Supreme Court of Ireland Decisions

The Supreme Court

277/2000 - 27/2001J

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

Between

Stiofan Breathnach

Applicant

And Ireland and the Attorney General

Respondent

[Judgments delivered by Keane C.J. and Denham J., Murphy J. Murray J. and Hardiman J. agreed with Keane C.J.]

Judgment of Keane C.J. delivered on the 11th day of July, 2001

Introduction

1.      This is an appeal from a judgment and order of the High Court (Quirke J.) which granted the applicant the following declaration:-

'The court doth declare and adjudge that the failure on the part of the State to provide for the applicant, as a citizen of the State amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure which unfairly discriminates against him and fails to vindicate the right confessed [recte conferred] upon him by Article 40. 1 of the Constitution of Ireland to be held equal before the law.'

2.      The facts which gave rise to the applicant's claim are not in dispute. He was at the date of the hearing in the High Court, and is now, detained in Wheatfield Prison, having been convicted by the Special Criminal Court of certain criminal offences and sentenced to various terms of imprisonment. He is registered to vote in the Dublin city constituency in which he ordinarily resides and he wishes to exercise his right to vote. The respondents acknowledge that the applicant has, during the period of his detention, been unable to exercise his right to vote at local, parliamentary or presidential elections or in referenda. It is also acknowledged that there are no arrangements in being or in contemplation which would enable the applicant and other citizens who are at present lawfully detained in places of detention to exercise their right to vote in such elections and referenda.

3.      The relevant constitutional and legislative provisions can be shortly stated. Article 16.1 of the Constitution provides, inter alia that:-

"2° 1. 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 Eireann, shall have the right to vote at an election for members of Dáil Eireann.

3° No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Eireann on the ground of sex or disqualifying any citizen or other person from voting at an election for members of Dáil Eireann on that ground.

4.      While sub-s. (3) appears to envisage that the Oireachtas may enact legislation disqualifying citizens from voting at an election on grounds other than sex, no such legislation has been enacted by the Oireachtas since the coming into force of the Constitution. Legislation which prior to its enactment had disqualified certain persons from voting - e.g. the Prevention of Electoral Abuses Act, 1923. s. 63 of which disqualified from voting persons guilty of electoral offences - has been repealed.

5.      There are similar constitutional provisions in respect of presidential elections and referenda.

6.      Section 8 of the Electoral Act, 1992, provides, inter alia, that:-

"(1) A person shall be entitled to be registered as a Dáil elector in a constituency if he has reached the age of eighteen years and he was, on the qualifying date -

(a) a citizen of Ireland, and

(b) ordinarily resident in that constituency."

7.      Subsection (5) of s. 11 of the Electoral Act, 1992, which deals with the registration of electors generally, provides that:-

"Where, on the qualifying date, a person is detained in any premises in legal custody, he shall be deemed for the purposes of this section to be ordinarily resident in the place where he would have been residing but for his having been so detained in legal custody."

8.      The Electoral (Amendment) (No. 2) Act, 1986, ("the Act of 1986") and the Electoral Acts 1992 to 1997, contain elaborate provisions enabling certain persons entitled to vote at Dáil or other elections or referenda to vote by post and also enabling physically ill or physically disabled persons to vote at a place other than the polling place for their polling district in accordance with special procedures prescribed under the Acts. In order to avail of these facilities, the persons concerned must be entered on either the "postal voters list" or the "special voters list". It is unnecessary to set out these provisions in any detail for the purpose of this judgment: it is sufficient to refer to s. 17(2) of the Act of 1992, which provides that:-

"The registration authority shall enter in the special voters list the name of every elector who applies to be so entered and who satisfies the registration authority that:-

(a) he is unable to go in person to vote at the polling place for his polling district by reason of his physical illness or physical disability;

(b) the physical illness or physical disability is likely to continue for the period of continuance in force of the register of electors in respect of which the application to be entered as a special voter is made.

9.      On the 9th July, 1999, the High Court gave the applicant leave to apply by way of judicial review for a declaration that what was described as the failure of the government to provide the necessary machinery for its citizens among the prison population and, in particular, the applicant to exercise his and their right to vote unfairly discriminated against him in contravention of Article 40. 1 of the Constitution and article 14 of the International Convention for the Protection of Human Rights and Fundamental Freedoms. A statement of opposition having been filed on behalf of the respondents, the substantive motion came on for hearing before Quirke J. As already noted, in a reserved judgment, he acceded to the claim on behalf of the applicant.

