Morelli v an Taoiseach
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 20 April 2018 |
| Neutral Citation | [2018] IEHC 215 |
| Docket Number | [2018 No. 215 J.R.] |
| Court | High Court |
| Date | 20 April 2018 |
IN THE MATTER OF AN APPLICATION BY ROISIN MORELLI FOR LEAVE FOR JUDICIAL REVIEW AND IN THE MATTER OF ARTICLE 2, 16 AND 47 OF THE CONSTITUTION AND IN THE MATTER OF THE REFERENDUM ON THE REPEAL OF THE EIGHTH AMENDMENT OF THE CONSTITUTION
AND
[2018] IEHC 215
[2018 No. 215 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Election – Constitution – Judicial review – Arts. 2, 16 & 47 of the Constitution – Referendum on the repeal of the Eighth Amendment to the Constitution – The Electoral Act 1992 – Breach of Constitutional rights – The European Convention on Human Rights
Facts: The applicant sought leave to seek a declaration that the respondents had breached arts. 2, 16 and 47 of the Constitution by not allowing the applicant, an Irish citizen who was ordinarily residing in Northern Ireland, to cast her vote in the referendum on repealing the Eighth Amendment to the Constitution. The applicant submitted that she had a constitutional right to vote by virtue of her status as an Irish citizen. The applicant contended that the residency requirement in the Electoral Act 1992 was not a constitutional requirement and art. 47 of the Constitution was not determinative of a citizen's right to vote at a referendum. The respondents argued that art. 47 directly linked the citizen's entitlement to vote at a referendum with the entitlement to vote in elections for Dáil Éireann. The respondents submitted that residency requirements provided under the Act of 1992 were in accordance with the provisions of art. 16 of the Constitution, which required a ratio between the number of members of Dáil Éireann being elected at any time for each constituency and the population of each constituency. The applicant argued that voting was an 'expression' under art. 10 of the European Convention on Human Rights so there was an infringement of her freedom of speech and expression.
Mr. Justice Meenan refused to grant the reliefs sought by the applicant. The Court held that there was no breach of constitutional rights of the applicant as she was not ordinarily a resident of Ireland and the present case did not fall under art. 10 of the Convention. The Court noted that if the applicant was to allow for voting then there would have been the need for amendment of the art. 47 of the Constitution.
The applicant in these proceedings is a full time student undertaking a Masters Degree in Translational Medicine at Queens University, Belfast and has lived in Belfast all her life. The applicant is an Irish citizen, born on 12th July, 1991.
The applicant wishes to vote in the forthcoming constitutional referendum on the Eighth Amendment to the Irish Constitution. The polling date for the referendum has been set for 25th May, 2018.
Although the applicant is an Irish citizen she is not entitled to vote in the referendum. She brings these proceedings by way of judicial review claiming that the refusal to grant her a vote is contrary to:-
(i) the Constitution;
(ii) the agreement reached in the multi party negotiations, 10th April, 1998 (the Good Friday Agreement);
(iii) the European Convention on Human Rights/European Convention on Human Right Act 2003.
An application was made to this Court seeking leave to bring the within judicial review proceedings on 12th March, 2018. On that date, the necessary legislation to enable the fixing of a date for the referendum on the Eighth Amendment had not yet been enacted and the application was adjourned to 9th April, 2018. The Court also directed that the respondents be put on notice of the application. The matter came on for hearing on 13th April, 2018, with the respondents opposing that leave be granted.
There was little disagreement between the parties as to what was the appropriate test for the court to apply when ruling on a leave application. I refer to the oft cited passage from the judgment of Finlay C.J. in G. v. Director of Public Prosecutions [1994] 1 IR 374, where he stated at pp. 377-378:-
'An applicant must satisfy the court in prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-
(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20(4).
(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks...'
This Court is concerned with whether the applicant has made 'an arguable case' so that leave can be granted.
The 'arguability test' was further considered by the Supreme Court in Esmé v Minister for Justice and Law Reform IESC 26. Having cited the said passage from G. v. Director of Public Prosecutions, Charleton J. stated:-
'14. While in Gordon v. Director of Public Prosecutions [2002] 2 IR 369 this has been described as a 'low threshold', per Fennelly J. at p. 372. What an arguable case might mean was also amplified by Denham J. in the G decision, with whom Blayney J. agreed. At p.382, she stated:-
"This preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders of the prerogative writs. The aim is similar - to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public authorities unnecessarily. ... It is a preliminary filtering process for which the applicant is required to establish a prima facie case. Ultimately on the actual application for judicial review the applicant has an altogether heavier burden of proof to discharge."
15. In contrast, in S. and Others v Minister for Justice and Equality [2013] IESC 4, Clarke J referred at para. 5.1 to 'a sufficiently arguable case... for the grant of leave to seek judicial review in the light of the existing jurisprudence.' Any issue in law can be argued: but that is not the test. A point of law is only arguable within the meaning of the relevant decisions if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success. It is required for an applicant for leave to commence judicial review proceedings to demonstrate that an argument can be made which indicates that the argument is not empty. There would be no filtering process were mere arguability to be the test without, at the same time, taking into account that trivial or unstatable cases are to be excluded: the standard of the legal point must be such that, in the absence of argument to the contrary, the thrust of the argument indicates that reasonable prospects of success have been demonstrated. It is still required to be shown that a prima facie legal argument has been established...'
To meet the 'arguability test', it would appear that an applicant has to point to some provision of the Constitution, statute or legal authority that, on a reasonable interpretation, would support the case being made. Further, in a case such as this, where the statutes in question enjoy the presumption of constitutionality, this is a factor which the court should take into account when deciding whether the 'arguability' threshold has been passed.
I will now consider the various grounds advanced by applicant and apply the appropriate test.
The applicant seeks a declaration that the failure or refusal of the respondents to allow the applicant, an Irish citizen who happens to ordinarily reside in Northern Ireland, to vote in referenda, and in particular the referendum on repealing the Eighth Amendment to the Constitution, is in breach of her rights pursuant to Articles 2, 16.2 and 47.3 of the Constitution. Further, the applicant claims that ss. 7 and/or 8 of the Electoral Act 1992 ('the Act of 1992') are repugnant to the Constitution.
Article 47.3 provides:-
'Every citizen who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at a Referendum.'
As the right to vote at a referendum is dependent upon the right to vote for members of Dáil Éireann, Article 16 has to be considered.
Article 16.1.2 provides:-
'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 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.'
Article 16.2. provides:-
'1 Dáil Éireann shall be composed of members who represent constituencies determined by law.
2 The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population.
3 The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.'
It should also be noted that Article 12.2.2 provides:-
'Every citizen who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at an election for President.'
Article 16.1.2 refers to 'provisions of the law relating to the election of...
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