King v Minister for Environment

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 19 December 2003
• Neutral Citation: [2003] IEHC 119
• Court: High Court
• Docket Number: [2002 No. 6111P].
• Date: 19 December 2003

[2003] IEHC 119

THE HIGH COURT

No.6351P/2002

No.6111P/2002

No.6431P/2002

KING & ORS v. MIN FOR ENVIRONMENT & ORS

BETWEEN

THOMAS KING WILLIAM STACK AND BENEDICT COONEY

PLAINTIFFS

AND

THE MINISTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Abstract:

Elections - Constitutionality - Equality - Non-party electoral candidates - Whether the Oireachtas was entitled to introduce legislative provisions restricting the eligibility of non-party candidates for election - Bunreacht na Éireann Articles 16 and 40 - Electoral Act, 1992 - Electoral (Amendment) Act, 2002

Facts: The three plaintiffs were all non-party prospective candidates in the general election, which was due to take place on 17 May, 2002. The closing date for nominations was 3 May, 2002. The plaintiffs brought proceedings challenging the constitutionality of section 46(4A) and (4B) of the Electoral Act, 1993 (as inserted by section 1(a) of the Electoral (Amendment) Act, 2002). Specifically, the plaintiffs challenged the constitutionality of the legislative arrangements introduced by the 2002 Act, which created new requirements for non-party candidates seeking to stand for election. Pursuant to section 46(4A) a person who wanted to stand for election and was not a member of a political party was required, amongst other things, to obtain assent to his nomination by 30 persons who were registered as Dail electors in the relevant constituency. The plaintiffs claimed that the legislative provisions enacted by the defendants were invalid insofar as they restricted the plaintiff's exercise of their respective rights to stand for election to Dail Eireann by the imposition of conditions which created an impediment to the citizen's eligibility for membership of Dail Eireann. It was submitted that the purpose and effect of Article 16.1.1 was to define eligibility for membership to Dail Eireann. All citizens were therein stated to be eligible provided they satisfied the basic age qualification and provided they were not otherwise placed under a disability or incapacity. Thus, it was submitted that section 46(4A) imposed an unlawful condition upon the eligibility of the plaintiffs for membership of Dail Eireann in that it was a condition which was not within the scope of Article 16.1.1. It was also submitted that the constitutional requirement to a secret ballot was breached by requiring assentors to publicly declare their support for a particular electoral candidate. Furthermore, the plaintiffs contended that the legislative provisions discriminated against the plaintiffs contrary to Article 40.1 of the Constitution in that the same requirements did not apply to persons seeking nomination, who had the backing of a registered political party.

Held by Kearns J. in dismissing the application and upholding the constitutionality of the impugned provisions of the 1992 to 2002 Electoral Acts and Regulations:

1. That by virtue of Article 16.1.1 of the Constitution, the Oireachtas was entitled to adopt some measures for the purpose of regulating candidature at Dail elections. The Court was under an obligation to afford to the legislature appropriate deference in the manner in which it decided to exercise its discretion as to the appropriate mechanisms by which its objectives were to be realised. The Court therefore should only interfere to strike down legislation as offending the Constitution where there was clear proof that the proportionality test had not been met.

2. That the burden of proving the relevant Act was unconstitutional rested on the plaintiffs and in order to prove that the plaintiffs were required to show that the impugned legislation was so contrary to reason and fairness as to constitute an unjust attack on their constitutional rights.

3. That some reasonable restrictions were required to be applied to citizens who wished to proffer themselves as candidates in a general election in order to make it more difficult for frivolous candidates to participate and also to avoid the confusion and uncertainty which could arise where a very large number of candidates existed. The comparative exercise undertaken demonstrated that the measures introduced by the 2002 Act were at the very lower end of the spectrum of restrictions which applied throughout the EU in determining eligibility for candidature. Accordingly the particular measures introduced were objectively justifiable and proportionate having regard to the mischief they were designed to prevent.

4. That Article 16.7 of the Constitution only referred to the regulation of elections, and not the regulation of eligibility for election. Thus it did not apply to the present application. It was 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. The restrictions imposed did not of themselves purport to deny or bar access to the ballot paper, they simply made it more difficult. The disability or incapacity created by the 2002 Act only took effect on the closing date for nominations. It did not inure as an ongoing disability or disqualification after the particular election.

5. That it was open to the legislature to provide for different measures for unaffiliated non-party candidates and members of a political organisation running for election. The mischief which the legislative measures were designed to prevent did not arise where political parties were concerned because a political party was not likely to put forward a frivolous candidate, nor was it going to flood the ballot paper with candidates with the object or effect of confusing or subverting the electoral process.

6. That the impugned legislative provisions did not encroach upon the secrecy of the ballot. A subscription as an assentor to a person's candidature did not necessarily imply a voting intention in support of that person, nor did it inhibit the voter in exercising a secret vote.

Reporter: L.O'S.

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

2 Dáil Éireann was dissolved on the 25 ^th April, 2002 when the writ was moved for a general election to take place on the 17 ^th May, 2002. The closing date for nominations was the 3 ^rd 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.

3 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.

4 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 I.R. 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, 2002which came into effect on the 25 ^th March, 2002.

5 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."

6 Article 6:

7 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."

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

" 1.1° 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.

2° (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.

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 that ground.

4° 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."

9 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...