Supreme Court declares non-party candidate signature authentication requirement unconstitutional but upholds other nomination rules.

THE SUPREME COURT

Murray C.J. 97 & 104/2004

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

Between

Thomas King

Plaintiff/Apelleant

-v-

The Minister for Environment Ireland and The Attorney General

Defendants/respondents

and

111 & 112/04

Benedict Cooney

Plaintiff/Apelleant

-v-

The Minister for Environment Ireland

and The Attorney General

Defendants/respondents

and

114/05

Denis Riordan

Applicant/Apelleant

-v-

Government of Ireland,

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

Respondents/respondents

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

The appellants in each of these proceedings challenged the constitutionality of certain statutory provisions governing

the nomination of candidates for election to Dáil Éireann.

The statutory provisions for the nomination of candidates for election to Dáil Éireann are contained in the Electoral

Act, 1992 as amended by the Electoral (Amendment) Act, 2002.

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, 1992 as inserted by s. 1(a) of the Electoral

(Amendment) Act, 2002.

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.

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.

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.

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

Relevant Law

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.”

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

“Article 16:

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.

2° (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.

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.

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

secret ballot.

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.”

Articles 40.1 and 40.3 of the Constitution provide as follows:

“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.

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.

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.”

As earlier indicated the primary legislative provisions governing elections to Dáil Éireann are contained in the Electoral

Act, 1992 as 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:

“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.

…

(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) …

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.

(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:

(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;

(b) the local authority shall number any nomination papers lodged under paragraph (a) in the

order in which they are lodged;

(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;

(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;

(e) the local authority official shall note the following details on the nomination paper and

then sign the note:

(i) the assentor's number on the register of electors;

(ii) the form of identification produced by the assentor, including any number on

it;

(iii) the time and date of the assentor's signature on the paper;

(f) where the nomination paper bears the signatures of more than the required number of

qualified assentors, the signatures (up to the required number of those assentors) appearing

first on the nomination paper shall be taken into account to the exclusion of any others;

(g) where a person registered as a Dáil elector in the constituency signs as assentor the

nomination papers of 2 or more different candidates in the same election, that person's

signature on the first such nomination paper lodged with the local authority shall alone be

regarded and that person's signature on every other nomination paper shall be disregarded.”

Section 52(1) of the Electoral Act, 1992, as amended, confers on a returning officer the function of ruling on the

validity of each nomination paper lodged by any candidate and he is authorised to treat a nomination paper as invalid if

he, as returning officer, considers that “(a) in the case of the nomination paper of a candidate referred to in s.

46(4A),[a non-party candidate] the nomination is not assented in the manner required by s. 46 …”.

The Electoral Regulations, 2002 (S.I. No. 144/2002) made by the Minister pursuant to powers conferred on him by,

inter alia, s. 46 of the Act of 1992 provide for the photographic identification which an assentor must produce for the

purpose of authenticating his assent to the relevant local authority officials. Article 5 of the Regulations, in conjunction

with the Second Schedule, prescribes the local authority offices for each constituency at which a non-party candidate

must lodge the nomination paper, incorporating the 30 assents, as required by s. 46(4B). The Regulations also set out,

in the First Schedule, the prescribed form of nomination paper at Dáil Éireann with accompanying explanatory notes.

Arguments and submissions of the appellants

Factual matters:

The appellants first of all gave or called evidence concerning the burden which the relevant statutory provisions

imposed on them for the purpose of their contention that they constituted an impermissible impediment to their

constitutional right to be nominated as candidates for Dáil Éireann and, with regard to their second main ground of

appeal, that they amounted to an invidious discrimination against non-party candidates as compared to party candidates

who are not subjected to the same requirements for the lodgment of nomination papers.

The factual elements of their case may be summarised as follows. First of all, as regards the requirement that a

prospective candidate must obtain the signature of thirty assentors it was claimed that this was a time consuming task,

a task which could only be commenced after an election had been called and meant that a prospective candidate had to

devote a significant period of time to seeking out and persuading thirty persons to sign the nomination paper when he

or she could otherwise have been working on the electoral campaign to win votes. It was also said to be demeaning for

a candidate to have to go out and canvass persons to sign his nomination paper. On the other hand the appellant in the

first action, Mr King, said some persons were offended that they had not been approached to sign the nomination

papers. There was also a problem created by the fact that some persons who were resident in a constituency did not

meet the requirement that they be registered as Dáil electors in that constituency, either because they were not

registered at all or they were registered in another constituency.

The Electoral Regulations 2002 specify the photographic identity which an assentor must produce at the Local

Authority office for the purpose of identification when subscribing to the nomination papers. These are specified to be

one of the following: a passport, a driving licence, an employee identity card containing a photograph, a student

identity card issued by an education institution and containing a photograph, a travel document containing name and

photograph or a bank card with a photograph. It was complained in evidence that some older constituents did not have

such photographic identity.

There was significant evidence concerning the burden and difficulty encountered in fulfilling the obligation that each of

the thirty assentors would have to travel to the Local Authority Office designated for the constituency for the purpose

of authenticating their signature to the nomination paper. Evidence was given of multiple difficulties which this

entailed. The offices in question are designated or prescribed by the aforementioned Regulations of 2002. They are set

out in a schedule to those Regulations. For example, for the two constituencies of Donegal North East and Donegal

South West the prescribed Local Authority Office is in Lifford; for the constituencies of Kerry North and Kerry South

it is in Tralee; for the constituency of Limerick West it is in Limerick city; for the constituency of Mayo it is in

Castlebar and for the constituency of Wicklow it is in Wicklow town. It was pointed out that each assentor had to

attend at the designated office during normal office hours. In the many instances the assentors would have to travel

substantial distances (a seventy kilometres one way trip was one example given) often where there was no public

transport or no convenient public transport. This would involve many persons having to devote several hours or most

of a day to travel to and from their homes or workplace and the designated office. This meant that many would have

to give up a day’s work and probably lose a day’s pay. Those who worked in the home had difficulty finding

childminders. There was evidence that some candidates felt it necessary to arrange collective travel to the offices, as in

a mini bus, and bear the cost of providing food or refreshments for those who gave up most or all of their day to make

the trip from parts of a constituency that were a long distance from the prescribed offices. These were usually the

central headquarters of the Local Authority in the constituency. Although there was evidence that a significant number

of candidates appeared to have no great difficulty in complying with the conditions, there was evidence from one or

two witnesses that they were unable to obtain thirty assentors in time before the close of nominations due to

difficulties, compounded in particular by the obligation to travel to the prescribed office, in complying with the

requirements.

