King v Minister for Environment and Others (No 2)

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 13 November 2006
• Neutral Citation: [2006] IESC 61
• Date: 13 November 2006
• Court: Supreme Court
• Docket Number: [S.C. Nos. 97, 104, 111 & 112 of 2004 and 114 of 2005]

KING & ORS v MIN FOR ENVIRONMENT & ORS

Between

Thomas King

Plaintiff/Apelleant

-v-

The Minister for Environment Ireland and The Attorney General

Defendants/respondents

and

Benedict Cooney

Plaintiff/Apelleant

-v-

The Minister for Environment Ireland and The Attorney General

Defendants/respondents

and

Denis Riordan

aPPLICANT/Apelleant

-v-

Government of Ireland, Minister for the Environment and Local Government, Attorney General and Ireland

Respondents/respondents

[2006] IESC 61

97/2004

104/2004

111/04

112/04

114/05

THE SUPREME COURT

ELECTORAL ACT 1992 S46(4A)

ELECTORAL ACT 1992 S46(4B)

ELECTORAL (AMDT) ACT 2002 S1(a)

CONSTITUTION ART 16

ONSTITUTION ART 40

ELECTORAL ACT 1992 S46(5)

CONSTITUTION ART 40.6.1

CONSTITUTION ART 5

CONSTITUTION ART 6

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

ELECTORAL ACT 1992 S52(1)

ELECTORAL REGS 2002 SI 144/2002 SCHED 1

CONSTITUTION ART 16.1

CONSTITUTION ART 16.1.1

CONSTITUTION ART 16.7

REDMOND v MIN ENVIRONMENT 2001 4 IR 61

ELECTORAL (AMDT) BILL 1983, IN RE 1984 IR 268

ELECTORAL ACT 1992 S46

LOFTUS v AG 1979 IR 221

ART 26 OF THE CONSTITUTION & OFFENCES AGAINST THE STATE (AMDT) BILL 1940, RE 1940 IR 470

ELECTORAL ACT 1997 PART VI

ELECTORAL ACT 1992 S25

JENNESS v FORTSON 403 US 431

ONSTITUTION ART 16.1.3

ELECTORAL ACT 1992 S41

CONSTITUTION ART 26

CONSTITUTION ART 12.4.1

ELECTORAL ACT 1992 S46(4B)(d)

1 JUDGMENT of the Court delivered on the 13th day of November 2006 , by Murray C.J.

2 The appellants in each of these proceedings challenged the constitutionality of certain statutory provisions governing the nomination of candidates for election to Dáil Éireann.

3 The statutory provisions for the nomination of candidates for election to Dáil Éireann are contained in the Electoral Act, 1992as amended by the Electoral (Amendment) Act, 2002.

4 The appellants claim that the statutory requirements and procedures laid down in the Act of 1992, as amended, for the nomination of eligible persons as candidates in Dáil elections are incompatible with the provisions of the Constitution, in particular Article 16 and Article 40, because, in general terms, those conditions and procedures are not permitted by Article 16 of the Constitution, are unduly onerous so as to be an impermissible impediment to their constitutional rights to be nominated as candidates and also constitute an invidious discrimination against non-party candidates as compared with candidates who are affiliated to a registered political party and are nominated by that party. The relevant impugned sections are s. 46(4A) and (4B) of the Electoral Act, 1992as inserted by s. 1(a) of the Electoral (Amendment) Act, 2002.

5 The appellants in the first and second action each brought separate proceedings before the High Court. However by agreement the actions were heard together, along with a third action which is not the subject of this appeal, by Kearns J. who delivered one judgment dismissing the claims of each of the appellants. These appellants have appealed against the judgment and order of Kearns J.

6 The appellant in the third action brought similar proceedings before the High Court which were heard and determined subsequent to the aforementioned judgment and decision of Kearns J. He similarly sought to impugn the constitutionality of the aforementioned sections of the Act of 1992, as amended. In addition he claims that s. 46 ss. 5 of the Act of 1992 is unconstitutional because it requires that he be described as "non-party" on the ballot paper rather than as "independent". In this respect he claims that this is a restriction on him which is not permissible under the Constitution and in particular it is a denial of his right to freedom of expression pursuant to Article 40.6.1.i.

7 This appellant's claim was heard and determined in the High Court by Carney J. who, in dismissing the claims of this appellant, relied upon and applied the judgment and decision of Kearns J. in the earlier determined proceedings. In addition he dismissed this appellant's claim that his constitutional rights were infringed by virtue of the provision which required him to be described as "non-party" on the ballot paper. This appellant appealed against the judgment of Carney J. and this appeal was heard in conjunction with the other appeals.

8 This is the judgment of the Court in each of the aforesaid appeals.

Relevant Law

9 The most relevant provisions of the Constitution relied upon by the appellants are:

"Article 5:

Ireland is a sovereign, independent, democratic state.

Article 6:

1. All powers of 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.

2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution."

10 The most relevant provisions of Article 16 of the Constitution provide:-

"Article 16:"

11 2 1.1° 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.

12 i 2° (i) All citizens, and

13 (ii) such other persons in the State as may be determined by law,

14 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 Dáil Éireann, shall have the right to vote at an election for members of Dáil Éireann.

15 3 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.

16 4 4° No voter may exercise more than one vote at an election for Dáil Éireann, and the voting shall be by secret ballot.

17 16.7. 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."

18 Articles 40.1 and 40.3 of the Constitution provide as follows:

19 2 "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 differences of capacity, physical and moral, and of social function.

20 3 3.1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

21 4 2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

22 As earlier indicated the primary legislative provisions governing elections to Dáil Éireann are contained in the Electoral Act, 1992as amended by the Act of 2002 and the impugned provisions are found in Part X of the Act of 1992 and in particular s. 46 ss. (4A) and (4B). The relevant portions of s. 46 now provide as follows:

23 2 " 46(1) At a Dáil election a person may nominate himself as a candidate or may, with his consent, be nominated by another person (being a person registered as a Dáil elector in the constituency for which he proposes to nominate the candidate) as proposer.

24 ...

25 (4) A candidate may include in his nomination paper the name of the political party registered in the Register of Political Parties as a party organised to contest a Dáil election of which he is a candidate, provided that, at the time the nomination paper is delivered to the returning officer, a certificate in the form directed by the Minister (in this Act referred to as a "certificate of political affiliation") authenticating the candidature is produced to the returning officer, being a certificate signed by the officer or officers of such party whose name or names appear in the said Register pursuant to section 25(4)(c) ...

26 a 4A) In the case of a candidate whose candidature is not authenticated by a certificate of political affiliation under subsection (4), the candidate's nomination shall, before delivery of his nomination paper to the returning officer in accordance with section 50, be assented to by 30 persons (excluding the candidate and any proposer) who are registered as Dáil electors in the constituency.

27 b (4B) The following provisions apply in respect of the assents required by subsection (4A) to the nomination of a candidate referred to in that subsection:

28 (a) the candidate or the candidate's proposer, if any, shall complete part of a nomination paper as directed on that paper and lodge the paper in the prescribed local authority offices for the constituency;

29 (b) the local authority shall number any nomination papers lodged under paragraph (a) in the order in which they are lodged;

30 (c) where more than one nomination paper for the same candidate is lodged with the local authority, the first such nomination paper shall be deemed to be the nomination paper for that candidate for that election unless the candidature is withdrawn under section 54 or is deemed under section 62(1) to have been withdrawn;

31 (d) to assent to the nomination, a person registered as a Dáil elector in the constituency shall sign the candidate's nomination paper and produce a prescribed photographic identification to the local authority official;

32 (e) the local authority official shall note the...