vote. In the event of the candidate not achieving that proportion of the vote the deposit was forfeit. The requirement for the deposit was to inhibit frivolous candidates standing for election and to confine the ballot to those who were serious about seeking to be elected or had a serious chance of being elected.
In Redmond v. Minister for the Environment [2001] 4 IR 61 Herbert J. struck down the deposit requirement and declared that the provisions of s. 47 and s. 48 of the Electoral Act, 1992 to be invalid having regard to the provisions of the Constitution and in particular Article 16.1 and 40.1 thereof.
The said judgment and order of Herbert J. was not appealed and the deposit provisions were replaced by new qualification provisions provided for in s. 46 (4A) and (4B) of the 1992 Act as inserted by the Electoral (Amendment) Act, 2002.
One regime was introduced for persons who are not members of registered political parties. Their candidature must be assented to by thirty persons excluding the candidate and any proposer who are registered as Dáil electors in the relevant constituency.
A completely different regime is provided for candidates of a registered political party. Such candidates do not require assentors but instead must furnish to the returning officer a Certificate of Political Affiliation signed by the authorised officer of the appropriate political party as provided for in part 3 of the Electoral Act, 1992.
The justification for this twin track approach is that the party candidate has already battled within his or her party for the party nomination and can be assumed not to be a frivolous candidate but one who has already demonstrated a commitment to the political process.
The applicant sought to be a non-party candidate in the 2002 General Election in the Limerick constituency. Pursuant to the statutory provisions already referred to he was required in advance of standing the election to furnish 30 qualified assentors to his nomination. He contends that this requirement is contrary to the provisions of the Constitution. He also contends that there is unreasonable discrimination between party and non-party candidates in that he would have to organise the attendance of the assentors to his nomination to attend at the local authority office to prove their assent to his candidacy. No such burden lies on the party candidate.
The applicant further complains that by virtue of s. 46(5) of the Electoral Act, 1993, he cannot be described as an Independent candidate in a General Election. If he is to be described at all he must be described as a non-party candidate.
On foot of these complaints the applicant claims –
(a) A declaration that s. 46(4)(4A) of the Electoral Act, 1992, as inserted by s. 1(d) of the Electoral (Amendment) Act, 2002, is repugnant to the Constitution,
(b) A declaration that s. 46(5) of the Electoral Act, 1992, is repugnant to the Constitution, and
(c) A declaration that s. 52(1)(a) of the Electoral Act, 1992, as inserted by s. 1(f) of the Electoral (Amendment) Act, 2002, is repugnant to the Constitution.
The constitutionality of the provisions of the Electoral Act, 1992, as amended by the Electoral (Amendment) Act, 2002, which the applicant seeks to impugn were considered in detail in King, Stack and Cooney v. The Minister for the Environment, Ireland and the Attorney General, unreported, the High Court, Kearns J., 19th December, 2003. In that case Kearns J., then of this court, emphatically determined the issues now being raised by the applicant against the stand point now being contended for by the applicant. The judgment of Kearns J. not only is one with which I would agree but is a judgment of this court and the principle of stare decisis requires that I should not depart from it save in the most exceptional circumstances. No such exceptional circumstances arise.
The only contention of the applicant which is not covered by the said judgment of Kearns J. is his contention that he should be entitled to be described as ‘Independent’. It is entirely proper that there should be regulation of the description of persons and parties given on ballot papers. We know the ingenuity which is capable of being brought to bear to have causes described and advertised on ballot papers and also to have exotic descriptions given on the ballot paper. In this country we remember Sean Dublin Bay Rockall Loftus and in the neighbouring jurisdiction we remember the late Screaming Lord Sutch of the Monster Raving Looney Party. If a candidate became entitled to describe himself as ‘Independent’, I have no doubt the next step would be a claim to set forth, no doubt at some length, what he was ‘independent’ of. The applicant under the law is entitled to be described as a non-party candidate which is a truthful and factual representation of his position. If he chooses he also has the right to opt for no description. No evidence has been adduced that he will be in any way prejudiced or caused damage by not being entitled to have his preferred description of ‘Independent’ on the ballot paper.
I find that in relation to the latter complaint the applicant has failed to persuade me that his rights are in any way being infringed and so far as the balance of the claim is concerned I hold that I am effectively bound by the decision of my respected former colleague, Kearns J.
This application is dismissed.
Dudley v An Taoiseach and Ors
[1994] 2 ILRM 321
Geoghegan J
This is an application for leave to institute judicial review proceedings seeking:
(1) A declaration that the first and second named respondents’ persistent opposition to moving a writ to hold a by-election to fill the vacancy in Dublin South Central Dáil constituency and their failure to take the necessary steps to enable such election to take place is unlawful.
(2) A declaration that the third named respondent’s failure to take the necessary steps to enable the aforesaid election to take place is unlawful.
(3) An order directing the first and second named respondents at the next sitting of the third named respondent where the said respondent’s standing orders so allow to move the writ or to support any motion put before the House to move the said writ, to have the said by-election held either on 9 June 1994 or before the end of July 1994.
The grounds on which it is sought to seek such reliefs are:
(1) Breach of the Electoral Act 1992, a consolidating measure which did not continue s. 53 of the Electoral Act 1923.
(2) Breach of the applicant’s common law right to vote as recognised by, inter alia , Ashby v. White (1704) 1 Bro Parl Cas 61.
(3) Breach of the Constitution’s guarantee of equal effective political representation under Articles 5 and 40.1 or such other reasons as may be offered.
Notwithstanding that this is merely an application for leave, I took the unusual step of reserving judgment for a week as it seemed to me that the proposed application might be a potential attack on the constitutional separation of powers and because, as far as I was aware, there was no precedent for judicially reviewing Dáil Éireann.
I think it important first to review the facts on foot of which the application is being made. The applicant is a student residing in the Dublin South Central constituency. He avers in an affidavit that former Dáil Deputy for that constituency, John O’Connell, resigned his Dáil Éireann seat almost fourteen months *323 ago and that the vacancy has not yet been filled by a by-election. The affidavit goes on to state that numerous attempts in the Dáil to have the writ moved for a by-election ‘have been successfully resisted by the Taoiseach, the government of Ireland and their supporters in the Dáil’. The applicant says that he is a registered elector in the constituency and he claims that his right to vote at common law, by statute and under the Constitution is being infringed. A substantial part of the affidavit is taken up with explaining the close relationship which his family had with John O’Connell. I do not consider that those matters are relevant. However, in paragraph 6 of the affidavit he states that on 28 April 1993 a member of the opposition in Dáil Éireann sought to have moved the writ to hold a by-election in Dublin South Central constituency and that another attempt was made on 24 February 1994. He says that on both occasions the Taoiseach and the government opposed those attempts to have a by-election. He subsequently wrote a letter to the Taoiseach which has not been replied to. If there is a constitutional obligation to hold a by-election within a reasonable time of a vacancy occurring, then there must be an arguable case that a reasonable time has now elapsed. Having regard to Article 16 of the Constitution and in particular s. 7 of that article which envisages that casual vacancies will be filled and that the filling of them shall be regulated in accordance with law, there must, I think, be at least an arguable case that there is a constitutional obligation to hold a by-election within a reasonable time of a vacancy occurring. But even if I am right in both of those propositions the question arises, should leave be given for judicial review having regard to the separation of powers and having regard also to the particular proposed respondents. In order to address that question it is necessary to review the procedure prescribed by law for the holding of a by-election. That is governed now by s. 39(2) of the Electoral Act 1992.
