High Court of Ireland Decisions

1. In his pleadings, amended by consent at the commencement of the trial of this action, the Plaintiff claims:-

2. The particulars of this alleged invalidity are set out in the Statement of Claim as follows:-

3. It is pleaded in the Statement of Claim that:-

4. On the 16th of November, 1992 the Plaintiff as an eligible person submitted nomination papers as a candidate for election to membership of Dail Eireann for the constituency of Wexford in the General Election which took place on the 25th of November, 1992.

5. The returning officer wrongfully decided that the nomination paper was invalid because no deposit had been paid and refused to include the Plaintiff as a candidate for election on the ballot paper.

6. On the 13th May, 1994 the Plaintiff as an eligible person submitted nomination papers as a candidate for election to membership of the European Assembly for the constituency of Leinster in the election which took place on the 9th June, 1994.

7. The returning officer accepted the Plaintiff’s nomination but refused to include him as an candidate on the ballot paper by reason of his failure to pay a deposit of £1,000 as required by Section 10 of the European Assembly Elections, Act, 1977.

8. The Plaintiff is and was at all material times unemployed and without suffering undue hardship does not have the means to provide the deposits required to allow him to stand for election either to the Dail or the European Assembly.

9. The Plaintiff wishes to offer himself for election for the constituency of Wexford at the forthcoming general election and is by reason of the aforesaid provisions unfairly precluded and/or inhabited from so doing.

10. The Defendants in their defence, amended at the commencement of the trial to take account of the amendment of the Plaintiff’s pleadings to which I have already made reference, join issue with the Plaintiff on every matter pleaded in the Statement of Claim and in addition deny that the Plaintiff has sufficient locus standi to maintain this claim.

11. Paragraph 7 of the defence delivered by the Defendants is in the following terms:-

12. A deposit under Section 13 of the European Parliament Elections Act 1997 is forfeited on the same terms as Section 48 of the Electoral Act 1992 except that the candidate must have obtained votes exceeding one third rather than one quarter of the quota.

13. In neither the Electoral Act 1992 nor the European Parliament Elections Act 1997 is any power given to the returning officer to waive or to reduce the deposit required and the same was true of the repealed European Assembly Elections Act 1977.

14. An issue arose on the pleadings as to whether the returning officer for the Wexford Dail constituency on the 16th November, 1992 wrongfully withdrew his acceptance of the Plaintiff’s nominations papers because the Plaintiff could not make the deposit of £300 at the same time and issued in lieu a ruling that the nomination was not acceptable. At the commencement of this trial Counsel for the Plaintiff indicated that this issue which was contested by the Defendants on the facts and in law was no longer being persued.

15. The Plaintiff was born in 1932. It is not disputed that he is a citizen of the state it is not disputed by the Defendants is not placed under disability or incapacity as regards eligibility for membership of Dail Eireann by the terms of the constitution itself or by law, meaning the provisions of Section 41 of the Electoral Act 1992 which enumerates the classes of persons who are not eligible for election as members of Dail Eireann. It is not disputed by the Defendants that the Plaintiff is not excluded by the provisions of Section 11 of the European Parliament Elections Act 1997 from candidature for membership of the European Parliament. This action was brought by the Plaintiff as an individual citizen. It is not a representative action.

16. In 1993 the Plaintiff returned to Ireland having spent the previous six years as a construction worker in British Colombia and England. He had savings of about £700. He purchased a site outside the town the Wexford and built a dwelling house on it. He set up a building company with his brothers, building mostly local authority houses and schools. In 1975 he suffered an injury to his back and soon thereafter had to retire from the business. At that time he had savings of £2,000 and some land which he sold for £110,000 nett.

17. In 1979 he purchased a field at Tagoath County Wexford. In 1980 he built a house on the field for approximately £31,000. His wife carried on a guesthouse business at this house until they separated in 1985 and thereafter she retained this property as part of the separation agreement.

18. In 1980 he also purchased 19 acres at Coolree County Wexford. He built a house on this land for approximately £17,000. In 1988 he sold this house and half an acre of land for £37,000 nett. He used £10,000 in building a poultry unit on the remainder of the land. As he was unable to obtain planning permission for an additional dwelling house on the land he lived in a single room within the poultry shed. His poultry business failed because of a market recession related to a series of outbreaks of salmonella poisoning nation-wide. He then spent an additional sum of £5,000 converting half of the shed into a living area.

19. In 1991 he inherited a sum of £5,000 on the death of his father. He used this money in purchasing materials to fit out a kitchen and a bathroom in the shed doing the work himself. In 1992 the balance remaining of the £37,000 had been used up. In 1992 his only income was from the land of which nine acres was suitable for pasture the remainder being covered in rock and scrub. He received £900 per annum from the Rural Environment Protection Scheme and between £500 and £700 per annum from the sale of hay from the nine acres. He lived and lives he said very frugally. His daughter, his own child, provides him with his main meal every day. He has no debts. He allows himself one beer on Saturday nights. He has no savings.