Submissions of the parties

10.      The submissions on behalf of the respondents and the applicant on the hearing of the appeal can be summarised as follows. On behalf of the respondents, it was pointed out first that the applicant had not sought to impugn the provisions of the electoral laws already referred to as being repugnant to the Constitution: he had simply sought a declaration which in essence contemplated the passing of legislation providing for postal voting facilities for himself and other prisoners. It was submitted that the applicant was not entitled to raise the constitutional issue sought to be argued in this case in this manner and thus circumvent the difficulty that he would confront arising from the law being entitled to a presumption of constitutionality. Without prejudice to that submission, it was contended that the State had not enacted any law depriving the applicant of his constitutional right to vote under Article 16. 1.2° of the Constitution. On the contrary, s. 11 of the Act of 1992 expressly made provision for his registration as a voter. That would entitle him to vote during the currency of his sentence if he were on temporary release.

11.      It was further submitted that the judgment of the learned High Court Judge could not be reconciled with the decision of this court in Draper v. Attorney General [1984] I.R. 277, in which this court held that the fact that the plaintiff in that case was unable, by reason of physical disability, to attend at a polling station and that there were no facilities enabling her to vote otherwise or to vote by post did not render the then law unconstitutional. (As already noted, the law has subsequently been changed so as to enable such persons to vote without attending personally at the polling place for his or her polling district.) It was submitted that the applicant, whose inability to exercise the franchise was the result of his own actions, could not be in a better position than person, who through no fault whatever of their own were similarly unable to vote.

12.      It was further submitted that the learned High Court Judge had misconstrued the decision of this court in Murray v. Ireland [1991] ILRM 465, in which it had been held that the rights which a person lawfully detained was entitled to exercise did not include those which depended on the continuance of his personal liberty and that the right to exercise the franchise fell within that category. It was further submitted that the fact that the applicant was unable to exercise the right to vote in contrast to other citizens was not inequality of treatment in violation of Article 40. 1; it was an appropriate differentiation between different categories of citizens which was expressly permitted under that Article.

13.      On behalf of the applicant, it was submitted that the preliminary point taken by the respondents had not been relied on in the High Court and that this court should not permit it to be advanced now for the first time. It was further submitted that, since it had not been argued on behalf of the respondents that the extension of a system for postal voting to prisoners would impose undue administrative demands upon the State, it followed that the State, in failing to provide such a system, was not upholding the constitutional right of the applicant to exercise the franchise. That failure also constituted a breach of the applicant's right to equal treatment before the law under Article 40. 1. It was further submitted that the decision of the High Court was not in conflict with the decision of this court in Draper v.

14.      Attorney General [1984] I.R. 277: on the contrary, it was consistent with it, since the considerations which moved this court in that case - the possibility of abuse, the infringement of the obligation of secrecy and the possible costs involved - did not arise in this case. The State, moreover, had subsequently demonstrated, in enacting the Act of 1986 and the Electoral Acts, 1992 to 1997, that there was no insurmountable difficulty in providing machinery enabling disabled persons and other categories to exercise the vote without attending personally at the relevant polling station.

Conclusions

15.      As already noted, counsel on behalf of the respondents submitted that, as the applicant had not challenged the constitutional validity of the relevant legislation, the court should not permit him to advance a claim based on the alleged violation of his constitutional right to vote in this oblique fashion. It is conceded, however, that this argument was advanced for the first time in this court and I do not think it would be right to exclude the applicant from making the case which he made successfully in the High Court, on a ground which was never argued or decided in that court.

16.      It remains the case, however, that the fact that the relevant legislation must be presumed to be valid having regard to the provisions of the Constitution creates an initial difficulty for the applicant. That legislation, as we have seen, provides detailed machinery for enabling certain categories of persons. Including the disabled who were affected by the decision of this court in Draper v. Attorney General [1984] I.R. 277, to exercise their right to vote without presenting themselves in person at the relevant polling station by voting either by post or at some location other than the polling stat ion, subject to the safeguards prescribed by the Act. In the absence of a challenge to the constitutionality of this legislation it would seem that the applicant cannot he heard to complain that the State has failed to provide the legislative machinery necessary to enable him to vote either by post or within the precincts of the Prison. His complaint must be that, in the absence of: such legislative machinery, the State is obliged to make other arrangements for him to vote. That would presumably have to take the form of the applicant being brought under escort to the relevant polling station in the Dublin city constituency where he is registered as a elector. That would also apply, of course to the entire prison population of the State on the holding of every parliamentary and local election, presidential election and referenda. The implications in terms of security, cost and inconvenience of such a procedure need no elaboration. It would seem unquestionably to fall foul of the decision of the High Court and this court in Murray v. Ireland [1991] ILRM 465 where it was held that the constitutional rights to which a prisoner was entitled could not be exercised where they imposed 'unreasonable demands' on the administration.