It should be noted at this stage that some of the difficulties described in evidence stemmed from the fact that the

statutory provisions and regulations in question came into force and effect very shortly before the last general election

and some of the witnesses were not aware of the new requirements until just before the taking of nominations opened

for the purposes of the election or just after that. Since the issues in this appeal only concern the prospective effects

generally of the legislation in questions nothing turns on that aspect of the matter.

From a factual point of view it was pointed out that candidates for registered political parties are spared the necessity

of obtaining thirty assentors to sign their nomination papers. Such a candidate can nominate himself or herself or

obtain one other person to do so. The only additional requirement is that he or she must provide a certificate in the

appropriate form, a “certificate of political affiliation”, authenticating the candidature, and signed by an officer or

officers of the political party whose name appears on the register of political parties.

Legal submissions

The appellants submitted that Article 16, and in particular Article 16.1 conferred upon them a right to stand for election

to Dáil Éireann. They were eligible to stand for election to Dáil Éireann, not being under a disability or disqualification.

Article 16 did not permit any other preconditions to nomination being enforced on persons eligible to stand for election

to Dáil Éireann. They were not, it was submitted, disqualified from standing for Dáil Éireann by reason of any

disability or incapacity. The effect of the statutory provisions in issue was to prevent persons who could not obtain

thirty assentors from standing in a Dáil election and in that sense disqualified them from membership of Dáil Éireann in

a manner not compatible with Article 16, and in particular Article 16.1.1. As regards Article 16.7 the appellants relied

on the judgment of Herbert J. in Redmond –v- Minister for the Environment & Ors [2001] 4 IR 61 and in particular

relied on his statement at page 78 of his judgment:-

“Power to render citizens ineligible for elections to Dáil Éireann is expressly conferred upon the

Oireachtas by Article 16.1.1. of the Constitution. It is therefore totally unlikely that the framers of the

Constitution intended to confer the said same powers by Article 16.7. That this is so is clearly observable

by a consideration of the provisions of Article 16.7 itself. It is first stated to be ‘subject to the foregoing

provisions of this article’, and then it confers nothing more than a right to regulate elections. The

Oireachtas is empowered to establish by law procedural and administrative rules and measures for the

proper and orderly conduct of elections. The requirement of a deposit is not just a matter of rules and

procedures. Such a requirement involves the imposition of an impediment to participate in the elections

and is not, as was clearly intended by Article 16.7, nothing more than the ordering of such

participation.”

Accordingly it was submitted on behalf of the appellants that the statutory provisions in issue and in particular S.

46(4A) imposes constitutionally impermissible conditions upon the eligibility of the appellants for membership of Dáil

Éireann. These conditions do not fall within the scope of Article 16.1.1. Furthermore, it was submitted that Article

16.7. is only intended to provide for the “minutiae” of the electoral process or, as Herbert J. put it, purely procedural

and administrative rules. Accordingly there was no constitutional basis for a “filtering system” in order to exclude

frivolous candidates or any surfeit of candidates so numerous as to undermine or bring into disrepute the integrity of

the electoral process. Since the appellants were not disqualified pursuant to Article 16.1.1. and Article 16 as a whole

must be considered as “a total code for the holding of elections to Dáil Éireann”, citing O’Higgins C.J. in Re. Article

26 and the Electoral (Amendment) Bill, 1983 [1984] I.R. 268, with sub-article 7 permitting regulation of

administrative and procedural matters only, there was no constitutional basis for the requirements regarding the

nomination of non-party candidates set out in the impugned provisions.

It was also submitted that in any event, that the conditions imposed on non-party candidates were unduly burdensome,

unnecessary and disproportionate so as to amount to unconstitutional impediment to the appellants’ right to stand for

election to Dáil Éireann.

In the second main aspect of the case made on behalf of the appellants it was submitted that non-party candidates

were entitled to equal treatment with party candidates. Article 40 of the Constitution guaranteed, inter alia, their right

to equal treatment and there was no basis to be found therein for discriminating between such candidates and party

candidates. It was also submitted that nowhere in the Constitution is the existence of political parties recognised nor are

they given any special status. Accordingly, the provisions in question were incompatible with the Constitution by virtue

of their discriminatory character.

Finally, it was submitted by the appellant in the third action, Mr Riordan, that S. 46, in denying him the right to have

the description of “independent” after his name on the ballot paper rather than the description “non-party” was a

denial of his constitutional right to freedom of expression and freedom of speech. General election candidates who did

not belong to a political party were generally known as and referred to in the media as “independent” candidates.

Independent candidates had a right to being so described on the ballot paper.

Submissions of the respondents

On behalf of the respondents it was submitted that it was essential that the integrity of the electoral process was

protected by the State. To this end, both as a matter of principle and common sense, the State was entitled to provide

by law reasonable conditions governing the nomination of candidates for election which ensured a minimum of genuine

commitment to the electoral process and that elections in the various constituencies were not undermined by frivolous

candidates or the swamping of a ballot paper, deliberately or fortuitously, by an excessive number of candidates.

It was also submitted that persons who stand for election to Dáil Éireann obtain many privileges and provision of

resources such as free postage for election literature and the right of access to public service broadcast air time.

Statutory provisions regulating the electoral process which concerned the regulation and registration of political parties

in the interest of establishing that there they were bona fide political parties were upheld by the Supreme Court for

analogous reasons in Loftus –v- Attorney General [1979] I.R. 221 stating at 242:-

“It seems proper and in the public interest to regulate such statutory rights and facilities as are given by

this legislation. If some control and regulation were not provided, genuine political action might be

destroyed by a proliferation of bogus front organisations calling themselves political parties but with

aims and objects far removed from the political sphere.”

Similarly, it was submitted, the regulation of the process for the nomination of candidates is necessary if genuine

political action is not to be undermined by a proliferation of bogus or frivolous candidates, with aims and objectives

outside of the political sphere. The minimum requirement of thirty assenting signatures is a means of regulating

elections in a proportionate and rational manner. It was further submitted that the interests of the State in protecting

the integrity of the political process from candidatures which are not bona fide or from the deliberate swamping of an

election in an individual constituency is even greater in the case of elections held, as the Constitution requires, under

proportional representation with single transferable votes in multi seat constituencies. The decision of the High Court,

which was not appealed to the Supreme Court, in Redmond –v- Ireland [2001] 4 I.R. 61 properly interpreted, does not

mean that the State were not entitled, by virtue of Article 16.7, to adopt the statutory provisions in issue in this case

for the purpose of regulating by law the holding of elections to Dáil Éireann. A correct view of the decision of the High

Court in that case is that requirements imposed on candidates are lawful and constitutional provided they are not

arbitrary or otherwise invidious. In any event it was the submission of the State that on a correct interpretation of

Article 16 there is nothing in the language of Article 16.1.1. which precludes the Oireachtas from regulating by law,

pursuant to Article 16.7, elections to Dáil Éireann including the nomination of candidates in the manner done by the

impugned provision.

