BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

High Court of Ireland Decisions


You are here: BAILII >> Databases >> High Court of Ireland Decisions >> King & Ors v. Minister for the Environment & Ors [2003] IEHC 119 (19 December 2003)
URL: http://www.bailii.org/ie/cases/IEHC/2003/119.html
Cite as: [2003] IEHC 119

[New search] [View without highlighting] [Printable RTF version] [Help]



     

    King & Ors v. Minister for the Environment & Ors [2003] IEHC 119 (19 December 2003)

    THE HIGH COURT

    2002 No. 6351P

    2002 No. 6111P

    2002 No. 6431P

    BETWEEN

    THOMAS KING WILLIAM STACK AND BENEDICT COONEY

    PLAINTIFFS

    AND
    THE MINISTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL

    DEFENDANTS

    JUDGMENT of Mr. Justice Kearns delivered the 19th day of December, 2003.

    Dáil Éireann was dissolved on the 25th April, 2002 when the writ was moved for a general election to take place on the 17th May, 2002. The closing date for nominations was the 3rd May, 2002. These three cases challenge the constitutionality of the legislative arrangements introduced by the Electoral (Amendment) Act, 2002, which created new requirements for non-party candidates seeking to stand for election.

    The above three plaintiffs were all non-party prospective candidates in the election and each brought separate proceedings to challenge the constitutionality of s. 46(4A) and (4B) of the Electoral Act, 1992, (as inserted by s. 1(a) of the Electoral (Amendment) Act, 2002). However, by agreement all three actions were heard together and although there were variations in the factual evidence in each of the cases, all issues can be conveniently addressed in the context of a single judgment.

    The legislative provisions under challenge are those which were enacted following the decision of the High Court (Herbert J.) in Redmond -v- The Minister for the Environment, Ireland and the Attorney General [2001] 4 IR 61, a decision which was never appealed and which found that the deposit requirement imposed on a prospective candidate seeking election to Dáil Éireann amounted to the imposition of an impediment to participation, was not permitted by Article 16 of the Constitution and was thus unconstitutional. The deposit requirement was also found in the same case to offend Article 40 of the Constitution. The new statutory provisions which replaced the requirement for deposit were contained in the Electoral (Amendment) Act, 2002 which came into effect on the 25th March, 2002.

    Before setting out the statutory provisions now under challenge, it is appropriate in the first instance to recite a number of those provisions of the Constitution which arose for consideration during these proceedings. They include:-

    "Article 5:

    Ireland is a sovereign, independent, democratic State."

    Article 6:

    1. All powers of the 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."

    Insofar as elections to Dáil Éireann are concerned, the following provisions appear at Article 16 of the Constitution:-

    "1.1º Every citizen without distinction of sex who has reached the age of 21 years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann.
    2º (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 18 years, who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dáil Éireann, shall have the right to vote at an election for members of Dáil Éireann.
    3º 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.
    4º No voter may exercise more than one vote at an election for Dáil Éireann, and the voting shall be by secret ballot.
    7. Subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law."

    Articles 40.1 and 40.3 of the Constitution provide as follows:-

    "1. All citizens shall, as human persons, be held equal before the law.
    This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
    3.1 The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
    3.2 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."

    The main legislative provisions governing elections to Dáil Éireann are contained in the Electoral Acts, 1992-2002. The impugned provisions of Part X of the Act of 1992 were effected by amendments to s. 46 at sub-ss. (4A) and (4B) by the Electoral (Amendment) Act, 2002. The relevant portions of s. 46 now provide as follows:-

    "Nomination of Candidates
    46(1) At a Dáil election a person may nominate himself as a candidate or may, with his consent, be nominated by another person (being a person registered as a Dáil elector in the constituency for which he proposes to nominate the candidate) as a proposer.
    (4) A candidate may include in his nomination paper the name of the political party registered in the Register of Political Parties as a party organised to contest a Dáil election of which he is a candidate, provided that, at the time the nomination paper is delivered to the returning officer, a certificate in the form directed by the Minister (in this Act referred to as a 'Certificate of Political Affiliation') authenticating the candidature is produced to the returning officer, being a certificate signed by the officer or officers of such party whose name or names appear in the said register pursuant to s. 25(4)(c). . .
    (4A) In the case of a candidate whose candidature is not authenticated by a Certificate of Political Affiliation under sub-s. (4), the candidate's nomination shall, before delivery of his nomination paper to the returning officer in accordance with s. 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 sub-s. (4A) to the nomination of a candidate referred to in that subsection:
    (a) the candidate or the candidate's proposer, if any, shall complete part of a nomination paper as directed on that paper and lodge the paper in the prescribed local authority offices for the constituency;
    (b) the local authority shall number any nomination papers lodged under paragraph (a) in the order in which they are lodged;
    (c) where more than one nomination paper for the same candidate is lodged with a local authority, the first such nomination shall be deemed to be the nomination paper for that candidate for that election unless the candidature is withdrawn under s. 54 or is deemed under s. 62(1) to have been withdrawn;
    (d) to assent to the nomination, a person registered as a Dáil elector in the constituency shall sign the candidate's nomination paper and produce a prescribed photographic identification to the local authority official;
    (e) the local authority official shall note the following details on the nomination paper and then sign the note:
    (i) the assentor's number on the register of electors;
    (ii) the form of identification produced by the assentor, including any number on it;
    (iii) the time and date of the assentor's signature on the paper;
    (f) where the nomination paper bears the signatures of more than the required number of qualified assentors, the signatures (up to the required number of those assentors) appearing first on the nomination paper shall be taken into account to the exclusion of any others;
    (g) where a person registered as a Dáil elector in the constituency signs as assentor the nomination papers of two or more different candidates in the same election, that person's signature on the first such nomination paper lodged with the local authority shall alone be regarded and that person's signature on every other nomination paper shall be disregarded."

    Section 52(1) of the Act of 1992, as amended by the Act of 2002, provides that a returning officer shall rule on the validity of each nomination paper and may rule that the nomination paper is invalid if the returning officer considers that "(a) in the case of the nomination paper of a candidate referred to in s. 46(4A), the nomination is not assented to in the manner required by s. 46 . . ."

    The Electoral Regulations 2002 (S.I. No. 144 of 2002) provide for the detailed regulation of certain aspects of s. 46. In particular, Article 4 of the Regulations of 2002 sets out the prescribed photographic identification which an assentor must produce to the local authority official. The Regulations also set out the form of nomination paper for Dáil candidates and the notes to be included on such nomination form.

    By circular letter F19/02 dated the 16th April, 2002 Ms. Nora Rowland of the Franchise Section of the Department of the Environment detailed the new arrangements which may be summarised as follows:

    The 30 Dáil electors must assent to the nomination paper at the principal offices of the Local Authority in the constituency concerned. The earliest time for delivery of a nomination paper to the returning officer at a Dáil election is 10.00 a.m. on the day (disregarding an excluded day i.e. a Sunday or a public holiday) next following the latest date for the publication of the notice of election: the notice of election is usually published on the second day after the writ is issued. The latest time for receiving nominations is 12.00 noon on the 7th day (disregarding excluded days) next following the day which the writ is issued. In this period, the Local Authorities will be required, during normal working hours, (except for the inclusion of Saturday) to provide a facility for 30 assentors to assent to the nomination paper for a non-party candidate. Each assentor must bring and produce one of the following identification documents – a passport, driving licence, employee identity card containing a photograph, student identity card issued by an educational institution and containing a photograph, a bank card with a photograph.

    All the plaintiffs in the present proceedings claim that the legislative provisions enacted by the defendants are invalid insofar as they restrict the plaintiff's exercise of their respective rights to stand for election to Dáil Éireann by the imposition of conditions which create an impediment to the citizen's eligibility for membership of Dáil Éireann. Quite apart from the onerous nature of the requirement created by the 2002 Act, it is also contended that the citizen's entitlement cannot be qualified by reference to any test or condition designed to test the strength of his electoral prospects.

    The second leg of the plaintiffs' cases is that the legislative provisions discriminate against the plaintiff contrary to Article 40.1 of the Constitution in that the same requirements do not apply to persons seeking nomination as the certified affiliates of a registered political party. The obligations imposed on party candidates are, they claim, of a lesser order, requiring merely the presentation of a certificate of political affiliation and the signature of an officer of that party.

    The relevant statutory provisions so far as political parties are concerned are contained in the Electoral Act, 1992 as amended by the Electoral (Amendment) Act, 2001. Section 25(1)(b) of the Electoral Act, 1992 provides that the Clerk of the Dáil shall be the Registrar of Political Parties to whom a political party may apply for registration under s. 25(2)(a).