17.      However, even approaching the case on the basis on which it was principally argued in the High Court and again in this court, i.e. that the State is under a constitutional duty to provide the appropriate machinery, whether by way of postal voting or facilities in prison, in order to enable the applicant, and other prisoners in a like situation, to exercise their right to vote, I am satisfied that the High Court Judge was wrong in law in finding that the State was under such an obligation.

18.      It is, of course, clear that, despite the deprivation of his liberty which is the necessary consequence of the terms of imprisonment imposed upon him, the applicant remains entitled to vote and could exercise that right if polling day in a particular election or referendum happened to coincide with a period when he was absent from the prison on temporary leave. The issue is whether the fact that he is unable to exercise that right, in the absence of the appropriate machinery, at other times is a violation of his constitutional right to exercise the franchise.

19.      It was held by the High Court (McMahon J.) and by this court on appeal in Draper v. Attorney General [1984] I.R. 277 and in Murray v. Ireland failure of the State to provide the appropriate machinery to enable disabled persons to vote by post or at a place other than the relevant polling station was not a violation of their constitutional right to vote. O'Higgins C.J. delivering the judgment of this court said at p. 290:-

"In the opinion of the Court the present law, contained in the Electoral Act, provides a reasonable regulation of elections to Dáil Eireann, having regard to the obligation of secrecy, the need to prevent abuses and other requirements of the common good. The fact that some voters are unable to comply with its provisions does not of itself oblige the State to tailor that law to suit their special needs. The State may well regard the cost and risk involved in providing special facilities for particular groups as not justified, having regard to the numbers involved, their wide dispersal throughout the country and the risks of electoral abuses. The case made by the plaintiff in this action rests entirely on the failure of the State to provide special facilities for her and for those similarly situated. In the opinion of the Court, such failure does not amount to an interference by the State in the exercise of the right to vote under Article 16, s. 1, sub-s. 2 of the Constitution. Nor is it, in the opinion of the court, a breach by the State of the provisions of s. 1 of Article 40. While under this Article the State could, because of the plaintiffs incapacity, have made particular provisions for the exercise by her of her voting rights, the fact that it did not do so does not mean that the provisions actually made are necessarily unreasonable, unjust or arbitrary. For the reasons already stated, the Court could not so find."

20.      It may be as contended for on behalf of the applicants, that the considerations referred to by the learned Chief Justice in the first paragraph of that passage are not necessarily applicable to the same extent in the case for the prison population. But it is also pointed out in that passage that the fact that some voters were unable to comply with the provisions of the then electoral law did not of itself oblige the State to tailor that law to suit their special needs. That seems to me to be equally applicable in the case of persons such as the applicant who are in lawful detention. Indeed, given that their incapacity to vote is the result of their own voluntary actions, it has to be said that the restriction thus imposed on their right to exercise to vote is at least as reasonable as the restriction on the disabled which existed until the enactment of the Act of 1986.

21.      The decisions of the High Court (reported at [1985] I.L.R.M. 542) and this court in Murray v. Ireland [1991] I.L.R.M. 465, are even weightier authority against the submissions advanced on behalf of the applicant in this case. The plaintiffs in those proceedings, who were husband and wife, were found guilt of murder and sentenced to penal servitude for life. They commenced proceedings seeking declarations of their entitlement, whilst serving their sentences, to have the opportunity to exercise conjugal rights in order to beget children. In the course of his judgment in the High Court, Costello J. said at p. 551:-

"Those rights which may be exercised by a prisoner are those:

(a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood) or

(b) which are compatible with the reasonable requirements of the place in which he is imprisoned or, to put it in another way, do not impose unreasonable demands on it.'

22.      Applying those tests, the learned judge found that the claim that the plaintiffs should be permitted to leave prison from time to time to exercise their rights to beget children was clearly incompatible with the restriction on their liberty which, as he found, was constitutionally permitted by their imprisonment. As to permitting the plaintiffs to exercise their conjugal rights within the prison in order to enable them to beget children, he found that this would place unreasonable demands on the prison service and that, accordingly, the plaintiffs could not validly complain that their rights had been unconstitutionally restricted.