20. Though unemployed since 1980, he is not in receipt of any form of social welfare payments because he said he declined to furnish the relevant authorities with an authorisation to make enquiries concerning him from financial institutions though he stated that he had informed the authorities that he was willing to accompany an officer of the Department to any bank of their choosing and to answer any queries.

21. In the mid 1980’s he became interested in becoming a member of Dail Eireann with the intention of representing the unemployed and people at the lower end of the socio-economic scale whom he believed were not being adequately represented by the existing political parties. He did not put himself forward as a candidate in the Dail elections of 1982 and 1989. In 1991 he tried to form a political party with the name,” Natural Justice Party”. He placed some advertisements in newspapers inviting interested persons to contact him. Some persons from Wexford. Limerick and Galway did contact him but the party never came to be formed. He decided thereafter to contest the election for the 27th Dail on the 25th of November, 1992 in the Wexford constituency as an independent candidate. It was not disputed by the Defendants that Mr. Redmond a man of very strong and genuinely held political views.

22. On the 5th November, 1992 the Electoral Act 1992 was passed into law. By Section 47 of that Act the amount of the deposit required to be made by candidates at Dail elections was increased to £300 from £100 at which level it had been fixed by Section 20(1) of the Electoral Act, 1923. It is interesting to note the other provisions of Section 21 of the Electoral Act, 1923 regarding deposits:-

23. Considerable emphasis was placed by Counsel for the Plaintiff on the timing and threefold amount of this increase.

24. On the 16th November, 1992, the Plaintiff in person delivered his nomination papers to the returning officer. The details of what occurred thereafter are no longer an issue in these proceedings and suffice it to record that the returning officer refused to accept the nomination papers as the Plaintiff was unable to provide the deposit of £300. The Plaintiff’s name did not therefore appear on the ballot paper. Unfortunately by way of protest he chose to picket the Polling Station and was arrested and charged with obstructing an election.

25. In the course of cross examination the Plaintiff accepted that he was aware in 1991 that a deposit would be required if he wished to stand as a candidate in the Dail Eireann Election. When asked why he did not make provision for this deposit out of his inheritance in 1991 of £5,000, he responded that the provision of a bathroom and kitchen were urgent necessities and the purchase of the materials alone absorbed the whole of his inheritance. He said that he had no other resources and was living, “on the breadline”. He stated that he had gone to a bank in Wexford town where he was known and sought a loan for the purpose of fighting the election. He said that although he was prepared to offer the shed and the land as security for the loan the bank refused to make the loan on, he believes, policy grounds. He rejected the suggestion by Counsel for the Defendants that he had sought this loan in a manner which invited refusal.

26. In 1993 he published a 127 page booklet entitled, “The Rules of Natural Justice”. He gave evidence that all the typing for this work was done by his daughter who also provided the £600 or thereabouts necessary for printing and publishing. I have read this booklet which despite its title is not an academic treatise on moral philosophy of political theory but sets out Mr. Redmond’s own social, moral and political opinions and his proposals for reform including indeed constitutional reform.

27. The text is divided into 22 chapters with the following headings: Constitution and Artificial Laws: Antiques and Diamonds: The Arms Industries: The New Electoral System based on Natural Justice: Constitutions based on Natural Justice: How Natural Law Works and Guarantees our Survival: Fundamental Natural Rights of All Life: Natural Rights and Duties of Citizens under Natural Law: Contracts, Agreements, etc, to comply with Natural Justice: State Employment and Family Incomes: Health Care and Competitive Services: Education Policy and the Rules of Natural Justice: Tax Revenues, Licences Levies and Social Welfare Contributions: Unemployment, Pensions and Social Welfare Entitlements: Inflation, its Causes Effects and Possible Remedies: Bottom Up Investment Alternatives: Media, News, Reports, Selective Interviews, Corrections: Inflation-Devaluation: Foreign Borrowings and Debt: Restrictions on Growth and Market Quotas: Nationalism: United Nations. At p.42 of the Booklet, the Plaintiff makes the following statement:-

28. On the 29th November, 1993 the Plaintiff was convicted on a charge of interfering with and obstructing an election and was fined £300. On the 9th of December, 1993 the Plaintiff issued a Civil Bill, No. 791 - 93 Eastern Circuit County of Wexford, naming the County Registrar and Returning Officer, the Attorney General, the Government and State of Ireland and their Agents as Defendants. These proceedings were issued by Mr. Redmond in person and claimed:-

29. A defence was entered on behalf of the Defendants to this Civil Bill on the 24th March, 1994. On the 30th March, 1994 the Plaintiff was arrested for failure to pay the fine imposed by the Court. He was taken to Mountjoy Prison where he went on hunger strike and refused to wear prison clothes. He served 4 days of the default term of 10 days. His Civil Bill action came on for hearing at Wexford Circuit Court in May 1996 and was dismissed.