Furthermore it was submitted that since the Constitution of 1922 was adopted there was a filtering system, by way of

monetary deposit, governing the nomination of candidates for elections to Dáil Éireann. The imposition of conditions

for the nomination of candidates to a democratically elected legislature is an essential feature of democratic systems

generally and consistent with best international standards. All of which apply for the purpose of ensuring a fair and

properly regulated election process. If the appellants’ contentions are correct it would mean that the People, in

adopting the Constitution, intended to single out Ireland as a State which could not regulate the nomination of

candidates in a manner which was rational and proportional.

On the basis that the State was entitled to regulate by law the manner in which candidates are nominated for Dáil

elections the Electoral Act 2002 enjoys the presumption of constitutionality and the appellants are required to discharge

the burden of demonstrating that the invalidity of the impugned provisions is “clearly established” (in Re. Article 26

and the Offences Against the State (Amendment) Bill [1940] I.R.470). In regulating such matters by law the

Oireachtas enjoys a measure of discretion and the Court should only interfere with the choices made by the legislature

if it is satisfied that a threshold of irrationality has been established in connection with that decision or they were

disproportionate. It was submitted that the measures in question serve a legitimate State interest and the interests of the

common good in the proper regulation of the electoral process and met the criteria of rationality and proportionality.

It was also further submitted that the provisions did not impinge upon the secrecy of the ballot. The giving of assent, in

order to enable a person to stand as a candidate in an election was quite distinct from the manner in which any

individual subsequently cast his or her vote. There was no connection between the two. There were other instances

where, as a result of the operation of a Statute, a person might be identified or associated with a candidate. Reference

was made to Part VI of the Electoral Act 1997, and in certain cases requiring, the publication of the identities of those

who have donated to a candidate’s Dáil election expenses. Furthermore, under the various Electoral Acts there are

circumstances where a person may be appointed as an election agent or as personation all of which involve a degree of

public identification with a candidate but could not be said to reveal how a person in such a position actually voted.

As regards the submissions of the appellants concerning discrimination and unequal treatment as compared with

political parties this was a flawed argument. Non-party candidates and the candidates of registered political parties were

not in the same or equal positions such as would require equal treatment. Political parties were subject to statutory

regulation which had, as one of its effects, that of maintaining the integrity of the electoral process by minimising the

risk of frivolous candidates seeking to exploit the electoral process for non-political causes or an abuse of the system

through the nomination of an excessive number of candidates. Political parties are governed by s. 25 of the Electoral

Act 1992, as amended, which provides, in respect of the registration of political parties for Dáil elections that a political

party may apply to be registered as a political party for these purposes if:

(a) the party is organised in the State or in a part thereof specified to contest Dáil elections;

(b) has not less than three hundred recorded members or, in the case of a party applying for registration as a party

organised to contest elections in part of the State one hundred recorded members, each of whom (in all of the

foregoing cases, has reached the age of eighteen years, and at least fifty per cent of the recorded members are

registered in the register of electors; or

(c) the party has at least one member who at the time of the application for registration is made, is a member of the

Dáil or is a representative in the European Parliament; and

(d) the organisation and direction of the party are governed by a Constitution, a memorandum of association or other

such document or other written rules which have been adopted by the party.

It was submitted that the Courts have accepted a distinction between those representing political parties and those who

do not, provided there is some rational relationship between the nature and extent of the difference of treatment. This

is evidenced by the judgment in Loftus –v- Attorney General [1979] I.R. 221 which concerned the refusal of

registration of a political party. In that case the Supreme Court held that the right to have a political party registered

under the 1963 Electoral Act, which then applied, was not a personal right of the citizen within the meaning of Article

40.3 of the Constitution and that discrimination between political parties represented in Dáil Éireann in that year and

political parties not represented in that year was not an invidious discrimination contrary to Article 40.1 of the

Constitution.

Furthermore the securing of a nomination through some internal selection process within a political party as well as

establishing a level of bona fides, is clearly within the political sphere and illustrates an element of some support in the

constituency – or at a minimum requires an assessment by a competent body within the party, whether local to the

constituency or national, that the person is likely to attract an element of support within the constituency in a Dáil

election. In these circumstances it would be irrational to suggest that those who have undergone the rigorous

requirements demanded of party registration must, of constitutional necessity, be treated in the same way as persons

who by their own unilateral decision decide to put themselves forward as candidates. The contention that non-party

candidates and candidates who have gone through the process of obtaining a nomination through a registered political

party must be treated in exactly the same manner would be in complete contradiction with the approach adopted by

this Court in Loftus –v- The Attorney General [1979] I.R. 221.

As regards the submission by the appellant in the third action that the prohibition on a non-party candidate being

described as an “independent” on a ballot paper is unconstitutional, it is submitted that no constitutional issue touching

on a constitutional right to freedom of speech or expression or otherwise arises with regard to it. The designation of

how candidates may be described on a ballot paper is clearly a matter for the Oireachtas pursuant to Article 16.7 of the

Constitution by which it is expressly granted the power to regulate elections by law. Persons whose candidature are

authenticated by a registered political party may have their party’s name appear opposite their name on the ballot paper

but are not permitted to use any other words or description. A non-party candidate has the option, under the provisions

of the Act of 2002, to have no description attached to his name on the ballot paper or to have the description “non-

party”. There is no evidence that candidates are disadvantaged by the use of that term rather than the term

“independent”. Neither is there anything misleading about the description “non-party” and the provision in question

falls well within the discretion of the Oireachtas to regulate elections by law.

Evidence concerning electoral systems generally

In the proceedings in the High Court in the first and second action evidence was given by Professor Sinnott and

Professor Laver, the former a political scientist in the Department of Politics in University College Dublin and the latter

Professor of Political Science at Trinity College, Dublin. They gave expert opinion concerning the need to preserve the

integrity and efficacy of elections and the manner in which this is done in other electoral systems as well as some

relevant internationally approved criteria designed to minimise the presence of frivolous candidates on a ballot paper or

a seriously excessive number of candidates which could distort the electoral process. The Court does not consider it

necessary to analyse this evidence in detail much of which might be said to be self-evident as a matter of common

sense and practicality and other aspects of it not material to the issues.

