Breathnach v Ireland

• Jurisdiction: Ireland
• Judge: Keane C.J.,Mrs. Justice Denham
• Judgment Date: 11 July 2001
• Neutral Citation: [2001] IESC 59
• Court: Supreme Court
• Docket Number: [S.C. No. 277 of 2000 and
• Date: 11 July 2001

[2001] IESC 59

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

277/00 & 27/2001

BREATHNACH v. IRELAND & AG

Between:

Stiofán Breathnach

Respondent/Applicant

and

Ireland and The Attorney General

Appellants/Respondents

Citations:

CONSTITUTION ART 16.1.2(i)

CONSTITUTION ART 16.1.2(ii)

CONSTITUTION ART 16.1.3

PREVENTION OF ELECTORAL ABUSES ACT 1923 S63

ELECTORAL ACT 1992 S1

ELECTORAL ACT 1992 S11(5)

ELECTORAL (AMDT) (NO 2) ACT 1986

ELECTORAL ACTS 1992 - 1997

ELECTORAL ACT 1992 S17(2)

CONSTITUTION ART 40.1

CONSTITUTION ART 14

ELECTORAL ACT 1992 S11

DRAPER V AG 1984 IR 277

MURRAY V IRELAND & AG 1991 ILRM 465

MCDONALD, MATSCHER & PETZOLD THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS

CONSTITUTION ART 16.7

ELECTORAL ACT 11(5)

ELECTORAL (AMDT) BILL 1983, RE 1984 IR 268

MCDERMOTT PRISON LAW PARA 10–13

MCDERMOTT PRISON LAW PARA 10–14

HOLLAND V IRELAND UNREP UCHR 14.4.1998

Synopsis

Constitutional Law

Constitutional; right to vote; appeal from order of High Court granting a declaration that failure on part of State to provide for necessary machinery to enable applicant prisoner to exercise his right to vote unduly discriminated against him and failed to vindicate his right to be held equal before the law; whether the right of citizens to vote was temporarily suspended or in abeyance as a consequence of lawful imprisonment; whether the provision of such machinery would impose unreasonable demands on the administration; Art. 16 and Art. 40.1 of the Constitution;

Held: Appeal allowed; applicant's claim dismissed.

Breathnach v. Ireland - Supreme Court: Keane C.J., Denham J., Murphy J., Murray J., Hardiman J. - 11/07/2001 - [2001] 3 IR 230

The applicant had been convicted of certain offences and imprisoned. The applicant brought proceedings claiming that the State was discriminating against him by failing to afford him an opportunity to vote. On behalf of the State it was argued that the exercise of the right to vote can be lawfully limited. Quirke J held that the right to vote was a constitutionally protected right. The extension of a postal voting system would not place undue administrative demands on the State. The applicant was therefore entitled to the declaration sought. On appeal Chief Justice Keane held there was no obligation upon the State to provide the necessary machinery to enable the applicant to vote. The right to vote remained suspended or in abeyance during the applicant's imprisonment and the appeal would be allowed. Mrs. Justice Denham held that the applicant as a prisoner was a person whose rights under the Constitution were affected by lawful imprisonment and had no absolute right to vote. This situation did not amount to a breach of the applicant's right to equality. The appeal would be allowed and the order of the High Court set aside. Mr. Justice Murphy, Mr. Justice Murray and Mr. Justice Hardiman agreed with the Chief Justice.

1 JUDGMENT delivered the 11th day of July 2001by Keane C.J.

Introduction

2 This is an appeal from a judgment and order of the High Court (Quirke J.) which granted the applicant the following declaration:-

"The court doth declare and adjudge that the failure on the part of the State to provide for the applicant as a citizen of the State amongst the prison population the necessary machinery to enablehim to exercise his franchise to vote comprises a failure which unfairly discriminates against him and fails to vindicate the right confessed[ recte conferred] upon him by Article 40.1 of the Constitution of Ireland to be held equal before the law."

3 The facts which gave rise to the applicant's claim are not in dispute. He was at the date of the hearing in the High Court, and is now, detained in Wheatfield Prison, having been convicted by the Special Criminal Court of certain criminal offences and sentenced to various terms of imprisonment. He is registered to vote in the Dublin City constituency in which he ordinarily resides and he wishes to exercise his right to vote. The respondents acknowledge that the applicant has, during the period of his detention, been unable to exercise his right to vote at local, parliamentary or presidential elections or in referenda. It is also acknowledged that there are no arrangements in being or in contemplation which would enable the applicant and other citizens who are at present lawfully detained in places of detention to exercise their right to vote in such elections and referenda.