23.      Those conclusions were unanimously upheld by this court on appeal. Indeed, in the course of his judgment in that case, McCarthy J., having said that the right to procreate children could be lost temporarily as a result of any form of detention or imprisonment, added at p. 477:-

'The suspension or abeyance of the right does not depend upon practical considerations but because of the nature of a constitutional right. If a person is deprived of liberty in accordance with law, then that person loses, for instance, the express right to vote [Article 16]; the person loses the non-expressed or unenumerated right to travel, to earn a livelihood, the right to be let alone.'

24.      Although it was submitted on behalf of the applicants that this dictum was incorrect, I am satisfied that, on the contrary, it correctly states the law and that it is in accord with the principles explained by Costello J. in the High Court and Finlay C.J. in his judgment in the same case. I do not read this passage as suggesting that the right to vote is "lost" in the full sense in consequence of the imprisonment: rather that it cannot he exercised unless, for example the prisoner is on temporary release. The learned judge did not speak of the right as being permanently "lost", but as being in suspension or abeyance. That, as was found in that case, is a necessary consequence of the voluntary acts of the applicant/respondent, resulting in the loss of his liberty. No doubt the provision of facilities to enable the applicant to exercise his rights by post or in the precincts of the prison would not be wholly impractical, although it would undoubtedly require legislation. For the reasons stated, however, there is no obligation on the State to provide the machinery, since the right remains in suspension or abeyance during the period of the applicant's imprisonment.

25.      I am also satisfied that the argument based on behalf of the applicant on Article 40 of the Constitution cannot succeed. That provides that:-

"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."

26.      As has so often been pointed out, this article does not forbid discrimination: on the contrary, to legislate is on occasions necessarily to discriminate. The State must have regard to differences of capacity, physical and moral, and that such differences exist between persons detained because they have broken the law and other citizens is beyond argument.

27.      Three other points should be mentioned. I have already drawn attention to the provisions of s. 17(2) of the Act of 1992. Some attempt was made to argue that a person in the position of the applicant was prevented from voting by "physical disability" and, accordingly, should be in a position to avail of the facilities envisaged in that provision. It is perfectly clear, however, what is meant by "physical disability" in that section: it is intended to afford voting facilities to persons who are in the position of the plaintiff in Draper v. Attorney General [1984] I.R. 277 and has no application to persons who are being lawfully detained.

28.      Attention was also drawn to certain decisions of the Commission formerly established under the European Convention for the Protection of Human Rights and Fundamental Freedoms. They are summarised as follows in The European System for the Protection of Human Rights (edited by McDonald, Matscher and Petzold) as follows:-

"Certain categories of persons may be excluded from the exercise of electoral rights for legitimate reasons and provided that 'the free expression of the opinion of the people' is not impaired. This may be the case, inter alia, of convicted persons who are serving their sentence or of persons who received a specific sentence or were convicted for certain specific offences. Thus, for example, under Netherlands law, persons sentenced to a term of imprisonment exceeding one year incur as a result a suspension of the exercise of the right to vote for three years. A further example is that of persons who are stripped, for life, or for a fixed period, of their electoral rights following convictions for collaboration with the enemy. As yet the Commission has always dismissed complaints concerning exclusions of this type."

29.      Such jurisprudence as there is under the Convention, accordingly, does not lend any support to the case on behalf of the applicant. The position of prisoners on remand should finally be noted. Since the applicant does not come within that category, it does not arise directly for consideration. If it did, a distinction might be drawn in their case on the ground that, unlike the applicant, they are presumed to be innocent of the criminal offences with which they are charged. What they have in common, however, with persons in the position of the applicant respondent is that they are being detained in accordance with law and that, accordingly, for as long as they are so detained, some of their constitutional rights, including the right to exercise the franchise, are necessarily in suspension or abeyance.

30.      I would allow the appeal and substitute for the order of the High Court an order dismissing the applicant's claim

The Supreme Court

277/2000 - 27/2001J

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

Between

Stiofan Breathnach

Applicant

And Ireland and the Attorney General

Respondent

Judgment of Denham J. delivered on the 11th day of July, 2001

1. Appeal
This is an appeal by the respondents, against the judgment (reported at Breathnach v. Ireland [2000] 3 IR 467), and order of the High Court (Quirke J.) made on the 21st July, 2000, and perfected on the 6th September, 2000, whereby the learned High Court Judge, granted the applicant a declaration.
2. The High Court
The High Court made the following declaration:-

"[The Court doth declare and adjudge that] the failure on the part of the State to provide for the applicant, as a citizen of the State amongst, the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure which unfairly discriminates against him and fails to vindicate the right conferred (sic) upon him by Article 40.1 of the Constitution of Ireland to be held equal before the law."