30. In April 1997 the Plaintiff sought a loan of £300 from the Bank of Ireland in Wexford town as a deposit to fight the then anticipated General Election. What was subsequently called for the 6th June, 1997. His application was refused as the bank considered that he did not have the capacity to repay the loan. He attempted to obtain a loan from other financial institutions utilising the services of Finbar Gahan and Company Accountants, but his application was refused in all cases on grounds of insufficient capacity to service the loan. He denied that he had sought these loans in such a manner as to guarantee a refusal. On the 15th April, 1997 the Plenary Summons in these Proceedings was issued, and the Statement of Claim followed on the 23rd April, 1997.

31. On the 13th May, 1997 the Plaintiff obtained an Order abridging the time for the service of a Notice of Motion returnable for the 15th May, 1997 seeking an Order, “directing the Defendants their servants or agents to place the Plaintiff on the ballot paper when duly nominated as a candidate in the forthcoming General Election for the constituency of Wexford without the requirement of him furnishing £300 deposit.

32. This Motion came on for hearing before Mr. Justice Shanley who, I am informed, by Counsel for the Plaintiff, without contradiction by the Defendants, held that though there was a serious issue to be tried the balance of convenience lay in permitting the election to proceed and that in addition there had been considerable delay on the part of the Plaintiff in seeking relief following upon the dismissal of his Circuit Court Proceedings in May 1996.

33. On the 23rd May, 1997 the Plaintiff presented a signed nomination form to the Returning Officer for the Dail Constitutency of Wexford but as he did not pay the required deposit of £300 by 12 noon on the 26th May, 1997 his name was not entered on the ballot paper.

34. After two motions for Judgment in Default of Defence, the Defence of the Defendants was delivered in these proceedings on the 13th October, 1997.

35. In 1998 the Plaintiff transferred the lands and shed to his daughter while retaining a right of residence in the shed and the income from the land. This transfer was effected through the offices of M.J. O’Connor and Company, Solicitors, Wexford. His daughter is single and works as a part time secretary for a Building Contractor. She lives nearby at Clonard, County Wexford. The Plaintiff denied that he made this transfer with the intention of rendering himself without assets for the purposes of these proceedings.

36. The Plaintiff stated that he last held a bank account in the early part of the decade 1980/1990. He said that he had no need for such an account since then. He recalled that he had obtained the £37,000 on the sale of the house and half acre of land at Cloonree in the form of a cheque from the Solicitors for the purchaser. He believed that he had taken the cheque to the branch of the bank on which it was drawn and had obtained cash and bank drafts for the total amount.

37. Mr. Redmond said that he had not sought to become a member of the County Council or the Urban District Council. He said that he considered this to be a waste of time as power was concentrated in the hands of the County Manager. He also claimed that statistics showed that an involvement in local politics could be a disadvantage in seeking election to membership of Dail Eireann. He believed that it was better to concentrate upon seeking such membership. He said that if no deposit was required he would stand for election to Dail Eireann in the next Dail Elections. His programme would be to highlight the problems of poor people and the unemployed who he was convinced had no voice in the government of the country.

38. On the 23rd March, 1999 a Notice of Intention to Proceed was served by the Plaintiff and these proceedings were set down for trial in April 1999. I have been furnished with a Book of Affidavits which were sworn on behalf of both sides for the purpose of the Interlocutory Application. They are not evidence in these proceedings other than prima facie evidence of the fact that they were sworn by the individual deponents and filed on behalf of the indicated party on the dates set out.

39. No evidence was called by the Defendants relative to these matters. I state this merely as a fact without any criticism whatsoever intended.

40. For a person deliberately and consciously to dispossess himself of assets or to neglect to avail without some reasonable cause of a lawful and readily available means of bettering his financial position unattended by any unacceptable risk with the sole or principle object of pleading impoverishment would be an abuse of the legal process. A necessity thus arising, however genuine, could not legitimately form the basis of a cause of action or a defence to an action. Having had the opportunity of observing the Plaintiff giving his evidence, and his bearing under a very fair but rigorous cross examination, and having carefully considered that evidence I make the following findings:-

41. The Plaintiff is now and has been unemployed since in or about 1980.

42. The Plaintiff now exists and in 1992, 1994 and 1997 existed in very impoverished circumstances.

43. His unemployment and impoverishment are not due to any deliberate act or omission on his part.

44. He was in 1992, 1994 and 1997, and he would now be, unable without undue hardship to provide the deposit of £300 and £1,000 required by law.