That subsection reads as follows:
Where a vacancy occurs in the membership of the Dáil by a person ceasing to be a member otherwise than in consequence of a dissolution, the chairman of the Dáil (or where he is unable through illness, absence or other cause to fulfil his duties or where there is a vacancy in the office of chairman, the deputy chairman of the Dáil) shall, as soon as he is directed by the Dáil so to do, direct the clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.
It follows from this that a by-election cannot be held until a writ has been issued to the returning officer for the constituency. As no such writ as yet issued the returning officer is not at fault in failing to hold a by-election. The writ to the returning officer is issued by the clerk of the Dáil. But the clerk of the Dáil is not at fault either in not issuing the writ to the returning officer since under *324 the subsection he can only do so if directed by the Dáil itself. The Dáil has not given such direction. The only machinery by which the Dáil can give such direction is by a motion laid before the Dáil by a member of the Dáil and then carried by a majority of the Dáil. In my view, declaratory relief as sought by way of judicial review is not obtainable as against Dáil Éireann because such relief should only be granted where it could be followed up either in the same proceedings or in some other proceedings by an enforceable order. No enforceable order can be made by the courts as against Dáil Éireann as such. Dáil Éireann can only give the direction if the majority of the members vote for the motion but the courts cannot mandamus the body of members of the Dáil as such to vote in a particular way on a particular motion. I would therefore refuse leave for judicial review as against Dáil Éireann notwithstanding the grievances which the applicant may have and the sound legal arguments on which they may be based.
I also consider that leave to institute judicial review proceedings against the Taoiseach should not be granted in that I do not see that he is under a personal responsibility in relation to any of the matters complained about.
Different considerations, however, apply to the proposed judicial review proceedings insofar as they are brought against the government of Ireland. As Dáil Éireann cannot move of its own motion, I think that there must be an arguable case at least that the government of Ireland has a constitutional obligation to set down and support motions for the issue of a writ for the holding of a by-election after a reasonable time has elapsed from the vacancy arising and that there is also an arguable case that the government is constitutionally obliged not to impede or oppose such a motion after a reasonable time has elapsed except in the context of substituting its own motion. As a minister can be judicially reviewed in the exercise of his powers and functions, there must, I think, be an arguable case that the government can be judicially reviewed in the circumstances of this particular case. A precedent is to be found in State (Sheehan) v. Government of Ireland [1987] IR 550; [1988] ILRM 437.
I will therefore refuse leave as against the Taoiseach and Dáil Éireann but I will give leave as against the government of Ireland and the Attorney General. I think, however, that Ireland should be joined as a respondent. I will permit the amendment to the statement of application to include Ireland as a respondent. The leave will be to institute judicial review proceedings seeking the first, third, fourth and fifth reliefs set out in the statement of application but omitting any reference to the first named respondent.
Doherty v Government of Ireland
[2010] IEHC 369
JUDGMENT of Kearns P. delivered the 3rd day of November, 2010
By Order of the High Court (Peart J.) made on the 12th July, 2010 the applicant was given leave to apply by way of an application for judicial review for the following reliefs:-
(i) A declaration that in view of the duration of the vacancy for membership of the Dáil in the Donegal South West constituency and the extent to which its electors and population are presently under-represented, the Government is under a duty not to oppose motions put down by others to have the writ moved for a by-election there.
(ii) An order directing the Government not to oppose any such motion that may be moved.
(iii) Further and other relief.
By consent of the parties, an additional relief was sought further to notice of motion dated the 18th October, 2010 as follows:-
(2) A declaration that there has been excessive delay in filling the said vacancy since it occurred on 6th June, 2009.
The grounds set out in the Statement to ground the application for judicial review are elaborated in the following simple terms:-
“In the light of the Constitution’s affirmation of a “democratic State” (Art. 5) and the requirement that, in any constituency, there shall be “not less than one member for 30,000 of the population” (Art. 16.2.2), there has been excessive delay in filling the said vacancy since it occurred on 6th June, 2009. On account of existing Dáil arithmetic, the only realistic prospect of getting this vacancy filled is for the Government (which effectively controls the Dáil) at least not to oppose a motion to that effect, in accordance with s. 39(2) of the Electoral Act, 1992. In somewhat different circumstances, leave for this type of relief was granted in Dudley v. An Taoiseach et al [1994] 1 I.L.R.M. 321.”
Leave having been granted by the High Court, it is to say the least surprising that no application was brought by or on behalf of the respondents to set aside the leave granted given that the main ground relied upon by the respondents herein is that the matters in issue are non-justiciable by reason of the doctrine of separation of powers.
However, a lengthy Statement of Opposition was filed on behalf of the respondents, contending, inter alia:-
(1) The pleas and contentions of the applicant in relation to provisions of the Constitution, section 39(2) of the Electoral Act 1992 and the judgment of the High Court in Dudley v. An Taoiseach [1994] 1 I.L.R.M. 321 concern matters of law and the respondents make no admissions in respect thereof.
(2) Without prejudice to the foregoing:-
(i) It is denied that Article 16.2.2 of the Constitution imposes a requirement that, in any constituency, there shall be not less than one member for 30,000 of the population as alleged. Article 16.2.2 of the Constitution provides that “the number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population”.
(ii) It is denied that the provisions of the Constitution upon which the applicant relies and/or section 39(2) of the Electoral Act 1992 and/or the judgment of the High Court in Dudley v. An Taoiseach [1994] 1 I.L.R.M. 321 provide any basis for the reliefs sought or any relief.
(iii) . . .
(iv) At the hearing of these proceedings, the respondents will rely upon inter alia, the provisions of the Constitution, (including Articles 5, 6, 15, 16, 28, 29, 34, 37, 46 and 47 thereof and section 39(2) of the Electoral Act 1992. In particular but without prejudice to the generality of the foregoing:-
(a) the respondents will rely upon Article 16.7 of the Constitution which provides that “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”;
and
(b) the respondents will rely upon section 39(2) of the Electoral Act 1992 which was enacted pursuant to and in accordance with, inter alia, Article 16.7 of the Constitution and provides as follows: “where a vacancy occurs in the membership of the Dáil by a person ceasing to be a member otherwise than in consequence of a dissolution, the Chairman of the Dáil (or, where he is unable through illness absence or other cause to fulfil his duties or where there is a vacancy in the Office of Chairman, the Deputy Chairman of the Dáil) shall, as soon as he is directed by the Dáil so to do, direct the Clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.”