    The requirements for registration are set out at s. 25(4). One of those requirements is that, in order to achieve registration, a political party must be able to establish that it has not less than three hundred recorded members or, in the case of a party applying for registration as a party organised to contest elections in part of the State or local elections or Údaras na Gaeltachta elections only, a hundred recorded members, each of whom (in any of the foregoing cases) has reached the age of eighteen years, and at least 50% of the recorded members are registered in the register of electors. An alternative basis for registration would be to show that the party has at least one member who at the time of the application for registration is made, is a member of the Dáil or is a representative in the European Parliament, or if applying for registration as a party organised to contest a local election only, has at least three members who are at the time the application for registration is made, members of a local authority. It must also show that it has a constitution or written rules which provide for annual or periodic meetings and that the conduct of the business of the party is by an elected executive.

    Once a political party has become registered by making an application which meets the requirements of s. 25 (4), it can effectively remain registered by confirming to the registrar on an annual basis that it desires to remain so registered. Failure to do so can lead to the cancellation of registration. The political party is not obliged to confirm the continued membership of the three hundred persons relied upon in its original application or the one hundred and fifty registered electors included in the group.

    Once registered, a candidate who is a member of a registered political party, requires only a certificate in appropriate form (a "certificate of political affiliation") authenticating his candidature and signed by the officer or officers of the political party whose name appears in the register, to have his name entered on the ballot paper.

    Evidence

    Thomas King is a farmer and qualified solicitor from Westport. He decided in March, 2002 to offer himself as a candidate in Mayo. He learned of the new requirements affecting independents around the 16th April, 2002. He initially believed all thirty assentors had to attend the County Council offices to sign up at the same time, but received a telephone call from the County Secretary who indicated that this was not necessary.

    He found it extremely embarrassing to ask local people to come out publicly and support him. He eventually got his thirty assentors, but it required a great deal of effort. He had to provide a car to transport one couple to the County Council offices and another person had a problem with a child minder. A great number of telephone calls had been made which was very disruptive in terms of his political campaigning. He had unsuccessfully brought a High Court challenge on the 2nd May, 2002 inviting the Court to direct the returning officer to accept his nomination at a time when he had twenty assentors, an application which this Court had refused. Some of his assentors had had to travel thirty or thirty five miles to Castlebar to sign up. Another person did not have photographic identification. Mr. King had to lay on food and light refreshments for a number of persons who had travelled for the purpose of this exercise. Apart from the embarrassment of having to seek support in this way, other persons were also offended that they had not been approached by Mr. King and had so remarked to him. He would have been campaigning on local issues. He felt the new statutory provisions were discriminatory, because political party representatives were not forced to undergo the same requirements.

    Mary Keane then gave evidence. She lives in Failduff near Louisburg in County Mayo. She has a keen interest in planning matters in the Mayo area. Specifically, she was concerned with an Esat Digifone planning application for a mobile phone mast. Having failed to get the matter raised in the local press, she decided to run for the Dáil because this would provide press and radio publicity for the issues in which she was interested. She stated she had difficulty finding out what the new statutory rules were, but eventually got the information she needed from the Assistant County Registrar in Naas, County Kildare. Her home was a round trip of fifty miles from Castlebar. Many of the people she might have asked for support were people who were working and thus unable to attend the County Council offices during working hours. There were a number of older people who might have been free to come into Castlebar, but many of them would have lacked the necessary photographic identification. Ms. Keane told the court she spent two days in Castlebar trying to get a list of assentors together, during which time she went to the parish house and the office of one of the political parties seeking support. In the end she secured about twelve assentors. Her nomination paper had been declared invalid by the County Registrar because she hadn't the required thirty signatures.

    Mr. Austin Berry, a former serving member of the Defence Forces, and a native of Athlone, then told the court he was interested in being a candidate in some future election, either local or general, but felt it was extremely unfair that he had to go out to find assentors whereas party candidates needed only a certificate from their party to be entered on a ballot paper. Michael Holmes, a member of the IFA and a native of Mulrany in County Mayo gave evidence that he was and is the chairman of the Western Roads Action Committee, a group set up in Mayo to lobby for the upgrading of roads within the county. He had stood in the past as a candidate in local elections. He was quite well known locally and had a well organised campaign. Nonetheless, he had to set aside a number of his team to get in supporters from different areas to act as assentors. He was ultimately successful in securing the necessary number. However, some of those supporters had had to come a very considerable distance. When people had travelled long distances as supporters, he had felt obliged to take care of them by bringing them to a hotel or a restaurant for meals and refreshment. Many of these people had had to give up a days work. He felt it was somewhat degrading to have to secure thirty people to prove that he was a credible candidate given that he was a well known figure around the county.

    Benedict Cooney, the second named plaintiff, told the court that he was a native of Athlone and a previous member of both Fine Gael and the Progressive Democrats. He was currently employed under a Community Employment Scheme and was particularly interested in advancing the cause of homeless and marginalised members of the community. He only found out about the new regime on the 30th April when he rang the returning officer in Mullingar. The requirement to have thirty assentors proved impossible. He did not have the facilities to provide transport to get people to the local authority office. In the end he managed to get sixteen in total. He felt unfairly disadvantaged by this requirement.

    William Stack, the third named plaintiff, told the court that he is a teacher and lives in Blackrock in the Dun Laoghaire/Rathdown constituency. He had lived abroad in Madrid, Paris and Moscow and had returned to Ireland in 1998. He had briefly been a member of the Labour Party. He had stood as a candidate in the Local Authority elections in 1999. In December, 2001 he decided he would stand as a candidate in the forthcoming general election and prepared a manifesto for that purpose. He campaigned throughout March and April doing leaflet drops in the area. He had eight or nine helpers. He only became aware of the new requirements to have thirty assentors when he went to Dun Laoghaire Town Hall on Monday, 29th April, 2002. He made efforts to get assentors, but the reaction was mainly negative. He approached about ten people. He had also made an unsuccessful interlocutory application to the High Court in May, 2002 to secure an order directing that his name be added to the ballot paper. He had only four and a half days in which to gather the required number of assentors. It was simply not possible in the time span available. In cross-examination he agreed that seventeen candidates had succeeded in getting on the ballot paper in his constituency of which five were non-party independent candidates.

    Finian McGrath T.D., independent non-party T.D. for Dublin North Central constituency, gave evidence on behalf of the plaintiffs. He had been elected in the general election of 2002. He had been involved in politics for many years at local and voluntary level. During that time he had managed to build up a team of supporters. He first heard of the new requirements from Deputy Tony Gregory some weeks before the election. He felt the requirement to have thirty assentors was unfair and had been designed to make it awkward for independents to stand in elections. It was already extremely difficult to be involved in politics as an independent candidate competing with the resources of major political parties. Also, established political parties had a percentage of the vote guaranteed. It was not easy to collect together thirty people, given that they would have jobs and also other demands on their time. The new Act had the effect of placing yet another obstacle in the way of the independent candidate. He had been able to cope only because he had a political organisation himself. He felt under pressure as a result of the new requirements. While at one point he thought of hiring a bus to bring people in, his organisation in the end spread the task over a number of days during which they tried to bring people down to the Registration Centre during lunch breaks. He found this to be a total distraction during his campaign. He saw the legislation as discouraging people from getting involved in Irish politics, particularly people from poorer sections of Irish society.

    The defendants then went into evidence, first calling Professor Richard Sinnott from the Department of Politics in UCD.

    He carried out a comparison between the requirements imposed by the new Irish legislation and those imposed in other jurisdictions. Taking the current membership of the European Union as one suitable range of comparable cases, he found that, either by way of deposit or by way of signatures or by way of a combination of both, the majority of the fourteen other Member States impose more restrictive conditions on access to the ballot paper than does current Irish legislation. Only one State (Sweden) has neither a signature nor a deposit requirement. Two States (France and Greece) use a deposit - only system. The remaining eleven other Member States (not including Ireland) use a signature system either on its own (eight States) or in conjunction with a system of deposits (three States), i.e. Austria, the Netherlands and the United Kingdom. Among the States that use a signature system, only two (Luxembourg and the United Kingdom) require a lower number of signatures than that specified by the Electoral (Amendment) Act, 2002 and one of those States (the U.K.) has a deposit requirement as well.

    A comparison of Irish nomination requirements with the requirements obtaining in a selection of other similarly constituted democratic States outside the EU 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. In the United States, requirements vary from State to State. The general pattern, however, is to require very substantial numbers of signatures (of the order of 1% - 3% of the eligible voters in the area in question) as well as, in many cases, a filing fee i.e. a sum of money to cover election expenses which is non-returnable.

    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. The project partners who had cooperated to make it possible included the International Foundation for Election Systems, the International Institute for Democracy and Electoral Assistance and the United Nations Department of Economic and Social Affairs. The purpose of the publication was to provide complete and systematic election information for those faced with the task of designing electoral systems and procedures. He cited a passage from the survey which noted:-

    "Unquestionably, democracies should encourage citizens to put themselves forward as candidates for election to public office. Yet, voters are also entitled to an assurance that those that present themselves for election do so in a serious and responsible spirit. Furthermore, it is undesirable for voters to be presented with such a large number of candidates that it becomes almost impossible to make an informed choice among them."

