Elections
Cases
Ring v Attorney General
[2004] I.E.H.C. 88, Ring v. A.G. [2004] IEHC 14 (20 February 2004)
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.]
Breathnach v. Ireland
[2001] IESC 59; [2001] 3 IR 230 (11 July 2001)
Judgment of Keane C.J. delivered on the 11th day of July, 2001
Introduction
1. This is an appeal from a judgment and order of the High Court (Quirke J.) which granted the applicant the following declaration:-
‘The court doth declare and adjudge that the failure on the part of the State to provide for the applicant, as a citizen of the State amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure which unfairly discriminates against him and fails to vindicate the right confessed [recte conferred] upon him by Article 40. 1 of the Constitution of Ireland to be held equal before the law.’
2. The facts which gave rise to the applicant’s claim are not in dispute. He was at the date of the hearing in the High Court, and is now, detained in Wheatfield Prison, having been convicted by the Special Criminal Court of certain criminal offences and sentenced to various terms of imprisonment. He is registered to vote in the Dublin city constituency in which he ordinarily resides and he wishes to exercise his right to vote. The respondents acknowledge that the applicant has, during the period of his detention, been unable to exercise his right to vote at local, parliamentary or presidential elections or in referenda. It is also acknowledged that there are no arrangements in being or in contemplation which would enable the applicant and other citizens who are at present lawfully detained in places of detention to exercise their right to vote in such elections and referenda.
3. The relevant constitutional and legislative provisions can be shortly stated. Article 16.1 of the Constitution provides, inter alia that:-
“2° 1. 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 Eireann, shall have the right to vote at an election for members of Dáil Eireann.
3° No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Eireann on the ground of sex or disqualifying any citizen or other person from voting at an election for members of Dáil Eireann on that ground.
4. While sub-s. (3) appears to envisage that the Oireachtas may enact legislation disqualifying citizens from voting at an election on grounds other than sex, no such legislation has been enacted by the Oireachtas since the coming into force of the Constitution. Legislation which prior to its enactment had disqualified certain persons from voting – e.g. the Prevention of Electoral Abuses Act, 1923. s. 63 of which disqualified from voting persons guilty of electoral offences – has been repealed.
5. There are similar constitutional provisions in respect of presidential elections and referenda.
6. Section 8 of the Electoral Act, 1992, provides, inter alia, that:-
“(1) A person shall be entitled to be registered as a Dáil elector in a constituency if he has reached the age of eighteen years and he was, on the qualifying date –
(a) a citizen of Ireland, and
(b) ordinarily resident in that constituency.”
7. Subsection (5) of s. 11 of the Electoral Act, 1992, which deals with the registration of electors generally, provides that:-
“Where, on the qualifying date, a person is detained in any premises in legal custody, he shall be deemed for the purposes of this section to be ordinarily resident in the place where he would have been residing but for his having been so detained in legal custody.”
8. The Electoral (Amendment) (No. 2) Act, 1986, (“the Act of 1986”) and the Electoral Acts 1992 to 1997, contain elaborate provisions enabling certain persons entitled to vote at Dáil or other elections or referenda to vote by post and also enabling physically ill or physically disabled persons to vote at a place other than the polling place for their polling district in accordance with special procedures prescribed under the Acts. In order to avail of these facilities, the persons concerned must be entered on either the “postal voters list” or the “special voters list”. It is unnecessary to set out these provisions in any detail for the purpose of this judgment: it is sufficient to refer to s. 17(2) of the Act of 1992, which provides that:-
“The registration authority shall enter in the special voters list the name of every elector who applies to be so entered and who satisfies the registration authority that:-
(a) he is unable to go in person to vote at the polling place for his polling district by reason of his physical illness or physical disability;
(b) the physical illness or physical disability is likely to continue for the period of continuance in force of the register of electors in respect of which the application to be entered as a special voter is made.
9. On the 9th July, 1999, the High Court gave the applicant leave to apply by way of judicial review for a declaration that what was described as the failure of the government to provide the necessary machinery for its citizens among the prison population and, in particular, the applicant to exercise his and their right to vote unfairly discriminated against him in contravention of Article 40. 1 of the Constitution and article 14 of the International Convention for the Protection of Human Rights and Fundamental Freedoms. A statement of opposition having been filed on behalf of the respondents, the substantive motion came on for hearing before Quirke J. As already noted, in a reserved judgment, he acceded to the claim on behalf of the applicant.
Submissions of the parties
10. The submissions on behalf of the respondents and the applicant on the hearing of the appeal can be summarised as follows. On behalf of the respondents, it was pointed out first that the applicant had not sought to impugn the provisions of the electoral laws already referred to as being repugnant to the Constitution: he had simply sought a declaration which in essence contemplated the passing of legislation providing for postal voting facilities for himself and other prisoners. It was submitted that the applicant was not entitled to raise the constitutional issue sought to be argued in this case in this manner and thus circumvent the difficulty that he would confront arising from the law being entitled to a presumption of constitutionality. Without prejudice to that submission, it was contended that the State had not enacted any law depriving the applicant of his constitutional right to vote under Article 16. 1.2° of the Constitution. On the contrary, s. 11 of the Act of 1992 expressly made provision for his registration as a voter. That would entitle him to vote during the currency of his sentence if he were on temporary release.
11. It was further submitted that the judgment of the learned High Court Judge could not be reconciled with the decision of this court in Draper v. Attorney General [1984] I.R. 277, in which this court held that the fact that the plaintiff in that case was unable, by reason of physical disability, to attend at a polling station and that there were no facilities enabling her to vote otherwise or to vote by post did not render the then law unconstitutional. (As already noted, the law has subsequently been changed so as to enable such persons to vote without attending personally at the polling place for his or her polling district.) It was submitted that the applicant, whose inability to exercise the franchise was the result of his own actions, could not be in a better position than person, who through no fault whatever of their own were similarly unable to vote.
