Mohan -v- Ireland & Anor, [2016] IEHC 35 (2016)

Docket Number:2015 8925 P
Party Name:Mohan, Ireland & Anor
 
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THE HIGH COURT[2015 No. 8925P]BETWEENBRIAN MOHANPLAINTIFFAND

IRELAND AND THE ATTORNEY GENERALDEFENDANTS JUDGMENT of Mr. Justice Keane delivered on the 2nd February 2016

Introduction

  1. In this action, the plaintiff seeks to challenge the constitutional validity of s. 17 (4B) of the Electoral Act 1997 (“the 1997 Act”), as inserted by s. 42 (c) of the Electoral (Amendment) (Political Funding) Act 2012.

    Legislative Background

  2. S. 17(4B) is contained in Part III of the 1997 Act. That part of the Act deals with State payments to qualified political parties. S. 16 of the 1997 Act provides that, in order to qualify, a party must be properly registered and its candidates must have obtained not less than two per cent of the total first preference votes cast at the last preceding general election. Under s. 17 (1) and (2), each qualified party that applies receives an annual allocation of funds comprising the euro equivalent of Ir£100,000, together with a further sum in the same proportion to the total fund available as the combined share of the first preference votes obtained by that party’s candidates in the preceding general election bears to the the total number of first preference votes obtained by the candidates of all qualified parties in that election.

    The impugned provision

  3. S. 17 (4B) provides:

    “(a) Payments calculated in accordance with this Part shall be reduced by 50 per cent, unless at least 30 per cent of the candidates whose candidatures were authenticated by the qualified party at the preceding general election were women and at least 30 per cent were men.

    (b) Paragraph (a) –

    (i) comes into operation on the polling day at the general election held next after section 42 of the Electoral (Amendment) (Political Funding) Act 2012 comes into operation and

    (ii) ceases to have effect on the polling day at the general election held next after the expiration of 7 years from the polling day specified in subparagraph (i).

    (c) Payments calculated in accordance with this Part shall be reduced by 50 per cent, unless at least 40 per cent of the candidates whose candidatures were authenticated by the qualified party at the preceding general election were women and at least 40 per cent were men.

    (d) Paragraph (c) comes into operation on the day after the day on which paragraph (a) ceases to have effect.”

    Urgency

  4. S. 42 of the Electoral (Amendment) (Political Funding) Act 2012 and, hence, s. 17 (4B) of the 1997 Act came into operation on the 27th September 2012, pursuant to the terms of the Electoral (Amendment) (Political Funding) Act 2012 (Commencement) Order 2012 (S.I. No. 368 of 2012). Accordingly, s. 17 (4B) (a) will apply to State payments made to qualified parties subsequent to the forthcoming general election after the dissolution of the current Dáil. That general election must take place no later than Monday, the 11th April 2016, and may, of course, occur sooner, imparting a specific urgency to the resolution of these proceedings.

    The plaintiff’s position

  5. The plaintiff Brian Mohan, who gave evidence on his own behalf, is a member of the Con Colbert Cumann, or branch, of the Fianna Fáil party (“the party”). That cumann is located in the Dáil Éireann constituency of Dublin Central. The plaintiff is, at present, the Chair of the party’s Dublin Central Comhairle Dáil Ceantair (“CDC”) or constituency council.

  6. In or about the month of July 2015, the party had selected 47 candidates to contest 31 constituencies. 10 of those candidates were women, representing a little over 21% of the total number, as it then stood, of the party’s candidates.

  7. The plaintiff was duly nominated to contest the party’s convention to select a candidate or candidates to contest the impending general election in the Dublin Central constituency.

  8. On or about the 18th September 2015, the plaintiff received a letter, dated the 17th September 2015, from the general secretary of the party, confirming that, following consultation with the CDC Officer Board, the party’s candidate selection convention had been arranged to take place on the 7th October 2015. The letter continued:

    “Having considered the matter very carefully and consulted with the CDC Officer Board, the National Constituencies Committee [“NCC”] has directed that one candidate only be selected at the convention and that the candidate selected must be a woman.

    The following candidates are seeking selection:

    • Ms. Mary Fitzpatrick

    • Ms. Denise McMorrow

    • Mr. Brian Mohan”

  9. On the 7th October 2015, the party’s Dublin Central constituency candidate selection convention took place and was conducted in accordance with the foregoing direction or, as the plaintiff described it in his evidence, “diktat” of the party’s NCC. The plaintiff was, thus, excluded from participation in the party’s candidate selection contest.

