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Supreme Court of Ireland Decisions
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Cite as:  1 IR 296,  IESC 61
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Judgment Title: Cooney -v- Minister for the Environment & ors
Composition of Court: Murray C.J., Denham J., McGuinness J., Geoghegan J., Fennelly J.
Judgment by: Murray C.J.
Status of Judgment: Approved
Outcome: Allow And Vary
Notes on Memo: Judgment of the Court delivered by Murray C.J.
Allow appeal and grand Declaration that S.46(4B) Electoral Act 2002 as amended
is incompatible with the Constitution.
- 35 -
THE SUPREME COURT
Murray C.J. 97 & 104/2004
The Minister for Environment Ireland and The Attorney General
111 & 112/04
The Minister for Environment Ireland
and The Attorney General
Government of Ireland,
Minister for the Environment and Local Government, Attorney General and Ireland
The appellants in each of these proceedings challenged the constitutionality of certain statutory provisions governing the nomination of candidates for election to Dáil Éireann.
The statutory provisions for the nomination of candidates for election to Dáil Éireann are contained in the Electoral Act, 1992 as amended by the Electoral (Amendment) Act, 2002.
The appellants claim that the statutory requirements and procedures laid down in the Act of 1992, as amended, for the nomination of eligible persons as candidates in Dáil elections are incompatible with the provisions of the Constitution, in particular Article 16 and Article 40, because, in general terms, those conditions and procedures are not permitted by Article 16 of the Constitution, are unduly onerous so as to be an impermissible impediment to their constitutional rights to be nominated as candidates and also constitute an invidious discrimination against non-party candidates as compared with candidates who are affiliated to a registered political party and are nominated by that party. The relevant impugned sections are s. 46(4A) and (4B) of the Electoral Act, 1992 as inserted by s. 1(a) of the Electoral (Amendment) Act, 2002.
The appellants in the first and second action each brought separate proceedings before the High Court. However by agreement the actions were heard together, along with a third action which is not the subject of this appeal, by Kearns J. who delivered one judgment dismissing the claims of each of the appellants. These appellants have appealed against the judgment and order of Kearns J.
The appellant in the third action brought similar proceedings before the High Court which were heard and determined subsequent to the aforementioned judgment and decision of Kearns J. He similarly sought to impugn the constitutionality of the aforementioned sections of the Act of 1992, as amended. In addition he claims that s. 46 ss. 5 of the Act of 1992 is unconstitutional because it requires that he be described as “non-party” on the ballot paper rather than as “independent”. In this respect he claims that this is a restriction on him which is not permissible under the Constitution and in particular it is a denial of his right to freedom of expression pursuant to Article 40.6.1.i.
This appellant’s claim was heard and determined in the High Court by Carney J. who, in dismissing the claims of this appellant, relied upon and applied the judgment and decision of Kearns J. in the earlier determined proceedings. In addition he dismissed this appellant’s claim that his constitutional rights were infringed by virtue of the provision which required him to be described as “non-party” on the ballot paper. This appellant appealed against the judgment of Carney J. and this appeal was heard in conjunction with the other appeals.
This is the judgment of the Court in each of the aforesaid appeals.
The most relevant provisions of the Constitution relied upon by the appellants are:1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”
The most relevant provisions of Article 16 of the Constitution provide:-
1.1° Every citizen without distinction of sex who has reached the age of twenty-one years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann.
2° (i) All citizens, and
3° No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of sex or disqualifying any citizen or other person from voting at an election for members of Dáil Éireann on that ground.
4° No voter may exercise more than one vote at an election for Dáil Éireann, and the voting shall be by secret ballot.
16.7. Subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law.”
3.1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
(4) A candidate may include in his nomination paper the name of the political party registered in the Register of Political Parties as a party organised to contest a Dáil election of which he is a candidate, provided that, at the time the nomination paper is delivered to the returning officer, a certificate in the form directed by the Minister (in this Act referred to as a "certificate of political affiliation") authenticating the candidature is produced to the returning officer, being a certificate signed by the officer or officers of such party whose name or names appear in the said Register pursuant to section 25(4)(c) …
4A) In the case of a candidate whose candidature is not authenticated by a certificate of political affiliation under subsection (4), the candidate's nomination shall, before delivery of his nomination paper to the returning officer in accordance with section 50, be assented to by 30 persons (excluding the candidate and any proposer) who are registered as Dáil electors in the constituency.
(4B) The following provisions apply in respect of the assents required by subsection (4A) to the nomination of a candidate referred to in that subsection:
(b) the local authority shall number any nomination papers lodged under paragraph (a) in the order in which they are lodged;
(c) where more than one nomination paper for the same candidate is lodged with the local authority, the first such nomination paper shall be deemed to be the nomination paper for that candidate for that election unless the candidature is withdrawn under section 54 or is deemed under section 62(1) to have been withdrawn;
(d) to assent to the nomination, a person registered as a Dáil elector in the constituency shall sign the candidate's nomination paper and produce a prescribed photographic identification to the local authority official;
(e) the local authority official shall note the following details on the nomination paper and then sign the note:
(ii) the form of identification produced by the assentor, including any number on it;
(iii) the time and date of the assentor's signature on the paper;
(g) where a person registered as a Dáil elector in the constituency signs as assentor the nomination papers of 2 or more different candidates in the same election, that person's signature on the first such nomination paper lodged with the local authority shall alone be regarded and that person's signature on every other nomination paper shall be disregarded.”