12. It was further submitted that the learned High Court Judge had misconstrued the decision of this court in Murray v. Ireland [1991] ILRM 465, in which it had been held that the rights which a person lawfully detained was entitled to exercise did not include those which depended on the continuance of his personal liberty and that the right to exercise the franchise fell within that category. It was further submitted that the fact that the applicant was unable to exercise the right to vote in contrast to other citizens was not inequality of treatment in violation of Article 40. 1; it was an appropriate differentiation between different categories of citizens which was expressly permitted under that Article.
13. On behalf of the applicant, it was submitted that the preliminary point taken by the respondents had not been relied on in the High Court and that this court should not permit it to be advanced now for the first time. It was further submitted that, since it had not been argued on behalf of the respondents that the extension of a system for postal voting to prisoners would impose undue administrative demands upon the State, it followed that the State, in failing to provide such a system, was not upholding the constitutional right of the applicant to exercise the franchise. That failure also constituted a breach of the applicant’s right to equal treatment before the law under Article 40. 1. It was further submitted that the decision of the High Court was not in conflict with the decision of this court in Draper v.
14. Attorney General [1984] I.R. 277: on the contrary, it was consistent with it, since the considerations which moved this court in that case – the possibility of abuse, the infringement of the obligation of secrecy and the possible costs involved – did not arise in this case. The State, moreover, had subsequently demonstrated, in enacting the Act of 1986 and the Electoral Acts, 1992 to 1997, that there was no insurmountable difficulty in providing machinery enabling disabled persons and other categories to exercise the vote without attending personally at the relevant polling station.
Conclusions
15. As already noted, counsel on behalf of the respondents submitted that, as the applicant had not challenged the constitutional validity of the relevant legislation, the court should not permit him to advance a claim based on the alleged violation of his constitutional right to vote in this oblique fashion. It is conceded, however, that this argument was advanced for the first time in this court and I do not think it would be right to exclude the applicant from making the case which he made successfully in the High Court, on a ground which was never argued or decided in that court.
16. It remains the case, however, that the fact that the relevant legislation must be presumed to be valid having regard to the provisions of the Constitution creates an initial difficulty for the applicant. That legislation, as we have seen, provides detailed machinery for enabling certain categories of persons. Including the disabled who were affected by the decision of this court in Draper v. Attorney General [1984] I.R. 277, to exercise their right to vote without presenting themselves in person at the relevant polling station by voting either by post or at some location other than the polling stat ion, subject to the safeguards prescribed by the Act. In the absence of a challenge to the constitutionality of this legislation it would seem that the applicant cannot he heard to complain that the State has failed to provide the legislative machinery necessary to enable him to vote either by post or within the precincts of the Prison. His complaint must be that, in the absence of: such legislative machinery, the State is obliged to make other arrangements for him to vote. That would presumably have to take the form of the applicant being brought under escort to the relevant polling station in the Dublin city constituency where he is registered as a elector. That would also apply, of course to the entire prison population of the State on the holding of every parliamentary and local election, presidential election and referenda. The implications in terms of security, cost and inconvenience of such a procedure need no elaboration. It would seem unquestionably to fall foul of the decision of the High Court and this court in Murray v. Ireland [1991] ILRM 465 where it was held that the constitutional rights to which a prisoner was entitled could not be exercised where they imposed ‘unreasonable demands’ on the administration.
17. However, even approaching the case on the basis on which it was principally argued in the High Court and again in this court, i.e. that the State is under a constitutional duty to provide the appropriate machinery, whether by way of postal voting or facilities in prison, in order to enable the applicant, and other prisoners in a like situation, to exercise their right to vote, I am satisfied that the High Court Judge was wrong in law in finding that the State was under such an obligation.
18. It is, of course, clear that, despite the deprivation of his liberty which is the necessary consequence of the terms of imprisonment imposed upon him, the applicant remains entitled to vote and could exercise that right if polling day in a particular election or referendum happened to coincide with a period when he was absent from the prison on temporary leave. The issue is whether the fact that he is unable to exercise that right, in the absence of the appropriate machinery, at other times is a violation of his constitutional right to exercise the franchise.
19. It was held by the High Court (McMahon J.) and by this court on appeal in Draper v. Attorney General [1984] I.R. 277 and in Murray v. Ireland failure of the State to provide the appropriate machinery to enable disabled persons to vote by post or at a place other than the relevant polling station was not a violation of their constitutional right to vote. O’Higgins C.J. delivering the judgment of this court said at p. 290:-
“In the opinion of the Court the present law, contained in the Electoral Act, provides a reasonable regulation of elections to Dáil Eireann, having regard to the obligation of secrecy, the need to prevent abuses and other requirements of the common good. The fact that some voters are unable to comply with its provisions does not of itself oblige the State to tailor that law to suit their special needs. The State may well regard the cost and risk involved in providing special facilities for particular groups as not justified, having regard to the numbers involved, their wide dispersal throughout the country and the risks of electoral abuses. The case made by the plaintiff in this action rests entirely on the failure of the State to provide special facilities for her and for those similarly situated. In the opinion of the Court, such failure does not amount to an interference by the State in the exercise of the right to vote under Article 16, s. 1, sub-s. 2 of the Constitution. Nor is it, in the opinion of the court, a breach by the State of the provisions of s. 1 of Article 40. While under this Article the State could, because of the plaintiffs incapacity, have made particular provisions for the exercise by her of her voting rights, the fact that it did not do so does not mean that the provisions actually made are necessarily unreasonable, unjust or arbitrary. For the reasons already stated, the Court could not so find.”