The learned trial judge accepted the evidence of these two experts other than a part of the evidence of Professor

Sinnott concerning his objection to “fringe” candidates which need not concern us. It is sufficient for present purpose

to refer to the learned trial judge’s summary, at pages 14-16 of his judgment, of certain relevant portions of the

evidence which included the following:

“He [Professor Sinnott] carried out a comparison between the requirements imposed by the new Irish

legislation and those imposed in other jurisdictions. Taking the current membership of the European

Union as one suitable range of comparable cases, he found that, either by way of deposit or by way of

signature or by way of a combination of both, the majority of the fourteen other Member States impose

more restrictive conditions on access to the ballot paper than does current Irish legislation. Only one

State (Sweden) has neither a signature nor a deposit requirement. Two States, (France and Greece) use a

deposit – only system. The remaining eleven other Member States (not including Ireland) use a signature

system either on its own (eight States) or in conjunction with a system of deposit (three States), i.e.

Austria, The Netherlands and the United Kingdom. Among the States that use the signature system, only

two (Luxembourg and the United Kingdom) require a lower number of signatures than that specified by

the Electoral (Amendment) Act 2002 and one of those States (the U.K.) has a deposit requirement as well.

A comparison of Irish nomination requirements with the requirements obtaining in a selection of other

similarly constituted democratic States outside the E.U. confirmed his view that the Irish signature

requirement was modest. Australian law requires both a deposit and fifty supporting signatures.

Canadian law requires one hundred signatures, except in remote areas where the requirement is reduced

to fifty…

Professor Sinnott referred to a number of international surveys in relation to electoral administration,

including the Administration and Cost of Elections (ACE) Electronic Publication (1999-2003) which is a

globally accessible information resource on election administration.... He cited a passage from the

survey which noted:-

‘Unquestionably, democracy should encourage citizens to put themselves forward as

candidates for election to public office. Yet, voters are also entitled to an assurance that those

that present themselves for election do so in a serious and responsible spirit. Furthermore, it

is undesirable for voters to be presented with such a large number of candidates that it

becomes almost impossible to make an informed choice among them’…

Support for demanding signature requirement could also be found in the European Commission for

Democracy Through Law (the Venice Commission (2002)), whose code of good practice in electoral

matters stated that the obligation to collect a specific number of signatures in order to be able to stand is

theoretically compatible with the principle of universal suffrage. The Commission had noted that the

rules on signatures should not be used to bar candidates from standing for office and in that context that

the law should set a maximum one per cent signature requirement. It also required that there be clear

rules for signature verification.

Professor Sinnott emphasised that the point of these international studies was to underline the fact there

existed widespread agreement on the need to have some means of deterring individuals from putting

themselves forward in an election for frivolous reasons, and to ensure that voters would not be faced with

such a large number of candidates that it became impossible to make an informed choice among them.”

The learned High Court judge also summarised material portions of Professor Laver’s evidence in the following terms

at pages 20 - 21:

“He was concerned that if there was no threshold requirement on candidature there was always the

possibility that a particular group could usurp an election result by nominating a very large number of

candidates so as to undermine the transferable vote system or collapse an election in a particular

constituency. In a hypothetical situation, where there are no restrictions, it would be possible for a

thousand people of a particular group to nominate a thousand candidates in a constituency, so that the

ballot paper would have a thousand names on it. [This would] cause enormous confusion …

As far as nomination requirements were concerned, best practice under the Venice Commission requires

that one per cent of registered voters in a particular constituency should support a candidature. That

being so, Ireland was at the very lower end of the European scale of requirements. He pointed out that in

certain European systems it was quite common for non-party candidates to be denied access to the ballot

altogether. Taking the European comparison, independent candidates in Ireland enjoyed favourable

treatment. Although in the present case it was being alleged that the new regime was more restrictive,

the 2002 election produced exactly the same percentage of candidates as in the previous election.

Furthermore, there was in fact a sharp increase in the number of non-party T.D.s returned in 2002, up to

thirteen in 2002 from six in 1997.

Professor Laver concluded that the rational operation of the STV [single transferable vote] electoral

system prescribed by the Irish Constitution generates a particular need to ensure that there is not an

excessive number of candidates, and that some requirements must be put in place where putative

candidates demonstrate their bona fides...He felt that if the number of candidates went over twenty five

or thirty in any constituency, then there would be serious difficulties in terms of the rationality of the

ballot.”

Decision

The Court is satisfied, and considers it self-evident that the State has a legitimate interest in regulating the conduct of

elections by law, subject to the Constitution, in the interests of, inter alia, protecting and maintaining the integrity and

efficacy of the electoral process for Dáil Éireann as well as ensuring that those elections are conducted free from abuse

and in an orderly fashion consistent with democratic values acknowledged by the Constitution including Article 5

which declares Ireland to be “a sovereign, independent, democratic State”.

It is also a fact that since 1923, including at the time of the adoption of the Constitution by the People in 1937, there

has existed legislative provisions, requiring a monetary deposit by candidates, which was designed to protect the

electoral system from being exploited by frivolous candidates who may not have any genuine commitment to the

political process. That measure was also intended to protect the electoral process from potential abuse from a seriously

excessive number of candidates on a ballot paper which could result in the process being undermined or denigrated if

groups or large numbers of persons could place their name on a ballot paper for election willy-nilly without a minimum

of commitment to the purpose of the process itself. While such a measure could not be said to be an absolute

protection against such abuse, that would be impossible to achieve, it did represent, in its own terms, (and leaving aside

for the moment the fact that the monetary deposit was found unconstitutional by a decision of the High Court, to

which reference will be made later) an attempt to ensure by way of a moderate measure that a candidate which

presented him or herself for election had some level of commitment to the process. Measures which are designed to

protect and maintain the integrity of the electoral process in this respect may also be considered important as

conveying to all citizens eligible to stand for Dáil Éireann that as a matter of public policy when a citizen goes forward

as a candidate for election he or she must do so as a bona fide participant in the electoral process.

That is the historical background which preceded the introduction of the current measures which replaced the deposit

system.

A considerable amount of evidence was given by the two professors called as expert witnesses in the High Court

proceedings heard by Kearns J. The Court does not consider that all of this evidence is pertinent or necessary for the

issues which it has to decide. It is not necessary for example to consider the different electoral systems in the many

and varied countries referred to and examine how they have, by a variety of methods, adopted measures to ensure that

the electoral system was not abused or undermined by the nomination of frivolous candidates or a surfeit of

candidates.