The Electoral Regulations, 2002 (S.I. No. 144/2002) made by the Minister pursuant to powers conferred on him by, inter alia, s. 46 of the Act of 1992 provide for the photographic identification which an assentor must produce for the purpose of authenticating his assent to the relevant local authority officials. Article 5 of the Regulations, in conjunction with the Second Schedule, prescribes the local authority offices for each constituency at which a non-party candidate must lodge the nomination paper, incorporating the 30 assents, as required by s. 46(4B). The Regulations also set out, in the First Schedule, the prescribed form of nomination paper at Dáil Éireann with accompanying explanatory notes.
Arguments and submissions of the appellants
The appellants first of all gave or called evidence concerning the burden which the relevant statutory provisions imposed on them for the purpose of their contention that they constituted an impermissible impediment to their constitutional right to be nominated as candidates for Dáil Éireann and, with regard to their second main ground of appeal, that they amounted to an invidious discrimination against non-party candidates as compared to party candidates who are not subjected to the same requirements for the lodgment of nomination papers.
The factual elements of their case may be summarised as follows. First of all, as regards the requirement that a prospective candidate must obtain the signature of thirty assentors it was claimed that this was a time consuming task, a task which could only be commenced after an election had been called and meant that a prospective candidate had to devote a significant period of time to seeking out and persuading thirty persons to sign the nomination paper when he or she could otherwise have been working on the electoral campaign to win votes. It was also said to be demeaning for a candidate to have to go out and canvass persons to sign his nomination paper. On the other hand the appellant in the first action, Mr King, said some persons were offended that they had not been approached to sign the nomination papers. There was also a problem created by the fact that some persons who were resident in a constituency did not meet the requirement that they be registered as Dáil electors in that constituency, either because they were not registered at all or they were registered in another constituency.
The Electoral Regulations 2002 specify the photographic identity which an assentor must produce at the Local Authority office for the purpose of identification when subscribing to the nomination papers. These are specified to be one of the following: a passport, a driving licence, an employee identity card containing a photograph, a student identity card issued by an education institution and containing a photograph, a travel document containing name and photograph or a bank card with a photograph. It was complained in evidence that some older constituents did not have such photographic identity.
There was significant evidence concerning the burden and difficulty encountered in fulfilling the obligation that each of the thirty assentors would have to travel to the Local Authority Office designated for the constituency for the purpose of authenticating their signature to the nomination paper. Evidence was given of multiple difficulties which this entailed. The offices in question are designated or prescribed by the aforementioned Regulations of 2002. They are set out in a schedule to those Regulations. For example, for the two constituencies of Donegal North East and Donegal South West the prescribed Local Authority Office is in Lifford; for the constituencies of Kerry North and Kerry South it is in Tralee; for the constituency of Limerick West it is in Limerick city; for the constituency of Mayo it is in Castlebar and for the constituency of Wicklow it is in Wicklow town. It was pointed out that each assentor had to attend at the designated office during normal office hours. In the many instances the assentors would have to travel substantial distances (a seventy kilometres one way trip was one example given) often where there was no public transport or no convenient public transport. This would involve many persons having to devote several hours or most of a day to travel to and from their homes or workplace and the designated office. This meant that many would have to give up a day’s work and probably lose a day’s pay. Those who worked in the home had difficulty finding childminders. There was evidence that some candidates felt it necessary to arrange collective travel to the offices, as in a mini bus, and bear the cost of providing food or refreshments for those who gave up most or all of their day to make the trip from parts of a constituency that were a long distance from the prescribed offices. These were usually the central headquarters of the Local Authority in the constituency. Although there was evidence that a significant number of candidates appeared to have no great difficulty in complying with the conditions, there was evidence from one or two witnesses that they were unable to obtain thirty assentors in time before the close of nominations due to difficulties, compounded in particular by the obligation to travel to the prescribed office, in complying with the requirements.
It should be noted at this stage that some of the difficulties described in evidence stemmed from the fact that the statutory provisions and regulations in question came into force and effect very shortly before the last general election and some of the witnesses were not aware of the new requirements until just before the taking of nominations opened for the purposes of the election or just after that. Since the issues in this appeal only concern the prospective effects generally of the legislation in questions nothing turns on that aspect of the matter.
From a factual point of view it was pointed out that candidates for registered political parties are spared the necessity of obtaining thirty assentors to sign their nomination papers. Such a candidate can nominate himself or herself or obtain one other person to do so. The only additional requirement is that he or she must provide a certificate in the appropriate form, a “certificate of political affiliation”, authenticating the candidature, and signed by an officer or officers of the political party whose name appears on the register of political parties.
The appellants submitted that Article 16, and in particular Article 16.1 conferred upon them a right to stand for election to Dáil Éireann. They were eligible to stand for election to Dáil Éireann, not being under a disability or disqualification. Article 16 did not permit any other preconditions to nomination being enforced on persons eligible to stand for election to Dáil Éireann. They were not, it was submitted, disqualified from standing for Dáil Éireann by reason of any disability or incapacity. The effect of the statutory provisions in issue was to prevent persons who could not obtain thirty assentors from standing in a Dáil election and in that sense disqualified them from membership of Dáil Éireann in a manner not compatible with Article 16, and in particular Article 16.1.1. As regards Article 16.7 the appellants relied on the judgment of Herbert J. in Redmond –v- Minister for the Environment & Ors  4 IR 61 and in particular relied on his statement at page 78 of his judgment:-
It was also submitted that in any event, that the conditions imposed on non-party candidates were unduly burdensome, unnecessary and disproportionate so as to amount to unconstitutional impediment to the appellants’ right to stand for election to Dáil Éireann.