45. As a citizen otherwise eligible for membership of Dail Eireann and membership of the European Parliament he was unable in 1992, 1994 and 1997 and would now be unable to have his name inserted in a ballot paper solely by reason of this inability.

46. The impact of the legal requirement for a deposit of £300 in Dail elections and £1,000 in European Parliament elections in the Plaintiff’s very impoverished circumstances has resulted in prejudice to the Plaintiff as depriving him of a constitutional right to stand for election to those Institutions.

47. Having made these findings I am satisfied that the Plaintiff, as an individual citizen has a sufficient locus standi to maintain these proceedings, ( East Donegal Co-operative Livestock Mart Limited -v- The Attorney General (1970) I.R. 317: Cahill -v- Sutton, (1980) I.R. 269: Norris -v- The Attorney General (1984) IR 36).

48. In these circumstances I do not consider it necessary or appropriate to set out a full statement of the evidence of Professor Nolan the distinguished expert in demography who gave evidence in the Plaintiff’s case. This evidence addressed the question of defining, “poverty”: the eight criteria and the income threshold levels adopted for this purpose by the National Anti Poverty Strategy: the national percentage of actual households living in poverty in the years 1987, 1994 and 1997 based upon surveys: and derived from these figures, the number of citizens over the age of 21 living in poverty in each of these years.

49. No evidence was adduced by the Plaintiff from which the Court could determine whether or not the Plaintiff was, “poor” by reference to these eight criteria. However what may fairly be said is that in 1994 and 1997 his average weekly income of between £26.84 and £30.68 was very substantially below the income threshold for poverty for a single adult household.

50. Professor Nolan also gave evidence that a person on a low threshold income would have a very limited capacity to raise a sum of £300 and would be most unlikely to have savings of that amount. He stated that while it was generally possible for even poor persons to raise money through Credit Unions or from Money Lenders, the repayment of such borrowings would impose another severe burden on persons who were already in difficulty. He gave evidence that the number of poor households in the state remained unchanged between 1987 and 1994, at 15% of the population. This had been reduced to 10% in 1997. He agreed that this reduction of 5% represented a significant number of people.

51. I shall first consider the submission by the Plaintiff that Section 47 of the Electoral Act 1992 is unconstitutional having regard to Article 5, Article 6 and Article 16 Section 1 subsection 1 of the 1937 constitution.

52. The official text of the Constitution in the English Language uses the expression, “shall be eligible for membership of Dail Eireann”. The Official Text in the National Language uses the words, “Ta se intofa ar chomhaltas Dhail Eireann”, which the parties agreed, literally translated, means “shall be electable to the membership of Dail Eireann”, (Bunreacht na hEireann: a study of the Irish Text” Micheal O’ Cearuil, page, 264). This latter more clearly expresses the limited right guaranteed to citizens of the State by Article 16 Section 1 subsection 1 of the Constitution. Since it is manifest from a consideration of Article 16 as a whole and in particular Article 16 Section 2 subsection 5 that only the member who was Chairman immediately before the dissolution of the Dail can attain to membership without being elected in the manner provided, I do not consider that there is any real lack of correspondence between the two Official Texts.

53. In a case entitled, In Re: The Matter of Reference under Article 26 of the Constitution to the Supreme Court of the Electoral (Amendment) Bill, 1983, (1984) I.R. 268, O’Higgins C., J., delivering the decision of the Supreme Court held as follows at page 274:-

54. The limited right of citizens to be electable to membership of Dail Eireann is thus clearly identified as deriving from and constituting an essential feature of this Article 16 code and not from any regulatory laws authorised by Article 16 Section 7. O’Higgins C., J., expressly contrasts this essential feature of the Article 16 code with what he termed the, “minor regulatory provisions”, authorised by Article 16 Section 7 and which he enumerates in his Judgment.

55. The fundamental entitlement of citizens to participate in government as a right must follow from the declaration in Article 5 of the Constitution that, “Ireland is a ............ democratic State.” Article 6 of the Constitution additionally proclaims the right of the Irish people to designate the rulers of the State. The right of all adult citizens to stand for election to the national legislature is an essential feature of a democratic State. The power therefore granted to the Oireachtas by the Constitution to place citizens under disability or incapacity for eligibility for membership of Dail Eireann must be limited in its application.

56. In my judgment this power conferred on the Oireachtas is only to be exercised for objective and weighty reasons, for example to maintain in changing circumstances the tripartite division of the powers of government upon which our democratic system is based and perhaps to safeguard the security of the State. I am satisfied that the Oireachtas does not have power under Article 16 Section 1 subsection 1 to create impediments to, or impose conditions on, eligibility for membership of Dail Eireann in the nature of deposit requirements.

