Loftus v Attorney General

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.,FINLAY P.
• Judgment Date: 01 January 1979
• Neutral Citation: 1978 WJSC-SC 1693
• Court: Supreme Court
• Docket Number: 19/1972,[1966 No. 89 P.]
• Date: 01 January 1979

LOFTUS v. THE ATTORNEY GENERAL

HIGH - 14.5.71

SEAN D. LOFTUS AND OTHERS

Plaintiffs

and

THE ATTORNEY GENERAL AND OTHERS

Defendants

1978 WJSC-SC 1693

'Higgins C. J.

Finlay P.

Henchy J.

Parke J.

Hamilton J.

19/1972

THE SUPREME COURT

1 JUDGMENT OF THE COURT delivered 11th day of May. 1978 by O'HIGGINS C.J.

2 On the 11th day of January 1966 the Plaintiffs claiming to be members of a political party called, in the Irish language "An Pairti Daonfhlathach Oriostuil na hEireann" and in the English language "The Christian Democratic Party of Ireland" commenced these proceedings in which they claim certain declarations by way of relief consequent upon the decision of the Registrar of Political Parties not to register the said party under the provisions of the Electoral Act 1963. The decision of the Registrar was given on the 16th March 1965 and this decision was on the 19th March 1965 upheld by an Appeal Board constituted pursuant to the provisions of Section 13 of the saidAct.

3 The members of this Appeal Board consisted of Mr. Justice Kenny, then a Judge of the High Court andnominated to act by the President of the High Courts the late Professor Liam ÓBuaohalla, then Chairman of Seanad Eireann, and the late Patrick Hogan, the Chairman of the Dail which had been dissolved by proclamation on the 18th day of March 1965.

4 Initially these proceedings took the form of a declaratory action against the Attorney General alone in which a declaration was claimed that certain provisions of the Electoral Act 1963were repugnant to the Constitution. Subsequently the proceedings were amended to include claims for other declarations, relating to the decision made on the application for registration, the standing of the Plaintiffs' political party and the constitution of the Appeals Board. Mr. Patrick Hogan being then dead, the other two members of the Appeal Board were added as Defendants. In their present form, therefore, these proceedings relate in the first instance to a claim by the Plaintiffs that certain provisions of the Electoral Act 1963are repugnant to the Constitution and invalid. Alternatively there are claims for a declaration that thedecision of the Registrar of Political Parties refusing registration to the Plaintiffs' party was wrong in law and invalid, a declaration that that party is and was at all material times a genuine political party within the meaning of Section 13 sub-section (2)(vi) of the Electoral Act 1963, a declaration that the party is organised to contest a Dail or a local election, a declaration that the Appeal Board was wrongly constituted and its decision therefore invalid, or alternatively a declaration that the decision of the said Board was wrong in law and invalid.

5 These proceedings came on for hearing in the High Court before the then President, Mr. Justice O'Keeffe, on the 12th May 1971. In his reserved Judgment delivered on the 14th May 1971 Mr. Justice O'Keeffe refused the declaration sought that the Electoral Act 1963was in the respects alleged, repugnant to the Constitution. He also refused to grant the declaration sought with regard to the decision of the Registrar, the standing of the Plaintiffs' party and its organisation. He declined to entertain the claims for these three declarations because theRegistrar of Political Parties was not a party to these proceedings. He did, however, grant a declaration as claimed that the Appeal Board was not properly constituted and that its decision was made without jurisdiction and was accordingly invalid, but otherwise he declined to condemn the said decision.

6 The Plaintiff, by Notice of Appeal dated the 23rd February 1972 have appealed to this Court against so much of the Judgment and Order of Mr. Justice O'Keeffe as refused them the declarations which they sought and as to the orders made as to costs. The second-named Defendant who is the sole surviving member of the Appeal Board and who desired these proceedings to be continued, despite the death of his co-Defendant, so that finality could be reached, has also lodged a Notice of Appeal against so much of the Judgment and Order of Mr. Justice O'Keeffe as allowed the Plaintiffs' claim for a declaration that the Appeal Board had been wrongly constituted.