The High Court held at p. 476:-

"The sanctions imposed upon the applicant by the Special Criminal Court in respect of the offences with which he has been lawfully convicted comprised sentences of various terms of imprisonment. The loss of the applicant's right to vote in nationa1 and other elections was not, at the time of his conviction, a sanction which was prescribed or permitted by law in respect of the offences of which the applicant was convicted. Accordingly, the applicant retains his constitutionally protected right to vote at '... an election for members of Dáil Eireann' and his legally protected right to vote in presidential, European and local government elections. Furthermore he is entitled to exercise that right provided that his exercise does not impose unreasonable demands upon the authorities who are lawfully detaining him. It has been acknowledged that the authority which is lawfully detaining the applicant is the State.

It follows from the foregoing that the failure on the part of the State to provide for the applicant, as a citizen of the State amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure on the part of the State to vindicate a right conferred upon the applicant by Article 40. 1 of the Constitution to be held equal before the law."

3. Grounds of appeal
The respondents appealed upon the following grounds:-

1) that the learned High Court Judge erred in law and in fact in granting the declaration sought;

2) that the learned High Court Judge erred in law and in fact in determining that the applicant's right to vote was not a right which depended upon the continuance of his liberty:

3) that the learned High Court Judge erred in law and in fact in determining that the failure of the respondents to provide the applicant with the means to exercise his right to vote was in breach of the provisions of Article 40. 1 of the Constitution;

4) that the learned High Court Judge erred in law and in fact in determining that the applicant was entitled to exercise his right to vote while imprisoned;

5) that the learned High Court Judge erred in law and in fact in determining that the respondents were in breach of the applicant's constitutional rights in failing to make special provisions so as to enable him to exercise his right to vote while imprisoned;

6) that the learned High Court Judge erred in law and in fact in determining that the respondents were obliged by the provisions of the Constitution to make special provision to enable prisoners such as the applicant to exercise their right to vote while imprisoned;

7) that the learned High Court Judge erred in law and in fact in determining that the respondents had arbitrarily or unfairly discriminated against the applicant in failing to provide him with the means to exercise his right to vote while imprisoned.

The applicant filed a cross-appeal seeking an order of mandamus directing that the respondents provide appropriate legislative machinery to enable the applicant and others who are in lawful detention within the State and who are capable of voting to exercise their right to vote at both national and local elections and in national referenda. The grounds of the cross appeal were that the learned High Court Judge erred in law and in fact in failing to make the order of mandamus sought.
4. Law
Relevant law is to be found in the Constitution, legislation and common law.
Article 16.1 .2 of the Constitution of Ireland states:-

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 Eireann, shall have the right to vote at an election for members of Dáil Eireann."

Article 16.7 of the Constitution of Ireland provides:-

"Subject to the foregoing provisions of this Article, elections for membership of Dáil Eireann, including the filling of casual vacancies, shall be regulated in accordance with law."

Article 40. 1 of the Constitution of Ireland provides:-

"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.