57. The only citizens placed under disability or incapacity by the Constitution itself are those exercising a particular social function, - The President (Article 12 Section 6 subsection 1); the Comptroller and Auditor General, (Article 33 Section 3); the Judges, (Article 35 Section 3),- who are incapacitated solely by reason of their office. Article 16 Section 1 subsection 3 provides that a citizen may not be placed under such disability

58. Power to render citizens ineligible for election to Dail Eireann is expressly conferred upon the Oireachtas by Article 16, Section 1 subsection 1 of the Constitution. It is therefore totally unlikely that the framers of the Constitution intended to confer the self-same powers by Article 16 Section 7. That this is so is clearly observable by a consideration of the provisions of Article 16 Section 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 participation in the election and is not, as was clearly intended by Article 16 Section 7, nothing more than the ordering of such participation.

59. I am driven therefore to the conclusion that as contended by the Plaintiff the provisions of Section 47 of the Electoral Act, 1992, are ultra vires the powers of the Oireachtas and are unconstitutional.

60. I now come to deal with the Plaintiff’s main argument as regards Section 13 of the European Parliament Elections Act, 1997 and his alternative argument with regard to Section 47 of the Electoral Act, 1992, that both are repugnant to the provisions of Article 40, Section 1 of the Constitution as infringing his fundamental right as a human being to be held equal before the law.

61. These impugned sections apply to all citizens electable to membership of Dail Eireann or the European Parliament without distinction or qualification. That they will impact upon such persons differently according to their means, or perhaps, more accurately, their disposable income hardly admits of argument. On the evidence the majority of citizens would not be deterred from standing for election to Dail Eireann or the European Parliament by the requirement to make such a deposit. However, on the evidence a considerable percentage of the adult population of the State who would otherwise be eligible to stand for election to Dail Eireann or the European Parliament would be prevented by these requirements from putting themselves forward for election.

62. This right to stand for election to Dail Eireann, though it is subject to certain limitations remains a most basic and important right guaranteed to all citizens over the age of 21 years by Article 16 Section 1 subsection 1 of the Constitution and is an essential aspect of the nature of this State, which is proclaimed by Article 5 of the Constitution to be a democratic State (as to the characteristics of which see McKenna -v- An Taoiseach and Others (1995) 2 IR 10 at 52 per Denham, J.). It is contended by the Plaintiff that these statutory requirements discriminate invidiously between eligible citizens such as the Plaintiff without means and eligible citizens with sufficient or ample means. The plaintiff contends that this is a breach of the fundamental right guaranteed to him by Article 40 Section 1 of the Constitution which provides that:-

63. It is essential to note, as has time and again been emphasised by the Courts that what is guaranteed by Article 40 Section 1 to every citizen is a right to be treated equally by the laws of the State as human persons.

64. And at page 31 of the Report, Kenny, J., held that:-

65. In my Judgment a law which has the effect, even if totally unintended of discriminating between human persons on the basis of money is an attack upon the dignity of those persons as human beings who do not have money. This is far removed for instance from issues such as alleged rights to wage parity or increases or issues of the uneven impact of taxation upon citizens in various marital or non-marital relationships or on farmers or householders or occupiers. The history of poverty and of social deprivation in Ireland, but by no means exclusively in Ireland, demonstrates overwhelmingly the extent to which the essential dignity of persons as human beings is involved. In my Judgment this is exactly the type of discrimination for which the framers of the first sentence of Article 40 Section 1 of the Constitution were providing.

66. But there is no absolutism involved here: it is clear from the second sentence of Article 40 Section 1 itself that the State in its enactments may discriminate between citizens in the interest of the common good. But there is a limit to such discrimination. In the case of O’B -v- S . (1984) I.R. 316 at 335, the Supreme Court, per., Walsh, J., held that:-

67. Such unjust, unreasonable or arbitrary distinctions or discriminations are commonly referred to in reported cases as, “invidious”. In my Judgment the terms unjust, unreasonable or arbitrary are used disjunctively by Walsh. J., so that the existence of any one of these circumstances would be sufficient to render the particular discrimination or distinction unconstitutional.

68. In the case of de Burca and Anor -v- The Attorney General (1976) I.R. 38, (a case relating to the Juries Act, 1927), O’Higgins C.J., in the course of his Judgment at p. 61 said:-

69. In the same case, in the course of his Judgment Walsh, J., at p. 68/69 said:-

70. This passage from the Judgment of Mr. Justice Walsh disposes of what I might term the long pedigree argument advanced by the Defendants in support of the impugned sections. I adopt what was held by Mr. Justice Walsh and I will not refer further to this aspect of the case.