20. It may be as contended for on behalf of the applicants, that the considerations referred to by the learned Chief Justice in the first paragraph of that passage are not necessarily applicable to the same extent in the case for the prison population. But it is also pointed out in that passage that the fact that some voters were unable to comply with the provisions of the then electoral law did not of itself oblige the State to tailor that law to suit their special needs. That seems to me to be equally applicable in the case of persons such as the applicant who are in lawful detention. Indeed, given that their incapacity to vote is the result of their own voluntary actions, it has to be said that the restriction thus imposed on their right to exercise to vote is at least as reasonable as the restriction on the disabled which existed until the enactment of the Act of 1986.
21. The decisions of the High Court (reported at [1985] I.L.R.M. 542) and this court in Murray v. Ireland [1991] I.L.R.M. 465, are even weightier authority against the submissions advanced on behalf of the applicant in this case. The plaintiffs in those proceedings, who were husband and wife, were found guilt of murder and sentenced to penal servitude for life. They commenced proceedings seeking declarations of their entitlement, whilst serving their sentences, to have the opportunity to exercise conjugal rights in order to beget children. In the course of his judgment in the High Court, Costello J. said at p. 551:-
“Those rights which may be exercised by a prisoner are those:
(a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood) or
(b) which are compatible with the reasonable requirements of the place in which he is imprisoned or, to put it in another way, do not impose unreasonable demands on it.’
22. Applying those tests, the learned judge found that the claim that the plaintiffs should be permitted to leave prison from time to time to exercise their rights to beget children was clearly incompatible with the restriction on their liberty which, as he found, was constitutionally permitted by their imprisonment. As to permitting the plaintiffs to exercise their conjugal rights within the prison in order to enable them to beget children, he found that this would place unreasonable demands on the prison service and that, accordingly, the plaintiffs could not validly complain that their rights had been unconstitutionally restricted.
23. Those conclusions were unanimously upheld by this court on appeal. Indeed, in the course of his judgment in that case, McCarthy J., having said that the right to procreate children could be lost temporarily as a result of any form of detention or imprisonment, added at p. 477:-
‘The suspension or abeyance of the right does not depend upon practical considerations but because of the nature of a constitutional right. If a person is deprived of liberty in accordance with law, then that person loses, for instance, the express right to vote [Article 16]; the person loses the non-expressed or unenumerated right to travel, to earn a livelihood, the right to be let alone.’
24. Although it was submitted on behalf of the applicants that this dictum was incorrect, I am satisfied that, on the contrary, it correctly states the law and that it is in accord with the principles explained by Costello J. in the High Court and Finlay C.J. in his judgment in the same case. I do not read this passage as suggesting that the right to vote is “lost” in the full sense in consequence of the imprisonment: rather that it cannot he exercised unless, for example the prisoner is on temporary release. The learned judge did not speak of the right as being permanently “lost”, but as being in suspension or abeyance. That, as was found in that case, is a necessary consequence of the voluntary acts of the applicant/respondent, resulting in the loss of his liberty. No doubt the provision of facilities to enable the applicant to exercise his rights by post or in the precincts of the prison would not be wholly impractical, although it would undoubtedly require legislation. For the reasons stated, however, there is no obligation on the State to provide the machinery, since the right remains in suspension or abeyance during the period of the applicant’s imprisonment.
25. I am also satisfied that the argument based on behalf of the applicant on Article 40 of the Constitution cannot succeed. That provides that:-
“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.”
26. As has so often been pointed out, this article does not forbid discrimination: on the contrary, to legislate is on occasions necessarily to discriminate. The State must have regard to differences of capacity, physical and moral, and that such differences exist between persons detained because they have broken the law and other citizens is beyond argument.
27. Three other points should be mentioned. I have already drawn attention to the provisions of s. 17(2) of the Act of 1992. Some attempt was made to argue that a person in the position of the applicant was prevented from voting by “physical disability” and, accordingly, should be in a position to avail of the facilities envisaged in that provision. It is perfectly clear, however, what is meant by “physical disability” in that section: it is intended to afford voting facilities to persons who are in the position of the plaintiff in Draper v. Attorney General [1984] I.R. 277 and has no application to persons who are being lawfully detained.
28. Attention was also drawn to certain decisions of the Commission formerly established under the European Convention for the Protection of Human Rights and Fundamental Freedoms. They are summarised as follows in The European System for the Protection of Human Rights (edited by McDonald, Matscher and Petzold) as follows:-
“Certain categories of persons may be excluded from the exercise of electoral rights for legitimate reasons and provided that ‘the free expression of the opinion of the people’ is not impaired. This may be the case, inter alia, of convicted persons who are serving their sentence or of persons who received a specific sentence or were convicted for certain specific offences. Thus, for example, under Netherlands law, persons sentenced to a term of imprisonment exceeding one year incur as a result a suspension of the exercise of the right to vote for three years. A further example is that of persons who are stripped, for life, or for a fixed period, of their electoral rights following convictions for collaboration with the enemy. As yet the Commission has always dismissed complaints concerning exclusions of this type.”
29. Such jurisprudence as there is under the Convention, accordingly, does not lend any support to the case on behalf of the applicant. The position of prisoners on remand should finally be noted. Since the applicant does not come within that category, it does not arise directly for consideration. If it did, a distinction might be drawn in their case on the ground that, unlike the applicant, they are presumed to be innocent of the criminal offences with which they are charged. What they have in common, however, with persons in the position of the applicant respondent is that they are being detained in accordance with law and that, accordingly, for as long as they are so detained, some of their constitutional rights, including the right to exercise the franchise, are necessarily in suspension or abeyance.
30. I would allow the appeal and substitute for the order of the High Court an order dismissing the applicant’s claim
The Supreme Court
277/2000 – 27/2001J
Keane C.J.
Denham J.
Murphy J.
Murray J.
Hardiman J.
Between
Stiofan Breathnach
Applicant
And
Ireland and the Attorney General
Respondent
Judgment of Denham J. delivered on the 11th day of July, 2001
Appeal
This is an appeal by the respondents, against the judgment (reported at Breathnach v. Ireland [2000] 3 IR 467), and order of the High Court (Quirke J.) made on the 21st July, 2000, and perfected on the 6th September, 2000, whereby the learned High Court Judge, granted the applicant a declaration.