(v) The Constitution expressly recognises that there may be casual vacancies in the membership of Dáil Éireann but does not impose any timeframe within which such vacancies must be filled; rather, the Constitution provides that it is a matter for the Oireachtas to regulate the filling of casual vacancies by way of legislation. The power to regulate the filling of casual vacancies which the Constitution confers upon the Oireachtas encompasses, inter alia, the power to regulate the holding of elections to fill such vacancies and the timing of the holding of such elections.
(vi) In accordance with the provisions of the Constitution (including, in particular, Article 16.7 thereof), the Oireachtas enacted section 39 (2) of the Electoral Act 1992 to regulate the filling of casual vacancies in the membership of Dáil Éireann by persons ceasing to be members otherwise than in consequence of a dissolution of Dáil Éireann. By virtue of that legislative provision, it is a matter exclusively for Dáil Éireann to determine when to direct the Chairman of the Dáil to direct the Clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.
(vii) The respondents have not failed to fulfil any obligation under the Constitution or otherwise acted in breach of the Constitution; further the respondents have not failed to fulfil any statutory obligations or otherwise acted in breach of such obligations.
(viii) The Court should not grant the reliefs claimed or any relief having regard to, inter alia, the provisions of the Constitution (including Articles 15 and 16 of the Constitution and the provisions of the Constitution concerning the separation of powers between the organs of Government established by the Constitution and the mutual respect as between those organs of government) and section 39 (2) of the Electoral Act 1992. Further, the Court should not grant relief the effect of which would be to constrain the Government in the exercise of its functions under the Constitution and/or constrain members of the Government in relation to voting in the Dáil and/or imposing on such members a requirement to exercise their votes in a particular manner.
(ix) The claim of the applicant herein entails a fundamentally misconceived application to the Court to ignore and/or amend legislation enacted by the Oireachtas in accordance with the Constitution, to impose impermissible constraints and/or requirements on the Executive organ of government established by the Constitution, to breach the separation of powers which is mandated by the Constitution and to ignore and/or amend the provisions of the Constitution, including, in particular, Articles 15 and 16 thereof.”
The remainder of the Statement of Opposition includes a denial that there has been excessive delay in filling the vacancy for membership of Dáil Éireann in the Donegal South West constituency since the vacancy occurred on the 6th June, 2009. The Statement of Opposition further relates that on the 29th September, 2010, the Minister of State at the Department of An Taoiseach, Mr. John Curran T.D., informed Dáil Éireann on behalf of the Government that it is the intention of the Government to move the writ for the by-election to fill the vacancy for membership of Dáil Éireann in the Donegal South West constituency in the first quarter of 2011. In those circumstances, and without prejudice to the other pleas contained in the statement of opposition, it is contended that the proceedings are now moot and unnecessary and that there is no basis for granting the reliefs sought against the respondents.
At the commencement of the hearing, counsel on behalf of the applicant advised the Court that no mandatory order was sought directing the Government either to put down or not to oppose a motion put down by others to have the writ moved for the by-election. Put another way, the applicant confined the relief sought to one of seeking a declaration, by reference to his constitutional rights, that there has been excessive delay in filling the said vacancy since it occurred on the 6th June, 2009. There was no suggestion on behalf of the respondents that the Government was not capable of being enjoined in the proceedings as the relevant organ of the State with power and responsibility to either move or not resist a motion in the Dáil to convene a by-election, although of course, the respondents strongly argued that no justiciable issue arose because of the doctrine of separation of powers.
BACKGROUND
Senator Pearse Doherty, the applicant in this matter, is a civil engineering technician from Letterkenny in Co. Donegal and is registered as an elector for the Dáil constituency of Donegal South West. The constituency in question is a three seat constituency but since the 6th June, 2009 one of the three seats there has been vacant as a result of its occupant having been elected to the European Parliament. From time to time efforts had been made in Dáil Éireann to move a writ for the by-election, all of which had been resisted by the Government, such initiatives being voted down on the 2nd July, 2009, the 5th May, 2010 and the 29th September, 2010. When making his affidavit on the 12th July, 2010 (some two months before the Minister of State at the Department of An Taoiseach indicated to Dáil Éireann that the by-election would be moved in the first quarter of 2011), the applicant asserted that there was no realistic prospect of the Government ceasing to resist such motions for the foreseeable future. He believed that, on account of the Government ‘whipping control’ of many Dáil members, there was little or no prospect of the writ being moved for so long as it continued to be opposed.
In the last general election, the following had been elected to fill the three seats in that constituency: Mary Coughlan (now the Tánaiste) Dinny McGinley T.D. and Pat “The Cope” Gallagher, now an M.E.P. On his election to Brussels/Strasbourg on the 6th June, 2009 Mr. Gallagher’s seat became vacant. With a population of just over 71,000, the 30,000 ceiling provided for in Article 16.2.2 and Article 16.2.3 of the Constitution has, according to the applicant, been exceeded to a very considerable extent. Endeavours had been made by Sinn Féin members of the Dáil to move the writ with the outcomes already referred to. Under Dáil standing orders, a motion to move the writ could not be tabled again for another six months from the previous occasion except when the Ceann Comhairle otherwise agreed. The applicant asserted that, as a result of discussions he had had with many individuals in the constituency, there was a great level of dissatisfaction with the current exceptional under-representation of the constituency in Dáil Éireann, a dissatisfaction which was exacerbated by the fact that one of its two T.D.’s has extremely onerous responsibilities as Tánaiste and Minister for Education, factors which inevitably must encroach on her time and availability to engage in the normal constituency work of a T.D. He deposed to his belief that in other comparable countries there is no equivalent resistance by Governments to holding by-elections when vacancies occur in their parliaments. In his affidavit sworn on the 12th July, 2010 the applicant avers that:-
“For instance, the general practice in relation to vacancies at the House of Commons is to move a writ within three months of the vacancy arising. There have been exceptional instances of seats remaining vacant longer than six months before a by-election, and seats are sometimes left vacant towards the end of a Parliament, to be filled by the subsequent general election. In other jurisdictions governments are obliged to hold by-elections within a prescribed time period. By way of example, by-elections in France are held for the Lower House of Parliament and in the Upper House (in the case of resignation) within three months of a vacancy occurring. In the Czech Republic, by-elections are held within 90 days of a vacancy occurring for the Upper House of Parliament. Canada requires by-elections to be called for the Federal Parliament within six months of a seat becoming vacant; however, there is no limit on how far in the future the actual date of the by-election may be set. It would appear that the majority of other European electoral systems use the list system to replace parliamentary vacancies when they arise. In comparison with other countries that use by-elections to fill vacancies, Ireland would seem to be the only country whereby inordinate delays arise in holding by-elections.”