    The survey went on to argue a need to restrict "fringe" candidates in several ways, including a requirement that candidates (apart from those representing established political parties) must obtain a considerable number of voters in support of their nominations. The advantage of a system of signatures was that it would weed out fringe candidates without penalising candidates who are really poor and who might thus find it hard to raise a financial deposit. The disadvantage of the signature system was that it was hard to administer and open to abuse.

    Support for a demanding signature requirement could also be found in the European Commission for Democracy through Law (the Venice Commission) (2002), whose code of good practice in electoral matters stated that the obligation to collect a specific number of signatures in order to be able to stand is theoretically compatible with the principle of universal suffrage. The Commission had noted that the rules on signatures should not be used to bar candidates from standing for office and in that context felt the law should set a maximum 1% signature requirement. It also required that there be clear rules for signature verification.

    Professor Sinnott emphasised that the point of these international studies was to underline the fact that 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 almost impossible to make an informed choice among them.

    Insofar as it might be suggested that party candidates had an easier route than independent candidates, Professor Sinnott pointed out that an individual within a political party had also "hoops" to go through. Such an individual had to be either a long serving member of the party or a high profile individual who would be attractive to the party. In either case, the individual would then have to go through an arduous process of winning a nomination and, if successful, take on all the obligations that go with membership of a political party. Unless the person seeking a nomination could satisfy party headquarters that the party had in any given area a certain minimum level of support, it was unlikely to support such a candidature. In his opinion, the requirement to obtain thirty signatures was less onerous than the requirements and demands which fall on the party political candidate.

    Professor Sinnott agreed that the new regime was 'quite restrictive' and that there seemed to be no good reason why the period for signing up should be limited to the six or seven days after the issuing of the writ. Furthermore, he noted that the restriction of the time available for registering signatures within this short period to normal working hours (except for the inclusion of Saturday) imposes an unnecessary limitation on the signatories and on the aspiring candidate who has to ensure that his assentors turn up within the specified times. He saw no good reason not to extend the locations at which supporting signatures could be registered to include Garda Stations, although he acknowledged that the principal office of the local authority is the only place where a fully up to date electoral register was kept. He felt the time period for the nomination of non-party candidates and the registration of the signatories of assentors could begin on the day a new Dáil met and could end at the close of nominations for elections for the following Dáil. This extension of the time period could be introduced in conjunction with, or separate from, a measure extending the locations at which signatures could be registered to include Garda Stations. Singly, or in combination, these measures would ease the burden on aspiring non-party candidates without compromising the deterrent effect on frivolous candidates. Indeed, if the time and place constraints were relaxed a more demanding requirement of perhaps one hundred signatures could be introduced in order to strengthen the deterrent effect.

    However, he did not feel the existing provisions were in themselves unreasonable or that they discriminated against non-party candidates. The requirements of Irish law were substantially less onerous than those imposed on the majority of Member States of the European Union or in other comparable systems of electoral administration.

    He was not aware whether other countries adopted the same "sign and attend" system with regard to assentors. The attendance requirement, however, arose out of the need for certainty and prior validation. The process had to be absolutely fail-safe because if it were afterwards shown that an assentor had not validly subscribed, this could create problems with appeals to the courts about the election subsequent to the election itself.

    It was put to Professor Sinnott that the requirement for assentors to publicly underwrite a non-party candidate effectively compromised the secrecy of the ballot. Professor Sinnott disagreed saying that the signing of a nomination paper is not necessarily a declaration of one's voting preference. An assentor was merely facilitating the electoral process and if one's voting intention was otherwise there was nothing to prevent an assentor from making that known.

    In cross-examination Professor Sinnott further agreed that the burden on a party candidate when seeking nomination from within a political party was, of course, a self imposed burden rather than one imposed by legislation. Political parties however were strictly regulated by law. When it was put to him that there was no proper basis for excluding a fringe candidate, Professor Sinnott felt there was a reasonable basis for excluding fringe candidates who might include persons who would simply wish to see their name on a ballot paper for reasons of vanity or to avail of opportunities for free mailing, putting up posters, or having litter laws set aside for reasons which had nothing to do with politics. He was not saying that any of these considerations applied in the case of the present plaintiffs, but in his opinion they were considerations which justified the exclusion of fringe candidates. Professor Sinnott agreed that it would be difficult to justify restricting the number of candidates on a ballot paper, although the greater the number the greater the difficulties for the electorate.

    Mr. Peter Greene, Principal Officer in the Department of the Environment in the Franchise Section told the court that while the Constitution imposes a requirement that the election be held within 30 days of a dissolution, the 1992 Act provided that the election could take place within 18 days of a dissolution, so that the time for administrative preparation could be very short. The major constraint lay in getting out ballot papers to electors who are abroad and entitled to vote, mostly members of the Defence Forces and diplomatic staff. The requirement to get special vote or ballot papers out to nursing homes and hospitals was also quite onerous.

    The Register of Electors is maintained in the head office of the County Council or City Council and copies are made available to Garda stations and libraries. However, since 1992 a person who is not on the register is entitled to apply for entry on the supplement to the register which is not published until very close to polling day. Accordingly, if one were to go to a local Garda station with a nomination form, one could be on the supplementary register but the Gardaí would not have copies of the supplement. Thus, he said, the only persons who can safely and with certainty authenticate a person as being on the register, or on the supplement to the register, are the officials in the head office of the local authority.

    When in cross-examination it was put to him that a system of signatures that did not involve attendances by assentors could operate satisfactorily, Mr. Greene disagreed. He stated that there was an overwhelming requirement for certainty. If a candidate produced a list of thirty signatures, there might still be questions as to whether they were real, authentic or on the register of electors. It was suggested to Mr. Greene that if a form were to be produced with thirty signatures with names and addresses, that such a list could also be checked. Mr. Greene stated that it was a question of time. Given that a final list could be submitted at five minutes to nomination, it would in those circumstances be quite impossible to validate the assentors. In further cross-examination it was put to Mr. Greene that the validation process could equally be carried out in a local Garda station or Post Office. Mr. Greene replied that the requirements would be more or less the same because it would still be necessary to bring in ID documentation because it wouldn't necessarily be the case that the person would be known at the Garda station. Mr. Greene explained that the local authority itself drew up or created the supplementary register which was sent to the returning officer close to polling day.

    Professor Michael Laver, Professor of Political Science at Trinity College, then gave evidence.

    He felt quite strongly that there should not be an inordinate number of candidates on a ballot paper because he felt that it was the right of electors that their votes would have some foreseeable consequence. In a single transferable vote electoral system, the more candidates there are on the ballot paper, the more unpredictable the election result is. He felt that if the election result was unpredictable, the meaning of the vote cast by the individual voter was not clear.

    He was concerned that if there was no threshold requirement on candidature there was always the possibility that a particular group could usurp an election result by nominating a very large number of candidates so as to undermine the transferable vote system or collapse an election in a particular constituency. In a hypothetical situation, where there are no restrictions, it would be possible for a thousand people of a particular group to nominate a thousand candidates in a constituency, so that the ballot paper would have a thousand names on it. Not only would this cause enormous confusion, it would give rise to a requirement that a thousand candidates be allowed to send free promotional literature to every one of perhaps ninety thousand voters, thus creating a very significant expense on the public purse. Other consequences would be to open up to large numbers the ability to use and access broadcasting facilities, the permission to put up posters and the suspension of litter regulations.

    Asked to express a view as to the reasonableness of a distinction between party and non-party candidates, Professor Laver accepted that there was a distinction for reasons which had been adverted to in evidence. Candidates who run for political parties have to put themselves through a process which is quite different from candidates who are independent candidates. They are also subject to restrictions during the election campaign: for example, a party candidate has to cede a proportion of his maximum spending to the party to which he belongs, whereas an independent candidate does not have to do that. Further, a party candidate is obliged to toe a party line, even where it is not popular in the local constituency, whereas an independent candidate is absolutely free to say whatever he or she may wish. He did not believe that there was unfair discrimination against independent candidates.

    As far as nomination requirements were concerned, best practice under the Venice Commission requires that 1% 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 TDs returned in 2002, up to 13 in 2002 from 6 in 1997.

    Professor Laver concluded that the rational operation of the STV 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 whereby putative candidates demonstrate their bona fides. Secondly, the considerable financial benefits flowing to candidates under Irish Electoral Law had the same implication. The provisions in the Act by which putative candidates demonstrate their bona fides do differ between party and non-party candidates, but in his view these distinctions are neither unreasonable nor do they discriminate against non-party candidates. In practice, it is far more onerous to be nominated as a party candidate, and the separate provision for non-party candidates can be interpreted as reflecting this. The number of assentors required under the Act was clearly in accord with the "code of good practice" set out by Venice Commission. Furthermore, distinctions between party and non-party candidates are made in the electoral laws of many other democratic States. Professor Laver concluded that there was no evidence at all that the provisions introduced by the Act for the 2002 election had the effect of reducing the relative number of non-party candidates either nominated or elected.