The High Court
The High Court made the following declaration:-
“[The Court doth declare and adjudge that] the failure on the part of the State to provide for the applicant, as a citizen of the State amongst, the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure which unfairly discriminates against him and fails to vindicate the right conferred (sic) upon him by Article 40.1 of the Constitution of Ireland to be held equal before the law.”
The High Court held at p. 476:-
“The sanctions imposed upon the applicant by the Special Criminal Court in respect of the offences with which he has been lawfully convicted comprised sentences of various terms of imprisonment. The loss of the applicant’s right to vote in nationa1 and other elections was not, at the time of his conviction, a sanction which was prescribed or permitted by law in respect of the offences of which the applicant was convicted. Accordingly, the applicant retains his constitutionally protected right to vote at ‘… an election for members of Dáil Eireann’ and his legally protected right to vote in presidential, European and local government elections. Furthermore he is entitled to exercise that right provided that his exercise does not impose unreasonable demands upon the authorities who are lawfully detaining him. It has been acknowledged that the authority which is lawfully detaining the applicant is the State.
It follows from the foregoing that the failure on the part of the State to provide for the applicant, as a citizen of the State amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure on the part of the State to vindicate a right conferred upon the applicant by Article 40. 1 of the Constitution to be held equal before the law.”
Grounds of appeal
The respondents appealed upon the following grounds:-
1) that the learned High Court Judge erred in law and in fact in granting the declaration sought;
2) that the learned High Court Judge erred in law and in fact in determining that the applicant’s right to vote was not a right which depended upon the continuance of his liberty:
3) that the learned High Court Judge erred in law and in fact in determining that the failure of the respondents to provide the applicant with the means to exercise his right to vote was in breach of the provisions of Article 40. 1 of the Constitution;
4) that the learned High Court Judge erred in law and in fact in determining that the applicant was entitled to exercise his right to vote while imprisoned;
5) that the learned High Court Judge erred in law and in fact in determining that the respondents were in breach of the applicant’s constitutional rights in failing to make special provisions so as to enable him to exercise his right to vote while imprisoned;
6) that the learned High Court Judge erred in law and in fact in determining that the respondents were obliged by the provisions of the Constitution to make special provision to enable prisoners such as the applicant to exercise their right to vote while imprisoned;
7) that the learned High Court Judge erred in law and in fact in determining that the respondents had arbitrarily or unfairly discriminated against the applicant in failing to provide him with the means to exercise his right to vote while imprisoned.
The applicant filed a cross-appeal seeking an order of mandamus directing that the respondents provide appropriate legislative machinery to enable the applicant and others who are in lawful detention within the State and who are capable of voting to exercise their right to vote at both national and local elections and in national referenda. The grounds of the cross appeal were that the learned High Court Judge erred in law and in fact in failing to make the order of mandamus sought.
Law
Relevant law is to be found in the Constitution, legislation and common law.
Article 16.1 .2 of the Constitution of Ireland states:-
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 Eireann, shall have the right to vote at an election for members of Dáil Eireann.”
Article 16.7 of the Constitution of Ireland provides:-
“Subject to the foregoing provisions of this Article, elections for membership of Dáil Eireann, including the filling of casual vacancies, shall be regulated in accordance with law.”
Article 40. 1 of the Constitution of Ireland 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 differences of capacity, physical and moral, and of social function.
In this case no breach of Article 16 of the Constitution of Ireland, 1937 is alleged. No law is impugned. The case is based on Article 40. 1 of the Constitution, on the concept of equality.
Submissions
Counsel on behalf of the respondents submitted written and oral submissions. Counsel on behalf of the respondents pointed out that in these judicial review proceedings the applicant has not sought to impugn the electoral laws but that instead he had simply sought a declaration, which contemplates the passage of legislation, which would provide for postal voting facilities for himself and other prisoners. Counsel submitted that the applicant is not entitled to raise the constitutional issue in this manner. Counsel argued that it is not in issue that the applicant is entitled to equal treatment by the law by virtue of Article 40. 1. He argued, further, that if the law does not provide the applicant with such equal treatment he must challenge that law on the basis that it does not comply with Article 40.1. The law is entitled to the presumption of constitutionality, consequently, counsel submitted, unless the applicant is to challenge the constitutionality of the electoral law provisions as being a contravention of Article 40.1 of the Constitution he is not entitled to advance a claim for the declaratory relief claimed by him. Thus, he submitted, on this basis, the appeal should he allowed. Further, he submitted, that the High Court judgment was in error. The State did not enact any law to deprive the applicant of his constitutional right to vote under Article 16.1.2° of the Constitution. On the contrary, by s. 11(5) of the Electoral Act, 1992, provision is made for the registration of him as a voter. Thus his registration would enable him to vote during the currency of his sentence if he was on temporary release or, alternatively, if his prison sentence ended just before the date when the election was being held.
Counsel for the respondents referred to the common law and submitted that the learned trial judge had erred in his interpretation of that law especially his construction of the decision in Murray v. Ireland [1991] I.L.R.M. 465. Counsel for the respondents submitted that in the context of’ Article 40. 1 of the Constitution the only issue that arose was that of whether or not the State has arbitrarily discriminated against the applicant by passing laws providing for postal voting facilities for others and not for him. In this connection the first point to be made was that the legislation, of which complaint is made, does not discriminate between different types of prisoners. There is no question of some prisoners being given Postal voting facilities and not others. All prisoners are treated in the same way by virtue of s. 11 of the Act of 1992. It was agreed that in that the applicant is not provided with postal voting facilities while certain other categories of citizens have this facility available to them, he is treated differently from those others. However, Article 40.1 permits laws to differentiate between categories of citizens and to make different provisions for different categories. Counsel submitted that equality under Article 40. 1 does not mean uniformity. Further that the Electoral Acts, 1992 and 1997, enjoy a presumption of constitutionality.