It is sufficient to say that one general incontrovertible and uncontroverted conclusion emerges from the body of this

evidence namely that in the very large number of countries on different continents referred to in the evidence it has

been considered as an appropriate and necessary element in the electoral process that measures be put in place to

ensure that the holding of orderly and democratic elections is not undermined by the unfettered participation of

frivolous candidates or an excessive number of candidates. It is also incontrovertibly the case that measures of that

nature are consistent with the code of good practice in electoral matters approved by the European Commission for

Democracy (the Venice Commission).

While these matters are not in any sense definitive of what is permissible under our Constitution they do so support

and corroborate the underlying rationale of the case made by the State namely that it has first of all a legitimate interest

in maintaining and protecting the integrity of the electoral process and secondly for that purpose it is a legitimate

objective of State policy to take measures which will reduce or minimise the risk of frivolous candidates being

nominated for election or the presence of such a number of candidates on a ballot paper that could undermine or

distort the electoral process.

A cogent example and expression of that legitimate interest is to be found in Jenness –v- Fortson 403 US.431 (1971)

in a judgment of the United States Supreme Court where it was stated at 442:-

“There is surely an important state interest in requiring some preliminary showing of a significant

modicum of support before printing the name of a political organisation’s candidate on the ballot – the

interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at

the general election”.

In the view of the Court the State has a legitimate interest, founded on rational considerations, in being concerned that

the integrity of the electoral process is not tainted by frivolous candidates or a seriously excessive number of

candidates on the ballot paper.

It was argued on behalf of the appellants that no evidence had been tendered in the High Court as to the prevalence of

frivolous or any significant number of frivolous candidates or any excessive number of candidates seeking to stand for

elections to the Dáil. However, for the reasons stated above the Court considers that the State has a legitimate interest

based on rational grounds for adopting preventative regulatory measures to reduce the risk of such abuses occurring.

Once there are material considerations upon which the Oireachtas is reasonably entitled to conclude that such

regulatory or preventative measures are desirable then whether to enact them or not is a matter of judgment for the

Oireachtas and not for the Courts provided, of course, they are otherwise consistent with the Constitution and

proportionate to the aim to be achieved. As Kearns J. pointed out, the Oireachtas is not prohibited from enacting

legislative or regulatory measures until after a mischief or abuse has occurred. The fact is, since the foundation of the

State some such measures have been in place which not only provided some protection against abuse but, as was also

mentioned above, underlined for the benefit of potential candidates an important public policy that those seeking

election should have some bona fide commitment to the electoral process. That monetary deposit system under the

legislation which existed prior to the Electoral Act, 1992 required a deposit of £300. In contemporary Ireland it is

difficult to comprehend how a sum anywhere in the region of £300 or its equivalent in Euro (or more if inflation is

allowed for in the meantime) could be considered a disproportionate measure for such a legitimate purpose or to

involve invidious discrimination, given the costs necessarily otherwise incurred by candidates and the possibility, at

least in certain circumstances, of a refund of the deposit.

Of course any intervention by the State by way of legislation in the electoral process must serve a legitimate purpose,

be proportionate to that purpose and avoid invidious discrimination. Before addressing these questions it is appropriate

to consider under which provision of the Constitution, more specifically which provision of Article 16, the Oireachtas

may derive a power to legislate so as to regulate Dáil elections and in particular the nomination of candidates for them.

The power to regulation elections in accordance with law

The learned High Court Judge was correct in acknowledging that the Oireachtas is expressly entitled to adopt measures

for the purpose of regulating candidature at Dáil elections. In fact this was not really in issue in the proceedings. The

issues in this context turned on the provision of the Constitution pursuant to which laws regulating elections may be

enacted and the nature of the matters which may be so regulated by law. The learned High Court Judge concluded that

the power to regulate the manner in which eligible candidates may be nominated derived from Article 16.1.1. The

Court is satisfied that that is not a correct interpretation of the Constitution. Certainly, Article 16.1.1. confers on the

Oireachtas the power to determine which categories of persons may, by law, be placed under a disability or incapacity

for the purposes of membership of Dáil Éireann so as to render them ineligible from membership of Dáil Éireann and

thus in becoming candidates at all. Article 16.1.3. expressly excludes the sex of the person as being a ground for

placing a citizen under disability or incapacity for membership of Dáil Éireann. That is not to say that the Oireachtas is

otherwise unfettered as to which category or kind of person should be placed under a disability or incapacity for

membership of the Dáil. The exercise of any such power may be subject to other constitutional considerations such as

the pursuit of a legitimate State interest and the principle of proportionality.

Article 16.1.1. is concerned with persons who by reason of their condition or status belong to a category of persons

whose membership of Dáil Éireann could legitimately be considered as undermining or conflicting with, inter alia,

such matters as the legitimacy and integrity of Dáil Éireann exercising the traditional and constitutional functions of a

democratic legislature.

In this respect the Oireachtas must be considered to have a reasonable degree of discretion to determine the categories

of persons who may be excluded from eligibility from membership of Dáil Éireann on the basis of Article 16.1.1

provided that the categories of persons concerned are so determined in a manner which is rational and not arbitrary

and which serves a legitimate interest of the proper functioning of the Dáil as the legislative organ of government,

independent of other organs of government, State institutions and similar bodies. Section 41 of the Electoral Act 1992

sets out a list of categories of persons who are disqualified from membership of Dáil Éireann. It provides as follows:

“41.—A person who—

(a) is not a citizen of Ireland, or

(b) has not reached the age of 21 years, or

(c) is a member of the Commission of the European Communities, or

(d) is a Judge, Advocate General or Registrar of the Court of Justice of the European

Communities, or

(e) is a member of the Court of Auditors of the European Communities, or

(f) is a member of the Garda Síochána, or

(g) is a wholetime member of the Defence Forces as defined in section 11 (4), or

(h) is a civil servant who is not by the terms of his employment expressly permitted to be a member of the

Dáil, or

(i) is a person of unsound mind, or

(j) is undergoing a sentence of imprisonment for any term exceeding six months, whether with or without

hard labour, or of penal servitude for any period imposed by a court of competent jurisdiction in the

State, or

(k) is an undischarged bankrupt under an adjudication by a court of competent jurisdiction in the State,

shall not be eligible for election as a member, or, subject to section 42 (3), for membership, of the Dáil.”

(The above provision is cited for illustrative purposes. It has been subject to subsequent limited amendments not

relevant for present purposes.)

In short Article 16.1. is concerned with persons who by reason of their status or capacity belong to a defined category

who are disqualified by law from membership of Dáil Éireann. Thus it is persons who are so disqualified from

membership of Dáil Éireann by reason of their disability or incapacity as defined by the Constitution or by law who are

governed by that provision. The question of the eligibility of such persons to stand as Dáil candidates does not arise

since they are disqualified from membership.