In a further affidavit, Sinn Fein member Mr. Caoimhghin Ó Caolain T.D., confirmed the unsuccessful attempts made by his and other parties in bringing motions for the issue of the writ for the by-election in Dáil Éireann. In relation to Mr. Curran’s statement that it was the intention of the government to hold the by-election in the first quarter of 2011, Mr. Ó Caolain pointed out that a by-election held on that basis might not take place until April 2011, almost two years from the occurrence of the vacancy in Donegal South West, that being on the assumption that the government did not decide on a further delay once the first quarter of 2011 was reached. Mr. Ó Caolain referred to research he had undertaken in Dáil and political records as a result of which he ascertained that during the period 1922 to 1937 there were approximately 33 by-elections in which all the vacancies were filled within six months. There have been 88 by-elections since the enactment of the Constitution. In almost all instances the vacancies were filled within six months. One of the longest delays was the delay in holding the by-election in Dublin South which was held in June 2009, some eleven months from the vacancy. He deposed to his belief that the delay in Donegal South West was therefore considerably longer even than the very lengthy delay in a previous by-election within the present Dáil Éireann under the present Government, thereby compounding the unequal treatment of Donegal South West electors. The delay in moving the writ for the current vacancy is the longest in the history of the State. As the present Dáil first met on the 14th June, 2007, it must be dissolved by the 13th June, 2012. The vacancy occurred in June 2009, at a point where the Dáil had potentially three further years to run. Almost half of that period has now expired without the vacancy being filled and, if the government’s announced plans are carried out, well over half that period will have expired without the vacancy being filled. He stated his belief that such a failure results in a denial of democratic rights. He referred to the example of Zimbabwe where some election petitions from the 2000 parliamentary elections were pending in the courts for the full term of office of parliamentarians, thus nullifying the right to a legitimate determination of a contested or vacant seat. While not suggesting that the situation in Ireland had reached the same level, he believed the principle remained the same, namely that a failure to address the vacancy within a reasonable time results in a denial of democratic rights.
In an affidavit sworn by Mr. John Curran, Minister of State at the Department of An Taoiseach, he confirmed that on the 29th September, 2010 he informed Dáil Éireann on behalf of the government that it is the intention of the government to move the writ for the by-election to fill the vacancy for membership of Dáil Éireann in the Donegal South West constituency (and the writs for two other by-elections) in the first quarter of 2011. He stated:-
“I referred to the severe and economical fiscal challenges facing the country and the Government and explained that until Christmas the Government would be working to ensure that a budget is brought forward which is fair to the citizens of the State and helps to further its economic recovery and also would be working to address the problems in the banking system. I explained the view of the Government that to divert attention and energy to holding by-elections while those problems are being addressed could be damaging to the economy.”
In her affidavit sworn on the 14th October, 2010 Ms. Riona Ni Fhlanghaile, Principal Officer of the Department of Environment, Heritage and Local Government, stated that the total number of members of Dáil Éireann presently fixed by law is 166 and when that figure is divided into the total population number as recorded in the 2002 census (3,917,203) the result is 23,598, a situation that complies with the requirement of the Constitution as to ratios..
In his affidavit sworn on the 10th October, 2010, Sinn Fein member Mr. Aengus O’ Snodaig, TD replied to the affidavit sworn by Mr. John Curran and emphasised that the statement made by Mr. Curran to Dáil Éireann in no way equated to proffering information to the Court as to the reasons for the delay. He believed that had Mr. Curran made the same statement to the Court it would have exposed him to cross examination which would have allowed the entirely “manufactured nature of the excuses for the non- holding of the by-election” to be exposed. He stated when the first Dáil debate on the writ for the Donegal South West by-election took place in July 2009, Tánaiste Mary Coughlan made no attempt to suggest that a by-election would distract the Government from its important work of dealing with the economic crisis. When the second attempt to move the writ took place in May 2010, Mr. Curran on behalf of the Government did invoke current economic and financial difficulties as a reason for not moving the writ. Mr. O’ Snodaig went on to state that the excuses offered for not holding the by-election were “wholly devoid of merit” and flew in the face of the electoral history of the previous two years. Since the economic crisis occurred in September 2008, there had been nationwide local elections to 34 City and County Councils in June 2009 as well as 5 Borough Councils and 74 Town Councils. There had been a by-election in June 2009 in Dublin South and a nationwide constitutional referendum in October 2009. Mr. O’ Snodaig stated that, by applying the same reasoning offered to Dáil Éireann, the Government could well have chosen to postpone the Dublin South by-election on the basis of the economic crisis, but did not do so. He stated that there was therefore no evidence whatsoever that two nationwide electoral processes in June and October 2009 had any measurable effects in terms of “taking the eyes of the Government and [political] parties off the recovery of the economy”. Mr. O’Snodaig further contended that, even accepting Mr. Curran’s logic, it had to be borne in mind that the budget will take place on the 7th December, 2010 and, that being so, there was no identified reason why the by-election could not be called after that date or why it was necessary to wait until the end of the first quarter of 2011. In Mr. O’Snodaig’s view, there was clearly no guarantee that the banking crisis and economic crisis would be any better by then and indeed they might well be worse. Finally, he highlighted that Mr. Curran’s statements were at variance with repeated statements from Government that the economic crisis was under control and being managed competently and that “the worst is over . . . we have turned a corner” as stated by Minister for Finance Brian Lenihan TD in December 2009.
RELEVANT PROVISIONS OF THE CONSTITUTION AND RELEVANT STATUTORY PROVISIONS
Article 5 of the Constitution states:-
“Ireland is a sovereign, independent, democratic state”
Article 16.1 of the Constitution states:-
“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.
4° No voter may exercise more than one vote at an election for Dáil Éireann, and the voting shall be by secret ballot.”
Article 16.2 of the Constitution states:-
“1° Dáil Éireann shall be composed of members who represent constituencies determined by law.
2° The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population.
3° The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.
4° The Oireachtas shall revise the constituencies at least once in every twelve years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of Dáil Éireann sitting when such revision is made.
5° The members shall be elected on the system of proportional representation by means of the single transferable vote.
6° No law shall be enacted whereby the number of members to be returned for any constituency shall be less than three.”
Article 16.3 to 16.7 of the Constitution states: –
3. 1° Dáil Éireann shall be summoned and dissolved as provided by section 2 of Article 13 of this Constitution.
2° A general election for members of Dáil Éireann shall take place not later than thirty days after a dissolution of Dáil Éireann.
4. 1° Polling at every general election for Dáil Éireann shall as far as practicable take place on the same day throughout the country.
2° Dáil Éireann shall meet within thirty days from that polling day.
5. The same Dáil Éireann shall not continue for a longer period than seven years from the date of its first meeting a shorter period may be fixed by law.
6. Provision shall be made by law to enable the member of Dáil Éireann who is the Chairman immediately before a dissolution of Dáil Éireann to be deemed without any actual election to be elected a member of Dáil Éireann at the ensuing general election.
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 accordancewith law.”