On the cross-appeal counsel submitted that any relief to be granted should be restricted to a breach of the applicant’s rights alone. However, having said that, it was submitted that in the event of the court holding for the applicant on the basic issue declaratory relief alone would be sufficient to meet the situation. The State would comply with any declaratory relief granted in such circumstances. It was further submitted that an order of mandamus would not be appropriate or a necessary relief in the circumstances, having regard to the principle of separation of powers.
Counsel for the applicant submitted written and oral submissions. In fact the cross-appeal was not pressed and thus the kernel matter for decision was the equality issue upon which the High Court judgment rested. Counsel submitted that the learned High Court Judge had been correct in his decision. Counsel submitted that in the hierarchy of constitutional rights, the constitutional right to vote must be placed at the top of the list. He referred to Article 6 of the Constitution. He submitted that rather than seeking to exclude persons from the exercise of their right to designate the rulers of the State and decide questions of policy, the State should be seeking to include all citizens in accordance with the Supreme Court decision in In re The Electoral (Amendment) Bill, 1983 [1984] I.R. 268 and subject to the requirements identified in Draper v. Attorney General [1984] I.R. 277. He submitted that the learned High Court Judge was correct that the applicant’s right to be treated equally had been infringed.
Decision
The issue to be determined is net. The query is whether the applicant’s constitutional right to equality has been infringed by the fact that he is unable to vote when in prison and if this is established then the court is requested to make a declaration as to such breach. The issue of constitutional rights of prisoners being affected by their imprisonment has been the subject of previous cases. In Murray v. Ireland [1991] I.L.R.M. 465, the plaintiffs sought declarations of their entitlement while serving sentences to have the opportunity to exercise conjugal rights in order to beget children. The Supreme Court held that the length of time which a person sentenced to imprisonment for life spends in custody and the extent to which, if any, such person obtains temporary release is a matter which under the constitutional doctrine on separation of powers rests entirely with the executive. The exercise of these powers by the executive is subject to supervision by the court which should intervene only if it can be established that such powers are being exercised in a manner which is in breach of the constitutional obligation of the executive not to exercise them in a capricious, arbitrary or unjust manner. Finlay C.J. stated at pp. 471 to 473:-
‘The fact that both the plaintiffs in this case are in prison and the fact that before they were committed to prison they had no children of the marriage, whilst therefore affecting the compassion with which one might view their situation, cannot be considered relevant to the constitutional rights which they claim and to the issue as to whether they have been invalidly denied them.
I accept that the fact that the Constitution so clearly protects the institution of marriage necessarily involves the constitutional protection of certain marital rights. They include the right of cohabitation, the right to take responsibility for and actively participate in the education of any children born of the marriage, the right to beget children or further children of the marriage, and the right to privacy within the marriage, privacy of communication and of association. It is quite clear that as an inevitable practical and legal consequence of imprisonment as a convicted person that a great many of these constitutional rights arising from the married status are for the period of imprisonment suspended or placed in abeyance.
Of the rights which I have outlined it is possible to say that only a right of communication, and that without privacy, and the right by communication to take some part in the education of children of the marriage would ordinarily survive a sentence of imprisonment as a convicted prisoner.
…
The finding that the provision of facilities within the prison to enable all prisoners of the same relevant category as the plaintiffs to exercise these conjugal rights would place unreasonable demands on the prison service is, in my view, well supported by the evidence and is a correct conclusion.”
In addition McCarthy J. stated at p. 477:-
“The simple question may be posed – may a constitutional right be held in abeyance because of the State exercising a power in accordance with law? It is difficult to identify a constitutional right that is unqualified; the right to life itself is not absolute (see Article 13.6). The unenumerated right to procreate children, like all unenumerated rights, must be given a rational meaning. It may be lost temporarily as a result of any form of detention, arrest or imprisonment for a criminal offence; detention for a contempt of court; detention pursuant to mental treatment procedures. The suspension or abeyance of the right does not depend upon practical considerations but because of the nature of a constitutional right. If a person is deprived of liberty in accordance with law, then that person loses, for instance, the express right to vote (Article 16); the person loses the non-expressed or unenumerated right to travel, to earn a livelihood, the right to be left alone, to give some examples.
… In my view, the right claimed, like many other rights, is not an unqualified one; it is placed in suspense if and when one or both of the spouses, is imprisoned and thereby deprived of personal liberty in accordance with law”
The Supreme Court has therefore already stated clearly that it is an inevitable consequence of lawful imprisonment that a great many constitutional rights of a prisoner are suspended for the duration of the imprisonment. The app1icant is in a social category of persons whose rights under Article 40.1 are temporarily affected by lawful imprisonment.
Disability to go to a polling booth does not give rise automatically to a postal vote. In Draper v. Attorney General [1984] I.R. 277, the Supreme Court held that failure to provide facilities to enable the plaintiff (who was physically disabled and unable to go to a polling booth to cast her vote) did not amount to an interference by the State in the exercise of the right to vote declared in Article 16.1.2° of the Constitution. Nor did that failure constitute a breach by the State of the provisions of Article 40.1 of the Constitution relating to the equality of citizens before the law.
O’Higgins C.J. stated at pp. 290 and 291:-
‘The case made by the Plaintiff in this action rests entirely on the failure of the State to provide special facilities for her and for those similarly situated. In the opinion of the Court, such failure does not amount to an interference by the State in the exercise of the right to vote under Article 16, s. 1, sub-s. 2 of the Constitution. Nor is it, in the opinion of the Court, a breach by the State of the provisions of s. 1 of Article 40. While under this Article the State could, because of the plaintiff’s incapacity, have made particular provisions for the exercise by her of her voting rights, the fact that it did not do so does not mean that the provisions actually made are necessarily unreasonable, unjust or arbitrary. For the reasons already stated, the Court could not so find.”