  10. The plaintiff has not challenged that direction. Fianna Fáil is not party to these proceedings. Instead, the plaintiff now challenges the constitutionality of s. 17 (4B) of the 1997 Act on the basis that the the purpose of the direction was to enable the party to meet the candidate gender quota necessary to avoid the 50% reduction in the relevant State funding that the section imposes on any party that fails to do so.

  11. The plaintiff was requested to provide particulars of the benefit to him of a declaration that s. 17 (4B) of the 1997 Act is constitutionally invalid. The response furnished on his behalf is that it will enable him to request the party to reconsider its candidate selection process in the Dublin Central constituency; will render him eligible for consideration in that regard; and will prevent the application of a 40% candidate gender quota by the party in respect of any future general election in respect of which the plaintiff may seek the party’s nomination.

    The plaintiff’s claim

  12. As I understand the arguments put forth in the pleadings and in the written and oral submissions that have been made on the plaintiff’s behalf, it is contended that s. 17 (4B) of the 1997 Act is repugnant to the Constitution of Ireland on the following grounds:

    (a) It offends the principle, enshrined in Article 6 of the Constitution, that all powers of government, including all legislative powers, derive, under God, from the people, whose right it is to designate the rulers of the State.

    (b) It contravenes the requirement under Article 16.1.1º of the Constitution that every citizen, without distinction of sex, who has reached the age of twenty-one years, and who is not placed under a disability or incapacity by the Constitution or by law, shall be eligible for membership of Dáil Éireann, and does not fall within the terms of Article 16.7 whereby, subject to the foregoing provisions of that Article, elections for Dáil Éireann shall be regulated in accordance with law.

    (c) It breaches the requirement under Article 40 of the Constitution that all citizens shall, as human persons, be held equal before the law and it cannot be saved as a law enacted by the State with due regard to differences of capacity, physical and moral, and of social function.

    (d) It breaches the plaintiff’s liberty, guaranteed by the State under Article 40.6.1º, to exercise freely his rights to freedom of expression, freedom of association and freedom of assembly, and does not amount to a permissible restriction upon, or regulation, of any of those rights. In particular, it cannot be justified as a law regulating or controlling the exercise of the right of association in the public interest, as expressly permitted under Article 40.6.1º (iii). Insofar as it could be so justified, it offends the requirement of Article 40.6.2º that any such law must contain no political discrimination.

    The State’s defence

  13. The State joins issue with the plaintiff on each of the propositions just summarised and argues that the Constitution confers specific competence on the Oireachtas, under Article 15.2, Article 16.1 and Article 16.7 of the Constitution, to legislate in the manner it has done in enacting s. 17 (4B) of the 1997 Act.

  14. Further and as a precursory argument, the State asserts that the plaintiff lacks standing to challenge s. 17 (4B), or is wrongly seeking to rely on third party rights in breach of the ius tertii rule in mounting that challenge, or both, so that the proceedings he has brought should be dismissed in limine. The kernel of that argument is that the rights that the plaintiff seeks to rely upon, in the circumstances presented, are those of the party (of which he is a member and by which he wishes to be selected as a candidate for election to Dáil Éireann) rather than his own.

    Agreed facts

  15. I do not believe it is in dispute between the parties that women make up approximately 51% of the population of the State.

  16. The plaintiff and defendants have agreed certain facts for the purpose of the present action. Those facts include the following.

  17. At present, Dáil Éireann is composed of 139 male TDs and 27 female TDs. In percentage terms, its composition is 83.7% male and 16.3% female.

  18. The proportion of the members of Dáil Éireann who are women has never exceeded the current percentage of the whole, that is 16.3%, having fallen as low as 0.7% after both the second election of 1927 and the election of 1932.

    Women TDs elected to Dáil Éireann at each general election, 1918 – 1977

    ElectionNumber of TDsNumber of Women TDs ElectedPercentage of Women TDs Elected

    191810511.0%

    192112853.9%

    192212821.6%

    192315342.6%

    1927 (June)15342.6%

    1927 (Sept)15310.7%

    193215310.7%

    193315331.97%

    193713810.73%

    193813810.73%

    194313832.17%

    194413842.9%

    194814753.4%

    195114753.4%

    195414753.4%

    195714742.7%

    196114442.8%

    196514453.5%

    196914432.1%

    197314442.8%

    197714864.05%

  19. In every general election from 1977 onwards, the proportion of women candidates has never exceeded 20% of the total (the high point being 19.8% in the 1997 election).

    Women candidates and TDs at general elections, 1977 – 2011

    and women TDs in 2015

    ElectionC...

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