Section 39(2) of the Electoral Act, 1992 provides:-
“Where a vacancy occurs in the membership of the Dáil by a person ceasing to be a member otherwise than in consequence of a dissolution, the Chairman of the Dáil (or, where he is unable through illness, absence or other cause to fulfil his duties or where there is a vacancy in the office of Chairman, the Deputy Chairman of the Dáil) shall, as soon as he is directed by the Dáil so to do, direct the Clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.”
It is common case between the parties that section 39 of the Electoral Act 1992 is the legislation designed to exercise the discretion relating to the filling of casual vacancies conferred by Article 16.7 of the Constitution.
Reference might also usefully be made at this point to the statutory provisions relating to casual vacancies which arise in Seanad Éireann. Section 56(1) of the Seanad Electoral (Panel Members) Act 1947 provides:-
“Where the Minister receives from the Clerk of Seanad Éireann a notice of a casual vacancy, the Minister shall, as soon as conveniently may be and in any case not more than one hundred and eighty days after receiving the notice, make an order (in this Act referred to as a Seanad bye-election order) directing an election to be held in accordance with this Part of this Act to fill the vacancy and stating the panel and sub-panel in respect of which the vacancy occurred and appointing for the purposes of the election the times and places mentioned in whichever of the two next following subsections of this section is applicable.”
Given that the applicant also placed reliance on s. 2 of the European Convention on Human Rights Act 2003, it is important to set out the terms of that section which provide:-
“2(1) In interpreting and applying any statutory provision or rule of law, a court shall, insofar as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
The obligation which the applicant contends the State owes under the Convention provision is set out in Protocol No. 1 of the European Convention of Human Rights which provides:-
“Article 3
Right to free elections
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” (Emphasis added)
THE ISSUES RAISED
Counsel on behalf of the applicant submitted that the issues in the case could be summarised under the following five headings:-
1. Are the proceedings moot or unnecessary by reason of Minister John Curran’s statement to the Dáil on the 29th September, 2010?
2. Is the matter non-justiciable by reason of seeking to constrain members of the Government in terms of how they vote in Dáil Éireann?
3. Is there an obligation to fill the vacancy within a reasonable time?
4. If there is such an obligation, is it entirely a matter for Dáil Éireann and/or the Government, and therefore non-justiciable by reason of the doctrine of separation of powers?
5. Is there an obligation to fill the vacancy within a reasonable time, and if that question is justiciable, has there been an excessive delay in filling the vacancy in Donegal South West having regard to constitutional and statutory principles?
It seems to me, however, that the matter which the court must first address is whether the issues raised in this case are justiciable. In doing so I appreciate that, as pointed out by counsel for the respondents, this application is not a challenge to the constitutionality of the Electoral Act 1992, or any provision of that Act.
JUSTICIABILITY
When the hyperbole associated with many of the submissions advanced on behalf of both the applicant and the respondents is dispensed with in this case, particularly those on behalf of the respondent which suggested that it would “tear asunder” the tripartite division of powers under the Constitution for the Court to express any view on the matters raised, it seems to me that a fairly basic and simple question requires to be addressed. As the provisions of Article 16.7 of the Constitution delegate to the Oireachtas the power to legislate for elections to membership of Dáil Éireann, including the filling of casual vacancies, and as the Oireachtas has purportedly executed that power by enacting s. 32 of the Electoral Act 1992, does the court have a function in determining whether the provisions of section 39(2) require to be interpreted as meaning that a by-election is to be held within a reasonable time, or, as the respondents submit in the alternative, the terms of the subsection leave the Dáil at large as to whether and when it shall direct the Clerk of the Dáil to issue a writ directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.
A useful starting point is to consider the approach taken to this issue in the High Court by Geoghegan J. in Dudley v. An Taoiseach [1994] 2 I.L.R.M. 321.
In that case the applicant was a student residing in the Dublin South Central constituency. Some fourteen months after the sitting Dáil Deputy, John O’Connell resigned his Dáil Éireann seat, the vacancy had not been filled by a by-election. Numerous attempts in the Dáil to have the writ moved for a by-election had been successfully resisted by the Government and its supporters. The applicant argued that, as a registered elector in the constituency, his rights to vote at common law, by statute and under the constitution were being infringed.
At p. 323, Geoghegan J. stated:-
“Having regard to Article 16 of the Constitution and in particular s. 7 of that Article which envisages that casual vacancies will be filled and that the filling of them shall be regulated in accordance with law, there must, I think, be at least an arguable case that there is a constitutional obligation to hold a by-election within a reasonable time of a vacancy occurring.”
Geoghegan J. then went on to consider the very grounds of objection which had been raised by the respondents in the instant case. In a later passage on p. 323 he stated:-
“But even if I am right in both of those propositions the question arises, should leave be given for judicial review having regard to the separation of powers and having regard also to the particular proposed respondents. (In that case Dáil Éireann had also been joined as a party by the applicant). In order to address that question it is necessary to review the procedure prescribed by law for the holding of a by-election. That is governed now by s. 39(2) of the Electoral Act 1992.”
Having recited the subsection in full, Geoghegan J. continued:-
“It follows from this that a by-election cannot be held until a writ has been issued to the returning officer for the constituency. As no such writ has yet issued the returning officer is not at fault in failing to hold a by-election. The writ to the returning officer is issued by the clerk of the Dáil. But the clerk of the Dáil is not at fault either in not issuing the writ to the returning officer since under the subsection he can only do so if directed by the Dáil itself. The Dáil has not given such direction. The only machinery by which the Dáil can give such direction is by a motion laid before the Dáil by a member of the Dáil and then carried by a majority of the Dáil. In my view, declaratory relief as sought by way of judicial review is not obtainable as against Dáil Éireann because such relief should only be granted where it could be followed up either in the same proceedings or in some other proceedings by an enforceable order. No enforceable order can be made by the courts as against Dáil Éireann as such. Dáil Éireann can only give the direction if the majority of the members vote for the motion, but the courts cannot mandamus the body of members of the Dáil as such to vote in a particular way on a particular motion.”
Having expressed those views, Geoghegan J. refused leave for judicial review as against Dáil Éireann, and further refused leave to institute review proceedings against the Taoiseach as he did not see that the Taoiseach was under a personal responsibility in relation to any of the matters complained of. However, Geoghegan J applied quite different considerations to the proposed judicial review proceedings insofar as they were brought against the Government of Ireland. In this regard he stated at p. 324:-
“As Dáil Éireann cannot move of its own motion, I think that there must be an arguable case at least that the Government of Ireland has a constitutional obligation to set down and support the motions for the issue of a writ for the holding of a by-election after a reasonable time has elapsed from the vacancy arising and that there is also an arguable case that the Government is constitutionally obliged not to impede or oppose such a motion after a reasonable time has elapsed, except in the context of substituting its own motion. As a Minister can be judicially reviewed in the exercise of his powers and functions, there must, I think, be an arguable case that the government can be judicially reviewed in the circumstances of this particular case.”