On the other hand it is common case that the appellants are not disqualified from membership of Dáil Éireann by

reason of any disability or incapacity. They are eligible not only for membership of Dáil Éireann but they are eligible to

be candidates in a Dáil election. What the impugned measures purport to do is to require them to fulfil certain

conditions so as to demonstrate, as claimed by the State, a real or bona fide commitment to the electoral process.

Article 16.7. provides:

“Subject to the foregoing provisions of this article, elections for membership of Dáil Éireann, including

the very filling of casual vacancies, shall be regulated in accordance with law.”

Accordingly, when the State, by means of legislation adopted by the Oireachtas, exercises a power to regulate the

manner and conditions according to which persons may seek to be nominated as candidates for Dáil Éireann it is

exercising a power pursuant to 16.7. of the Constitution and not 16.1.1.

In support of their contention that such a power could only be exercised by the Oireachtas under Article 16.1.1.,

which, they submit, did not in any event envisage the kind of measures in issue in this case, the appellants relied on the

decision of the High Court in the case of Redmond –v- Minister for the Environment & Ors [2001] 4 IR 61 and, of

course, the learned High Court Judge in this case came to his decision on the premise that such powers derived from

that Article. Therefore before leaving this point it is appropriate to give some consideration to the decision of the

learned High Court judge on that point.

In considering that Article 16.1.1. is the provision of the Constitution which confers on the Oireachtas the power to

regulate Dáil elections including the nomination of candidates, the learned trial judge may have felt himself constrained

to follow the decision of the High Court in Redmond –v- Minister for the Environment and Ors [2001] 4 IR 61 and in

particular the manner which Herbert J. interpreted and applied the decision of this Court in Re. Article 26 of the

Constitution and The Electoral Amendment Bill, 1983 [1984] I.R. 268.

In that latter case, O’Higgins C.J., delivering the judgment of the Court, stated at 274 - 275:

“The construction of Article 16, s. 1, sub-2, must first be approached by a consideration of other

provisions contained in that Article and, further, of course, by a consideration of other provisions

contained in the Constitution.

These other provision of that Article (1) prohibit the enactment of any law placing a citizen under

disability or incapacity for membership of Dáil Éireann on the grounds of sex, or disqualifying, on the

same grounds any citizen from voting at an election for Dáil Éireann; (2) prohibit the exercise by any

voter of more than one vote at an election for Dáil Éireann; (3) provide for the secrecy of the ballot; (4)

provide for the ratio between members of Dáil Éireann and the population; (5) impose upon the

Oireachtas an obligation to revise constituencies at least once in every 12 years, with due regard to

changes in distribution of the population; (6) provide for elections to be on the system of proportional

representation by means of the single transferable vote; (7) prohibit the enactment of any law providing

for the number of members to be returned for any constituency being less than three; (8) provide that a

general election shall take place not later than 30 days after the dissolution of Dáil Éireann; (9) provide

that the same Dáil Éireann shall not continue for a longer period than seven years from the date of its

first meeting; (1) provide that polling at every election for Dáil Éireann shall, a far as practicable, take

place on the same day throughout the country; (11) impose an obligation to make provision by law to

enable the member of Dáil Éireann who is the chairman immediately before the dissolution to be

deemed, without any actual election, to be elected a member of Dáil Éireann at the ensuring general

election; and (12) finally, by Article 16, s. 7, they provide that, subject to the foregoing provisions,

elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in

accordance with law.

These provisions indicate a total code for the holding of elections to Dáil Éireann, setting out the

matters which would appear to be necessary other than minor regulatory provision. This code provides

for the eligibility of candidates; the persons entitled to vote; the limitation of one vote for each voter; the

standards for determining the number of members; the obligation to revise constituencies; proportional

representation, the single transferable vote and a secret ballot as the method of election; a minimum of

three members for each constituency; a limit in time within which general elections must take place after

a dissolution; the maximum term of a Dáil; a provision for the timing of polling throughout the country;

and an obligation to provide for the automatic election of the chairman of the Dáil.

In contrast with this code of essential features of elections for Dáil Éireann, the matters which are left to

be regulated by law would appear to be (a) the disqualification of citizens from voting; (b) the provisions

with which citizens must comply in order to have the right to vote; (c) the fixing of the number of

members of Dáil Éireann within the ratio laid down by the Constitution; (d) the provision, subject to the

minimum of three, of the number of members for each constituency; (e) the fixing of the date of a general

election subject to a restriction as to the maximum period after the dissolution of the Dáil; (f) the period

during which the same Dáil may continue subject to the constitutional maximum of seven years; and (g)

the details of the mandatory provision for the re-election of the chairman of Dáil Éireann.

Viewed in this way, the entire provisions of Article 16 would appear to form a constitutional code for the

holding of an election to Dáil Éireann, subject only to the statutory regulation of such election.”

In relation to that case it is first of all important to note that the Bill which was referred to the Court pursuant to Article

26 was one which purported to confer the right to vote in Dáil elections on foreign citizens, namely those of the United

Kingdom. Thus the issue with which the Court was concerned was whether the Constitution permitted the right to vote

to be extended to persons other than citizens. In concluding that the Bill was incompatible with the Constitution the

Court was concerned primarily with an interpretation of Article 16.1.2 which specifically concerned the right to vote in

Dáil elections albeit, inter alia, in the context of Article 16 as a whole and in conjunction with Article 12.4.1. In that

context the general observations of the Court with regard to Article 16 generally must be seen as that, namely, general

observations since no issue arose or was argued concerning, for example, the powers which might generally be

exercised in regulating elections pursuant to 16.7. As the Court in that judgment made quite clear Article 16 does

contain the core or the essential elements for the holding of elections for Dáil Éireann. Those elements cannot be

altered except by way of amendment to the Constitution, as indeed happened following the Court’s decision in that

case. When the Court in that judgment stated that Article 16 “indicates” a total code for the holding of elections

through the Dáil subject to “other minor regulatory provisions” it is quite clear that it was speaking in relative terms

and not excluding subsidiary matters, which are not necessarily essential features but are nonetheless in themselves

important matters requiring regulation. The Court referred to some of these in the next ensuing passage when it

referred generally to “the matters which are left to be regulated by law” and which “would appear to be …” It then

goes on to cite some seven matters of varying degrees of importance, but none the less significantly important in

themselves, including of course the disqualification of citizens from voting and also “provisions with which citizens

must comply in order to have the right to vote;”. It cannot be said that this list was intended to be definitive. The

matters listed were exemplary.

