INTRODUCTION.
The
Fifteenth Amendment of the Constitution (No 2) Bill was passed by the two
Houses of the Oireachtas on the 18 October 1995. The Constitutional amendment
proposed was the deletion of the Constitutional prohibition of civil divorce, a
proposal which could only be adopted by a favourable vote in a referendum held
under the
Referendum Act, 1994. Polling took place on the 24 November 1995 and,
after a recount, it was declared that the proposal had been carried by 818,842
votes in favour and 809,728 votes against. The Constitution was accordingly
amended.
The
plaintiff in these proceedings had vigorously campaigned against the proposal.
She was a member of an umbrella organisation which contained a number of
different groups of persons with similar views. In the course of the campaign a
matter of serious concern to her and her associates arose; she ascertained that
by
section 26 of the
Referendum Act, 1994 only members of the Oireachtas could
appoint personation agents and agents to monitor the counting of votes. As she
had no access to members of the Oireachtas and as all political parties
represented in the Oireachtas were supporting the amendment which she opposed,
she felt aggrieved. By letter of the 11 November 1995 she complained of these
provisions to the Minister for the Environment and requested him to exercise
his statutory powers to rectify the defects she identified. By letter of the 15
November 1995 the Minister stated that he had no power to adopt the requested
measures. This is the first ground of complaint in this action -- the plaintiff
urges that he has misconstrued his statutory powers. But she also claims that
section 26 of the
Referendum Act 1994 infringed the Constitution and she has
claimed declaratory and other relief. She has not sought to have the referendum
declared invalid. She applied, ex parte, for leave to institute proceedings by
way of judicial review. This was refused on the 19 December 1995 and this
refusal was confirmed on the 23 February 1996 by the Supreme Court. As a result
a plenary summons was issued on the 22 March 1996 in which declaratory relief
is sought and after the usual pleadings an order by consent was made on the 14
October last providing that the trial be heard on affidavit.
Before
referring to the relevant facts and, in more detail, to the issues that arise I
will set out the constitutional and statutory provisions relevant to these
issues.
THE
LAW.
(a)
The Constitution.
Article
46 of the Constitution provides that any provision of the Constitution may be
amended in the manner provided in that Article. Every proposed amendment is to
be passed by both Houses of the Oireachtas and then submitted by Referendum to
the decision of the people,
"in
accordance with the law for the time being in force relating to the Referendum".
The
President can only sign and promulgate into law a Bill to amend the
Constitution when satisfied that the provisions of Article 46 have been
complied with and that the proposal "has been duly approved by the people in
accordance with the provisions of section 1 of Article 47 of this Constitution".
Article
47 deals with the Referendum. It provides that every proposal to amend the
Constitution which has been submitted by Referendum for decision of the people
shall be "held to have been approved by the people if a majority of the votes
cast at such Referendum shall have been cast in favour of its enactment into
law". Every citizen who has the right to vote at an election from members of
Dail Eireann is entitled to vote at a Referendum. Subject to the provision of
Article 47,
"the
Referendum shall be regulated by law".
The
laws enacted by the Oireachtas under the powers to regulate the holding of
referenda are now to be found in the
Electoral Act, 1992 and the
Referendum
Act, 1994.
(b)
The Statutes.
(i)
Part XI of the
Electoral Act 1992 makes provision for the appointment of agents
by candidates standing for election to Dail Eireann.
Section 59 allows a
candidate to appoint one election agent and
section 60 permits a candidate or
his election agent to appoint "agents to be present on the candidate's behalf"
at the issue of ballot papers to postal voters, in polling stations, at the
opening of postal ballot boxes and at the counting of the votes".
This
section also makes specific provision for an agent referred to as a
"personation agent". Sub-section 3 provides as follows:-
"A
candidate or his election agent may appoint one person (in
this Act referred to
as a personation agent") to be present as the candidates agent in each polling
station for the purpose of assisting in the detection of personation, and such
appointment shall be in writing".
The
Act makes a distinction between a "polling place" and "polling stations" and
section 94 obliges the returning officer at every polling place to provide "a
sufficient number of polling stations, conveniently distributed for the
accommodation of Dail electors entitled to vote there" (see
section 94). These
"polling stations" are in fact the tables at which electors attend to obtain
their ballot papers and the effect of
section 60(3) is to entitle every
candidate to appoint a personation agent at each polling station in the
constituency in which he is a candidate.
