O'Donovan v Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1962
• Date: 01 January 1962

O'Donovan v. The Attorney General.

JOHN O'DONOVAN

Plaintiff

and

THE ATTORNEY GENERAL

Defendant.

Constitution - Act of Oireachtas - Validity - Repugnancy to Constitution - Electoral (Amendment) Act, 1959 - Act fixing number of members of Dáil Éireann éireann - Revision of constituencies - Constitution of Ireland, Article 16 -Electoral Amendment Act, 1959 (No. 33 of 1959), s. 3, sub-s. 1; s. 4.

Plenary Summons.

The plaintiff, John O'Donovan, as a citizen of Ireland, brought proceedings by plenary summons against the defendant, the Attorney General, seeking a declaration that ss. 3 and 4 of the Electoral (Amendment) Act, 1959, and the Schedule thereto were repugnant to the Constitution, and in particular to the provisions of Article 16 thereof, and were therefore invalid.

The facts, together with the submissions and arguments made on behalf of both the plaintiff (1) and the defendant are set out in the judgment of Budd J., post.

The provisions of the Electoral (Amendment) Act, 1959, s. 3, sub-s. 1, and s. 4 are repugnant to the provisions of Article 16, 2, 3 and 4, of the Constitution because the form of the Electoral (Amendment) Act, 1959, is such as to produce substantial departures from the ratio of members of Dáil Éireann éireann to the population of the Republic prescribed by the Constitution, causing grave inequalities of representation for which no justification or genuine administrative difficulty exists.

So held by Budd J.

Held further that in enacting the Electoral (Amendment) Act, 1959, the Legislature, when revising the constituencies, did not have "due" regard to the changes in the distribution of the population as prescribed in Article 16, 2, 4, of the Constitution.

Budd J. :—

Article 16, 2, of the Constitution provides:—

"1 Dáil Éireann éireann shall be composed of members who represent constituencies determined by law.

2 The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population.

3 The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.

4 The Oireachtas shall revise the constituencies at least once in every twelve years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of Dáil Éireann éireann sitting when such revision is made.

5 The members shall be elected on the system of proportional representation by means of the single transferable vote.

6 No law shall be enacted whereby the number of members to be returned for any constituency shall be less than three."

The Electoral (Amendment) Act, 1959, became law on the 26th November, 1959. It was an Act to fix the number of members of Dáil Éireann éireann, to revise their constituencies and to amend the law relating to the election of such members. It is hereafter referred to as the Act of 1959. It is provided by s. 2 of that Act that Dáil Éireann éireann shall, after the dissolution thereof which next occurs after the 25th day of November, 1959, consist of 144 members.

By s. 3, sub-s. 1, of the Act it is provided that the members of Dáil Éireann éireann shall after the aforesaid dissolution represent the constituencies specified in the Schedule to the Act. By sub-s. 2 it is provided that certain constituencies shall be borough constituencies and certain other constituencies shall be county constituencies. The area of each constituency is set out in the Schedule. Borough constituencies are formed by the grouping of district electoral divisions or wards or parts of these entities. Some county constituencies comprise one or two administrative counties. Others are formed of parts of counties by means of the grouping of district electoral divisions.

By s. 4 of the said Act it is provided that the number of members which a constituency shall return is that set out in the Schedule to the Act.

The census of population last preceding the revision of constituencies effected by the Act of 1959 was taken in the year 1956 (hereinafter referred to as the 1956 census) and the said revision of constituencies made by the Oireachtas by the Act is based on that census.

The plaintiff alleges as his first complaint that the ratio between the number of members to be elected, after the Act of 1959 comes into operation, for each constituency and the population of each constituency, as ascertained at the 1956 census, is not, so far as it is practicable, the same throughout the country, as is required by the terms of Article 16, 2, 3, of the Constitution, cited above. He says that consequently s. 3, sub-s. 1, and s. 4 of the Act of 1959 and the Schedule thereto do not comply with the sub-clause of the Article and are therefore repugnant thereto and invalid.

So that what is alleged may be properly comprehended I set out in tabular form the relevant figures. In the table below will be found in the first column the constituencies designated by the Act of 1959. In the second column, opposite to the names of the constituencies, is set out the population of each constituency as ascertained in the 1956 census. In the third column is stated the number of members which each constituency shall return. Finally, in the fourth column is set out the resultant ratio between the number of members to be elected for each constituency after the next dissolution of the Dáil and the number of the population in each constituency.