In the second main aspect of the case made on behalf of the appellants it was submitted that non-party candidates were entitled to equal treatment with party candidates. Article 40 of the Constitution guaranteed, inter alia, their right to equal treatment and there was no basis to be found therein for discriminating between such candidates and party candidates. It was also submitted that nowhere in the Constitution is the existence of political parties recognised nor are they given any special status. Accordingly, the provisions in question were incompatible with the Constitution by virtue of their discriminatory character.
Finally, it was submitted by the appellant in the third action, Mr Riordan, that S. 46, in denying him the right to have the description of “independent” after his name on the ballot paper rather than the description “non-party” was a denial of his constitutional right to freedom of expression and freedom of speech. General election candidates who did not belong to a political party were generally known as and referred to in the media as “independent” candidates. Independent candidates had a right to being so described on the ballot paper.
Submissions of the respondents
On behalf of the respondents it was submitted that it was essential that the integrity of the electoral process was protected by the State. To this end, both as a matter of principle and common sense, the State was entitled to provide by law reasonable conditions governing the nomination of candidates for election which ensured a minimum of genuine commitment to the electoral process and that elections in the various constituencies were not undermined by frivolous candidates or the swamping of a ballot paper, deliberately or fortuitously, by an excessive number of candidates.
It was also submitted that persons who stand for election to Dáil Éireann obtain many privileges and provision of resources such as free postage for election literature and the right of access to public service broadcast air time. Statutory provisions regulating the electoral process which concerned the regulation and registration of political parties in the interest of establishing that there they were bona fide political parties were upheld by the Supreme Court for analogous reasons in Loftus –v- Attorney General  I.R. 221 stating at 242:-
Furthermore it was submitted that since the Constitution of 1922 was adopted there was a filtering system, by way of monetary deposit, governing the nomination of candidates for elections to Dáil Éireann. The imposition of conditions for the nomination of candidates to a democratically elected legislature is an essential feature of democratic systems generally and consistent with best international standards. All of which apply for the purpose of ensuring a fair and properly regulated election process. If the appellants’ contentions are correct it would mean that the People, in adopting the Constitution, intended to single out Ireland as a State which could not regulate the nomination of candidates in a manner which was rational and proportional.
On the basis that the State was entitled to regulate by law the manner in which candidates are nominated for Dáil elections the Electoral Act 2002 enjoys the presumption of constitutionality and the appellants are required to discharge the burden of demonstrating that the invalidity of the impugned provisions is “clearly established” (in Re. Article 26 and the Offences Against the State (Amendment) Bill  I.R.470). In regulating such matters by law the Oireachtas enjoys a measure of discretion and the Court should only interfere with the choices made by the legislature if it is satisfied that a threshold of irrationality has been established in connection with that decision or they were disproportionate. It was submitted that the measures in question serve a legitimate State interest and the interests of the common good in the proper regulation of the electoral process and met the criteria of rationality and proportionality.
It was also further submitted that the provisions did not impinge upon the secrecy of the ballot. The giving of assent, in order to enable a person to stand as a candidate in an election was quite distinct from the manner in which any individual subsequently cast his or her vote. There was no connection between the two. There were other instances where, as a result of the operation of a Statute, a person might be identified or associated with a candidate. Reference was made to Part VI of the Electoral Act 1997, and in certain cases requiring, the publication of the identities of those who have donated to a candidate’s Dáil election expenses. Furthermore, under the various Electoral Acts there are circumstances where a person may be appointed as an election agent or as personation all of which involve a degree of public identification with a candidate but could not be said to reveal how a person in such a position actually voted.
As regards the submissions of the appellants concerning discrimination and unequal treatment as compared with political parties this was a flawed argument. Non-party candidates and the candidates of registered political parties were not in the same or equal positions such as would require equal treatment. Political parties were subject to statutory regulation which had, as one of its effects, that of maintaining the integrity of the electoral process by minimising the risk of frivolous candidates seeking to exploit the electoral process for non-political causes or an abuse of the system through the nomination of an excessive number of candidates. Political parties are governed by s. 25 of the Electoral Act 1992, as amended, which provides, in respect of the registration of political parties for Dáil elections that a political party may apply to be registered as a political party for these purposes if:
(a) the party is organised in the State or in a part thereof specified to contest Dáil elections;
Furthermore the securing of a nomination through some internal selection process within a political party as well as establishing a level of bona fides, is clearly within the political sphere and illustrates an element of some support in the constituency – or at a minimum requires an assessment by a competent body within the party, whether local to the constituency or national, that the person is likely to attract an element of support within the constituency in a Dáil election. In these circumstances it would be irrational to suggest that those who have undergone the rigorous requirements demanded of party registration must, of constitutional necessity, be treated in the same way as persons who by their own unilateral decision decide to put themselves forward as candidates. The contention that non-party candidates and candidates who have gone through the process of obtaining a nomination through a registered political party must be treated in exactly the same manner would be in complete contradiction with the approach adopted by this Court in Loftus –v- The Attorney General  I.R. 221.
As regards the submission by the appellant in the third action that the prohibition on a non-party candidate being described as an “independent” on a ballot paper is unconstitutional, it is submitted that no constitutional issue touching on a constitutional right to freedom of speech or expression or otherwise arises with regard to it. The designation of how candidates may be described on a ballot paper is clearly a matter for the Oireachtas pursuant to Article 16.7 of the Constitution by which it is expressly granted the power to regulate elections by law. Persons whose candidature are authenticated by a registered political party may have their party’s name appear opposite their name on the ballot paper but are not permitted to use any other words or description. A non-party candidate has the option, under the provisions of the Act of 2002, to have no description attached to his name on the ballot paper or to have the description “non-party”. There is no evidence that candidates are disadvantaged by the use of that term rather than the term “independent”. Neither is there anything misleading about the description “non-party” and the provision in question falls well within the discretion of the Oireachtas to regulate elections by law.