The law providing for voting by people who suffer from disability has developed since that case. However, the recognition of the special role of the legislature is a fundamental constitutional principle which is still relevant and applicable. At issue then was whether the law was unreasonable, unjust or arbitrary – did it breach the principle of equality stated in the Constitution. That test remains applicable.
There have been a number of other cases on the specific issue of a prisoner’s right to vote. Many such cases are unreported and are consequently difficult to locate. However, they have been set out clearly in Prison Law by Paul Anthony McDermott. At paras. 10. 13 and 10. 14 at pp. 333 to 335 it is stated:-
“10. 13: Attempts to challenge the inability of Irish inmates to vote in elections have invariably failed. In Holland v. Ireland (Unreported, European Commission of Human Rights, 14th April. 1998), the applicant, who was serving a prison sentence, did not vote in the 1990 presidential election. He sought judicial review on the basis of his inability to vote from prison. The High Court refused his application, stating that there was no statutory right for voting by prisoners and suggesting that the applicant wait until an election was due before pursuing the matter. (Unreported, High Court, 19th March, 1991). The Supreme Court refused the applicant’s appeal from this decision and noted that the applicant had not even applied to register himself to vote in the relevant constituency. (Unreported, Supreme Court, 18th June, 1991). It was also noted that the additional question of permission or authority to vote was clearly within the authority of the prison governor and there was no suggestion that the applicant had ever made such a request. In 1992 the applicant did not vote in either the general election or the abortion referendum. In 1993 he was informed by Dublin Corporation that his name would be included in the register of electors at his home address in Dublin. At that time the applicant again applied for leave to institute judicial review proceedings in relation to the refusal of the prison authorities to grant him a postal vote. The High Court refused leave to seek an order of mandamus on the basis that there was no statutory provision permitting postal votes for prisoners. (Unreported, High Court, 18th November, 1993). If the applicant considered that this was unconstitutional, he was free to institute plenary proceedings on that basis. An appeal from this decision was subsequently refused by the Supreme Court. (Unreported, Supreme Court, 28th January, 1994). In 1994 the applicant applied for an injunction to suspend the European Parliament elections in order to allow him to pursue his constitutional proceedings. This was refused firstly by the High Court, (Unreported, High Court, 20th May, 1994), and then by the Supreme Court on the basis that by that stage the election had already taken place. (Unreported Supreme Court, 29th July, 1994). The applicant s plenary proceedings were not proceeded any further with and instead he initiated proceedings before the European Commission of Human Rights.
Before the Commission the Government argued that it was not obliged under the Convention to provide either temporary release to prisoners to vote, ballot boxes in the prison or the right to a postal vote. Release of all the prisoners to vote would he far too high a security risk and would put an unfair burden on the prison system, which held 2,300 inmates at any one time. As a result of the many different areas in which prisoners would be registered to vote, hundreds of ballot boxes would be required in each prison to allow all prisoners to vote. Finally the Government pointed out that postal voting was not a right guaranteed by the Irish Constitution or by the Convention.
10.14: The Commission considered that the matter fell to be considered under Article 3 of the First Protocol to the Convention, which provides:
‘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.’
It held that the de facto deprivation of the right to vote imposed on a prisoner did not affect the expression of the people in the choice of a legislature. Although article 3 of the First Protocol implies a recognition of the principle of universal suffrage (including the right to vote in elections for the legislature), this right was neither absolute nor without limitations but subject to such restrictions which are not arbitrary and which do not affect the expression of the opinion of the people in the choice of legislature. It concluded:
‘[T]he Commission does not consider that the suspension of the right of the applicant to vote while in prison affected the expression of the opinion of the people in the choice of legislature – the fact that all of the convicted prisoner population cannot vote does not affect the free expression of the opinion of the people in the choice of legislature.’
In the light of the above findings the Commission concluded that Irish law was not arbitrary in so far as it failed to permit prison inmates to vote.
Because of its finding on the above matters the Commission did not find it necessary to consider whether the applicant had exhausted his domestic remedies so as to give the Commission jurisdiction to hear his case.”
Article 40. 1 provides for equality. All citizens as human persons are held equal before the law. However, that does not mean uniformity. The State may have regard to differences of capacity, physical and moral, and of social function.
No legislation in Ireland prohibits or excludes the applicant or any prisoner from voting. Indeed, the legislation is enabling of the applicant. Section 11(5) of the Electoral Act, 1992, provides:-
“Where on the qualifying date, a person is detained in any premises in legal custody, he shall be deemed for the purposes of this section to be ordinarily resident in the place where he would have been residing but for his having been so detained in legal custody.”
The applicant is in a special category of person – he is in lawful custody. His rights are consequently affected. The applicant is in the same situation as all prisoners: there is no provision enabling any prisoners to vote. Consequently, there is no inequality as between prisoners. The inequality as between a free person and a person lawfully in prison arises as a matter of law. It is a consequence of lawful custody that certain rights of the prisoner are curtailed, lawfully. Many constitutional rights are suspended as a result of the lawful deprivation of liberty. It is a consequence of a lawful order not an arbitrary decision.
The applicant has no absolute right to vote under the Constitution. As a consequence of’ lawful custody many of his constitutional rights are suspended. The lack of facilities to enable the applicant vote is not an arbitrary or unreasonable situation. The absence of such provisions does not amount to a breach by the State of the applicants right to equality.
The words of McCarthy J., cited previously, in Murray v Ireland [1991] I.L.R.M. 465 at p. 477 correctly state the law. If a person is lawfully deprived of their liberty and is in prison then that person loses certain constitutional rights including the right to vote. That does not exclude the legislature from deciding in the future to legislate for a scheme whereby prisoners could vote.
In the circumstances I am satisfied that the applicant’s position is not unreasonable, arbitrary or unjust. It is not invidious discrimination. It is not a breach of the constitutional concept of equality. Consequently, the High Court erred in law in its determination.