Moreover, neither the O’Higgins C.J. nor other members of the Court could have been oblivious to the fact that the

lodging of a monetary deposit by a candidate, refundable in certain circumstances was and had been a feature of the

electoral system since 1923. At no point was it suggested by the Court, implicitly or otherwise, that that was a matter

which could not be regulated by law,

The Court is quite satisfied that Article 16.7 of the Constitution, in providing that elections for membership of Dáil

Éireann may be regulated in accordance with law, conferred on the Oireachtas the power to regulate, inter alia,

matters with which citizens must comply in order to be nominated.

For the reasons outlined above, the conclusions expressed in Redmond –v- Minister for the Environment & Ors

[2001] 4 IR 61 to the effect that the Oireachtas does not have powers pursuant to Article 16.7. to regulate by law the

conduct of elections by establishing conditions, monetary or otherwise, for the nomination of candidates is not a

correct statement of the law.

Of course the right to make laws regulating the nomination of candidates for election to Dáil Éireann is not an

unfettered power but is one which is derived principally from Article 16.7. The question raised in these appeals is

whether the statutory regulation of the nomination of non-party candidates has been exercised within the ambit of the

powers conferred by the Constitution.

The measures in issue

In this context the first issue is the requirement simpliciter for an independent or non-party candidate to obtain thirty

assentors to sign his nomination paper. The Court has already concluded that the State has a legitimate interest in

adopting measures to ensure that potential candidates for Dáil elections demonstrate some level of bona fide

commitment to the electoral process. The Oireachtas has sought to achieve that by adopting the legislation in question.

The Electoral Act, 1992, as amended, like all other Acts enjoys the presumption of constitutionality and as this Court

has in a succession of cases found the onus is on a claimant to clearly establish a claim that an Act is incompatible with

the Constitution. The Court cannot see any rational basis for considering it to be unduly burdensome to require a

candidate to obtain thirty assentors for the purpose of ensuring the proper regulation of elections. Given the size of an

electoral roll of many thousands in even the smallest of constituencies the Court is satisfied that a requirement that a

candidate should seek from among those electors a rather modest number of thirty persons could not from any

standpoint be said to be excessively burdensome or disproportionate. This conclusion could not be affected by the fact

that some residents in a constituency may not be registered as electors there or that even in contemporary times some

limited number of electors might not have the photographic identification required. There still remains the vast number

of electors among which the signature of thirty voters may be sought.

Nor does the Court consider that the requirement that the assentors attend some designated place, leaving aside the

questions of proximity of and travelling to that place, to authenticate an assentors signature so disproportionate a

burden on the putative candidate as to be in some way unconstitutional. It serves the legitimate purpose of ensuring

that there is no abuse of the process and that the legitimate purpose of obtaining thirty assentors is authenticated.

Insofar as the appellants have complained about the time that they would have to devote to collecting the thirty

signatures the same considerations apply. Apart from the fact that non-party candidates, like party candidates, are in a

position to take steps in anticipation of the formal calling of a General Election such as seeking out persons who in due

course would be willing to give their written assent, the number of asssentors involved is, as already indicated above,

modest and reasonable. The Court does not consider that the appellants have established that the need to obtain the

signatures of assentors, even after the formal calling of a General Election, is in itself so burdensome as to be

disproportionate.

Furthermore the Court also considers as unfounded the argument that where a person agrees to assent to the

nomination of a candidate that a breach of the secrecy of the ballot box is involved. The right to secrecy of the ballot is

a right of the elector to vote free from outside pressure without disclosure as to how he or she voted. It is a materially

distinct matter from giving one’s assent to the candidacy of another person.

The Court has difficulty in following the point made by one of the appellants that it was demeaning to have to seek the

assent of other persons to his candidature when it is part and parcel of the electoral process that candidates seek the

support of members of the electorate for one purpose or another. It was also said in evidence by that appellant that

some persons were offended by not being asked to be one of the assentors. That is hardly a ground for considering

measures which are otherwise justified as unconstitutional and does indicate that there are persons who are more than

anxious to provide their assent.

Finally, on this aspect of the matter there is the evidence relating to the requirement that all thirty assentors must attend

at the office in the constituency as specified in the 2002 Regulations. The Court considers that there is a great deal of

substance in the arguments of the appellants in this regard. Under the existing statutory arrangements each non-party

candidate must arrange for each of the thirty assentors, either individually or collectively, to attend at the designated

office to authenticate personally their signature on the nomination paper. These offices are usually the local authority

headquarters in the constituency. Many of them are long distances from the locality in which electors either reside or

work. Evidence was given of one instance of a journey of 70 kilometres being required. Until each potential candidate

gets every one of the assentors to turn up at the designated office his or her candidature is not valid. The candidature is

left in a state of suspense in that regard. In certain constituencies, particularly constituencies comprising almost

exclusively of urban areas, this may not be a major problem. On the other hand, as the evidence discloses, assentors in

some areas would have a long distances to travel and would in effect have to give up a day’s work or engage

childminders as the case may be in order to travel to and from the designated office. The loss of a day’s pay may be

involved. Assentors living in West Wicklow would have to travel to Wicklow town in east Wicklow. Those on the

extremities of North Mayo to Castlebar and those on the boundaries of West Limerick to Limerick City, which is not

even in the constituency, to give but a few examples. The authentication by assentors of their signatures to the

candidates nomination paper can only take place from an appointed date after an election has been called. The

marshalling of thirty persons either individually or collectively or in separate groups to commit up to a day travelling to

and from the designated office is, in the view of the Court, a heavy burden to impose on a person seeking to validate

his nomination papers.

The Court is also satisfied that this aspect of the statutory provisions, imposed by virtue of s. 46(4B) carries a real risk

of impeding a candidate from lodging validated nomination papers within a reasonable time after the first date for the

lodgment of such papers. There is a further real risk that a potential candidate would have to devote a disproportionate

amount of time over a disproportionate period of the election campaign to making such arrangements. The Court

considers that such an imposition is prima facie disproportionate to the particular objective to be achieved namely the

due authentication of the nomination papers. There was evidence tendered by the State in the High Court to the effect

that the designation of the Local Authority headquarters as the office at which such nomination papers had to be

authenticated was necessary in order to carry out such authentication in a secure manner since that is the location not

only of the electoral register but the only place at which an updated version of the electoral register is to be found.

Considering that this aspect of the measures in question is prima facie disproportionate to the objects sought to be

achieved that provision must be considered incompatible with the Constitution in imposing an undue impediment on

the otherwise lawful right of the candidate to be nominated unless the State can establish there are objective reasons

why this is necessary. Notwithstanding the evidence given on behalf of the State the Court is not satisfied by that

evidence that there are no other administrative arrangements which are significantly less onerous regarding the

verification of a signature on a nomination paper. It is not for the Court to designate what other form of administrative

arrangements might be provided for in legislation.