In this case no breach of Article 16 of the Constitution of Ireland, 1937 is alleged. No law is impugned. The case is based on Article 40. 1 of the Constitution, on the concept of equality.
5. Submissions
Counsel on behalf of the respondents submitted written and oral submissions. Counsel on behalf of the respondents pointed out that in these judicial review proceedings the applicant has not sought to impugn the electoral laws but that instead he had simply sought a declaration, which contemplates the passage of legislation, which would provide for postal voting facilities for himself and other prisoners. Counsel submitted that the applicant is not entitled to raise the constitutional issue in this manner. Counsel argued that it is not in issue that the applicant is entitled to equal treatment by the law by virtue of Article 40. 1. He argued, further, that if the law does not provide the applicant with such equal treatment he must challenge that law on the basis that it does not comply with Article 40.1. The law is entitled to the presumption of constitutionality, consequently, counsel submitted, unless the applicant is to challenge the constitutionality of the electoral law provisions as being a contravention of Article 40.1 of the Constitution he is not entitled to advance a claim for the declaratory relief claimed by him. Thus, he submitted, on this basis, the appeal should he allowed. Further, he submitted, that the High Court judgment was in error. The State did not enact any law to deprive the applicant of his constitutional right to vote under Article 16.1.2° of the Constitution. On the contrary, by s. 11(5) of the Electoral Act, 1992, provision is made for the registration of him as a voter. Thus his registration would enable him to vote during the currency of his sentence if he was on temporary release or, alternatively, if his prison sentence ended just before the date when the election was being held.
Counsel for the respondents referred to the common law and submitted that the learned trial judge had erred in his interpretation of that law especially his construction of the decision in Murray v. Ireland [1991] I.L.R.M. 465. Counsel for the respondents submitted that in the context of' Article 40. 1 of the Constitution the only issue that arose was that of whether or not the State has arbitrarily discriminated against the applicant by passing laws providing for postal voting facilities for others and not for him. In this connection the first point to be made was that the legislation, of which complaint is made, does not discriminate between different types of prisoners. There is no question of some prisoners being given Postal voting facilities and not others. All prisoners are treated in the same way by virtue of s. 11 of the Act of 1992. It was agreed that in that the applicant is not provided with postal voting facilities while certain other categories of citizens have this facility available to them, he is treated differently from those others. However, Article 40.1 permits laws to differentiate between categories of citizens and to make different provisions for different categories. Counsel submitted that equality under Article 40. 1 does not mean uniformity. Further that the Electoral Acts, 1992 and 1997, enjoy a presumption of constitutionality.
On the cross-appeal counsel submitted that any relief to be granted should be restricted to a breach of the applicant's rights alone. However, having said that, it was submitted that in the event of the court holding for the applicant on the basic issue declaratory relief alone would be sufficient to meet the situation. The State would comply with any declaratory relief granted in such circumstances. It was further submitted that an order of mandamus would not be appropriate or a necessary relief in the circumstances, having regard to the principle of separation of powers.
Counsel for the applicant submitted written and oral submissions. In fact the cross-appeal was not pressed and thus the kernel matter for decision was the equality issue upon which the High Court judgment rested. Counsel submitted that the learned High Court Judge had been correct in his decision. Counsel submitted that in the hierarchy of constitutional rights, the constitutional right to vote must be placed at the top of the list. He referred to Article 6 of the Constitution. He submitted that rather than seeking to exclude persons from the exercise of their right to designate the rulers of the State and decide questions of policy, the State should be seeking to include all citizens in accordance with the Supreme Court decision in In re The Electoral (Amendment) Bill, 1983 [1984] I.R. 268 and subject to the requirements identified in Draper v. Attorney General [1984] I.R. 277. He submitted that the learned High Court Judge was correct that the applicant's right to be treated equally had been infringed.
6. Decision
The issue to be determined is net. The query is whether the applicant's constitutional right to equality has been infringed by the fact that he is unable to vote when in prison and if this is established then the court is requested to make a declaration as to such breach. The issue of constitutional rights of prisoners being affected by their imprisonment has been the subject of previous cases. In Murray v. Ireland [1991] I.L.R.M. 465, the plaintiffs sought declarations of their entitlement while serving sentences to have the opportunity to exercise conjugal rights in order to beget children. The Supreme Court held that the length of time which a person sentenced to imprisonment for life spends in custody and the extent to which, if any, such person obtains temporary release is a matter which under the constitutional doctrine on separation of powers rests entirely with the executive. The exercise of these powers by the executive is subject to supervision by the court which should intervene only if it can be established that such powers are being exercised in a manner which is in breach of the constitutional obligation of the executive not to exercise them in a capricious, arbitrary or unjust manner. Finlay C.J. stated at pp. 471 to 473:-

'The fact that both the plaintiffs in this case are in prison and the fact that before they were committed to prison they had no children of the marriage, whilst therefore affecting the compassion with which one might view their situation, cannot be considered relevant to the constitutional rights which they claim and to the issue as to whether they have been invalidly denied them.

I accept that the fact that the Constitution so clearly protects the institution of marriage necessarily involves the constitutional protection of certain marital rights. They include the right of cohabitation, the right to take responsibility for and actively participate in the education of any children born of the marriage, the right to beget children or further children of the marriage, and the right to privacy within the marriage, privacy of communication and of association. It is quite clear that as an inevitable practical and legal consequence of imprisonment as a convicted person that a great many of these constitutional rights arising from the married status are for the period of imprisonment suspended or placed in abeyance.