Evidence concerning electoral systems generally
In the proceedings in the High Court in the first and second action evidence was given by Professor Sinnott and Professor Laver, the former a political scientist in the Department of Politics in University College Dublin and the latter Professor of Political Science at Trinity College, Dublin. They gave expert opinion concerning the need to preserve the integrity and efficacy of elections and the manner in which this is done in other electoral systems as well as some relevant internationally approved criteria designed to minimise the presence of frivolous candidates on a ballot paper or a seriously excessive number of candidates which could distort the electoral process. The Court does not consider it necessary to analyse this evidence in detail much of which might be said to be self-evident as a matter of common sense and practicality and other aspects of it not material to the issues.
The learned trial judge accepted the evidence of these two experts other than a part of the evidence of Professor Sinnott concerning his objection to “fringe” candidates which need not concern us. It is sufficient for present purpose to refer to the learned trial judge’s summary, at pages 14-16 of his judgment, of certain relevant portions of the evidence which included the following:
A comparison of Irish nomination requirements with the requirements obtaining in a selection of other similarly constituted democratic States outside the E.U. confirmed his view that the Irish signature requirement was modest. Australian law requires both a deposit and fifty supporting signatures. Canadian law requires one hundred signatures, except in remote areas where the requirement is reduced to fifty…
Professor Sinnott referred to a number of international surveys in relation to electoral administration, including the Administration and Cost of Elections (ACE) Electronic Publication (1999-2003) which is a globally accessible information resource on election administration.... He cited a passage from the survey which noted:-
Professor Sinnott emphasised that the point of these international studies was to underline the fact there existed widespread agreement on the need to have some means of deterring individuals from putting themselves forward in an election for frivolous reasons, and to ensure that voters would not be faced with such a large number of candidates that it became impossible to make an informed choice among them.”
As far as nomination requirements were concerned, best practice under the Venice Commission requires that one per cent of registered voters in a particular constituency should support a candidature. That being so, Ireland was at the very lower end of the European scale of requirements. He pointed out that in certain European systems it was quite common for non-party candidates to be denied access to the ballot altogether. Taking the European comparison, independent candidates in Ireland enjoyed favourable treatment. Although in the present case it was being alleged that the new regime was more restrictive, the 2002 election produced exactly the same percentage of candidates as in the previous election. Furthermore, there was in fact a sharp increase in the number of non-party T.D.s returned in 2002, up to thirteen in 2002 from six in 1997.
Professor Laver concluded that the rational operation of the STV [single transferable vote] electoral system prescribed by the Irish Constitution generates a particular need to ensure that there is not an excessive number of candidates, and that some requirements must be put in place where putative candidates demonstrate their bona fides...He felt that if the number of candidates went over twenty five or thirty in any constituency, then there would be serious difficulties in terms of the rationality of the ballot.”
The Court is satisfied, and considers it self-evident that the State has a legitimate interest in regulating the conduct of elections by law, subject to the Constitution, in the interests of, inter alia, protecting and maintaining the integrity and efficacy of the electoral process for Dáil Éireann as well as ensuring that those elections are conducted free from abuse and in an orderly fashion consistent with democratic values acknowledged by the Constitution including Article 5 which declares Ireland to be “a sovereign, independent, democratic State”.
It is also a fact that since 1923, including at the time of the adoption of the Constitution by the People in 1937, there has existed legislative provisions, requiring a monetary deposit by candidates, which was designed to protect the electoral system from being exploited by frivolous candidates who may not have any genuine commitment to the political process. That measure was also intended to protect the electoral process from potential abuse from a seriously excessive number of candidates on a ballot paper which could result in the process being undermined or denigrated if groups or large numbers of persons could place their name on a ballot paper for election willy-nilly without a minimum of commitment to the purpose of the process itself. While such a measure could not be said to be an absolute protection against such abuse, that would be impossible to achieve, it did represent, in its own terms, (and leaving aside for the moment the fact that the monetary deposit was found unconstitutional by a decision of the High Court, to which reference will be made later) an attempt to ensure by way of a moderate measure that a candidate which presented him or herself for election had some level of commitment to the process. Measures which are designed to protect and maintain the integrity of the electoral process in this respect may also be considered important as conveying to all citizens eligible to stand for Dáil Éireann that as a matter of public policy when a citizen goes forward as a candidate for election he or she must do so as a bona fide participant in the electoral process.
That is the historical background which preceded the introduction of the current measures which replaced the deposit system.
A considerable amount of evidence was given by the two professors called as expert witnesses in the High Court proceedings heard by Kearns J. The Court does not consider that all of this evidence is pertinent or necessary for the issues which it has to decide. It is not necessary for example to consider the different electoral systems in the many and varied countries referred to and examine how they have, by a variety of methods, adopted measures to ensure that the electoral system was not abused or undermined by the nomination of frivolous candidates or a surfeit of candidates.
It is sufficient to say that one general incontrovertible and uncontroverted conclusion emerges from the body of this evidence namely that in the very large number of countries on different continents referred to in the evidence it has been considered as an appropriate and necessary element in the electoral process that measures be put in place to ensure that the holding of orderly and democratic elections is not undermined by the unfettered participation of frivolous candidates or an excessive number of candidates. It is also incontrovertibly the case that measures of that nature are consistent with the code of good practice in electoral matters approved by the European Commission for Democracy (the Venice Commission).