71. I accept the argument of the Defendants that Article 16 Section 7 of the Constitution confers on the Oireachtas a power to regulate elections by law which imposes on the Oireachtas a corresponding duty so to do. But, on an integrated construction of the Constitution, such a power, which in any event has been categorised in the Judgment of Chief Justice O’Higgins to which I have already referred as, “minor”, and, “regulatory”, could not entitle the Oireachtas to impose on prospective candidates for membership of Dail Eireann conditions of entry to the poll which are repugnant to Article 40, Section 1 of the Constitution.

72. The Defendants contended that an essential feature of the Regulation of Elections was the necessity to protect the system in all its aspects from abuse by frivolous or vexatious persons, and from commercial or other improper exploitation.

73. Professor Richard Sinnott of University College Dublin, an acknowledged expert in the matter of elections and voting behaviour on which he has written a number of acclaimed works gave evidence during the course of the case for the Plaintiff. Professor Michael Laver, Professor of Political Science at Trinity College Dublin, and author and editor of numerous leading texts on voting, elections, and representative government was called in evidence during the course of the Defendant’s case. Both Professors addressed this issue. I shall now set out the aspects of their evidence which I consider to be relevant to my determination.

74. Professor Sinnott dealt with the history of payments by candidates for election in Ireland and Britain from the 19th Century to the present day. He considered and compared the requirements to secure a place on the ballot paper in Germany, India, Canada and Ireland.

75. In his opinion, there was no real evidence to establish that the deposit requirement has acted as a deterrent to frivolous, vexatious and exploitive persons. He did not believe he said, that the removal of the deposit requirements would result in a proliferation of candidates in Dáil Eireann and European Parliament elections. In considering who might be described as frivolous or vexatious candidates, - in more common parlance often referred to as, “spurious” or “no hopers”, - one had to exercise particular care because candidates were seldom elected on the first occasion of standing for membership of Dáil Eireann, and a not inconsiderable number of distinguished parliamentarians and persons who achieved ministerial office in various Governments had lost their deposits on numerous occasions before being elected.

76. In his opinion a system of nomination with additional assessors or supporting signatures would be just as, if not more effective as a deterrent to the frivolous the vexatious and the exploitive. He accepted that no European or other accepted democratic system permitted an entirely open access to the ballot paper: all had some provisions designed to protect the system from abuse. He accepted that apart from the deposit requirement the Irish system was exceptional open. In his opinion, some form of deterrent to the abuse of the electoral system was desirable. He believed that a system which provided an alternative route to entry onto the ballot paper, even if retaining a deposit option, was less objectionable than the present system of deposit alone.

77. He agreed that the larger the number of candidates on a ballot paper the higher the cost to the State in providing free postal communication to candidates and in the effective supervision of the poll and the counting of the votes. He said that he believed that the likelihood of confusion arising amongst voters from increased numbers of candidates on a ballot paper was at best marginal. He did not accept that an increase in the number of persons standing for election would in any way undermine the effective operation of the system of proportional representation mandated by the Constitution.

78. Professor Sinnott gave his opinion that a system of refundable deposits was less open to objection than a system were there is a highly predictable risk of loosing a deposit despite the reduction of the non-return threshold from one third to one quarter of the quota. He accepted that the deposit for candidature in Britain had been £500 since 1985, but he pointed out that this was a parliamentary system where Parliament was supreme and could control the conditions of election to itself, and, also that the system of election there was a, “first past the post” system, so that the issue of wasted votes was important which was far from the situation under the proportional representation single transferable vote system in this jurisdiction. He stated that lost deposits affected small parties and independent candidates most and recalled that in the 1997 Dáil Eireann elections 37% of all candidates lost their deposits.

79. He agreed that the sum of £300 was small by comparison with the overall cost of election campaigns but he pointed out that this was entirely a factor of the funds available. He was emphatic in his opinion that the present deposit requirements of £300 for Dáil Eireann elections and £1000 for European Parliament elections was unfair and unjust.

80. Professor Laver agreed with his distinguished colleague that all western democracies insisted upon some earnest of bona fides being shown by prospective candidates for membership to the national legislature. As respects this jurisdiction, the Professor considered that there were a number of considerations which merited such an imposition and I summarise these as follows:-

81. Professor Laver said that in his opinion it was reasonable that there should be some test of bona fides to entry onto the ballot paper. He believed that the deposit system had exercised an effective control over the number of candidates standing in Dáil Eireann elections since 1937. He considered that the existence of a deposit requirement in which the deposit is not guaranteed returnable had not acted as a deterrent to bona fides candidates. He believed that a nomination and signatures system would interfere with freedom of expression and favour persons who could afford to pay others to obtain the necessary number of endorsements on their behalf, and, would also favour the larger political parties with a considerable availability of manpower.