    In the course of cross-examination, Professor Laver stressed that his rationale for a filter system did not include any requirement or desire to weed out frivolous candidates. His proposition was more based on the fact that, given all the benefits a candidate has as a result of running for an election and the potential disruption that could be caused by an excessive number of candidates, that it was reasonable that all candidates demonstrate their bona fides. Asked why the previous deposit system had not been associated with any excessive members of candidates in any constituency, Professor Laver suggested that the deposit still operated as a modest filter. He felt that if the number of candidates went over 25 or 30 in any constituency, then there would be serious difficulties in terms of the rationality of the ballot. The difficulty would be that the voter would find it impossible to cast a vote in a way that had a foreseeable consequence in terms of the large numbers or orders of elimination that would be introduced when such large numbers of candidates exist. In time, it was certainly foreseeable that there would be a technological solution, which would probably involve a State Identity Card for every registered voter. In terms of opening up the ballot as widely as possible to independent candidates, Professor Laver stated that he still felt the deposit system did that more easily than a signature based system.

    In further cross-examination, Professor Laver stressed his belief that where a candidate stands for election, there must be in some sense an intention to be elected, that a candidate shouldn't be standing for election simply for vanity's sake or for the sake of promoting or publicising some particular point of view. Thus the bona fides consideration meant really that the person had some minimal intention or real aspiration of being elected.

    Submissions of the Parties

    On behalf of the plaintiffs it is submitted that the right to stand for election to Dáil Éireann is one conferred by Article 16.1 of the Constitution. It was further submitted that such right might also be seen as one of the unspecified or un-enumerated personal rights guaranteed pursuant to Article 40.3 of the Constitution.

    It was further submitted that the power conferred upon the legislature by Article 16.7 was a limited power to regulate elections for membership which had to be seen in the context of Article 16 as a whole. Article 16, it was argued, had been described in terms of a 'constitutional code for the holding of elections'. In Re The Electoral (Amendment) Bill, 1983, [1984] I.R. 268, O'Higgins C.J. had stated the position as follows at p. 274:-

    "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 transfer of a vote and a secret ballot as a 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 a 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."

    This passage was quoted in its entirety by Herbert J. in his judgment in Redmond v. Minister for the Environment [2001] 4 IR 61. Expanding upon it, Herbert J. commented as follows at p. 77:-

    "The limited right of citizens to be electable to membership of Dáil Éireann is thus clearly identified as deriving from and constituting an essential feature of this Article 16 code and not from any regulatory laws authorised by 16.7. O'Higgins C.J. expressly contrasts this essential feature of the Article 16 code with what he termed the 'minor regulatory provisions' authorised by Article 16.7 and which he enumerates in his judgment.
    The fundamental entitlement of citizens to participate in government as a right must follow from the declaration in Article 5 of the Constitution that 'Ireland is a democratic state'. Article 6 of the Constitution additionally proclaims the right of the Irish people to designate the rulers of the State. The right of all adult citizens to stand for election to the national legislature is an essential feature of a democratic state. The power therefore granted to the Oireachtas by the Constitution to place citizens under a disability or incapacity for eligibility for membership of Dáil Éireann must be limited in its application."

    In relying upon this decision, which, as already noted, was not the subject of any appeal brought by the Minister, the parties placed reliance in addition on the following passage of the judgment of Herbert J. at p. 78:-

    "Power to render citizens ineligible for election to Dáil Éireann is expressly conferred upon the Oireachtas by Article 16.1.1 of the Constitution. It is therefore totally unlikely that the framers of the Constitution intended to confer the self same powers by Article 16.7. That this is so is clearly observable by a consideration of the provisions of Article 16.7 itself. It is first stated to be 'subject to the foregoing provisions of this Article', and then it confers nothing more than a right to regulate elections. The Oireachtas is empowered to establish by law procedural and administrative rules and measures for the proper and orderly conduct of elections. The requirement of a deposit is not just a matter of rules and procedures. Such a requirement involves the imposition of an impediment to participation in the election and is not, as was clearly intended by Article 16.7, nothing more than the ordering of such participation."

    It was submitted on behalf of the plaintiffs that the purpose and effect of Article 16.1.1 is to define eligibility for membership of Dáil Éireann. All citizens are therein stated to be eligible provided they satisfy the basic age qualification and provided they are not otherwise placed under a disability or incapacity. Thus, it was submitted, s. 46(4A) imposes an unlawful condition upon the eligibility of the plaintiffs for membership of Dáil Éireann in that it is a condition which is not within the scope of Article 16.1.1. The words 'disability or incapacity' in their ordinary sense and meaning connote a quality or condition inherent to the particular individual. For example, the President of Ireland, and judges also, were by virtue of their office deemed under the Constitution incapable of membership of Dáil Éireann. The 1992 Electoral Act also rendered incapable or incapacitated persons who were lunatics, bankrupts, or who fitted into any of the other categories of persons listed at s. 41 of the 1992 Act. However, in contrast, the requirements contained in s. 46(4A) are conditions relating to eligibility but unrelated to any disability or incapacity within the meaning of Article 16.1.1. The requirements had nothing to do with any office, disability or incapacity of a prospective candidate, but were merely impediments or barriers designed to exclude the plaintiffs, who were otherwise eligible citizens, from running for election.

    It was further submitted that there could be no constitutional justification for the creation of a 'filter' in order to achieve the objectives claimed by the defendants. Article 16 says nothing whatsoever about any such filter. Furthermore, the imposition of a so called filter could not be said to constitute the 'regulation' of an election pursuant to Article 16.7 if the practical effect of such regulation is to exclude otherwise eligible candidates from standing for election. There was nothing in Article 16 to justify any requirement on persons seeking to participate in a Dáil election to demonstrate 'minimal electoral support' – it was submitted that the only constitutionally permissible test of electoral support is the election itself.

    It was further submitted that both s. 46(4A) and (4B) offend against both the spirit and substance of Article 16.1.4 by requiring the assentors to publicly declare their support for a particular electoral candidate. The constitutional entitlement to a secret ballot exists, it was submitted, in order to secure a free election and a result which is truly representative of the political affiliations and opinions of the electorate. This had been recognised by Ó Dhálaigh C.J. in McMahon v. Attorney General [1972] I.R. 69 at pp. 107-108:-

    "The secret ballot is a question of public policy, and the framers of the Constitution doubtless intended to make the veil of secrecy impenetrable, so that the voter could make promises to whom he pleased, and vote as he pleased, without fear of afterwards having the secrecy of his ballot violated. The object to secure an independent ballot would be imperfectly accomplished if the secrecy was limited to the moment of casting the ballot."

    It was submitted that the provisions of Article 16.7 should not be read or interpreted in any way which would render nugatory the rights and guarantees conferred under other provisions of Article 16, notably those of Article 16.1.1 and 16.1.4.

    The second leg of the plaintiffs' case rests on Article 40 of the Constitution, on foot of which it is submitted that all citizens must, as human persons, be held equal before the law, subject only to the proviso contained in the Article permitting the State in its enactments to have due regard to "differences of capacity, physical and moral, and of social function". In Quinns Supermarket v. Attorney General [1972] I.R. 1, Walsh J. described the affect of the proviso to Article 40.1 as follows:-

    "[Article 40.1] is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes whether ethnic or racial, social or religious background, are to be treated as inferior or superior to other individuals in the community."

    It was further submitted that the applicability of the principle of the equality of citizens before the law in the context of the electoral system, and having regard to the democratic nature of the State pursuant to Article 5 of the Constitution, was expressly recognised by Budd J. in O'Donovan v. Attorney General [1961] I.R. 114, when, at p. 137, Budd J. had stressed that, "in modern usage of the words I believe it to be correct to say that a 'democratic state' denotes one in which all citizens have equal political rights'. A similar view was expressed by the Supreme Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10. That case considered the constitutionality of the use by the Government of public funds to support a 'yes' vote in a referendum to amend the Constitution and held that such expenditure was in breach of the Constitution. O'Flaherty J. held that such expenditure breached the equality provisions of the Constitution by favouring the voting rights of those citizens over those who opposed it. He stated as follows, at p. 43:-

    "To spend money in this way breaches the equality right of the citizens enshrined in the Constitution as well as having the effect of putting the voting rights of one class of citizen (those in favour of the change) above those of another class of citizen (those against). The public purse must not be expended to espouse a point of view which may be anathema to certain citizens who, of necessity, have contributed to it. No one would suggest that a government is entitled to devote money from the exchequer in a direct manner in the course of a general election to secure its re-election . . . the position of a referendum is not any different."