While these matters are not in any sense definitive of what is permissible under our Constitution they do so support and corroborate the underlying rationale of the case made by the State namely that it has first of all a legitimate interest in maintaining and protecting the integrity of the electoral process and secondly for that purpose it is a legitimate objective of State policy to take measures which will reduce or minimise the risk of frivolous candidates being nominated for election or the presence of such a number of candidates on a ballot paper that could undermine or distort the electoral process.
A cogent example and expression of that legitimate interest is to be found in Jenness –v- Fortson 403 US.431 (1971) in a judgment of the United States Supreme Court where it was stated at 442:-
It was argued on behalf of the appellants that no evidence had been tendered in the High Court as to the prevalence of frivolous or any significant number of frivolous candidates or any excessive number of candidates seeking to stand for elections to the Dáil. However, for the reasons stated above the Court considers that the State has a legitimate interest based on rational grounds for adopting preventative regulatory measures to reduce the risk of such abuses occurring. Once there are material considerations upon which the Oireachtas is reasonably entitled to conclude that such regulatory or preventative measures are desirable then whether to enact them or not is a matter of judgment for the Oireachtas and not for the Courts provided, of course, they are otherwise consistent with the Constitution and proportionate to the aim to be achieved. As Kearns J. pointed out, the Oireachtas is not prohibited from enacting legislative or regulatory measures until after a mischief or abuse has occurred. The fact is, since the foundation of the State some such measures have been in place which not only provided some protection against abuse but, as was also mentioned above, underlined for the benefit of potential candidates an important public policy that those seeking election should have some bona fide commitment to the electoral process. That monetary deposit system under the legislation which existed prior to the Electoral Act, 1992 required a deposit of £300. In contemporary Ireland it is difficult to comprehend how a sum anywhere in the region of £300 or its equivalent in Euro (or more if inflation is allowed for in the meantime) could be considered a disproportionate measure for such a legitimate purpose or to involve invidious discrimination, given the costs necessarily otherwise incurred by candidates and the possibility, at least in certain circumstances, of a refund of the deposit.
Of course any intervention by the State by way of legislation in the electoral process must serve a legitimate purpose, be proportionate to that purpose and avoid invidious discrimination. Before addressing these questions it is appropriate to consider under which provision of the Constitution, more specifically which provision of Article 16, the Oireachtas may derive a power to legislate so as to regulate Dáil elections and in particular the nomination of candidates for them.
The power to regulation elections in accordance with law
The learned High Court Judge was correct in acknowledging that the Oireachtas is expressly entitled to adopt measures for the purpose of regulating candidature at Dáil elections. In fact this was not really in issue in the proceedings. The issues in this context turned on the provision of the Constitution pursuant to which laws regulating elections may be enacted and the nature of the matters which may be so regulated by law. The learned High Court Judge concluded that the power to regulate the manner in which eligible candidates may be nominated derived from Article 16.1.1. The Court is satisfied that that is not a correct interpretation of the Constitution. Certainly, Article 16.1.1. confers on the Oireachtas the power to determine which categories of persons may, by law, be placed under a disability or incapacity for the purposes of membership of Dáil Éireann so as to render them ineligible from membership of Dáil Éireann and thus in becoming candidates at all. Article 16.1.3. expressly excludes the sex of the person as being a ground for placing a citizen under disability or incapacity for membership of Dáil Éireann. That is not to say that the Oireachtas is otherwise unfettered as to which category or kind of person should be placed under a disability or incapacity for membership of the Dáil. The exercise of any such power may be subject to other constitutional considerations such as the pursuit of a legitimate State interest and the principle of proportionality.
Article 16.1.1. is concerned with persons who by reason of their condition or status belong to a category of persons whose membership of Dáil Éireann could legitimately be considered as undermining or conflicting with, inter alia, such matters as the legitimacy and integrity of Dáil Éireann exercising the traditional and constitutional functions of a democratic legislature.
In this respect the Oireachtas must be considered to have a reasonable degree of discretion to determine the categories of persons who may be excluded from eligibility from membership of Dáil Éireann on the basis of Article 16.1.1 provided that the categories of persons concerned are so determined in a manner which is rational and not arbitrary and which serves a legitimate interest of the proper functioning of the Dáil as the legislative organ of government, independent of other organs of government, State institutions and similar bodies. Section 41 of the Electoral Act 1992 sets out a list of categories of persons who are disqualified from membership of Dáil Éireann. It provides as follows:
“41.—A person who—
(b) has not reached the age of 21 years, or
(c) is a member of the Commission of the European Communities, or
(f) is a member of the Garda Síochána, or
(g) is a wholetime member of the Defence Forces as defined in section 11 (4), or
(h) is a civil servant who is not by the terms of his employment expressly permitted to be a member of the Dáil, or
(i) is a person of unsound mind, or
(j) is undergoing a sentence of imprisonment for any term exceeding six months, whether with or without hard labour, or of penal servitude for any period imposed by a court of competent jurisdiction in the State, or
(k) is an undischarged bankrupt under an adjudication by a court of competent jurisdiction in the State,
(The above provision is cited for illustrative purposes. It has been subject to subsequent limited amendments not relevant for present purposes.)
In short Article 16.1. is concerned with persons who by reason of their status or capacity belong to a defined category who are disqualified by law from membership of Dáil Éireann. Thus it is persons who are so disqualified from membership of Dáil Éireann by reason of their disability or incapacity as defined by the Constitution or by law who are governed by that provision. The question of the eligibility of such persons to stand as Dáil candidates does not arise since they are disqualified from membership.