Of the rights which I have outlined it is possible to say that only a right of communication, and that without privacy, and the right by communication to take some part in the education of children of the marriage would ordinarily survive a sentence of imprisonment as a convicted prisoner.

...

The finding that the provision of facilities within the prison to enable all prisoners of the same relevant category as the plaintiffs to exercise these conjugal rights would place unreasonable demands on the prison service is, in my view, well supported by the evidence and is a correct conclusion."

In addition McCarthy J. stated at p. 477:-

"The simple question may be posed - may a constitutional right be held in abeyance because of the State exercising a power in accordance with law? It is difficult to identify a constitutional right that is unqualified; the right to life itself is not absolute (see Article 13.6). The unenumerated right to procreate children, like all unenumerated rights, must be given a rational meaning. It may be lost temporarily as a result of any form of detention, arrest or imprisonment for a criminal offence; detention for a contempt of court; detention pursuant to mental treatment procedures. The suspension or abeyance of the right does not depend upon practical considerations but because of the nature of a constitutional right. If a person is deprived of liberty in accordance with law, then that person loses, for instance, the express right to vote (Article 16); the person loses the non-expressed or unenumerated right to travel, to earn a livelihood, the right to be left alone, to give some examples.

... In my view, the right claimed, like many other rights, is not an unqualified one; it is placed in suspense if and when one or both of the spouses, is imprisoned and thereby deprived of personal liberty in accordance with law"

The Supreme Court has therefore already stated clearly that it is an inevitable consequence of lawful imprisonment that a great many constitutional rights of a prisoner are suspended for the duration of the imprisonment. The app1icant is in a social category of persons whose rights under Article 40.1 are temporarily affected by lawful imprisonment.
Disability to go to a polling booth does not give rise automatically to a postal vote. In Draper v. Attorney General [1984] I.R. 277, the Supreme Court held that failure to provide facilities to enable the plaintiff (who was physically disabled and unable to go to a polling booth to cast her vote) did not amount to an interference by the State in the exercise of the right to vote declared in Article 16.1.2° of the Constitution. Nor did that failure constitute a breach by the State of the provisions of Article 40.1 of the Constitution relating to the equality of citizens before the law.

O'Higgins C.J. stated at pp. 290 and 291:-

'The case made by the Plaintiff in this action rests entirely on the failure of the State to provide special facilities for her and for those similarly situated. In the opinion of the Court, such failure does not amount to an interference by the State in the exercise of the right to vote under Article 16, s. 1, sub-s. 2 of the Constitution. Nor is it, in the opinion of the Court, a breach by the State of the provisions of s. 1 of Article 40. While under this Article the State could, because of the plaintiff's incapacity, have made particular provisions for the exercise by her of her voting rights, the fact that it did not do so does not mean that the provisions actually made are necessarily unreasonable, unjust or arbitrary. For the reasons already stated, the Court could not so find."

The law providing for voting by people who suffer from disability has developed since that case. However, the recognition of the special role of the legislature is a fundamental constitutional principle which is still relevant and applicable. At issue then was whether the law was unreasonable, unjust or arbitrary - did it breach the principle of equality stated in the Constitution. That test remains applicable.

There have been a number of other cases on the specific issue of a prisoner's right to vote. Many such cases are unreported and are consequently difficult to locate. However, they have been set out clearly in Prison Law by Paul Anthony McDermott. At paras. 10. 13 and 10. 14 at pp. 333 to 335 it is stated:-

"10. 13: Attempts to challenge the inability of Irish inmates to vote in elections have invariably failed. In Holland v. Ireland (Unreported, European Commission of Human Rights, 14th April. 1998), the applicant, who was serving a prison sentence, did not vote in the 1990 presidential election. He sought judicial review on the basis of his inability to vote from prison. The High Court refused his application, stating that there was no statutory right for voting by prisoners and suggesting that the applicant wait until an election was due before pursuing the matter. (Unreported, High Court, 19th March, 1991). The Supreme Court refused the applicant's appeal from this decision and noted that the applicant had not even applied to register himself to vote in the relevant constituency. (Unreported, Supreme Court, 18th June, 1991). It was also noted that the additional question of permission or authority to vote was clearly within the authority of the prison governor and there was no suggestion that the applicant had ever made such a request. In 1992 the applicant did not vote in either the general election or the abortion referendum. In 1993 he was informed by Dublin Corporation that his name would be included in the register of electors at his home address in Dublin. At that time the applicant again applied for leave to institute judicial review proceedings in relation to the refusal of the prison authorities to grant him a postal vote. The High Court refused leave to seek an order of mandamus on the basis that there was no statutory provision permitting postal votes for prisoners. (Unreported, High Court, 18th November, 1993). If the applicant considered that this was unconstitutional, he was free to institute plenary proceedings on that basis. An appeal from this decision was subsequently refused by the Supreme Court. (Unreported, Supreme Court, 28th January, 1994). In 1994 the applicant applied for an injunction to suspend the European Parliament elections in order to allow him to pursue his constitutional proceedings. This was refused firstly by the High Court, (Unreported, High Court, 20th May, 1994), and then by the Supreme Court on the basis that by that stage the election had already taken place. (Unreported Supreme Court, 29th July, 1994). The applicant s plenary proceedings were not proceeded any further with and instead he initiated proceedings before the European Commission of Human Rights.