Apart
from the general duty imposed on personation agents to assist "in the detection
of personation" contained in
section 26(3) there are specific statutory rights
and functions conferred on such agents. By the 1992 Act; a right to be admitted
to the polling station (section 98(d); a right to request that certain
questions be put to incapacitated persons (section 103(4); a right to have a
voter challenged (section III(2)(b)(i)) and in certain circumstances to have
arrested a person who has committed personation (section 105(2)). These rights
are also conferred on personation agents appointed for the purposes of the poll
at a referenda (section 32(1)) of the 1994 Act.
The
Referendum Act 1994 (section 33) confers (subject to modification) on agents
attending the count at referenda certain functions and rights conferred by the
1992 Act on agents attending general election counts on behalf of candidates,
namely the right to be present through the count (section 113(2); the right to
facilities for overseeing the counting of votes including facilities for
satisfying themselves that the ballot papers had been correctly sorted; the
right to be present for the opening of the ballot boxes (section 114(1). In
addition there is a specific right conferred by section 36(1) permitting an
authorised agent to obtain a partial or total recount of votes.
(ii)
Referendum Act 1994.
The
power to appoint personation agents and agents to attend at the counting of
votes in referenda is different to that in the 1992 Act as there are, of
course, no "candidates" in a referendum. Instead provision is made in the 1994
Act for the appointment of agents at the counting of votes and "personation
agents" at the poll by a member of the Dail for the Constituency in which the
referendum is being held and any member of the Senate.
Section
26(1) provides;
"A
member of the Dail for the constituency and any member of the Senate may
appoint agents to be present --
(a)
At the issue of ballot papers to postal voters,
(b)
At the opening of the postal ballot boxes,
(c)
At the counting of the votes".
Sub-section
3 makes provision for personating agents as follows.
"A
member of the Dail for the constituency and any member of the Seanad may
appoint one person (in
this Act referred to as a "personation agent" to be
present as his agent in each polling station for the purpose of assisting in
the detection of personation, and such appointment shall be in writing".
The
section goes on to provide (sub-section 6) that the member of the Dail for the
constituency and a member of the Seanad shall at least two days before polling
day give written notice to the local returning officer for the constituency
concerned of the name and address of every personation agent appointed by that
member together with the name of the polling station for which the personation
agent is appointed. Similar notice is to be given of the name and address of
every agent appointed for the counting of votes (sub-
section 8).
(iii)
Electoral Act 1992 section 164.
Central
to the issues in this case is the power of the Minister for the Environment to
make adaptations or modifications by ministerial order where there is an
"emergency" or "special difficulty".
Section 164(1) provides as follows:
"The
Minister may, in any case in which it appears to him that there is an emergency
or special difficulty, by order make such adaptation or modification of any
statute, order or regulation relating to the registration of Dail elections,
Presidential electors, Seanad electors, European electors or Local Government
electors or the conduct of Dail elections, Presidential elections, Seanad
elections, European elections, Local Government elections or referenda as may
in his opinion be necessary to enable such registration to be duly carried out
or such election or referendum to be duly held, subject to compliance with the
principles laid down in the relevant acts taken as a whole". (emphasis added)
Sub-section
2 provides that every order made under the section shall be laid before the
houses of the Oireachtas and may be annulled by resolution passed by either
house of the Oireachtas within 21 days after the house has sat or next after
the Order had been laid before it.
The
first issue that arises is whether the Minister had power by virtue of
section
164 to do what the plaintiff urges he was required to do in this case to meet
her objections to
section 26 of the 1994 Act.
THE
FACTS.
(a)
The most important fact relevant to the plaintiff's case is that all the
political parties represented in the Oireachtas supported the proposed
constitutional amendment contained in the Fifteenth Amendment. The consequence
of this was that those who opposed the amendment found it necessary to
associate together by the establishment of ad hoc organisations to campaign to
persuade the electorate to reject the proposed amendment as there was no
organised political party doing so which they could support. A further
consequence was this. As most members of the Oireachtas were members of
political parties who supported the amendment those groups campaigning to
oppose the amendment had no access, through association in a political party,
to those persons designated by
section 26 of the
Referendum Act 1994 to appoint
personation agents and agents to assist at the count. This meant that those
associated to oppose the amendment were, to a considerable degree, dependant on
the goodwill of a small number of independent member of the Oireachtas to
obtain the nomination of agents under
section 26. They experienced considerable
difficulty in doing so, although a limited number of personation agents and a
limited number of agents at the count were nominated at the request of
opposition groups.