Conclusion
I agree with the judgment of the Chief Justice and for the reasons stated herein I would allow the appeal and set aside the order of the High Court.
O’Doherty v AG
[2001] IESC 206 (6 June 2001)
THE SUPREME COURT
No. 146/01
Denham J.
Murphy J.
Hardiman J.
BETWEEN
PATRICK O’DOHERTY
and
APPLICANT
THE ATTORNEY GENERAL, THE MINISTER FOR THE
ENVIRONMENT AND LOCAL GOVERNMENT,
THE MINISTER FOR JUSTICE, EQUALITY
AND LAW REFORM AND IRELAND
RESPONDANT
[Judgments delivered by Denham J and Hardiman J]
Ex tempore Judgment of Mrs. Justice Denham delivered on the 6th day of June, 2001.
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On 30th May, 2001 the High Court (Johnson J.) granted the applicant leave to serve short notice of motion on the Chief State Solicitor on behalf of the respondents for an injunction. The injunction seeks to restrain the Minister for the Environment from proceeding with the holding of a referendum or any other plebiscite or vote of the people on June 7th, 2001.
Yesterday the High Court determined that there was an ambiguity and in light of that situation permitted the applicant to proceed for the injunction sought and also for an order of mandamus compelling the respondents to make all and any and adequate provision necessary for the applicant to exercise his ‘vote on June 7th.
The applicant is a citizen of Ireland. He was sentenced at the Circuit Court in Limerick on October 3rd, 2000 to a term of two years imprisonment. He is currently a prisoner in the Training Unit, Glengarriff Parade, North Circular Road, Dublin 7. The applicant submitted that he enjoys the right to vote, that he is one of’ “the people” provided by Article 6.1 of the Constitution.
The applicant submitted that the law providing for a referendum or plebiscite or vote of the people on June 7th, 2001 relied for its effect on an omission of or neglect of or disregard of the applicant as a citizen as one of “the people” provided by Article 6.1 of the Constitution of Ireland and thus is devoid of constitutional authority and is repugnant to the provisions of the Constitution for the applicant to be a citizen and to be one of the people as provided in Article 6.1 of the Constitution of Ireland. He further submitted that the law providing for a referendum or plebiscite or vote of the people on June 7th, 2001 is a law which deprives him
-3-
of his right to exercise his vote and, dishonours the guarantee provided in Article 40.3.1 of the Constitution of Ireland, that the law is repugnant to the Constitution of Ireland.
The High Court (Murphy J.) refused the applicant’s application. Having analysed case law in relation to the issue to be tried, the balance of convenience, damages as a remedy for the applicant, and the delay of the applicant, for the reasons stated, he refused the application. The High Court ordered:
1. That the reliefs sought in the said Notice of Motion and all reliefs in the nature of mandamus be and the same are hereby refused;
2. That the applicant be refused leave to appeal the order herein;
3. That this matter be adjourned to Thursday the 14th day of June, 2001.
Against the order and decision of the High Court the applicant has appealed. The grounds of appeal were:
A That the Learned High Court Judge erred in failing to consider the weight of evidence adduced by the Applicant at its most practicable and at its most favourable to the Applicant when refusing the Applicant’s application.
B That the Learned High Court Judge erred when refusing the applicant’s application, by failing to defend and vindicate, as far as practicable, the personal rights of the Applicant who, being a citizen, has the constitutional right under Article 40 of the Constitution of Ireland to be held, as a human being, equal before the law and that the Constitution makes it imperative on the State to respect this right.
C That the Learned High Court Judge erred in his interpretation and application of the various Statutes, Statutory Instruments and Cases which he relied on and which he cited in reaching his Judgment.
D That the Learned High Court Judge erred in his interpretation of the constitutional and inherent rights of the Applicant to exercise his right to vote.
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E That the Learned High Court judge erred in failing to give full consideration to the weight, in the Applicant’s favour and at its most practicable, of the separate and combined provisions of the Constitution of Ireland and of the laws derived there from.
F. That the Trial was unsatisfactory.
In this Court the applicant applied to file a further affidavit. The respondents consented to the affidavit being admitted without agreeing to its contents. The affidavit related to the issue of delay. The applicant submitted that he did not realise that as a prisoner he could not vote, and that it was unreasonable to say he delayed.
Whilst the appeal proceeded on foot of the issue of mandamus and injunction in fact the applicant sought an order that he be delivered to a polling booth or released from restraint so as to enable him to vote. He relied on the decision of the High Court in Breathnach v. Ireland and the Attorney General (Unreported High Court, 23rd June, 2000). He argued that the Court should apply that law, that the State has no law to deprive him of his vote, that he is a person entitled to vote. He anchored his arguments in Article 16.1.2 of the Constitution of Ireland.
Counsel on behalf of the respondents submitted in written submissions that for seven reasons the application should be refused. These reasons were:
(1) In this Judicial Review Application the applicant cannot establish that the Respondents or any of them have acted outside the law.
(2) If an allegation is made in this application that an act of the Oireachtas is unconstitutional that is not an appropriate matter for a Judicial Review Application.
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(3) The presumption of constitutionality applies to the legislation in issue.
(4) The relevant legislation is constitutionally valid under existing law.
(5) Damages would be an adequate alternative remedy.
(6) The balance of convenience is against the grant of the Injunction.
(7) There has been delay on the part of the applicant.
Counsel for the State, Mr. Brian O’Moore, S.C., in oral submissions, argued that the issue of delay was significant. Further, he submitted that the applicant could not identify a single provision of law which has been breached. He submitted that the application for mandamus is misconceived. He argued that this is an interlocutory application and that the balance of convenience is overwhelmingly in favour of the respondents.
This application is made by way of judicial review. It is a motion in judicial review proceedings. Thus it is a proceedings circumscribed by the relevant rules relating to judicial review. In addition, being an application for injunction the relevant rules relating to such an application are applicable.