In the circumstances the Court finds that S. 46 (4B) in requiring each assentor to attend personally at the designated

office is incompatible with the Constitution.

The second principal ground relied upon by the appellants for the purpose of impugning the compatibility of the

relevant statutory provisions with the Constitution is a contention that the legislation in question constitutes an invidious

discrimination against non-party candidates as compared with candidates of registered political parties since the

obligation of obtaining thirty assentors to sign the nomination paper applies to former only.

Counsel for the State submitted that the contention of the appellants was founded on an incorrect premise since non-

party candidates and candidates of registered political parties could not be considered to be in the same or similar

positions. The Court considers that the argument of the State is well founded. Registered political parties are governed

by separate statutory provisions and in particular S. 25 of the Electoral Act 1992, as amended. Before a political party

may function as such for the purposes of an election to Dáil Éireann it must be registered pursuant to S. 25 of the Act

of 1992. In order to do so it must fulfil certain criteria which include that it is a party which is organised in the State or

part of the State to contest Dáil elections, that it has a minimum number of members, at least one member who at the

time of the application is a member of Dail Éireann and that it is governed by a constitution or other written rules

which have been adopted by the party. One of the objects of S.25 is to ensure that political parties which participate in

elections to Dail Éireann, including participation by nominating candidates in an election, are bona fide political parties.

The underlying rationale for the statutory registration of political parties, which bears repetition at this point, was that

referred to by this Court in its decision in Loftus –v- Attorney General [1979] I.R. 221 where it was stated at 242:

“It seems proper and in the public interest to regulate such statutory rights and facilities as are given by

this legislation. If some regulation were not provided, genuine political action might be destroyed by a

proliferation of bogus front organisations calling themselves political parties but with aims and objects

far removed from that political sphere.”

That was the rationale underlying a comparable provision of the Electoral Act, 1963 and the same rationale applies to

S. 25 of the Act of 1992.

Furthermore there was evidence given in the High Court of the general process according to which candidates are

chosen by political parties. That process was shown to be, as is well known, a highly competitive one. It would appear

that the Oireachtas came to the conclusion that candidates who have gone through the internal processes of a political

party, which is registered pursuant to statute as a bona fide political party, in accordance with its internal rules may be

considered to have demonstrated a minimum level of commitment to the political process.

In these circumstances the Court is satisfied that there is a rational basis upon which the Oireachtas was entitled to

make a distinction between the two categories of candidates for election to Dáil Éireann namely non-party candidates

and candidates of registered political parties whose bona fide commitment to the political process has already been

tested by virtue of the registration requirement. Non-party candidates may unilaterally decide to stand as candidates

and party candidates must go through a process of obtaining approval and support from the registered party. Therefore

in the view of the Court the Oireachtas was entitled to treat non-party candidates and candidates of registered parties

as being in different and dissimilar situations for the purposes of nomination as candidates to Dáil Éireann.

In the submissions on behalf of the appellants reference was made to Article 40.1. which provides that all citizens

shall, as human persons, be held equal before the law. In addition it was submitted that the constitution makes no

mention of political parties and confers no special status on them. Apart from the fact that the legislation in question

does not distinguish between citizens “as human persons” but makes the distinction between different categories of

candidates standing for election to Dáil Éireann, the absence of a reference to political parties in the Constitution does

not, no more than does the absence of a reference to many kinds of institutions, organisations or activities of persons

in the Constitution prohibit the Oireachtas from exercising its legislative powers for the purpose of regulating matters or

activities in which the State has a legitimate interest.

Invidious discrimination may arise where legislation treats persons in the same situation differently, or persons in

different situations the same. Accordingly the Oireachtas being entitled to make a distinction between non-party

candidates and the candidates of registered political parties it cannot be said that the particular measures constitute

invidious discrimination against non-party candidates. The measures affecting non-party candidates fall to be

considered objectively in their own right as to their compatibility with the provisions of the Constitution and in

particular their proportionality to the objective to be achieved, which the Court has already addressed in the earlier part

of its judgment.

Finally, there was a submission made by the appellant in the third action, Mr Riordan, that S. 46, by giving non-party

candidates the sole option of being described on the ballot paper as a “non-party” candidate or with no description

after the candidate’s name is a denial of his constitutional right to freedom of expression and/or his liberty to describe

himself on the ballot paper as “independent”. In support of his argument he referred to the fact that newspapers and

the media generally referred to non-party candidates as independent candidates and this is the description which he

uses with regard to himself. The term “non-party” is misleading.

As Carney J. pointed out in his judgment ruling on this point in the High Court, efforts have been made in the past by

candidates to get political statements on to the ballot paper by exploiting the kind of name or description they wished to

have placed on the ballot paper. The appearance of names and descriptions on ballot papers is clearly a matter which

the Oireachtas is entitled to regulate by law pursuant to Article 16.7. They are there to enable the voter to simply

identify the candidate for whom they may wish to vote. Each candidate will have his name on the ballot paper and

obviously there is no complaint about that. Candidates for registered political parties will invariably have the name of

their party after their names. The description for other candidates as “non-party” candidates is a correct one and could

not be said to be misleading. Obviously Mr Riordan would prefer to be described as an “independent” and even if he

is correct that it would in some way be preferable if he, and other candidates like him, were described as independent,

that is a policy matter and does not make the provision unconstitutional. The Oireachtas were entitled to make a choice

as to the manner in which independent or non-party candidates should be described on a ballot paper for the purposes

of identification. The ballot paper is not intended to be one which goes beyond enabling the candidates to be identified

by voters and contain a political message. Every candidate, including independent or non-party candidates have the

freedom during the course of the election campaign to convey to the electorate who they are and what they stand for.

There is no reason to conclude that the description “non-party” on the ballot paper is misleading. Neither is there any

evidence suggesting that this might be so. Accordingly this ground of appeal also fails.

Order of the Court

The Court has dismissed most of the grounds of appeal in this matter and upheld one. The Court has concluded that

the particular requirement that requires the assentors who wish to sign the nomination paper of a non-party candidate

to attend and authenticate their signature at the prescribed office as provided for in S. 46(4B), and in particular

paragraph (d) thereof, is incompatible with the Constitution. While subsection (4B) is severable from the remainder of

the section the entirety of subsection (4B) must be declared unconstitutional. Accordingly the Court will make a

declaration to that effect.