82. Under cross examination he accepted that the Irish electorate had demonstrated great sophistication in political matters but he added that until now they had only to choose as between a reasonable number of candidates. He accepted that the deposit requirements would prevent some persons from standing for election but in this regard he said that a most important consideration was the amount of the deposit. He accepted that the present system of deposit requirements presented problems for some but he argued that the amount of the deposits were reasonable particularly having regard to the fact that the European Parliament Constituencies were approximately 10 times the size of Dáil Eireann constituencies. The deposit requirements in his view prevented the system of election from been overwhelmed by large numbers of candidates standing for election. He accepted that the present deposit system does bear unequally on low income persons and that a nomination system with signatures would bear less hard on poor persons.

83. Professor Laver denied that the lower socio-economic classes were not properly represented in Dáil Eireann and, that this had led to an unstable political situation. He felt that a nomination and signatures system could cause problems as regards the verification of the signatures within the very limited time frame allowed for Dáil Eireann elections. He agreed that a nomination and signatures system, if it could be operated in an orderly manner within our electoral system, would be a fair alternative to a deposit system. He considered that if many candidates ran for election the electoral system, would administratively speaking be unable to cope. He said that one had to balance the right to stand with the right to preserve the electoral system from abuse.

84. I find that both Professors agree that a test of bona fides , provided it is fair and reasonable, should be imposed on prospective candidates for election to Dáil Eireann and the European Parliament. Both agree that a nomination and signatures system would provide an alternative to, or an option with, the deposits system and would bear less unequally on low income persons. However, Professor Laver had reservations as to whether such a system could operate in an effective and orderly manner in the event of a considerable increase in the number of persons seeking election. Professor Sinnott was of the opinion that the deposit system standing alone is unjust and unfair, but Professor Laver, while accepting that it bore unequally on low income persons and prevented some persons who might wish to stand from offering themselves for election, considered that the system was not unjust, unreasonable or arbitrary in the context of the electoral system in this State.

85. Mr. Thomas Owens, Solicitor, County Registrar for Cavan and Returning Officer for the Dáil Constituency of Cavan-Monaghan, and, the European Parliament Constituency of Connaught-Ulster, gave evidence during the course of the case for the Defendants. Mr. Owens was accepted by both sides as a Returning Officer of enormous experience. He gave evidence as to the administrative programme which must be carried out and the very many practical problems which may arise and which require solutions in the relatively short period following the dissolution of Dáil Eireann.

86. He said that a person had never come to him who wished to stand in an election but who did not have the necessary deposit. People, he said, would telephone his office and make enquiries in advance about the requirements for entry onto the ballot paper. He said that he had never been obliged to turn down a candidate or to defer a ruling on the validity of a nomination because of the absence of a deposit.

87. In cross-examination he stated that he implemented to the best of his ability whatever electoral programme was set out by the Oireachtas. He had an entitlement to retain extra staff but this was limited by the Fees Order within which he had to operate. He agreed that candidates had at least eleven days to collect signatures and could have made full arrangements for nomination and supporting signatures before Dáil Eireann was dissolved. If the duty of verifying such signatures devolved to Returning Officers it could create an additional burden. However, he believed, that provision could be made in an Act of the Oireachtas providing that a Returning Officer should deem good without further inquiry signatures verified in some appropriate manner, for example, by countersigning or stamping, by some other person such as a member of An Gárda Siochána.

88. No other witnesses were called by either side.

89. I am satisfied, having considered the evidence, and the submissions of Counsel, that the deposits systems required by Section 47 of the Electoral Act, 1992, and Section 13 of the European Parliament Elections, Act, 1997, are not equal or fair in the manner in which they discriminate between the Plaintiff and other citizens of the State as regards electability to membership of Dáil Eireann and the European Parliament. In my judgment none of the matters advanced by the Defendants as stated to be necessary to prevent abuse of the electoral system are sufficient to justify such discrimination and unfairness.

90. What might be categorised as a type of “floodgates” argument, that is, that but for these deposit provisions an excessively large number of citizens would stand for election for membership of Dáil Eireann and the European Parliament and thereby overwhelm the system of election, and in the case of Dáil Eireann elections undermine the democratic nature of the State, is not supported by any evidence other than the opinion of Professor Laver that this is so.

91. There was evidence that persons genuinely interested in becoming members of Dáil Eireannn and who, one assumes, had sufficient means themselves or had access to monetary assistance were not deterred by these deposit provisions or by their predecessors and despite the loss of their deposits, often on several occasions, persisted until they had achieved such membership. In the interests of brevity I decided not to set out this evidence in the judgment. In my judgment, no connection has been established between the existence of these deposit requirements and the numbers of citizens who have stood for election to Dáil Eireann or the European Parliament over the past 64 years.