The applicant is in lawful custody. As a consequence he has lost the right to exercise certain constitutional rights. This was explained in Murray and Murray v. Ireland [1991] ILRM 465 at p 477 by McCarthy J:
“The simple question may be posed – may a constitutional right be held in abeyance because of the State exercising a power in accordance with law? It is difficult to identify a constitutional right that is unqualified; the right to life itself
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is not absolute (see Article 13.6). The unenumerated right to procreate children, like all unenumerated rights, must he given a rational meaning. It may be lost temporarily as a result of any form of detention, arrest or imprisonment for a criminal offence; detention for a contempt of court; detention pursuant to mental treatment procedures. The suspension or abeyance of the right does not depend upon practical considerations but because of the nature of a constitutional right. If a person is deprived of liberty in accordance with law, then that person loses, for instance, the express right to vote (Article 16); the person loses the non-expressed or unenumerated right to travel, to earn a livelihood, the right to be let alone, to give some examples.”
In Draper v. The Attorney General [1984] I.R. 277 the Supreme Court, considering an application by a disabled person who because of her chronic physical disability was unable to go to the polling booth, dismissed her claim. It was held that the failure to provide facilities to enable her to vote did not amount to an interference by the State in the exercise of the right to vote declared in Article 16.1.2 of the Constitution relating to the equality of the citizens before the law.
Further, an issue similar to this case was raised in Patrick Holland v. Ireland where leave to seek judicial review was sought for an order of mandamus directing a postal vote to be granted to a prisoner. Geoghegan J. held (Unreported, 18th November, 1993):
“The Applicant seeks an Order of Mandamus directing the Respondent to grant him a postal vote. I am treating the application as an application or leave to institute Judicial Review proceedings to obtain an Order of Mandamus. The Applicant admits that there is no statutory provision permitting postal votes for prisoners. Accordingly, I must refuse the application. If the Applicant considers that he can mount a constitutional challenge to the relevant enactments in the electoral Acts, he should do so by plenary proceedings. In the circumstances Judicial Review would not be appropriate.”
On appeal this decision was upheld by the Supreme Court.
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The applicant here seeks mandatory relief. Such relief requires that a strong and clear case has been made out b an applicant.
In this case the procedure used -judicial review and an interlocutory relief- is not the appropriate tool to achieve a decision in relation to the constitutionality of Acts of the Oireachtas. Further, the applicant has not made out a case that there is a strong likelihood that his ultimate action will succeed. The case law is to the contrary. In an interlocutory application the severe consequences for the prison system of such an order cannot be ignored. Further, while conscious of the right and duty of the courts to consider the constitutionality of acts of the Oireachtas this approach is taken from the basis of the presumption of constitutionality. Further, as the applicant is in lawful custody due regard must be had to the duty of the executive in that regard.
The power of this Court to direct the relief sought has not been established. The applicant has not made out a case to the standard required by Campus Oil v. Minister for Industry [1983] I.R. 88.
On the issue of delay I am in agreement with the judgment of Hardiman J.
I would refuse the application.
THE SUPREME COURT
146/01
Denham J.
Murphy J.
Hardiman J.
Between:
PATRICK O’DOHERTY
Applicant
and
THE ATTORNEY GENERAL, THE MINISTER FOR THE
ENVIRONMENT, THE MINISTER FOR JUSTICE EQUALITY
AND LAW REFORM AND IRELAND.
Respondent
Ex-tempore judgment of Hardiman J. delivered the 6th day of June, 2001.
I agree with the judgment of Mrs. Justice Denham. I wish, however, to add certain observations of my own on the topic of delay.
The Applicant has arrived in this Court the day before the holding of the referendum on foot of proceedings initiated six days ago. In his Notice of Motion of 1st June he sought, solely, an injunction restraining the holding of the
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referendum. He has been permitted to seek in addition mandatory relief requiring the authorities to take him to the poll or release him in order to vote.
These reliefs are all of a radical and far reaching nature and would require the overruling or, at least, the distinguishing of at least two recent decisions of this Court. These are the Murray and Holland decisions cited by Denham J.
Apart altogether from the general obligation on a person seeking equitable relief or relief by the way of judicial review to move speedily, there is a special obligation on a litigant who seeks to interfere with the solemn and important process of the amendment of the Constitution to do so.
The Applicant has been in lawful custody since the 3rd October, 2000. Under the law, an election would have to take place well within two years of that date. A referendum on at least one of the questions to be decided tomorrow has been mooted for the past six months or more and has been formally announced since March.
The Applicant has stated that he believed until recently that provision would be made for him to vote. He apparently told the High Court, though he did not repeat it in this Court, that he expected that a ballot box would be
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brought to him in prison. He claims that time should not be regarded as running against him until the 24th May of this year, the date of which he was allegedly told for the first time that this was not so. He was given this information within hours of his first enquiry to the authorities on the topic.
I do not find his assertions in this regard credible. He is plainly well aware of the High Court decision in Breathnach, delivered in June 2000, which would itself have disillusioned him. If, as he claimed in Affidavit, he discussed the matter with long serving prisoners, he will not have found one such prisoner who had voted from prison in any election or referendum. He has taken no steps to alter his registration, or to apply for a postal vote, or to enquire whether either of these things was necessary or feasible.
I agree with the observations of Mr. Justice Kelly on the question of delay, specifically in cases seeking to interfere with the referendum process, in Riordan v. Ireland [1999] 4 IR 343.
The Applicant has been in gross and obvious delay. I believe that this has extended, not from the 24th May 2001 but from his incarceration in October 2000. No serious claim of a constitutional nature can properly be met at a few days notice. The effect of this delay, therefore, tends to deprive the
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constitutional institutions involved of the opportunity to meet the Applicant’s claim in a proper and orderly manner. On this ground, too, I would dismiss the appeal.