7 The issues which have been raised on these appeals involve, not only the question of the constitutionality ofthe impugned provisions of the Electoral Act 1963but also, to the extent not resolved in the determination of that question, the proper construction and meaning of the particular provisions of that Act applying to the registration of political parties. There is also the question whether, in the circumstances of this particular case, the Appeal Board which sat and which purported to determine the appeal from the Registrar was properly constituted. Separate and distinct from these issues of constitutionality and interpretation are the grounds of appeal relating to the particular decision of the Registrar and the Appeal Board on the application of the Plaintiffs' party for registration.

8 This Judgment will deal first of all with the issue of constitutionality and in that respect will be the Judgment of the Court.

9 In their Statement of Claim the Plaintiffs seek a declaration that specified provisions of the Electoral Act 1963are repugnant to the Constitution and invalid. These provisions are as follows, viz: Section 13, Section 16, the 2nd Schedule (Part II) (providing for a form of ballot paper and for directions), Section 21 in so far as it inserted in the Rules of the 5th Schedule of the Electoral Act 1923, Rule 9 (3). The Electoral Act 1963provides for many amendments of the Electoral Acts 1923to 1961, the Presidential Election Acts, the Referendum Acts, the Prevention of Electoral Abuses Acts and the Acts relating to local elections. In particular it provides statutory recognition for candidates of registered political parties in Dail and local elections and provides a means whereby such registration of political parties may be effected. Section 13 of the Act provides for the establishment of a Registrar of Political Parties (sub-section (1)). The Registrar is empowered to prepare and maintain a Register of political parties in which he shall register any political party

10 a "(a) which applies to him for registration, and

11 (b) which is in his opinion

12 (i) a genuine political party, and

13 i (ii)is organised to contest a Dail election or a local election." (Sub-section (2))

14 On the registration of a party the Registrar must enter on theRegister

15 (a) the name of the party

16 (b) its address, and

17 (c) the name of the officer or officers authorised to sign certificates authenticating candidates of the party at elections. (Sub-section (3)).

18 Immediately on setting up the Register the Registrar shall register therein the parties then represented in the Dail by the names by which they are commonly known. (Sub-section (4)). A political party may not be registered if its name

19 a "(a) is identical with a party already registered or so nearly resembles such as, in the opinion of the Registrar to be calculated to mislead, confuse or deceive.

20 (b) is in the opinion of the Registrar unnecessarily long, or

21 (c) in the case of a party operating in relation to a particular part only of the State, does not include such reference to that part as, in the opinion of the Registrar, distinguishes the party as so operating." (Sub-section (5)).

22 A political party having been registered must keep the Registrar informed as to the names of authenticating officers. (Sub-section(6)).

23 The Registrar must at least once in each year enquire of each registered party as to whether it desires to remain, registered and if he does not receive an affirmative reply within a specified time he must cancel registration. (Sub-section (7)).

24 Any doubt, dispute or question which may arise in connection with the Register is to be decided by an Appeal Board. (Sub-section (8)(a).

25 This Appeal Board is to "consist of a Judge of the High Court (to be nominated by the President of the High Court) who shall be chairman, the Chairman of Bail Eireann (or, where he is unable, through illness, absence or other cause to fulfil his duties, the Deputy Chairman of Dail Eireann) and the Chairman of Seanad Eireann)." (Sub-section(8)(b)).

26 The Appeal Board's decision must be complied with by the Registrar. (Sub-section (8)(c).

27 On the third day after the issuing of a writ or writs in respect of Dail elections the Registrar must send to each returning officer a copy of the Register. (Sub-section (9)).

28 Section 16 and Part II of the 2nd Schedule to the Act provide for a new form of ballot paper which permits candidates to be described according to whether they are candidates of a registered political party or not. Rule 9(3) of the new Rules inserted into the Electoral Act 1923by Section 21 of the Act in question gives each candidate the right to have inserted on the ballot paper in relation to him the name of his registered political party if he is a candidate of such party, and the words "non party" if he is not.

29 These are the provisions of the Electoral Act 1963which have been impugned by the Plaintiffs in these proceedings.

30 The Electoral Act 1963is an Act of the Oireachtas. As has been laid down by this Court on many occasions such an Act enjoys a presumption of constitutionality.Thispresumption ensures that the courts in considering any provision of this Act which is impugned as being repugnant to the Constitution, will first of all look for a meaning or a way of doing what is provided for which accords with constitutionality. It is only when such a meaning cannot be found or such a way is not open that invalidity will be declared. As follows from a number of decisions of this Court, a statutory provision which has been enacted by the Parliament established under...