    In the same case, Denham J. saw the expenditure of public funds in this manner as constituting both a breach of the right to equality guaranteed under Article 40.1 and also a breach of the rights derived from the democratic nature of the State. She stated as follows at p. 52/3:-

    "[Article 40.1] recognises the equality of citizens. It also requires the organs of government in the execution of their powers to have due regard to the right of equality. The citizen has the right to be treated equally. This includes the concept that in the democratic process, including referenda, neither side of an issue will be favoured, or treated unequally, by the Government.
    While there is no barrier created by the Government to people voting 'no' in the upcoming referendum, that does not take into account the importance of media and communications in society today. To fund one side of a campaign in a referendum so as to enable media coverage and communications to promote a specific outcome, is to treat unequally those who believe to the contrary whether they be a majority or a minority. For the Government to fund one side of a campaign is to treat unequally those citizens who hold the opposite view. It is irrelevant what view the Government takes. To fund one side in a national referendum campaign, even if only to partially so fund, is to breach the spirit of equality . . .
    Ireland is a democratic state. The citizen is entitled under the Constitution to a democratic process. The citizen is entitled to democracy free from governmental intercession with the process, no matter how well intentioned. No branch of government is entitled to use taxpayers' monies from the central fund to intercede with the democratic process either as to the voting process or as to the campaign prior to the vote.
    This is an implied right pursuant to Article 40.3 which harmonises with Article 5, Article 6.1, Article 16, Article 40.1, Article 47.3 and is in keeping with the democratic nature of Bunreacht na hÉireann."

    Relying on these authorities, it is submitted on behalf of the plaintiffs that the requirement to secure the assent of 30 persons is discriminatory and unfair in that the requirement does not apply to persons seeking nomination who have the backing of a registered political party. The statutory provision therefore fails to ensure equality of treatment between party and non-party candidates. The distinction, it was submitted, is not grounded in any difference of physical or moral incapacity or social function, nor can it be justified in terms of Article 16.7. Even accepting the de facto existence of political parties and the contribution they make to the political system, this does not constitute an acceptable basis for distinguishing between party and non-party candidates to the disadvantage of non-party candidates.

    It was further submitted that the fact that political parties have a recognised statutory status and may be registered as such under the Electoral Acts, 1992-2002 does not and should not operate to confer upon members of political parties advantages in the exercise of constitutional rights which are denied to non-party members.

    It was further argued that the impugned provisions of the Electoral Acts, 1992-2002 seek to distinguish between citizens wishing to present themselves to the electorate on the basis of their membership or non-membership of a political party. Even if such a distinction is based upon a rational difference, the criterion is not a feature of the constitutional code for the holding of Dáil election. The Constitution extends no special recognition to political parties and indeed makes no reference whatsoever to political parties. Nonetheless, the effect of the legislation was to confer a statutory advantage on party political candidates seeking a nomination for Dáil Éireann. The onerous conditions imposed on the eligibility of the plaintiffs for election were such that some bona fide candidates could not meet them. The only basis, however, upon which the State could seek to justify such inequitable treatment under Article 40.1 would be on the grounds of physical or moral incapacity or social function. The reason proffered by the State to justify the distinction (a supposedly necessary minimal electoral support or a requirement to filter out frivolous candidates) did not fall within any of the grounds upon which a distinction might permissibly be made between citizens or classes of citizens under Article 40.1

    On behalf of the defendants, Mr. O'Donnell S.C. submitted that as a matter of first principle, it made sense that the State should impose some restrictions on persons who wished to proffer themselves as candidates in elections to Dáil Éireann. Restrictions on the nomination process, which are employed throughout the world, were necessary to protect the electoral system, not merely against frivolous candidates, but also against any deliberate or accidental eventuality whereby the efficacy of an election was undermined because the ballot had been swamped with candidates. Furthermore, persons who stand for election to Dáil Éireann obtain many privileges, most if not all of which involve a cost in financial terms to the public. It is appropriate therefore to ensure that such privileges are limited to those who present themselves for election in a manner which demonstrates a genuine commitment to the electoral process.

    The justification for restrictions and the need to regulate the electoral process had been emphasised in a number of cases, including Loftus v. Attorney General [1979] I.R. 221 in which the Supreme Court emphasized the need to regulate the number and bona fides of political parties, observing:-

    "It seems proper and in the public interest to regulate such statutory rights and facilities as are given by this Legislation. If some regulation were not provided, genuine political action might be destroyed by a proliferation of bogus organisations calling themselves political parties but with aims and objects far removed from the political sphere."

    In Draper v. The Attorney General [1984] I.R. 277, the Supreme Court had rejected the plaintiff's contention that pursuant to Article 16.1.2 she was entitled to a postal vote in circumstances where disability prevented her from attending at a polling station, holding that since postal voting necessarily involved risks of abuse, it was for the legislature to strike a balance between the right of persons with physical disability to vote and the risks of abuse. The Supreme Court concluded that the statute law under scrutiny provided a reasonable regulation of Dáil Elections having regard to the obligation of secrecy, the need to prevent abuses and other requirements of the common good. The fact that some voters were unable to comply with the provisions, did not, of itself, oblige the State to tailor the law to suit their special needs.

    In O'Reilly v. The Minister for Environment [1986] I.R. 143, the High Court rejected the plaintiff's challenge to the alphabetical ordering of candidates names on the ballot paper, holding that such ordering constituted a reasonable regulation of the elections to Dáil Éireann and did not infringe the plaintiff's rights to equality under Article 40 of the Constitution. Murphy J. pointed out that it was the function of the Oireachtas under Article 16.7, and not primarily that of the courts to evaluate and decide as between the merits of different arrangements in the electoral process.

    In Breathnach v. Ireland [2001] 3 IR 230, the question before the court was whether the absence of any facility for persons in prison to vote was consistent with the Constitution. Although the High Court determined that the State had failed to comply with its constitutional obligations in this regard, the Supreme Court took a different view, finding that there was no constitutional infirmity in the State adopting the position through its legislation that it would not facilitate certain categories of persons in exercising their right to vote.

    While the last mentioned cases related to voting rights, Mr. O'Donnell S.C. argued that the principles informing these decisions must clearly apply to the eligibility of candidates also. He cited a number of American cases in support, including Bullock v. Carter 405 U.S. 145 [1980], where the U.S. Supreme Court emphasised:-

    "A State has a legitimate interest in regulating the number of candidates on the ballot. In so doing the State understandably and properly seeks to prevent the clogging of its election machinery, avoid voter confusion and assure that the winner is the choice of the majority, or at least a strong plurality, of those voting."

    The same judgment observed:-

    "A State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidates."

    In Brodick v. Takushi 504 U.S. 428 [1992], the Supreme Court again stressed that:-

    "Common sense as well as constitutional law compels the conclusion that government must play an active role in structuring elections: as a practical matter, there must be substantial regulation of elections if they are to be fair and honest and if some sort of order rather than chaos is to accompany the democratic processes."

    In Jennes v. Forstan 402 U.S. 431 [1971], the U.S. Supreme Court upheld a similar (but more onerous) requirement that independent candidates demonstrate substantial support in the community by securing signatures amounting to 5% of the total registered electorate in the last election. The Court said:-

    "There is surely an important State interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organisation's candidate on the ballot – the interests, if not other, in avoiding confusion, deception, and even frustration of the democratic process at a general election."

    In Storer v. Browne 415 U.S. 724 [1974], the Supreme Court held that considerations as to the extent to which the requirement imposed on candidates in such cases do prove actually insurmountable is an appropriate matter for the Court to consider in determining whether constitutional rights are infringed disproportionately:-

    "There will arise an inevitable question for judgment: in the context of Californian politics, could a reasonable diligent independent candidate be expected to satisfy the signature requirement, or will it be rarely that the unaffiliated candidate will succeed in getting on the ballot? Past experience will be helpful, if not always an unerring guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not."

    On the basis of that test, Mr. O'Donnell submitted, the 2002 legislation withstood scrutiny, given that the number of independent candidates in 2002 was of a similar proportion to previous elections.

    In Munro Secretary of State of Washington v. Socialists Workers Party et al 479 U.S. 189, the U.S. Supreme Court upheld a Washington State law which required minor party candidates to obtain at least 1% of all votes cast in a State primary as a condition for having the candidate's name placed on a general election ballot. The Court held there was no "litmus paper test" in such cases for deciding whether the associational rights extending to candidates under the U.S. Constitution were violated. Importantly, the Court held that such rights were not absolute, saying:

    "It is now clear that the State may condition access to a general election ballot by a minor party or independent candidate upon a showing of a modicum of support among the potential voters for the office."

    This view was affirmed by the Supreme Court in American Party of Texas v. White 415 U.S. 767 [1974] in which it was stated:-

    "States have an undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot paper."

    Mr. O'Donnell submitted that the State had a clear interest and duty to protect the electoral process from frivolous candidates or from "swamping by numbers" given the risks of confusion which arise in Irish elections constitutionally required to be held under a system of proportional representation with a single transferable vote in multi-seat constituencies.