He then proceeded to grant leave to the applicant to bring judicial review proceedings as against the Government of Ireland and the Attorney General. He also directed that Ireland be joined as a respondent.
That application, unlike the present proceedings, does not appear to have proceeded any further, but, perhaps significantly, and just as in the instant case, there was no application brought on behalf of the respondents to set aside the leave which had been granted on the grounds that the issue sought to be determined was non-justiciable.
In considering whether any particular controversy is justiciable, the courts take great care to uphold the principle of the separation of powers and to avoid situations where the court goes beyond its own proper own role in the constitutional framework laid down by the Constitution.
In Maguire v Ardagh (2002) 1 IR 385 Keane C.J. noted that the Constitution did not expressly exempt the actions of the Oireachtas or individual members thereof from judicial scrutiny save to the extent specified in Article 15.12 and Article 15.13. Keane C.J. acknowledged that the doctrine of the separation of powers precluded the courts from accepting every invitation to interfere with the conduct by the Oireachtas of its own affairs. Keane C.J. then continued to list specific activities that were non- justiciable, stating as follows at p. 537:
“Specifically, the courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction under Article 15.10 to make its own rules and standing orders and to ensure freedom of debate where the actions sought to be impugned do not affect the rights of citizens who are not members of the House: see the decision of this court in Slattery v An Taoiseach [1993] 1 I.R. 286. It was also held by the former Supreme Court in Wireless Dealers Association v Minister for Industry and Commerce (Unreported, Supreme Court, 14th March, 1956) that the courts could not intervene in the legislative function itself: their powers to find legislation invalid having regard to the provisions of the Constitution arise only after the enactment of legislation by the Oireachtas, save in the case of a reference of a Bill by the President to this court under Article 26. Nor, in general, will the courts assume the role exclusively assigned to the Oireachtas in the raising of taxation and the distribution of public resources, as more recently made clear by this court in T.D. and Others v Minister for Education and Science and Others [2001] 4 IR 259”.
A justiciable controversy may, at its simplest, be defined as a dispute capable of litigation in the courts. In Baker v Carr 369 US 186 (1962), the United States Supreme Court held that the issue of justicability should be determined on a case by case basis. It has also been suggested that:-
“Non-justicability concerns whether a court can with constitutional propriety adjudicate on the matter before it or whether such an adjudication would be an infringement by the court of the role which the Constitution has conferred on it. Essentially the doctrine is concerned with identifying those claims which may be legitimately advanced before a court and those which must be advanced in parliament through the political process. In other words, is it a case for judicial or political relief.” (McDermott, The Separation of Powers and the Doctrine of Non-Justiciability 35 Irish Jurist 280 at p. 280).
Thus controversies surrounding purely political issues or the extent to which the revenue or borrowing powers of the State are exercised or the purposes for which funds are spent are entirely outside the proper role of the court. Thus, in O’Reilly v Limerick Corporation [1989] I.L.R.M. 181, the question as to whether the Oireachtas had adequately provided for disadvantaged groups via its taxation policies was deemed to be non- justiciable.
Similarly, in international relations and the conduct of foreign affairs, the courts have invariably taken the view that controversies which may arise are non-justiciable at the behest of individual citizens as the provisions of Articles 29.1 to Article 29.3 relate only to relations between states and confer no rights upon individuals. (See Horgan v An Taoiseach [2003] 2 IR 468).
However, even in this context, the courts have seen fit to intervene when an actual or threatened breach of an individual’s constitutional rights may occur, as in Crotty v An Taoiseach [1987] 1 I.R. 713 where Finlay C.J. stated at p. 774:-
“The overall provisions concerning the exercise of executive power in external relations do not contain any express provision for intervention by the Courts. There is nothing in the provisions of Articles 28 and 29 of the Constitution, in my opinion, from which it would be possible to imply any right in the Courts in general to interfere in the field or area of external relations with the exercise of an executive power. This does not mean that the executive is or can be without control by the Courts in relation to carrying out executive powers even in the field of external relations. In any instance where the exercise of that function constituted an actual or threatened invasion of the constitutional rights of an individual, the Courts would have a right and duty to intervene.”
Equally, in what might be described as a political context, the Supreme Court by a majority decision in McKenna v An Taoiseach (No.2) [1995] 2 IR 10 took the view that the question of state funding for referendum campaigns was justiciable. Hamilton C.J. stated, at p. 32, that the case law established the three principles for judicial intervention:-
“1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.
2. If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.
3. The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution”.
In Murphy v Minister for the Environment [2008] 3 IR 438, Clarke J. considered the question of delay in implementing a census. He held that it would not have been practicable to implement the report within the two or three months between publication of census and dissolution of the Dáil. However, at p. 471, he went on to say that if the Oireachtas did not take steps with “the minimum delay”, it might be appropriate for the court to intervene:
“8.7 In the circumstances of this case I am not satisfied that it would be appropriate to conclude that the Oireachtas has failed in its constitutional obligations. I do not, therefore, propose making a declaration in those terms. However it does appear to me to be a case in which it is appropriate to adopt the position taken by the Supreme Court in District Judge MacMenamin v Ireland [1996] 3 I.R. 100, in which the court’s view as to the general constitutional obligations which arise are set out and the Oireachtas is invited to take whatever detailed measures it might consider appropriate to deal with the issue which has arisen. The precise methods to be adopted in the formulation of new constituencies, is, of course, a matter for the Oireachtas. The only role of the court is to intervene if the methods adopted are in breach of the constitutional obligations of the Oireachtas. For the reasons which I have indicated, I am not satisfied that that position has been reached. However it seems to me to be clear that if, without justifiable reasoning, the Oireachtas did not take appropriate steps to ensure the minimum delay between the finalisation of the ascertainment of the population in a census and the determination and enactment of a law providing for new constituencies, then it might be appropriate for the court to take further action”.
That decision would appear to have particular resonance in terms of the facts of the instant case. In McDonald v Bord na gCon [1965] 1 I.R. 217 Kenny J. in the High Court concluded that a justiciable controversy is one of a type, which, as a matter of history, has been capable of litigation in the courts of this country.
While clearly, as illustrated by decisions such as O’Malley v An Ceann Comhairle [1997] 1 I.R. 427 (a case in which the applicant contended that certain parliamentary questions had been wrongly disallowed by An Ceann Comhairle), internal matters and the internal workings of Dáil Éireann – not involving citizens outside the House – fall outside the appropriate remit for the court’s intervention, this is not such a case because the applicant is in a position to assert that his constitutional rights are being breached or rendered inoperative because of the manner in which the Government is applying and exercising the provisions of section 39(2) of the Electoral Act, 1992.
