O'Doherty v Ag and Others
| Jurisdiction | Ireland |
| Judge | Mrs. Justice Denham,Hardiman J. |
| Judgment Date | 06 June 2001 |
| Neutral Citation | [2001] IESC 206 |
| Court | Supreme Court |
| Date | 06 June 2001 |
[2001] IESC 206
THE SUPREME COURT
Denham J.
Murphy J.
Hardiman J.
BETWEEN
and
Citations:
CONSTITUTION ART 6.1
CONSTITUTION ART 40.3.1
CONSTITUTION ART 40
BREATHNACH V IRELAND 2000 3 IR 467
CONSTITUTION ART 16.1.2
MURRAY V IRELAND 1991 ILRM 465
DRAPER V AG 1984 IR 277
HOLLAND V IRELAND UNREP GEOGHEGAN 18.11.1993
CAMPUS OIL V MIN FOR INDUSTRY 1983 IR 88
RIORDAN V IRELAND 1999 4 IR 343
Synopsis
ELECTIONS AND REFERENDA
Referendum
Right to vote - Detention - Judicial review - Election law - Personal rights - Application for injunction -- Whether prisoner entitled to vote - Whether breach of prisoner's constitutional rights - Whether applicant guilty of delay - Bunreacht na hÉireann, 1937 articles 6.1, 40.3 (146/2001 - Supreme Court - 6/6/2001
O'Doherty v Attorney General
The applicant had initiated proceedings seeking an injunction preventing a referendum from proceeding. The applicant claimed that he had a right to vote under the Constitution. The reliefs sought by the applicant had been refused in the High Court and the applicant had appealed. In the Supreme Court, Mrs. Justice Denham held that the applicant was in lawful custody and as a consequence had lost the right to exercise certain constitutional rights. Judicial review and the seeking of interlocutory relief were not appropriate methods of challenging the constitutionality of legislation. The application would be refused. Mr. Justice Hardiman held that there was a general obligation on a person seeking relief by way of judicial review to move speedily. The applicant had been in gross and obvious delay. The appeal would be dismissed.
Mrs. Justice Denhamdelivered on the 6th day of June, 2001.
On 30th May, 2001 the High Court (Johnson J.) granted the applicant leave to serve short notice of motion on the Chief State Solicitor on behalf of the respondents for an injunction. The injunction seeks to restrain the Minister for the Environment from proceeding with the holding of a referendum or any other plebiscite or vote of the people on June 7th, 2001.
Yesterday the High Court determined that there was an ambiguity and in light of that situation permitted the applicant to proceed for the injunction sought and also for an order of mandamus compelling the respondents to make all and any and adequate provision necessary for the applicant to exercise his vote on June 7th.
The applicant is a citizen of Ireland. He was sentenced at the Circuit Court in Limerick on October 3rd, 2000 to a term of two years imprisonment. He is currently a prisoner in the Training Unit, Glengarriff Parade, North Circular Road, Dublin 7. The applicant submitted that he enjoys the right to vote, that he is one of "the people" provided by Article 6.1 of the Constitution.
The applicant submitted that the law providing for a referendum or plebiscite or vote of the people on June 7th, 2001 relied for its effect on an omission of or neglect of or disregard of the applicant as a citizen as one of "the people" provided by Article 6.1 of the Constitution of Ireland and thus is devoid of constitutional authority and is repugnant to the provisions of the Constitution for the applicant to be a citizen and to be one of the people as provided in Article 6.1 of the Constitution of Ireland. He further submitted that the law providing for a referendum or plebiscite or vote of the people on June 7th, 2001 is a law which deprives himof his right to exercise his vote and dishonours the guarantee provided in Article 40, 3.1 of the Constitution of Ireland, that the law is repugnant to the Constitution of Ireland.
The High Court (Murphy J.) refused the applicant's application. Having analysed case law in relation to the issue to be tried, the balance of convenience, damages as a remedy for the applicant, and the delay of the applicant, for the reasons stated, he refused the application. The High Court ordered:
1. that the reliefs sought in the said Notice of Motion and all reliefs in the nature of mandamus be and the same are herebyrefused;
2. that the applicant be refused leave to appeal the orderherein;
3. that this matter be adjourned to Thursday the 14th day of June,2001.
Against the order and decision of the High Court the applicant has appealed. The grounds of appeal were:
a A. That the Learned High Court Judge erred in failing to consider the weight of evidence adduced by the Applicant at its most practicable and at its most favourable to the Applicant when refusing the Applicant's application.
b B. That the Learned High Court Judge erred when refusing the applicant's application, by failing to defend and vindicate, as far as practicable, the personal rights of the Applicant who, being a citizen, has the constitutional right under Article 40 of the Constitution of Ireland to be held, as a human being, equal before the law and that the Constitution makes it imperative on the State to respect this right.
c C. That the Learned High Court Judge erred in his interpretation and application of the various Statutes, Statutory Instruments and Cases which he relied on and which he cited in reaching his Judgment.
d D. That the Learned High Court Judge erred in his interpretation of the constitutional and inherent rights of the Applicant to exercise his right to vote.
e E. That the Learned High Court judge erred in failing to give full consideration to the weight, in the Applicant's favour and at its most practicable, of the separate and combined provisions of the Constitution of Ireland and of the laws derived therefrom.
f F. That the Trial was unsatisfactory.
In this Court the applicant applied to file a further affidavit. The respondents consented to the affidavit being admitted without agreeing to its contents. The affidavit related to the issue of delay. The applicant submitted that he did not realise that as a prisoner he could not vote, and that it was unreasonable to say he delayed.
Whilst the appeal proceeded on foot of the issue of mandamusand injunction in fact the applicant sought an order that he be delivered to a polling booth or released from restraint so as to enable him to vote. He relied on the decision of the High Court in Breathnach v. Ireland and the Attorney General (Unreported High Court, 23rd June, 2000). He argued that the Court should apply that law, that the State has no law to deprive him of his vote, that he is a person entitled to vote. He anchored his arguments in Article 16.1.2 of the Constitution of Ireland.
Counsel on behalf of the respondents submitted in written submissions that for seven reasons the application should be refused. These reasonswere:
(1) In this Judicial Review Application the applicant cannot establish that the Respondents or any of them have acted outside thelaw.
(2) If an allegation is made in this application that an act of the Oireachtas is unconstitutional that is not an appropriate matter for a Judicial Review Application.
(3) The presumption of constitutionality applies to the legislation in issue.
(4) The relevant legislation is constitutionally valid under existing law.
(5) Damages would be an adequate alternative remedy.
(6) The balance of convenience is against the grant of theInjunction.
(7) There has been delay on the part of the applicant.
Counsel for the State,...
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