    Mr. O'Donnell sought to distinguish the present case from Redmond v. Ireland [2001] 4 IR 61, pointing out that the High Court in that case had very much taken into account in reaching its conclusion, the consideration that deposit requirements imposed a discrimination as between persons on the basis of their means and that such a requirement, as between individual citizens, was unjust, unreasonable and arbitrary. The learned judge had, by implication at least, suggested that the system now under attack was preferable in stating (at p. 89):-

    "In my judgment, in the absence of some reasonable alternative route to the ballot paper such as the nomination and signature system, to which reference has been made …". (Emphasis added).

    Given that the Court had also decided that the deposit requirement imposed on potential candidates was to be seen as "an impediment" on eligibility prohibited by Article 16, Mr. O'Donnell accepted he was confronted with a difficulty in the instant case having regard to the judgment in Redmond and the fact that no appeal had been brought from that decision.

    However, whether the new restrictions were seen as impediments or not, Mr. O'Donnell maintained that the Oireachtas was entitled, either by virtue of Article 16.1.1 or Article 16.7 to enact the measures complained of Mr. O'Donnell submitted that the analysis undertaken by Herbert J. in Redmond was effectively confined to an analysis of Article 16.7 and did not address in any meaningful way the power of the Oireachtas to legislate for the eligibility of candidates under Article 16.1.1. The court, Mr. O'Donnell submitted, had adopted in full a lengthy quotation from the judgment of O'Higgins C.J. In Re The Electoral (Amendment) Bill 1993 [1984] I.R. 268 which analysed every portion of Article 16 other than Article 16.1.1. The only portion of the judgment of Herbert J. which bore in on Article 16.1.1 was at p. 77 where the learned judge stated:-

    "The power therefore granted to the Oireachtas by the Constitution to place citizens under disability or incapacity for eligibility for membership of Dáil Éireann must be limited in its application.
    In my judgment this power conferred on the Oireachtas is only to be exercised for objective and weighty reasons, for example to maintain in changing circumstances the tripartite division of the powers of government upon which our democratic system is based and perhaps to safeguard the security of the State. I am satisfied the Oireachtas does not have power under Article 16.1.1. to create impediments to, or impose conditions on, eligibility for membership of Dáil Éireann in the nature of deposit requirements."

    Mr. O'Donnell queried whether this view of Article 16.1.1 could possibly be correct. He stated that while the learned Judge had then gone on to consider those provisions of the Constitution which place citizens under disability or incapacity (at p. 78), his only further reference to Article 16.1.1 was in the context of outruling Article 16.7 as a possible constitutional basis for disqualifying citizens for eligibility. The learned judge had stated:-

    "Power to render citizens ineligible for election to Dáil Éireann is expressly conferred upon the Oireachtas by Article 16.1.1. of the Constitution. It is therefore totally unlikely that the framers of the Constitution intended to confer the said same powers by Article 16.7. That this is so is clearly observable by a consideration of the provisions of Article 16.7 itself. It is first stated to be 'subject to the forgoing provisions of this article', and then it confers nothing more than a right to regulate elections. The Oireachtas is empowered to establish by law procedural and administrative rules and measures for the proper and orderly conduct of elections. The requirement of a deposit is not just a matter of rules and procedures. Such a requirement involves the imposition of an impediment to participate in the election and is not, as was clearly intended by Article 16.7, nothing more than the ordering of such participation."

    Mr. O'Donnell further submitted that the learned Judge had not in his judgment addressed how far the Oireachtas could go under Article 16.1.1 other than to state that impediments in the nature of deposit requirements were not constitutionally permissible. He therefore invited this Court to hold that Article 16.1.1 granted to the Oireachtas all the power it needed to enact the present legislative provisions which, Mr. O'Donnell submitted, were entirely moderate and reasonable and consistent with the requirements of other European and Western democracies. They were also sensible and proportionate having regard to other provisions of the Constitution and having regard to the mischief which the measures were intended to prevent.

    If the judgment of Herbert J. were to be construed as excluding the entitlement of the Oireachtas to impose any restrictions in the common good upon persons wishing to offer themselves for election to Dáil Éireann, it would mean that when adopting the Constitution, and indeed when adopting the free State Constitution which contained a provision similar to Article 16.1.1, the people were singling out Ireland alone as a democratic State which precluded the imposition of conditions on persons wishing to proffer themselves for election. This would in any general sense be surprising, and even more difficult to accept when it is borne in mind that the Electoral Act, 1923 imposed what at the time was a very significant deposit requirement of £100, which had never been challenged over many years until the Redmond case in July, 2001. Further, if the Court in Redmond did conclude that the effect of Article 16 was that no requirements of the nature and type here could in fact been imposed upon persons proffering themselves for election to Dáil Éireann, the remarkable consequence followed that the right to stand for election (which by definition would be availed of only by a limited number of persons) was subject to little regulation, while the right to vote in such an election (which applies to the generality of the electorate) may be subject to very considerable regulation. Any conclusion that Article 16.1.1. did not permit the identification of requirements which might be imposed upon persons, the non-compliance with which rendered such person ineligible to stand for election, was very difficult to accept on the basis only of the text of Article 16.1.1. Mr. O'Donnell referred to a paper "Electoral Law, Referendum and the Courts, Treading Delicately" in Human Rights, the Citizen and the State (Sarcen and Binchy 2001) 117 at p. 129 where Budd J. had extra-judicially written:-

    "One of the bases for Herbert's J. conclusion that the requirement of a deposit did not fall within Article 16.7 was the fact that the power to render citizens ineligible for election to Dáil Éireann is expressly conferred upon the Oireachtas by Article 16.1.1 of the Constitution, so that it was therefore 'totally unlikely that the framers of the Constitution intended to confer the self same powers by Article 16.7.'.
    One might have reservations about this finding by the trial judge. The words of Article 16.1.1. indicate that the disability or incapacity placed on a person's eligibility for membership of Dáil Éireann may take place by law or "by this Constitution". Thus, Article 16.1.1. can be interpreted to include the provisions of Article 16.7 of the Constitution, which itself is stated to be 'subject to the foregoing provisions of this article'. On this understanding of these provisions, the Oireachtas is free to legislate, not only to regulate elections but to place persons under disabilities with regard to their eligibility for membership of the Dáil, provided such disability is in accordance with the other provisions of the Constitution such as Article 40.1."

    Mr. O'Donnell submitted that the proper view must be that requirements imposed upon candidates may be seen as lawful and constitutional provided that they are not arbitrary or otherwise invidious, a test which must be applied in the context of the presumption of constitutionality.

    Mr. O'Donnell submitted that the requirements introduced by the 2002 Act are minimal in nature and require no more than that a candidate establishes enjoys a modicum of support for his candidature. The use of such system is widely recognised and approved in other European States. The regime introduced by the 2002 Act is, he submitted, less restrictive than that operated in all but one of the Member States of the European Union. In short, the measures were entirely reasonably and proportionate, meeting the test in that respect laid down in Heaney v. Ireland [1994] 3 I.R. 593.

    Mr. O'Donnell further submitted that the provisions did not impinge upon the secrecy of the ballot because there was no necessary connection between the provision of support to the candidate by means of lending ones' name to his or her nomination and voting for that person. There were indeed a number of statutory provisions, particularly in Part VI of the 1997 Electoral Act, permitting, and indeed in some cases requiring, the publication of the identities of those who have donated to a candidate's Dáil election expenses. While it might be argued that the result is to publicly reveal that an elector financially supported a candidate, it could not be said that this reveals how a person might vote or intend to vote. Furthermore, there are a number of positions to which a person can be appointed for the purposes of an election campaign by a candidate, including election agent under Part V of the 1997 Electoral Act, impersonation and count agents under the 1992 Electoral Act, all of which involve a degree of public identification with the candidate but which could not said to reveal how a person who accepted such an appointment actually voted. The object of the secrecy requirement was to ensure that the voter felt free to exercise an independent vote free from intimidation or inducement or any kind. The public support given to a candidate and the facilitation of a candidature by signing a nomination form could not be said to breach the constitutionally required secrecy of the ballot. The assentor was always free to vote as he or she chose without fear of that voting preference being revealed.

    In relation to the arguments about equality of political treatment, Mr. O'Donnell submitted that any argument which suggested that there was unfair discrimination as between non-party and political party candidates, was fundamentally flawed. This was not a case of comparing two equal positions to which admittedly different provisions applied. The different provisions which applied to political party candidates heralds from the State's recognition and interest in the important role performed by political parties in the political process and the courts had already countenanced distinguishing between those representing political parties and those who did not, provided there was some rational relationship between the nature and extent of the difference in treatment. This was evidenced by the judgment in Loftus v. Attorney General [1979] I.R. 221, which concerned the refusal of registration as a political party. The court had held that the right to have a political party registered under the 1963 Electoral Act, which then applied, was not a personal right of the citizen within the meaning of Article 40.3 of the Constitution and that the discrimination between the political parties represented in Dáil Éireann in that year and political parties not represented in that year was not an invidious discrimination contrary to the provisions of Article 40.1. of the Constitution.