It seems to me that there is ample precedent for concluding that decisions or omissions which affect or infringe citizens’ rights under the Constitution are prima facie justiciable. Thus in Ahern v Minister for Industry and Commerce (No. 2) [1991] 1 I.R. 492, a decision to put a civil servant on compulsory sick leave was held to be justiciable since it affected his right to work. Similarly, in MacPharthalain v Commissioners of Public Works [1992] 1 I.R. 111, the designation of certain lands as constituting an area of scenic interest was held to give rise to a justiciable controversy as it affected a landowner’s right to obtain certain types of grants.
It seems to me that a citizen’s constitutional rights are trenched upon and significantly diluted when no effect is given to rights for representation clearly delineated in the Constitution. These are rights which might usefully be characterised as forming part of the “constitutional contract” between the citizen and the State.
Implicit in Article 5 of the Constitution, which states that Ireland is a sovereign, independent and democratic state, is a recognition of the requirement for democratic representation through the electoral system which the Constitution provides. Article 16.1 of the Constitution provides for a clear right for every citizen to have the right to vote at an election for members of Dáil Éireann. Article 16.2 further provides that the number of members shall from time to time be fixed by law, but in any event the total number shall not be fixed at less than one member for each 30,000 of the population, or at more than one member for each 20,000 of the population. Article 16.2.3 requires that the ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as is practical, be the same throughout the country.
These provisions are in no sense aspirational. They do, as already, noted, set out the citizens’ rights in clear and unambiguous terms. Furthermore, Article 16.7 which provides for elections for membership of Dáil Éireann to be regulated in accordance with law, specifically refers to “the filling of casual vacancies” which seems to me to imply something more than the mere regulation, without more, of elections for casual vacancies. (Emphasis added).
The applicant in the present case is a person who is entitled in my view to seek judicial review in the limited declaratory form being sought on the issue as to whether or not a lengthy delay in moving the writ for the by-election in question may be said to infringe those rights.
As has being emphasised, this is not a case in which the constitutionality of section 39(2) of the Electoral Act, 1992 has per se been called into question. Rather, it is a case in which the applicant invites the court to hold that, by reference to the aforesaid constitutional provisions, the Electoral Act, 1992 and, in particular, section39(2) thereof, must be operated and applied by the Government in a manner which upholds and reflects the constitutional position. Put another way, a constitutional approach necessarily means that section 39(2) of the Act of 1992 must be interpreted as being subject to a temporal requirement that a by-election motion be either moved by the Government or not resisted by it within a reasonable time of the vacancy arising.
I am satisfied that this is a justiciable controversy. It is not a controversy which relates to the internal workings of Dáil Éireann in relation to its own affairs; it is not a controversy in relation to external affairs or to any issue which might be characterised as a socio-economic issue. Rather this applicant’s case relates to the effects of delay on his right to be represented by the number of members laid down by law, and the right to equality of political representation.
THE CONSTITUTIONAL APPROACH TO STATUTORY INTERPRETATION
It is well settled that the courts “should interpret a statute in accordance with the Constitution and on the assumption that it complies with the Constitution” (per McCracken J in Eastern Health Board v McDonnell [1999] 1 IR 174 at p. 183).
In Minister for Social Community and Family Affairs v Scanlon [2001] 1 IR 64 there had, as in the instant case, been no direct challenge to the constitutionality of the legislation in issue. Nevertheless Fennelly J in the course of his judgment, at p 85, stated that:
“The court must not interpret it so as to bring it into conflict with the Constitution if that is reasonably possible as a matter of interpretation”
The presumption of constitutionality which applies to statutes also means that a statute must, where possible, be construed in a fashion which best protects constitutional rights (per Hamilton CJ in Hanafin v Minister for the Environment [1996] 2 IR 321 at pp. 423 and 424 and at pp. 441 and 442 per Blayney J).
In East Donegal Co-operative Ltd v Attorney General [1970] I.R. 317 Walsh J stated that even where the mode of performing official actions envisaged by an Act is not specified in the Act, they must be performed in such a way as to respect the Constitution. At p 341, Walsh J. stated the following:
“At the same time…the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
Finally, a useful example may be referred to at this point to illustrate how the courts can make a straight choice between an interpretation which is constitutional and one which is not. In Re National Irish Bank (No.1) [1999] 3 IR 145 the ambit of section 18(a) of the Companies Act 1990, which provides that answers given by a person pursuant to statutory demand made by company inspectors ‘may be used in evidence against him’, without specifying whether this encompassed criminal cases, was considered. Barrington J pointed out that, while there might be two possible interpretations of the section, the “better interpretation in the light of the Constitution” was that the section was not to be construed as permitting the admission of a statement made to a company inspector by a person who was legally compelled to answer and section 18(a) accordingly only applied to the admission of such evidence in civil proceedings.
A construction which treats section 39(2) of the Electoral Act, 1992 as devoid of any temporal requirement clearly offends the Constitutional provisions of Article 5 and Article 16. For example, if an elected representative were to die within a few days of being elected at a general election, could the Government be said to be acting in conformity with the Constitution if it kept putting off a by-election until the last few months of the five year term of a Dáil? To ask the question is, I think, to know the answer: it most certainly would not.
To read section 39(2) of the Electoral Act, 1992 as being subject to the requirement that the writ be moved within a reasonable time does no violence to the express wording of the sub-section. Rather it gives effect to the sub-section in a manner which honours the Constitutional provisions in question.
Even looking at ordinary principles of statutory construction, it is well settled that a statute should not be given an interpretation which is illogical or absurd. Common sense must be used and the court must strive to implement rather than defeat the object of the legislation. This rule of interpretation is sometimes referred to via the maxim ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void). The absence of a temporal requirement in section 39(2) of the Act of 1992 could produce precisely that result. So construed, an entire Dáil term of 5 years could pass without any obligation falling on the Government to exercise its control of the Dáil to move or not oppose a motion.
It must also be remembered that the Act of 1992 is part of a code of Electoral Acts which includes the Electoral (Amendment) Act, 2005 which provides as follows at section 2:
“Dáil Éireann shall, after the dissolution thereof that next occurs after the passing of this Act, consist of 166 members”
Counsel for the respondents argued that this provision meant nothing more than to specify the numbers that would make up the present Dáil following the last general election but it seems equally open to the interpretation that, during its lifetime, the Dáil should, as far as practicable, continue to have that number of deputies.
I conclude therefore that, by well settled principles of constitutional and statutory construction, section 39(2) of the Electoral Act, 1992 is to be construed as incorporating a requirement that the discretion reserved thereunder be exercised within a reasonable time.
ROLE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I have already set out the provisions of s. 2(1) of the European Convention on Human Rights Act, 2003 which impose an obligation on a court, when “interpreting” and “applying” any statutory provision, to do so, so far as is “possible”, in a manner compatible with the State’s obligations under the Convention provisions.
Every “organ of the State” is obliged (under s.3(1)) of the Act of 2003 to perform its “functions” in a manner compatible with the State’s obligations under the Convention provisions. The President and the Oireachtas, or either House thereof, is excluded from this definition. Any other body, other than a court, through which the legislative, executive or judicial powers of the State are exercised, is subject to this requirement.