(b)
The plaintiff claims that the circumstances surrounding the referendum on the
Fifteenth Amendment constituted circumstances of "special difficulty" within
the meaning of section 164 of the 1992 Act and in support of this contention
she referred to the special difficulties she encountered in attempting to
appoint personation agents and agents to attend the count on behalf of the
opposition group with which she was associated. On the 23 October 1995 she was
informed (correctly) by a member of the staff of the County Sheriff's office in
Dublin that a letter of authorisation for the appointment of personation agents
was required but, (incorrectly) that as regards the count centres the Sheriff
had a discretion about the issuing of authorisations and that no problem would
be encountered. On the 9 November 1995 she called to the office of the city
Sheriff and complained about the procedures which required her to apply to a
member of the Oireachtas for an authorisation to appoint personation agents and
explained her reasons. She was given a copy of an official document which set
out the legal requirements of the 1994 Act. As a consequence she then wrote a
letter on the 11 November 1995 to the Minister and he replied on the 15
November. I will return to this correspondence later. On the 22 November she
was informed in the office of the County Sheriff that an authorisation from a
member of the Dail for the constituency or a member of the Senate was required
to authorise an agent to attend the count. She telephoned a senator of her
acquaintance and obtained from him authorisations for personation agents but,
in error, he failed to give her authorisations for attendance at the count. She
returned to the Sheriff's office where she met three persons who informed her
that the authorisation for the count had to be signed by a senator who was
resident in the constituency (this was incorrect) and that in relation to the
senator whose name she had given the Sheriff's agent told her that "he had
signed enough already" and her request for passes for the count was refused. In
the event the group of which she was a member obtained a limited number of
passes from the city Sheriff for the counting of votes which were under his
control. She claims that the number of agents who received authorisations for
the opposition groups with which she was associated were entirely inadequate to
enable a proper supervision of the count to take place. She endeavoured to
obtain evidence of what had occurred in other parts of the country and wrote to
all local returning officers seeking information. The reply she received did
not contain any information relevant to these proceedings.
(c)
She failed in a request to the Director of Public Prosecutions that he apply
for leave to bring a referendum petition. Her solicitor then wrote to the
Minister on the 13 December 1995 referring specifically to his powers under
section 164 of the 1992 Act. By a reply of the 4 January 1993 her solicitor was
informed by the Minister's Private Secretary that the Minister had no proposal
for the amendment of
section 26 of the
Referendum Act 1994.
(d)
Her application for leave to issue proceedings for judicial review was refused
by the High Court on the 19 December 1995. Her appeal against this refusal to
the Supreme Court was refused on the 23 day of February, 1996. Later these
proceedings were commenced by Plenary Summons.
(e)
I turn now to the request made by the plaintiff to the Minister for measures to
be taken by him to remedy the matters of which she complained. It was contained
in a letter of the 11 November 1995, which reads as follows.
"Dear
Minister,
Fifteenth
Amendment to the Constitution Bill 1995 Personation Agents: Appointed by
members of the Oireachtas persons appointed to observe postal ballot & both
counts.
Urgent
action is necessary to address the deficiency in the
Electoral Act 1992 to
Electoral (Amendment) Act 1995 and the
Referendum Act 1994.
Opposition
groups to the Fifteenth Amendment are excluded from appointing Personation
Agents at each polling station and from attending at Count Centres without an
authorisation from members of the Oireachtas. (Sec 68(1)/1992 and Sec 113/1992)
and (Sec 26(1) & (2)/1994 and Sec 26(3) & (6)/1994).
You
are requested urgently to make provision by way of emergency regulation, to
ensure that the Referendum can be monitored by those groups opposed to the
Amendment. It is essential that any Referendum is free and fair and is seen to
be so.
