Re Electoral (Amendment) Bill, 1983

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 08 February 1984
• Date: 08 February 1984
• Docket Number: [S.C. No. 373 of 1983]

The Electoral (Amendment) Bill, 1983

In the Matter of Article 26 of the Constitution and in the Matter of The Electoral (Amendment) Bill

1983

[S.C. No. 373 of 1983]

Supreme Court

Constitution - Bill - Validity - National parliament - Dáil Éireann éireann - Extension of franchise - Right to vote restricted by Constitution to citizens - Bill conferring franchise upon resident British citizens - Repugnancy - Constitution of Ireland, 1937, Articles 6, 12, 16, 47.

Section 16, sub-s. 2, of the Constitution stated that "every citizen" without distinction of sex who had reached the age of 18 years, who was not disqualified by law and complied with the provisions of the law relating to elections, should have the right to vote at an election for members of Dáil Éireann éireann. By Article 12, s. 2, sub-s. 2, every such citizen is given a right to vote at an election for President and, by Article 47, s. 3, he is given a right to vote at a referendum.

The Electoral (Amendment) Bill, 1983, as passed by both Houses of the National Parliament, contained provisions which would entitle a British citizen to be registered in a constituency as a Dáil elector if ordinarily resident in that constituency, and thus become entitled to vote at a Dáil election in that constitutency. Pursuant to Article 26 of the Constitution the President of Ireland referred the bill of 1983 to the Supreme Court for a decision on the question whether the bill, or any provision or provisions thereof, was or were repugnant to the Constitution or to any provision thereof. In pronouncing its decision on the question so referred, it was

Held by the Supreme Court, 1, that any repugnancy with the provisions of the Constitution must be clearly established by the opponents of the Bill.

The Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129 applied.

2. That, in declaring that all powers of government 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", the provisions of Article 6, s. 1, of the Constitution showed (with Articles 12 and 47) that the right to vote at elections for members of Dáil Éireann éireann conferred on every citizen by Article 16 was a right which was restricted to citizens who formed part of the people of Ireland.

3. That, accordingly, the bill of 1983 was repugnant to the Constitution.

Cases mentioned in this report—

¹ Levene v. Commissioners of Inland Revenue [1928] A.C. 217.

² Commissioners of Inland Revenue v. Lysaght [1928] A.C. 234.

³ In re Norris (1888) 4 T.L.R. 452.

⁴ Cooper v. Cadwalader (1904) 5 T.C. 101

⁵ Macrae v. Macrae [1949] P. 347.

⁶ The State (Browne) v. Feran [1967] I.R. 147.

⁷ McGee v. The Attorney General [1974] I.R. 284.

⁸ The State (D.P.P.) v. Walsh [1981] I.R. 412.

⁹ The State (Goertz) v. Minister for Justice [1948] I.R. 45

¹⁰ Calvin's Case (1608) 7 Co. Rep. 1a.

¹¹ Byrne v. Ireland [1972] I.R. 241.

¹² The Criminal Law Jurisdiction Bill, 1975 [1977] I.R. 129.

¹³ M. v. An Bord Uchtála [1975] I.R. 81.

¹⁴ The State (Aherne) v. Cotter [1982] I.R. 188.

¹⁵ Draper v. The Attorney General (see p. 277, infra).

¹⁶ Norris v. The Attorney General (see p. 36, supra).

¹⁷ Joyce v. Director of Public Prosecutions [1946] A.C. 347.

Reference of Bill passed by the Oireachtas.

The Electoral (Amendment) Bill, 1983, was passed by both Houses of the Oireachtas on the 14th December, 1983. On the 21st December, 1983, the President of Ireland referred the bill to the Supreme Court pursuant to the provisions of Article 26, s. 1, sub-s. 1, of the Constitution of Ireland, 1937, for"a decision on the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof." By the provisions of the bill the legislature sought to confer on a British citizen who was ordinarily resident in a constituency in the State some of the rights of a citizen, viz., a right to be registered as a Dáil elector in that constituency so that, when registered, he would be entitled by s. 26, sub.-s. 1, of the Electoral Act, 1963, to vote at a Dáil election in that constituency and, by s. 51, sub.-s. 1, to vote at a presidential election and, by s. 70, sub.-s. 1, to vote at a referendum. The Supreme Court assigned solicitor and counsel to oppose the constitutionality of the bill.

Article 6, sub-s. 1, of the Constitution states:— "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."

Article 9 of the Constitution provides:—

"1. 1 On the coming into operation of this Constitution any person who was a citizen of Saorstát Éireann éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.

2 The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.

3 No person may be excluded from Irish nationality and citizenship by reason of the sex of such person.

2. Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens."

The procedure by which an alien may acquire Irish citizenship is specified in the naturalisation provisions of Part III of the Irish Nationality and Citizenship Act, 1956.

Section 5, sub-s. 1, of the Electoral Act, 1963, stated:—

"A person shall be entitled to be registered as a Dáil elector in a constituency if he has reached the age of eighteen years and he was, on the qualifying date— (a) a citizen of Ireland, and (b) ordinarily resident in that constituency."

Section 26, sub-s. 1, of the Act of 1963 states:— "Subject to the subsequent provisions of this section, every person whose name is on the register of Dáil electors for the time being in force for a constituency, and no other person, shall be entitled to vote at the poll at a Dáil election in that constituency."

Pursuant to Article 26, s. 2, sub-s. 1, of the Constitution the Supreme Court (O'Higgins C.J., Finlay P., Henchy, Griffin and McCarthy JJ.) on the 17th and 18th January, 1984, heard arguments presented by the Attorney General and by counsel assigned by the Court to oppose the constitutionality of the bill.

G.W. Lardner S.C.

and

N. Fennelly S.C.

(with them

Mary Laffoy

) of counsel assigned by the Court:—

The description "ordinarily resident" contained in s. 5, sub-s. 1, of the Electoral Act, 1963, is not sufficiently...