4 The relevant constitutional and legislative provisions can be shortly stated. Article 16.1 of the Constitution provides inter aliathat

"2° i. All citizens, and"

5 ii. such other persons in the State as may be determined bylaw,

6 without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of DáilÉireann, shall have the right to vote at an election for members of Dáil Éireann.

"3° No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of sex or disqualifying any citizen or other person from voting at an election for members of Dáil Éireann on thatground."

7 While subsection (3) appears to envisage that the Oireachtas may enact legislation disqualifying citizens from voting at an election on grounds other than sex, no such legislation has been enacted by the Oireachtas since the coming into force of the Constitution. Legislation which prior to its enactment had disqualified certain persons from voting - e.g. the Prevention of Electoral Abuses Act 1923, s. 63 of which disqualified from voting persons guilty of electoral offences - has been repealed.

8 There are similar constitutional provisions in respect of presidential elections and referenda.

9 Section 8 of the Electoral Act, 1992, provides inter alia that

"(1) A person shall be entitled to be registered as aDáil elector in a constituency if he has reached the age of 18 years and he was, on the qualifying date -"

(a) a citizen of Ireland, and

(b) ordinarily resident in that constituency."

10 Subsection (5) of s. 11 of the Electoral Act 1992, which deals with the registration of electors generally, providesthat

"Where, on the qualifying date, a person is detained in any premises in legal custody, he shall be deemed for the purposes of this section to be ordinarily resident in the place where he would have been residing but for his having been so detained in legalcustody."

11 The Electoral (Amendment) (No,2) Act, 1986( "the 1986 Act") and the Electoral Acts 1992to 1997contain elaborate provisions enabling certain persons entitled to vote at Dáil or other elections or referenda to vote by postand also enabling physically ill or physically disabled persons to vote at a place other than the polling place for their polling district in accordance with special procedures prescribed under the Acts. In order to avail of these facilities, the persons concerned must be entered on either the "postal voters list" or the &special voters list". It is unnecessary to set out these provisions in any detail for the purpose of this judgment: it is sufficient to refer to s. 17(2) of the 1992 Act which provides that

"The registration authority shall enter in the special voters list the name of every elector who applies to be so entered and who satisfies the registration authority that -"

(a) he is unable to go in person to vote at the polling place for his polling district by reason of his physical illness or physicaldisability;

(b) the physical illness or physical disability is likely to continue for the period of continuance in force of the register of electors in respect of which the application to be entered as a special voter is made."

12 On the 9th July 1999, the High Court gave the applicant leave to apply by way of judicial review for a declaration that what was described as the failure of the government to provide the necessary machinery for its citizens among theprison population and, in particular, the applicant to exercise his and their right to vote unfairly discriminated against him in contravention of Article 40.1 of the Constitution and Article 14 of the "International Convention for the Protection of Human Rights and Fundamental Freedoms". A statement of opposition having been filed on behalf of the respondents, the substantive motion came on for hearing before Quirke J. As already noted, in a reserved judgment, he acceded to the claim on behalf of the applicant.

Submissions of the parties

13 The submissions on behalf of the appellants/respondents and the respondent/applicant on the hearing of the appeal can be summarised as follows. On behalf of the appellants/respondents, it was pointed out first that the applicant had not sought to impugn the provisions of the electoral laws already referred to as being repugnant to the Constitution: he had simply sought a declaration which in essence contemplated the passing of legislation providing for postal voting facilities for himself and other prisoners. It was submitted that the applicant was not entitled to raise the constitutional issue sought to be argued in this case in this manner and thus circumvent the difficulty that he would confront arising from the law being entitled to a presumption of constitutionality. Without prejudice to that submission, it was contended that the State had not enacted any law depriving the applicant of his constitutionalright to vote under Article 16.1.2° of the Constitution. On the contrary, s. 11 of the 1992 Act (cited above) expressly made provision for his registration as a voter. That would entitle him to vote during the currency of his sentence if he were on temporary release.

14 It was further submitted that the judgment of the learned High Court judge could not be reconciled with the...