The
present position is that all parties in the Oireachtas are supporting the
Amendment. Those who are against Divorce and the people campaigning on their
behalf, are in obvious danger of being excluded from their democratic right of
monitoring the Referendum by the fact that they must obtain authorisation from
a member of the Oireachtas who is in favour of the Amendment.
In
the circumstances you are asked urgently to address this anomalous situation by
taking all legislative and regularity measures necessary."
The
Minister replied to this letter on the 15 November in the following terms;
"Dear
Miss Sherwin,
I
have been asked by Mr Brendan Howlin TD, Minister for the Environment to refer
to your letter of 11 November, 1995 in relation to the appointment of
personation agents and agents to attend the counting of votes at the
forthcoming referendum.
The
law in relation to the appointment of such agents at a referendum is set out in
section 26 of the
Referendum Act 1994. Under that provision, a member of the
Dail for the constituency and any member of the Seanad may appoint a person to
be present as a personation agent at a polling station in the constituency or
to attend at the counting of votes.
The
Minister has no power to alter this provision by regulations. There are no
proposals to provide for the amendment of the provision by legislation."
THE
FIRST ISSUE (ADMINISTRATIVE LAW).
The
first issue I propose to consider is the power conferred on the Minister by
section 164 of the
Electoral Act 1992. My conclusions are as follows.
(1)
The power conferred by the Minister is a discretionary one -- he "may" in any
case in which it appears to him that there is an "emergency or special
difficulty" make an order as provided in the section.
(2)
The power may only be exercised in the circumstances specified in the section,
namely when it appears to him that there is an emergency or special difficulty.
(3)
The power conferred is by order to make "such adaptation or modification" of
any "statute order or regulation" referred to in the section. This includes the
power to make an order modifying any Acts dealing with referenda. If in his
opinion it is necessary to enable referenda "to be duly held" he may make an
order under the section, but this must comply with the "principles" to be found
in the Acts dealing with referenda.
(4)
Once the Minister is satisfied that a "special difficulty" has arisen in
relation to the holding of a Referendum he, quite clearly, has power to modify
the 1992 Act in so far as it is necessary to enable a Referendum to be duly
held.
Section 26 of the 1994 Act confers an exclusive power to appoint the
agents referred to in it on members of the Oireachtas. In my opinion, should he
conclude that circumstances of a "special difficulty" exists he has p6wer to
modify the section so as to enable additional agents to be appointed by means
other than those provided for in the section if this is necessary to enable a
Referendum to be duly held.
(5)
Should a special difficulty arise in the counting of votes as a result of the
operation of
section 26 of the 1994 Act it would be open to the Minister to
hold that this special difficulty could result in the Referendum not being duly
held and accordingly his statutory power would include a power to modify the
provisions of
section 26 relating to the appointment of agents at the counting
of votes.
In
the light of these conclusions I turn now to the facts of the case.
It
seems to me that the Minister's letter of the 15 November 1995 given in
response to the plaintiff's request to redress the complaints contained in her
letter of the 12 November 1995 shows that he had misconstrued his Ministerial
powers. I cannot agree with the submission made on his behalf that from this
letter it is to be inferred that he had taken a decision that no "special
circumstances" had arisen and that he was merely pointing out that he had no
power to amend the statute. This letter can only be construed as an opinion
that the only way in which he could remedy the plaintiffs grievance was by
amending the
Referendum Act 1994 and he did not propose to do so. But
section
164 of the
Electoral Act 1992 gave him power to modify the 1994 Act and so it
would appear that the Minister had disabled himself from considering whether or
not he should exercise his discretionary powers under
section 164.
Order
84 Rule 18 of the Rules of Court provide that an application for an order of
certiorari and/or mandamus "shall be made by way of an application for judicial
review in accordance with the provisions of this order" and Order 84 Rule 20(1)
provides that no application for judicial review may not be made "unless leave
of the court has first been obtained" in accordance with the Rule. In this case
the plaintiff was refused leave to apply for an order of certiorari and so in
these proceedings the court has no jurisdiction to entertain an application
that the Ministerial decision contained in the letter of the 15 November 1995
be quashed. Likewise, the court has now no jurisdiction to grant an order of
mandamus directing the Minister to make an order modifying the section in the
manner requested by the plaintiff or otherwise.