Article 3 of Protocol 1 of the Convention requires that elections be held “at reasonable intervals”. The applicant relies on this provision to argue that s. 39 (2) of the Electoral Act, 1992 be “interpreted” and “applied” in accordance with the requirements of s. 2 of the Act of 2003.
Some limited authority was opened to the Court by the parties in this regard, there being an absence of cases decided by the European Court of Human Rights indicating that the “reasonable intervals” requirement applied to anything other than general elections. Counsel for the respondents suggested that, as many European countries filled casual vacancies from a ‘list’ system, it would be wrong to apply any such requirement to a by-election.
Reference was made to passages from Clayton & Tomlinson ‘The Law of Human Rights’ (2nd Ed. Oxford, 2009) the first of which, at para. 20.35 states:
“The Court has observed that democracy ‘is without doubt a fundamental feature of the European public order’ and has held that Article 3 of the First Protocol enshrines the principle of efficient political democracy. It also protects individual rights of participation; the right to vote and the right to stand for election to the legislature. These rights are not absolute and there is room for implied limitations. States can make the rights subject to conditions and have a wide margin of appreciation. However, the conditions must not impair the very essence of the rights or deprive them of their effectiveness.”
At para. 20.37 the authors state:
“Reasonable Intervals”
The Convention does not lay down any particular interval for holding elections. The question as to whether elections were held at reasonable intervals must be decided by reference to the purpose of parliamentary elections: ensuring that changes in public opinion were reflected in the opinions of the elected representatives. Too short an interval might impede political planning. On the basis of these considerations, an interval of five years between elections was ‘reasonable’” (see Timke v Germany [1996] E.H.L.R. 74).
It can hardly be disputed that, historically in this jurisdiction at least, by-elections have been seen to provide a very clear barometer of public opinion and to serve an important function in the working of a democratic representative system. Thus the same principles which underpin the authors’ views about the requirement to hold general elections at reasonable intervals seem to me to apply with equal – if not greater – force where by-elections are concerned. It would strike me as absurd to apply a requirement of reasonable time to the holding of a general election and then to flout or altogether ignore the same principle at the micro level of a by-election. The issue of representation is the same; the requirement to provide an opportunity to the electorate to have their views expressed by elected representatives is also the same.
I am of the view therefore that s. 2 of the Act of 2003 does require that s. 39(2) of the Electoral Act, 1992 be “interpreted” and “applied” (the latter requirement being perhaps particularly relevant in this context) by reference to Article 3 of Protocol I to the Convention as requiring that a by-election be held within a reasonable time of the vacancy arsing.
MOOTNESS
A fall-back position adopted by the respondents is to argue that no declaratory relief should be granted because of the commitment given to Dáil Éireann on the 29th September, 2010 that it was the intention of the Government to move the writ for the by-election to fill the vacancy in Donegal South West in the first quarter of 2011. It was argued on behalf of the respondents that the Court is not therefore confronted with a situation of which it could be said that the by-election is not going to be held within the lifetime of the current Dáil. I would observe, en passant, that implicit in this submission is a recognition that indefinite postponement of the by-election would amount to a gross disregard of those provisions of the Constitution which exist and are designed to provide for an effective democracy.
I am of the view however that the Court should not resile from its own constitutional obligations by reference to a particular statement of intent made on a particular occasion by a spokesman on behalf of the Government. Circumstances might quite legitimately dictate a changed statement of intent and the court has no right to conduct any sort of watchdog role over events which call for consideration within the political arena. Just as the Court has no function to assess or evaluate statements made or reasons offered when the Dáil voted as it did on three previous occasions on this issue, it has no adjudicative role on any statement of intent in relation to future events either. Its function is confined purely within the narrow confines already outlined.
FORM OF DECLARATION
The Court will declare that section 39(2) of the Electoral Act, 1992 is to be construed as requiring that the writ for a by-election be moved within a reasonable time of the vacancy arising.
Has there in fact been unreasonable delay in moving the writ for the by-election in the Donegal South West constituency? The Dáil has a 5 year term and the unprecedented delay in this instance – the longest in the history of the State – represents a significant proportion of the term of the current Dáil. The Court notes that The Constitution Review Group in its Report in 1996 proposed (at p 49) that Article 16.7 of the Constitution be amended so as to require the holding of a by-election within 90 days of the vacancy occurring. Whatever else, this recommendation may be seen as affording recognition to the requirement that by-elections take place within a reasonable time of any vacancy arising. Other instances of appropriate time intervals in different countries which provide for by-elections in their electoral systems have been referred to elsewhere in this judgment. None is of the length that has occurred here. Even allowing for the wide margin of appreciation which must be afforded to the Government when moving the writ, not least for reasons which it has offered to the Dáil (and which are not for this Court to evaluate), I am satisfied that the delay in this case is so inordinate as to amount to a breach of the applicant’s constitutional rights to such a degree as to warrant the Court granting some form of relief. Far from the Court ‘tearing asunder’ the provisions of the Constitution by adjudicating upon this application, it is the ongoing failure to move the writ for this by-election since June 2009 which offends the terms and spirit of the Constitution and its framework for democratic representation.
However, as this matter has not been the subject matter of detailed court analysis in the past, I do not propose to make a declaration of the wider sort contemplated or implicit – as a possibility at least – in the judgment of Geoghegan J in Dudley v An Taoiseach [1994] 1 I.L.R.M. 321, i.e., that the Government is obliged to set down and support the motion for the issue of a writ or at least not impede or oppose such a motion. I would hope, however, that any clarification provided by this judgment would have that effect. As Hamilton CJ stated in District Judge McMenamin v Ireland [1996] 3 IR 100 at 136:
“I do not propose to make a declaration giving effect to my views because, having regard to the respect which the separate organs of government, the legislature, the government and the judiciary have traditionally shown to each other, I am satisfied that once the Government is made aware of the situation with regard to this constitutional injustice, it will take the necessary steps to have the matter remedied in accordance with the law and in accordance with its constitutional obligation.”
The court might in another case following on from this one feel constrained to take a more serious view if any government, and not just necessarily the present one, was seen by the courts to be acting in clear disregard of an applicant’s constitutional rights in continually refusing over an unreasonable period of time to move the writ for a by-election. That the Court can intervene in a more draconian way in extreme cases to protect constitutional obligations was made clear by O’Flaherty J in O’Malley v An Ceann Comhairle [1997] 1 I.R. 427 and by Murray CJ in TD v Minister for Education [2001] 4 IR 259 at p. 337. This is not yet such a case but in my opinion it is not far short of it.
However, for the reasons outlined above, the Court will simply make the declaration sought by the applicant to the effect that there has been unreasonable delay in moving the writ for the by-election in Donegal South West.
Kelly v Minister for the Environment,
[2002] 4 I.R. 191; [2003] 2 I.L.R.M. 81
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