92. It is altogether improbable that the percentage of poor adult citizens likely to offer themselves for election to these Institutions would be any greater than has been the case with respect to their more fortunate fellow citizens in the same period. In my judgment all the arguments which postulate the emergence, but for these deposit requirements, of “excessively large” numbers of candidates or suggest that but for these requirements there would be, “major” increases in the numbers of adult citizens wishing to stand for election to Dáil Eireann or the European Parliament appear to be based upon surmise and no evidential link has been shown to exist between the number of persons in fact standing for election and these requirements.

93. Likewise, I find no evidence to support the proposition that individual voters would be confused or confounded by an increase in the number of candidates on a ballot paper. It was accepted by the Defendants that Irish voters have shown a high degree of sophistication in making political decisions within what some political theorists consider to be a very complex system of voting. I see no reason why I should accept that such an electorate would suddenly become bereft of this capacity of discernment in the face of a larger choice of candidates on a ballot paper. In the absence of some compelling evidence I simply could not accept such an argument.

94. No evidence has been adduced that an increase in numbers of candidates for membership of Dáil Eireann or the European Parliament would result in insoluble problems in the management of elections or unacceptably long delays in the checking and counting of votes. In any event, in my judgment, it behoves the Oireachtas which has the power and the corresponding duty under Article 16 Section 7 of the Constitution to regulate elections, to adapt the regulatory and administrative system to accommodate this supposed increase in the number of candidates and not to seek to restrict the number of candidates by reference to the capacity of the existing system. The electoral system must be the servant of democracy not its master.

95. It was urged upon the Court by the Defendants that these deposit provisions are necessary and justified as protection to the electoral system from abuse, that is, from misuse by the outlandish, the eccentric, the frivolous, the obsessive, the anti-democratic, and, those wishing to exploit the system for commercial gain. It has not been demonstrated by evidence that these deposits have provided or would provide a deterrent of this nature. It seems trite to comment that these potential abusers of the electoral system would have to be persons of limited means in order to be so discouraged. No evidence was adduced to indicate any tendency to such abuses of the electoral system in this State.

96. If the Court was prepared to accept that such deposits might have such deterrent effect in this regard, and, that the existence of such deterrents was considered to be necessary regardless of whether there was any actual evidence of attempted abuse of the electoral system, the Court would still have to consider whether such a system is just, reasonable and non arbitrary so as to be rationally connected to this declared objective in the context of a democratic State.

97. In my judgment, in the absence of some reasonable alternative route to the ballot paper, such as the nomination and signatures system, to which reference has already been made, the fact that the deposit system, on the evidence, has the effect, even if unsought, of excluding from the ballot paper a considerable percentage of the adult citizens of this State who would be otherwise eligible to stand for membership of Dail Eireann and the European Parliament renders that system unjust, unreasonable and arbitrary. ( Figueroa -v- Canada (Attorney General ), Ontario Court of Justice, per Molloy, J., paragraphs 40 to 49 of the Judgment: Bullock -v- Van Phillip Carter and Others , (1972) Supreme Court of the United States, (US SCR, 31 L.E.d. ii d. 92): Lubin -v- Panish , (1974) Supreme Court of the United States, (US SCR 39 L.E.d. ii d. 702).

98. The decision of the Supreme Court in the case of Finnegan -v- An Bord Pleanala and Others (1979) I.L.R.M. 134 is distinguishable as relating to the exercise of a statutory right and not a constitutional right and in any event two of the reasons given by the Court for upholding as constitutional the deposit provision in Sections 15 of the Local Government (Planning and Development) Act, 1976, which provided for the lodgment of a deposit of £10 with an appeal to An Bord Pleanala, were the fact that the deposit was not so high as to deter genuine appeals and was returnable regardless of the outcome of the appeal.

99. In the circumstances, I find Section 47 and Section 48 of the Electoral Act, 1992, and Section 13 and Rules 8 and 9 in the Second Schedule of the European Parliament, Elections, Act, 1997, to be repugnant to the provisions of Article 40 Section 1 of the Constitution and this is without prejudice to my previous finding with regard to Section 47 of the Electoral Act, 1992. In my Judgment Section 47 and Section 48 of the Electoral Act, 1992, and Section 13 and Rules 8 and 9 of the Second Schedule of the European Parliament Elections Act, 1997, are severable from the remainder of these acts so that this finding of the Court does not impact in any way on the remaining provisions of those Acts. ( Desmond and Dedeir -v- Glackin and Others (1993) 3.I.R. 67 at 107 per Finlay, C.J., in these circumstances.

100. I do not consider it necessary to determine whether there is also an infringement of Article 40 Section 3 subsection 1 of the Constitution whereby 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.