Draper v Attorney General

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.
• Judgment Date: 10 February 1984
• Neutral Citation: 1984 WJSC-SC 330
• Docket Number: [1981 No. 4807P],(100/109-1983)
• Court: Supreme Court
• Date: 10 February 1984

1984 WJSC-SC 330

THE SUPREME COURT

O'Higgins C.J.

Walsh J.

Henchy J.

Griffin J.

McCarthy J.

(100/109-1983)

DRAPER v ATTORNEY GENERAL & ORS

DRAPER

v.

THE ATTORNEY GENERAL AND OTHERS

Subject Headings:

CONSTITUTION: personal rights

ELECTIONS: Dail Eireann

1 JUDGMENT OF THE COURT delivered on the 10th day of February 1984 by O'HIGGINS C.J.

2 The Plaintiff is an Irish citizen. She has brought this action seeking certain declarations as to her constitutional rights in respect of voting and as to the inconsistency with the Constitution of specified provisions of the Electoral Acts. The Plaintiff's reason for bringing this action is that, although qualified as a Dáil elector, she has been unable by reason of physical disability to attend at a voting booth to cast her vote, and no alternative method of voting has been provided for her.

3 The Plaintiff suffers from multiple sclerosis and has been confined to a wheelchair for the past two years. In recent years she has been unable to leave her house. Her physical condition is such that she could not now be brought to a polling station without suffering severe physical discomfort and perhaps endangering her life. She has always been interested in public and national affairs and has always, up to 1973, cast her vote at Dáil, local and Presidential elections. Although now unable to attend at a polling station she has maintained her name in the register of electors and so remains qualified to vote. She is not alone in the situation in which she finds herself. Evidence from an officer of the Irish Wheelchair Association established that the Association which caters for the economic and social needs of handicapped people who are condemned to a wheelchair life, has a growing membership which, at present, totals 3,000. Of this membership some 500 were unable to leave their homes without assistance, and more than 200 could not do so, even with assistance. The Plaintiff claims that the State in its electoral laws has failed to recognise and provide for her constitutional right to vote and that of others similarly situated. She claims that in failing to provide appropriate facilities to enable her to vote the State is in breach of Article 16.1.2 of the Constitution. She further claims that in so far as the electoral law authorises facilities for postal voting for certain classes of voters and special assistance for others who are handicapped and does not so provide for her, the provisions of Article 40.1 of the Constitution which guarantees equality before the law have not been observed.

4 In the scheme of the Constitution the National Parliament, its constitution and powers are dealt with in a series of Articles, from Article 15 to Article 27. Of these Articles, Article 16 deals exclusively with Dáil Éireann. Section 1.1 deals with membership of Dáil Éireann in the following terms:

"1. Every citizen without distinction of sex who has reached the age of twenty-one years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann."

5 Section 1.2 provides for voting rights in the following terms:

"2. Every citizen without distinction of sex who has reached the age of eighteen years who is not disqualified by law and complies 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."

6 While this provision confers a constitutional right to vote, that right is not, unlike other rights, conferred because of citizenship alone. It is only conferred on citizens who reach the prescribed age and who comply with the provisions of the law relating to the election of members of Dáil Éireann and who are not disqualified by law from voting. Such disqualification existed up to the passing of the Electoral Act 1963, upon conviction for certain electoral abuses or practices. While the right to vote is a right to be exercised personally, it is not one of the personal rights of citizens dealt with elsewhere in the Constitution under the heading: "Fundamental Rights". Subsection 3 prohibits the disqualification of any citizen from voting on the ground of sex. Subsection 4 prohibits the exercise by a voter of more than one vote and lays down that voting shall be by secret ballot. Subsequent provisions of the Article deal with constituencies, proportional representation, the summoning and dissolution of the Dáil, and the maximum life of the Dáil. By section 7 it is provided:

"7. Subject to the foregoing provisions of this Article, elections for members of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law."

7 It is now necessary to consider the law which pursuant to the foregoing provisions at present regulates elections to Dáil Éireann. This law is contained in the Electoral Acts 1923to 1974. The principal Act (the 1923 Act) regulated elections under the Constitution of 1922 and continued to do so after the coming into operation of the Constitution. The first major change took place with the Electoral Act 1963. This Act (the 1963 Act) amended the 1923 Act in many respects and introduced new features. For the first time political parties were recognised and candidates standing for such could have their political affiliation shown on the ballot paper. The assistance of a companion to mark a ballot paper for blind, incapacitated and illiterate voters was permitted. The prohibition on voting by members of the Garda Síochána which was contained in the 1923 Act was repealed and members of the Garda Síochána were accorded the...