On the other hand it is common case that the appellants are not disqualified from membership of Dáil Éireann by reason of any disability or incapacity. They are eligible not only for membership of Dáil Éireann but they are eligible to be candidates in a Dáil election. What the impugned measures purport to do is to require them to fulfil certain conditions so as to demonstrate, as claimed by the State, a real or bona fide commitment to the electoral process. Article 16.7. provides:
In support of their contention that such a power could only be exercised by the Oireachtas under Article 16.1.1., which, they submit, did not in any event envisage the kind of measures in issue in this case, the appellants relied on the decision of the High Court in the case of Redmond –v- Minister for the Environment & Ors  4 IR 61 and, of course, the learned High Court Judge in this case came to his decision on the premise that such powers derived from that Article. Therefore before leaving this point it is appropriate to give some consideration to the decision of the learned High Court judge on that point.
In considering that Article 16.1.1. is the provision of the Constitution which confers on the Oireachtas the power to regulate Dáil elections including the nomination of candidates, the learned trial judge may have felt himself constrained to follow the decision of the High Court in Redmond –v- Minister for the Environment and Ors  4 IR 61 and in particular the manner which Herbert J. interpreted and applied the decision of this Court in Re. Article 26 of the Constitution and The Electoral Amendment Bill, 1983  I.R. 268.
In that latter case, O’Higgins C.J., delivering the judgment of the Court, stated at 274 - 275:
These other provision of that Article (1) prohibit the enactment of any law placing a citizen under disability or incapacity for membership of Dáil Éireann on the grounds of sex, or disqualifying, on the same grounds any citizen from voting at an election for Dáil Éireann; (2) prohibit the exercise by any voter of more than one vote at an election for Dáil Éireann; (3) provide for the secrecy of the ballot; (4) provide for the ratio between members of Dáil Éireann and the population; (5) impose upon the Oireachtas an obligation to revise constituencies at least once in every 12 years, with due regard to changes in distribution of the population; (6) provide for elections to be on the system of proportional representation by means of the single transferable vote; (7) prohibit the enactment of any law providing for the number of members to be returned for any constituency being less than three; (8) provide that a general election shall take place not later than 30 days after the dissolution of Dáil Éireann; (9) provide that the same Dáil Éireann shall not continue for a longer period than seven years from the date of its first meeting; (1) provide that polling at every election for Dáil Éireann shall, a far as practicable, take place on the same day throughout the country; (11) impose an obligation to make provision by law to enable the member of Dáil Éireann who is the chairman immediately before the dissolution to be deemed, without any actual election, to be elected a member of Dáil Éireann at the ensuring general election; and (12) finally, by Article 16, s. 7, they provide that, subject to the foregoing provisions, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law.
These provisions indicate a total code for the holding of elections to Dáil Éireann, setting out the matters which would appear to be necessary other than minor regulatory provision. This code provides for the eligibility of candidates; the persons entitled to vote; the limitation of one vote for each voter; the standards for determining the number of members; the obligation to revise constituencies; proportional representation, the single transferable vote and a secret ballot as the method of election; a minimum of three members for each constituency; a limit in time within which general elections must take place after a dissolution; the maximum term of a Dáil; a provision for the timing of polling throughout the country; and an obligation to provide for the automatic election of the chairman of the Dáil.
In contrast with this code of essential features of elections for Dáil Éireann, the matters which are left to be regulated by law would appear to be (a) the disqualification of citizens from voting; (b) the provisions with which citizens must comply in order to have the right to vote; (c) the fixing of the number of members of Dáil Éireann within the ratio laid down by the Constitution; (d) the provision, subject to the minimum of three, of the number of members for each constituency; (e) the fixing of the date of a general election subject to a restriction as to the maximum period after the dissolution of the Dáil; (f) the period during which the same Dáil may continue subject to the constitutional maximum of seven years; and (g) the details of the mandatory provision for the re-election of the chairman of Dáil Éireann.
Viewed in this way, the entire provisions of Article 16 would appear to form a constitutional code for the holding of an election to Dáil Éireann, subject only to the statutory regulation of such election.”
Moreover, neither the O’Higgins C.J. nor other members of the Court could have been oblivious to the fact that the lodging of a monetary deposit by a candidate, refundable in certain circumstances was and had been a feature of the electoral system since 1923. At no point was it suggested by the Court, implicitly or otherwise, that that was a matter which could not be regulated by law,
The Court is quite satisfied that Article 16.7 of the Constitution, in providing that elections for membership of Dáil Éireann may be regulated in accordance with law, conferred on the Oireachtas the power to regulate, inter alia, matters with which citizens must comply in order to be nominated.
For the reasons outlined above, the conclusions expressed in Redmond –v- Minister for the Environment & Ors  4 IR 61 to the effect that the Oireachtas does not have powers pursuant to Article 16.7. to regulate by law the conduct of elections by establishing conditions, monetary or otherwise, for the nomination of candidates is not a correct statement of the law.
Of course the right to make laws regulating the nomination of candidates for election to Dáil Éireann is not an unfettered power but is one which is derived principally from Article 16.7. The question raised in these appeals is whether the statutory regulation of the nomination of non-party candidates has been exercised within the ambit of the powers conferred by the Constitution.
The measures in issue
In this context the first issue is the requirement simpliciter for an independent or non-party candidate to obtain thirty assentors to sign his nomination paper. The Court has already concluded that the State has a legitimate interest in adopting measures to ensure that potential candidates for Dáil elections demonstrate some level of bona fide commitment to the electoral process. The Oireachtas has sought to achieve that by adopting the legislation in question.