    Mr. O'Donnell submitted that a candidate who secures a nomination through some internal selection process within a political party must, as well as establishing a level of bona fides, achieve an element of support in the constituency, or an assessment to that effect by a competent body within the party.

    If the argument in relation to the alleged unconstitutional discrimination as between party and non-party candidates was well based, it would mean that the Constitution required that the former be treated for the purposes of electoral eligibility in exactly the same manner as the latter. Any such contention flew in the face of the clear determination in Loftus v. The Attorney General to the contrary.

    Decision

    I must begin by recognising that the Oireachtas is entitled to adopt some measures for the purpose of regulating candidature at Dáil elections, such power being expressly conferred on the Oireachtas by Article 16.1.1. The essential question therefore is how, and by reference as to what standard, the court should gauge the validity of legislation enacted for that purpose.

    Taking first some general principles, it must first be said that the provisions of the Electoral Act, 2002 enjoy the presumption of constitutionality. Secondly, when construing the provisions of the Act, the court must assume that all procedures provided for in the Act will be conducted in accordance with the principles of constitutional justice and in a manner consistent with the provisions of the Constitution. Thirdly, the Constitution has allocated to the Oireachtas the power to determine what the appropriate conditions should be. It is not the function of this court to interfere in that choice simply because it adopts the view that the relevant objective could have been achieved in a manner which is better, or indeed fairer. The court is under an obligation to afford to the legislature appropriate deference in the manner in which it decides to exercise its discretion as to the appropriate mechanisms by which its objectives are to be realised. The court therefore should only interfere to strike down legislation as offending the Constitution where there has been clear proof that the proportionality test has not been met. The requirement for deference and restraint was stressed by the Supreme Court in Tuohy v. Courtney [1994] 3 I.R. 1, where Finlay C.J. stated (at p. 47):-

    "… the Oireachtas in legislating for time limits on the bringing of actions is essentially engaged in a balancing of constitutional rights and duties. What has to be balanced is the constitutional right of the plaintiff to litigate against two other contesting rights or duties. Firstly, the constitutional right of the defendant in his property to be protected against unjust or burdensome claims and, secondly, the interest of the public constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims.
    The court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation, but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual constitutional rights."

    When such a test is applied, along with the presumption of constitutionality, the consequence must be that a clear burden of proof is imposed upon a plaintiff and, secondly, to achieve a finding of unconstitutionality, the plaintiff must go so far as to show that the impugned legislation is "so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights".

    This mode of analysis has been approved and applied by the Supreme Court In Re Article 26 of the Constitution and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill [1995] 1 IR 1, 45: In Re Article 26 of the Constitution and the Employment Equality Bill [1997] 2 IR 321, 343.

    As already noted, even where a provision of law trenches upon constitutionally protected interests, it may none the less remain valid from a constitutional point of view if it meets the tests laid down in Heaney v. Ireland [1994] 3 I.R. 593 where the Court (Costello J.) expressed the test in the following way (at p. 607):-

    "In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights (see, for example Times Newspapers Limited v. United Kingdom [1979] 2 EHRR 245) and has recently been formulated by the Supreme Court of Canada in the following terms. The objective of the impugned provisions must be of significant 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 considerations;
    (b) impair the right as little as possible, and
    (c) be such that their effects on rights are proportional to the objective."

    In Colgan v. I.R.T.C. [2000] 2 IR 490, the operation of the test was described in the following terms by O'Sullivan J. (at p. 512):-

    "It appears that the correct approach of this court when considering whether the infringement of a constitutionally protective right impairs that right as little as possible is to refrain from condemning a wider infringement such as a blanket ban notwithstanding that a more selective alternative is admittedly available, if a rational explanation for the wider infringement is available to the court. This appears from the judgment of Barrington J. in Murphy v. I.R.T.C. [1999] 1 IR 12 where he says ' it is not for this court to interfere simply because it might have made a different decision'. Some degree of judicial restraint appears appropriate, therefore, when the court in the context of applying the proportionality test, is considering whether a statutory infringement of a constitutional right does or does not 'impair the right as little as possible'. This appears to me the ratio of the Supreme Court judgment in Murphy. This judicial restraint may itself be an application of the presumption of constitutionality in favour of the statutory provision attacked."

    This being the backdrop against which the court must proceed, I now turn to a consideration of the issues which arise in the present case.

    Firstly, I have no difficulty whatsoever in accepting the notion that some reasonable restrictions must be applied to citizens who wish to proffer themselves as candidates in a general election in this country. I see every justification for the introduction of measures to exclude, or at least make it more difficult, for the frivolous candidate to participate. While such a description does not apply to any of the present plaintiffs, it cannot be denied that in recent years, perhaps because of the role of television and the publicity thereby generated, cases have occurred where candidates have put themselves forward to achieve either publicity for some issue or simply for the sake of attracting personal publicity. One might legitimately ask why the facilities which a candidate enjoys at the expense of the taxpayer should be extended to persons who lack any genuine intention of being elected. I think in this context that a distinction can be drawn between a "fringe" candidate and a "frivolous" candidate and my observations are only directed to the latter. The fact that the latter type of candidate may so easily, in the absence of some restrictions, devalue or disrupt the political and electoral process is surely a consideration to which lawmakers are entitled to have regard when adopting restrictive measures.

    The greater area of concern however, under a system of proportional representation, lies in the potential for confusion and uncertainty which can arise where there a very large number of candidates. Professor Laver, whose evidence I completely accept, as indeed I do also the evidence of Professor Sinnott (other than his objection to 'fringe' candidates) emphasized how it becomes less and less certain how a citizen's vote will operate where an enormous numbers of candidates have to be eliminated under the STV system. This of itself is a significant threat to the electoral process and the freedom of citizens to elect their rulers. I accept his evidence that in addition a further undesirable consequence would be that significant cost to the exchequer could arise without some restrictive measures to limit the number of candidates. I also would be of the view, despite the urgings of counsel for the various plaintiffs (who suggested there is no historical precedent for such a thing happening), that the 'nightmare scenario' of a huge number of candidates putting themselves forward, for example in the Taoiseach's constituency, with a view to subverting the process is a possibility that a prudent legislature will guard against. It is not in my view an acceptable option to wait until the mischief takes place before putting remedial measures in place to ensure that it does not and cannot happen.

    Having found, therefore, that the principle which demands that the placing of some restrictions on eligibility is desirable, I must then consider whether or not the restrictions contained in the new statutory code are reasonable and then, even if I do so conclude, whether they are still somehow objectionable and impermissible because of one or more provisions of the Constitution.

    In this context, the comparative exercise undertaken by Professor Sinnott is both illuminating and extremely helpful. It demonstrates clearly that the measures introduced by the 2002 Act are at the very lower end of the spectrum of restrictions which apply throughout the EU in determining eligibility for candidature. Some countries do not allow non-party candidates any right whatsoever to stand in elections. Others impose either a deposit system, or a combined deposit/signature system. Only one country, Sweden, does not appear to have any restrictions.

    Counsel for the various plaintiffs have objected that the requirement to attend at the County Council offices for the purposes of validating signatures is unduly oppressive and that there should a signature system simpliciter. However, I fully accept the evidence of Mr. Greene, Principal Officer from the Franchise Section of the Department of the Environment that it cannot be otherwise. He stated that the overriding requirement in this context is for certainty by means of effective validation, so that no questions can arise after the election about the identity of assentors, their presence on the register and eligibility to act as assentors. He says, and I accept, that it would be a recipe for chaos if a proper validation system was not in place. While it was also argued that a system of validation could be provided for in Garda stations, I do not think this objection is well made, because the evidence discloses that a supplementary register, which is continually up-dated to the very eve of the election, is kept and maintained only at the County Council offices in most constituencies so that any alternative arrangement would inevitably lack the certainty of the present arrangements.

    A point of criticism, however, touched upon by Professor Sinnott is that the present arrangements provide very little time for a candidate to procure the attendance of 30 assentors by the closing date. Professor Sinnott suggested that this time could be considerably extended. While I agree with that view that is not to say that the present arrangements must be or should be struck down as being unconstitutional simply because in one respect only they might be seen as somewhat restrictive. Seen as a corpus of new regulation, the Act and Regulations made thereunder, which I feel were adequately publicised in timely fashion, appear to me to be objectively moderate and reasonable and carefully constructed with a view to avoiding the various forms of mischief to which I have already referred. Having reached these conclusions, I approach a consideration of Articles 16 and 40 of the Constitution in circumstances where, having found the reasons for having restrictions on eligibility to be well-founded, and having also found that the particular measures are themselves objectively reasonable and proportionate having regard to the mischief they are designed to prevent, must I nonetheless strike down the new restrictions because they are constitutionally impermissible under either Article 16.1.1 or Article 16.7, or both, or under Article 40 of the Constitution?