(1)	(2)	(3)	(4)
Constituency	Population	No. of Members	Ratio of Member of Population
Galway South	49,726	3	1 : 16,575.3
Donegal West	50,101	3	1 : 16,700.3
Kerry South	50,144	3	1 : 16,714.7
Galway North	50,724	3	1 : 16,908.0
Monaghan	52,064	3	1 : 17,354.7
Wexford	87,259	5	1 : 17,451.8
Kerry North	71,928	4	1 : 17,982.0
Donegal East	71,958	4	1 : 17,989.5
Cork West	54,118	3	1 : 18,039.3
Mayo North	54,642	3	1 : 18,214.0
Galway West	55,103	3	1 : 18,367.7
Tipperary South	73,718	4	1 : 18,429.5
Waterford	74,031	4	1 : 18,507.8
Tipperary North	55,697	3	1 : 18,565.7
Sligo-Leitrim	93,906	5	1 : 18,781.2
Limerick West	57,187	3	1 : 19,062.3
Clare	77,176	4	1 : 19,294.0
Carlow-Kilkenny	97,977	5	1 : 19,595.4
Mayo South	78,410	4	1 : 19,602.5
Laoighis-Offaly	99,057	5	1 : 19,811.4

National Average Ratio 1 : 20,127

(1)	(2)	(3)	(4)
Constituency	Population	No. of Members	Ratio of Member to Population
Limerick East	80,694	4	1 : 20,173.5
Wicklow	60,680	3	1 : 20,226.7
Cork East	60,868	3	1 : 20,289.3
Cavan	61,740	3	1 : 20,580.0
Roscommon	63,710	3	1 : 21,236.7
Longford-Westmeath	87,091	4	1 - 21,772.8
Mid-Cork	109,579	5	1 : 21,915.8
Kildare	65,915	3	1 : 21,971.7
Meath	66,762	3	1 : 22,254.0
Dublin County	67,098	3	1 : 22,366.0
Dublin South (Central)	111,915	5	1 : 22,383.0
Cork	112,098	5	1 : 22,419.6
Dublin North (West)	67,659	3	1 : 22,553.0
Dublin North (Central)	67,978	3	1 : 22,659.3
Dublin North (East)	113,812	5	1 : 22,762.4
Dublin South (East)	91,833	4	1 : 22,958.3
Dun Laoghaire & Rathdown	69,071	3	1 : 23,023.7
Louth	69,194	3	1 : 23,064.7
Dublin South (West)	115,641	5	1 : 23,128.2

This table was prepared on behalf of the plaintiff, but the figures and information contained in it are agreed as correct by both parties. The constituencies do not appear in the table in the same order as they appear in the Act of 1959. They have been arranged in a descending order of the ratio of members to population. The highest ratio shown is in the constituency of Galway South where the ratio of members to population is of the order of one member to 16,575.3 of the population. This the plaintiff says may be compared to a ratio of one member to 23,128.2 of the population shown in the case of the constituency of Dublin South (West). Disregarding decimal points, the plaintiff points out that the disparity in ratio between members and population in these two constituencies is 6,553. Expressed as a percentage, and taking Galway South as 100 per cent, the figure for Dublin South (West) is 139.5 per cent., 39.5 per cent. below the ratio of members to population in Galway South.

The table shows, he says, that this is not an isolated case and that there are other disparities in ratio nearly as great. Even when all factors to which regard may legitimately be had are taken into consideration, the plaintiff alleges that these figures reveal that the ratio of members to population in the constituencies throughout the country is not "so far as it is practicable" the same throughout the country. It will be noted that there is also set out in this table in the appropriate place what has been described as the national average of 1 : 20,127. This figure is obtained by dividing the number of deputies into the total number of the population. The plaintiff says that within the framework of the Act of 1959, as the Legislature chose to enact it, and on the basis of the plan of revision evidently adopted by the Oireachtas, the ratio shown as the national average is the one to which the ratio of members to population should in all cases have approximated as closely as practicable. One may observe that the...