The Electoral Act, 1992, as amended, like all other Acts enjoys the presumption of constitutionality and as this Court has in a succession of cases found the onus is on a claimant to clearly establish a claim that an Act is incompatible with the Constitution. The Court cannot see any rational basis for considering it to be unduly burdensome to require a candidate to obtain thirty assentors for the purpose of ensuring the proper regulation of elections. Given the size of an electoral roll of many thousands in even the smallest of constituencies the Court is satisfied that a requirement that a candidate should seek from among those electors a rather modest number of thirty persons could not from any standpoint be said to be excessively burdensome or disproportionate. This conclusion could not be affected by the fact that some residents in a constituency may not be registered as electors there or that even in contemporary times some limited number of electors might not have the photographic identification required. There still remains the vast number of electors among which the signature of thirty voters may be sought.
Nor does the Court consider that the requirement that the assentors attend some designated place, leaving aside the questions of proximity of and travelling to that place, to authenticate an assentors signature so disproportionate a burden on the putative candidate as to be in some way unconstitutional. It serves the legitimate purpose of ensuring that there is no abuse of the process and that the legitimate purpose of obtaining thirty assentors is authenticated.
Insofar as the appellants have complained about the time that they would have to devote to collecting the thirty signatures the same considerations apply. Apart from the fact that non-party candidates, like party candidates, are in a position to take steps in anticipation of the formal calling of a General Election such as seeking out persons who in due course would be willing to give their written assent, the number of asssentors involved is, as already indicated above, modest and reasonable. The Court does not consider that the appellants have established that the need to obtain the signatures of assentors, even after the formal calling of a General Election, is in itself so burdensome as to be disproportionate.
Furthermore the Court also considers as unfounded the argument that where a person agrees to assent to the nomination of a candidate that a breach of the secrecy of the ballot box is involved. The right to secrecy of the ballot is a right of the elector to vote free from outside pressure without disclosure as to how he or she voted. It is a materially distinct matter from giving one’s assent to the candidacy of another person.
The Court has difficulty in following the point made by one of the appellants that it was demeaning to have to seek the assent of other persons to his candidature when it is part and parcel of the electoral process that candidates seek the support of members of the electorate for one purpose or another. It was also said in evidence by that appellant that some persons were offended by not being asked to be one of the assentors. That is hardly a ground for considering measures which are otherwise justified as unconstitutional and does indicate that there are persons who are more than anxious to provide their assent.
Finally, on this aspect of the matter there is the evidence relating to the requirement that all thirty assentors must attend at the office in the constituency as specified in the 2002 Regulations. The Court considers that there is a great deal of substance in the arguments of the appellants in this regard. Under the existing statutory arrangements each non-party candidate must arrange for each of the thirty assentors, either individually or collectively, to attend at the designated office to authenticate personally their signature on the nomination paper. These offices are usually the local authority headquarters in the constituency. Many of them are long distances from the locality in which electors either reside or work. Evidence was given of one instance of a journey of 70 kilometres being required. Until each potential candidate gets every one of the assentors to turn up at the designated office his or her candidature is not valid. The candidature is left in a state of suspense in that regard. In certain constituencies, particularly constituencies comprising almost exclusively of urban areas, this may not be a major problem. On the other hand, as the evidence discloses, assentors in some areas would have a long distances to travel and would in effect have to give up a day’s work or engage childminders as the case may be in order to travel to and from the designated office. The loss of a day’s pay may be involved. Assentors living in West Wicklow would have to travel to Wicklow town in east Wicklow. Those on the extremities of North Mayo to Castlebar and those on the boundaries of West Limerick to Limerick City, which is not even in the constituency, to give but a few examples. The authentication by assentors of their signatures to the candidates nomination paper can only take place from an appointed date after an election has been called. The marshalling of thirty persons either individually or collectively or in separate groups to commit up to a day travelling to and from the designated office is, in the view of the Court, a heavy burden to impose on a person seeking to validate his nomination papers.
The Court is also satisfied that this aspect of the statutory provisions, imposed by virtue of s. 46(4B) carries a real risk of impeding a candidate from lodging validated nomination papers within a reasonable time after the first date for the lodgment of such papers. There is a further real risk that a potential candidate would have to devote a disproportionate amount of time over a disproportionate period of the election campaign to making such arrangements. The Court considers that such an imposition is prima facie disproportionate to the particular objective to be achieved namely the due authentication of the nomination papers. There was evidence tendered by the State in the High Court to the effect that the designation of the Local Authority headquarters as the office at which such nomination papers had to be authenticated was necessary in order to carry out such authentication in a secure manner since that is the location not only of the electoral register but the only place at which an updated version of the electoral register is to be found. Considering that this aspect of the measures in question is prima facie disproportionate to the objects sought to be achieved that provision must be considered incompatible with the Constitution in imposing an undue impediment on the otherwise lawful right of the candidate to be nominated unless the State can establish there are objective reasons why this is necessary. Notwithstanding the evidence given on behalf of the State the Court is not satisfied by that evidence that there are no other administrative arrangements which are significantly less onerous regarding the verification of a signature on a nomination paper. It is not for the Court to designate what other form of administrative arrangements might be provided for in legislation.
In the circumstances the Court finds that S. 46 (4B) in requiring each assentor to attend personally at the designated office is incompatible with the Constitution.