    To take the least difficult issue first, I find as Herbert J. did in Redmond, and as the Supreme Court did In Re The Electoral (Amendment) Bill 1983 [1984] I.R. 268, that Article 16.7 should probably be seen as referring only to the regulation of elections, and not the regulation of eligibility. It seems to me that these are two quite distinct concepts and that A. 16.1.1 deals with one and A. 16.7 with the other. I further agree that the clear purpose and intent of Article 16.7 is to deal with "minor regulatory provisions" as stated by O'Higgins C.J. in his judgment.

    This conclusion means that the entire focus of this part of my decision relates to what may or may not be permissible to the Oireachtas under Article 16.1.1. of the Constitution.

    An appropriate starting point is to look at law which the Oireachtas has already passed with a view to disqualifying certain persons from eligibility for election to Dáil Éireann. Part IX of the 1992 Electoral Act provides as follows at s. 41:-

    "Disqualification for membership of Dáil

    41. A person who –
    (a) is not a citizen of Ireland or
    (b) has not reached the age of 21 years, or
    (c) is a member of the Commission of the European Communities, or
    (d) is a Judge, Advocate General or Registrar of the Court of Justice of the European Communities, or
    (e) is a member of the Court of Auditors of the European Communities, or
    (f) is a member of the Garda Síochána, or
    (g) is a wholetime member of the Defence Forces as defined in s. 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,
    (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 s. 42(3) for membership of the Dáil."

    Section 42 of the same Act goes on provide that a member of the Dáil who incurs an incapacity or disability referred to in s. 41 or is appointed to a post referred to in s. 41 or is appointed under the Constitution as a Judge, or Comptroller and Auditor General must thereupon cease to be a member.

    It is immediately apparent that all of the foregoing categories are persons who are deemed incapable or disqualified, not only because of the office they hold or because of some incapacity inherent to the person but also in some instances some incapacity created or imposed by law. Thus it can be seen that the Oireachtas, for what it considers good and sufficient reason, may create or impose in the case of those mentioned in s. 41(j) and (k) a status of incapacity or disability which is neither 'office-related' nor one attributable to any inherent 'incapacity' or 'disability' in the particular individual. They are obvious and clear cut cases, which, though very different in degree from the present case, nonetheless are based on the same principle, namely, that the Oireachtas may legislate to restrict candidature when it has good policy reasons for doing so. By extension, it must surely follow that it is open to the Oireachtas to take the view that a prospective candidate should demonstrate some minimal electoral support as a condition of getting on the ballot paper and to legislate accordingly. A measure so providing does not draw down some automatic 'per se' rule of unconstitutionality. The legislative measure would in addition have to be shown to have failed a proportionality test given that there are, in my opinion, sound reasons for having some restrictions. In this regard it is to be borne in mind that the restrictions do not of themselves purport to deny or bar access to the ballot paper, they simply make it slightly more difficult. The disability or incapacity created by the 2002 Act only takes effect on the closing date for nominations. It does not inure as an ongoing disability or disqualification after the particular election.

    Even in Redmond, Herbert J. appeared to take the view that a nomination and signature system might constitute "some reasonable alternative route to the ballot paper", albeit he so stated when considering the implications of Article 40. Perhaps, therefore, I am not necessarily differing from Herbert J. to any marked degree in concluding, as I do, that measures providing for this particular form of incapacity for a person who fails to obtain thirty assentors do not offend the Constitution. To the extent, however, that he found the Oireachtas incapable of legislating for restrictions other than to safeguard the security of the State or to maintain the tripartite division of the powers of government, I find myself in disagreement with my colleague. I think that is setting the bar much too high. Further, at least one of the Articles in this context alluded to by Herbert J., Article 6, which provides that it is the right of the people to elect their rulers, seems to me to point in the opposite direction, requiring the Oireachtas to ensure, through appropriate legislation, that every citizen's vote is effective and has predictable consequences.

    I am also very much bearing in mind what Mr. Cush S.C. for Mr. King urged in reply to Mr. O'Donnell, namely, that the amendments which were effected by the 2002 Act, were not effected under Part IX of the 1992 Act which deals with eligibility but were brought in under Part X, which deals with "nominations" and the arrangements ancillary thereto, which means, Mr. Cush suggests, that the amendments can only be seen as an attempt to introduce these measures by reference to Article 16.7. However, I do not think the fact that the amending measure is included in one part of an Act, rather than another, touches in any way upon the fundamental issue under consideration, namely, whether the measure itself is in the first instance permissible and secondly whether it offends the proportionality test. In my view it is permissible under Article 16.1.1 and is a proportionate measure having regard to the objective sought to be attained.

    I now turn to the arguments under Article 40 to the effect that the measures are discriminatory and unfair in that they impose a burden on non-party candidates which is not imposed on party candidates.

    While it true, as stated by Counsel for the various plaintiffs, that political parties receive no express recognition as such in the Constitution, the plain fact of the matter is that political parties have existed from the foundation of the State and are subject to statutory regulation to a very significant degree. Furthermore, a person who espouses the party route must, of necessity pass a party test of 'seriousness' and likely capacity to attract electoral support. The mischief which the legislative measures are designed to prevent do not arise where political parties are concerned because a political party is not going to put forward a frivolous candidate, nor is it going to flood the ballot paper with candidates with the object or effect of confusing or subverting the electoral process. I again accept the arguments put forward by Professor Sinnott and Professor Laver, that there are equal, if not more arduous hurdles for party candidates to overcome than non-party candidates, albeit that some of these "hurdles" or "hoops" are not created by law but rather by practical and political necessity and good sense.

    It seems to me that the issue in this case is clearly distinguishable from the issue which Herbert J. had to decide in Redmond, where the Article 40 argument succeeded because it could there be established that discrimination arose between persons with financial means and other persons who lacked such financial means. Here, however, we are not comparing like with like. The non-party candidate operates on a completely different basis than the party political candidate and is not subject to the restraints, legal and political, which apply to citizens who elect to go the party route.

    The applicability of the equality provisions of the Constitution was considered in an electoral context by McKechnie J. in Kelly v. The Minister for the Environment [2002] 4 IR 191. This case involved a challenge to provisions of the Electoral Act, 1997, which exempted from the definition of election expenses certain payments, services and facilities provided to outgoing members of the Oireachtas out of public funds. McKechnie J. stated in the High Court (at pars. 34-35):-

    "It appears from the foregoing and it now seems quite clear that the State must in its electoral laws have regard to the concept of equality and must ensure that with any provisions that pass into law the guarantee of equality as contained in Article 40.1 of the Constitution will be respected. It cannot therefore be that any provision of a Statute, or by the manner and way in which it might implement such a provision, may 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 the same community. Equals must be treated equally . . ."

    At a later point the learned judge stated:-

    "Where, however, there is a difference, such a difference must be legitimately based and must be justified on both objective and reasonable grounds."

    While the passage cited was offered to the Court on behalf of the plaintiffs, it seems to me in reality to support the defendants' position, because it brings home very clearly that the principle applies where one is treating 'equals' or like with like. In my view one is not treating like with like, nor should one regard as identical for this particular purpose, the unaffiliated non-party candidate and the member of a political organisation who runs for election on a platform of party policy. That being so, it seems to me open to the legislature to provide for different measures for each, such measures to be tailored to the commonsense realities of the situation. I entirely accept Mr. O'Donnell's submissions on this point, namely, that it would be a nonsense to treat party candidates in exactly the same way as non-party candidates. In my view the measures now contained in the statutory code regulating both party and non-party candidates have brought about as level a playing field as can realistically be hoped for and have thereby granted due recognition to the concept of equality identified by Budd J. in O'Donovan v. Attorney General [1961] I.R. 114.

    The Article 40 argument must also be seen in the context of what other Articles provide in this context. It seems to me that the restrictions created by the 2002 Act are fully justified by reference to Articles 5, 6 and 16.1.2 of the Constitution which place such a high premium on democratic rights, including the citizen's right to vote, a right which must be seen as meaning the right to cast an effective vote and one with predictable consequences. This right is, or is capable of being severely compromised where an unrestricted system of access to the ballot is permitted.

    Finally, I also accept Mr. O'Donnell's submissions in relation to the alleged encroachment on the secrecy of the ballot. I agree with Professor Sinnott that to subscribe as an assentor to a person's candidature does not necessarily imply a voting intention in support of that person, nor does it in any inhibit the voter in exercising a secret vote. I do not believe the secrecy of the ballot is in any way compromised by the 2002 Act.

    I therefore reject all arguments made against the constitutionality of the impugned provisions of the 1992 – 2002 Electoral Acts and the Regulations made thereunder.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/cases/IEHC/2003/119.html