Before the Commission the Government argued that it was not obliged under the Convention to provide either temporary release to prisoners to vote, ballot boxes in the prison or the right to a postal vote. Release of all the prisoners to vote would he far too high a security risk and would put an unfair burden on the prison system, which held 2,300 inmates at any one time. As a result of the many different areas in which prisoners would be registered to vote, hundreds of ballot boxes would be required in each prison to allow all prisoners to vote. Finally the Government pointed out that postal voting was not a right guaranteed by the Irish Constitution or by the Convention.

10.14: The Commission considered that the matter fell to be considered under Article 3 of the First Protocol to the Convention, which provides:

'The High Contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.'

It held that the de facto deprivation of the right to vote imposed on a prisoner did not affect the expression of the people in the choice of a legislature. Although article 3 of the First Protocol implies a recognition of the principle of universal suffrage (including the right to vote in elections for the legislature), this right was neither absolute nor without limitations but subject to such restrictions which are not arbitrary and which do not affect the expression of the opinion of the people in the choice of legislature. It concluded:

'[T]he Commission does not consider that the suspension of the right of the applicant to vote while in prison affected the expression of the opinion of the people in the choice of legislature - the fact that all of the convicted prisoner population cannot vote does not affect the free expression of the opinion of the people in the choice of legislature.'

In the light of the above findings the Commission concluded that Irish law was not arbitrary in so far as it failed to permit prison inmates to vote.

Because of its finding on the above matters the Commission did not find it necessary to consider whether the applicant had exhausted his domestic remedies so as to give the Commission jurisdiction to hear his case."

Article 40. 1 provides for equality. All citizens as human persons are held equal before the law. However, that does not mean uniformity. The State may have regard to differences of capacity, physical and moral, and of social function.

No legislation in Ireland prohibits or excludes the applicant or any prisoner from voting. Indeed, the legislation is enabling of the applicant. Section 11(5) of the Electoral Act, 1992, provides:-

"Where on the qualifying date, a person is detained in any premises in legal custody, he shall be deemed for the purposes of this section to be ordinarily resident in the place where he would have been residing but for his having been so detained in legal custody."

The applicant is in a special category of person - he is in lawful custody. His rights are consequently affected. The applicant is in the same situation as all prisoners: there is no provision enabling any prisoners to vote. Consequently, there is no inequality as between prisoners. The inequality as between a free person and a person lawfully in prison arises as a matter of law. It is a consequence of lawful custody that certain rights of the prisoner are curtailed, lawfully. Many constitutional rights are suspended as a result of the lawful deprivation of liberty. It is a consequence of a lawful order not an arbitrary decision.

The applicant has no absolute right to vote under the Constitution. As a consequence of' lawful custody many of his constitutional rights are suspended. The lack of facilities to enable the applicant vote is not an arbitrary or unreasonable situation. The absence of such provisions does not amount to a breach by the State of the applicants right to equality.

The words of McCarthy J., cited previously, in Murray v Ireland [1991] I.L.R.M. 465 at p. 477 correctly state the law. If a person is lawfully deprived of their liberty and is in prison then that person loses certain constitutional rights including the right to vote. That does not exclude the legislature from deciding in the future to legislate for a scheme whereby prisoners could vote.

In the circumstances I am satisfied that the applicant's position is not unreasonable, arbitrary or unjust. It is not invidious discrimination. It is not a breach of the constitutional concept of equality. Consequently, the High Court erred in law in its determination.

7. Conclusion

I agree with the judgment of the Chief Justice and for the reasons stated herein I would allow the appeal and set aside the order of the High Court.