The second principal ground relied upon by the appellants for the purpose of impugning the compatibility of the relevant statutory provisions with the Constitution is a contention that the legislation in question constitutes an invidious discrimination against non-party candidates as compared with candidates of registered political parties since the obligation of obtaining thirty assentors to sign the nomination paper applies to former only.
Counsel for the State submitted that the contention of the appellants was founded on an incorrect premise since non-party candidates and candidates of registered political parties could not be considered to be in the same or similar positions. The Court considers that the argument of the State is well founded. Registered political parties are governed by separate statutory provisions and in particular S. 25 of the Electoral Act 1992, as amended. Before a political party may function as such for the purposes of an election to Dáil Éireann it must be registered pursuant to S. 25 of the Act of 1992. In order to do so it must fulfil certain criteria which include that it is a party which is organised in the State or part of the State to contest Dáil elections, that it has a minimum number of members, at least one member who at the time of the application is a member of Dail Éireann and that it is governed by a constitution or other written rules which have been adopted by the party. One of the objects of S.25 is to ensure that political parties which participate in elections to Dail Éireann, including participation by nominating candidates in an election, are bona fide political parties.
The underlying rationale for the statutory registration of political parties, which bears repetition at this point, was that referred to by this Court in its decision in Loftus –v- Attorney General  I.R. 221 where it was stated at 242:
Furthermore there was evidence given in the High Court of the general process according to which candidates are chosen by political parties. That process was shown to be, as is well known, a highly competitive one. It would appear that the Oireachtas came to the conclusion that candidates who have gone through the internal processes of a political party, which is registered pursuant to statute as a bona fide political party, in accordance with its internal rules may be considered to have demonstrated a minimum level of commitment to the political process.
In these circumstances the Court is satisfied that there is a rational basis upon which the Oireachtas was entitled to make a distinction between the two categories of candidates for election to Dáil Éireann namely non-party candidates and candidates of registered political parties whose bona fide commitment to the political process has already been tested by virtue of the registration requirement. Non-party candidates may unilaterally decide to stand as candidates and party candidates must go through a process of obtaining approval and support from the registered party. Therefore in the view of the Court the Oireachtas was entitled to treat non-party candidates and candidates of registered parties as being in different and dissimilar situations for the purposes of nomination as candidates to Dáil Éireann.
In the submissions on behalf of the appellants reference was made to Article 40.1. which provides that all citizens shall, as human persons, be held equal before the law. In addition it was submitted that the constitution makes no mention of political parties and confers no special status on them. Apart from the fact that the legislation in question does not distinguish between citizens “as human persons” but makes the distinction between different categories of candidates standing for election to Dáil Éireann, the absence of a reference to political parties in the Constitution does not, no more than does the absence of a reference to many kinds of institutions, organisations or activities of persons in the Constitution prohibit the Oireachtas from exercising its legislative powers for the purpose of regulating matters or activities in which the State has a legitimate interest.
Invidious discrimination may arise where legislation treats persons in the same situation differently, or persons in different situations the same. Accordingly the Oireachtas being entitled to make a distinction between non-party candidates and the candidates of registered political parties it cannot be said that the particular measures constitute invidious discrimination against non-party candidates. The measures affecting non-party candidates fall to be considered objectively in their own right as to their compatibility with the provisions of the Constitution and in particular their proportionality to the objective to be achieved, which the Court has already addressed in the earlier part of its judgment.
Finally, there was a submission made by the appellant in the third action, Mr Riordan, that S. 46, by giving non-party candidates the sole option of being described on the ballot paper as a “non-party” candidate or with no description after the candidate’s name is a denial of his constitutional right to freedom of expression and/or his liberty to describe himself on the ballot paper as “independent”. In support of his argument he referred to the fact that newspapers and the media generally referred to non-party candidates as independent candidates and this is the description which he uses with regard to himself. The term “non-party” is misleading.
As Carney J. pointed out in his judgment ruling on this point in the High Court, efforts have been made in the past by candidates to get political statements on to the ballot paper by exploiting the kind of name or description they wished to have placed on the ballot paper. The appearance of names and descriptions on ballot papers is clearly a matter which the Oireachtas is entitled to regulate by law pursuant to Article 16.7. They are there to enable the voter to simply identify the candidate for whom they may wish to vote. Each candidate will have his name on the ballot paper and obviously there is no complaint about that. Candidates for registered political parties will invariably have the name of their party after their names. The description for other candidates as “non-party” candidates is a correct one and could not be said to be misleading. Obviously Mr Riordan would prefer to be described as an “independent” and even if he is correct that it would in some way be preferable if he, and other candidates like him, were described as independent, that is a policy matter and does not make the provision unconstitutional. The Oireachtas were entitled to make a choice as to the manner in which independent or non-party candidates should be described on a ballot paper for the purposes of identification. The ballot paper is not intended to be one which goes beyond enabling the candidates to be identified by voters and contain a political message. Every candidate, including independent or non-party candidates have the freedom during the course of the election campaign to convey to the electorate who they are and what they stand for. There is no reason to conclude that the description “non-party” on the ballot paper is misleading. Neither is there any evidence suggesting that this might be so. Accordingly this ground of appeal also fails.
Order of the Court
The Court has dismissed most of the grounds of appeal in this matter and upheld one. The Court has concluded that the particular requirement that requires the assentors who wish to sign the nomination paper of a non-party candidate to attend and authenticate their signature at the prescribed office as provided for in S. 46(4B), and in particular paragraph (d) thereof, is incompatible with the Constitution. While subsection (4B) is severable from the remainder of the section the entirety of subsection (4B) must be declared unconstitutional. Accordingly the Court will make a declaration to that effect.