The
refusal of leave to institute judicial review proceedings does not, of course,
bar the plaintiff claiming a declaratory order in these plenary proceedings, as
she has done. I am satisfied that she has made out grounds for declaratory
relief. The Minister has misconstrued the section. The possibility that other
referenda will take place in circumstances similar to those relating to the
Fifteenth Amendment is not a fanciful one and the issue raised by the plaintiff
may well arise again. It is therefore proper that the court should clarify the
Minister's legal powers. I propose, therefore, to make the following
declaration:-
"Should
a request be made to the Minister that the power to appoint agents under
section 26 of the 1994 Act be extended to permit their appointment otherwise
than exclusively by members of the Oireachtas the Minister has jurisdiction
under
section 164 of the
Electoral Act, 1992 to consider whether there exists
circumstances of special difficulty arising from the operation of the power of
appointment contained in the section. Should he decide that circumstances of
special difficulty do arise he may modify
section 26 by providing by
Ministerial Order that the power of appointment should be exercised by persons
or groups in addition to the persons mentioned in the section. This power
includes a power to modify the provisions of the section relating both to the
appointment of personation agents and those relating to agents to attend the
counting of votes.
THE
SECOND ISSUE (CONSTITUTIONAL LAW).
The
plaintiff has claimed that if she is not entitled to an order of mandamus
directing the Minister to exercise his powers under
section 164 in the manner
she urges then she is entitled to an order that the section is unconstitutional.
The
plaintiff's claim is that
the Act became unconstitutional in the circumstances
surrounding the enactment of the Fifteenth Amendment, namely that all the
political parties represented in the Oireachtas supported the proposed
amendment and opposition to it was organised by groups of citizens who
associated for this purpose and who campaigned to persuade the electorate to
reject the proposal resulting in very limited appointments of agents under
section 26 by those opposing the amendment. Let me assume for a moment that the
statute became constitutionally defective in the way alleged. It does not
follow, however, that the statute is therefore constitutionally invalid.
Section 164 of the 1992 Act contained a statutory mechanism for dealing with
"special circumstances" by Ministerial Order. A factual development which
produces a constitutional defect can properly be regarded as "special
circumstances" within the meaning of the section. As already pointed out, the
Minister has power to remedy this defect. Now that the court has made clear
that he is legally entitled to do so the court must assume that the Minister
will exercise his powers in a constitutional manner. If
the Act is
unconstitutional it must assume that the Minister will act to remedy this
defect. A statute which contains a built-in remedial mechanism to remedy
possible constitutional invalidity in its operation is not, in my opinion, an
unconstitutional statute.
Notwithstanding
the view which I have just expressed, in deference to the very full legal
argument which has been advanced on both sides and because the parties may wish
to have a judgment now on the issues raised rather than leave them for possible
adjudication in later proceedings I propose to express my views on the
substantiative constitutional issues which have been raised.
Constitutional
invalidity, it is urged, arises in two ways (1)
section 24 infringes the
constitutionally guaranteed personal rights of the plaintiff and (2) the
statute infringes the constitutional provisions relating to the referendum.
As
to (1), Article 40(1) provides that "all citizens shall, as human persons, be
held equal before the law" and the plaintiff's claim is that the section
imposes a detriment on groups of citizens associated to oppose the proposed
amendment which is not imposed on groups of citizens associated in political
parties and who have representatives of their political parties in one or other
houses of the Oireachtas. The detriment is that the plaintiff's group have
great difficulty in appointing the agents referred to in
section 26 which those
groups supporting the amendment do not experience. This inequality, it is said,
is a serious one and infringes Article 40(1) of the Constitution.
With
regard to personation agents, this argument is based, in my opinion, of a
misunderstanding of the Article and the section. The Supreme Court has
explained that the guarantee in Article 40(1) is not a guarantee of absolute
equality for all citizens in all circumstances, but is a guarantee of equality
as human beings and a guarantee against inequalities based on an assumption
that some individuals because of their human attributes ethnic, racial, social
or religious background are to be treated as inferior or superior of other
individuals in the community (Quinns Supermarket Ltd v Attorney General [1972]
IR 13). Personation agents are appointed under the section not for the purpose
of enabling political parties or groups of persons associated to campaign in
referenda to detect or deter personation by their political opponents - they
are appointed to assist returning officers in ensuring compliance with the law
against personation. No political rights derived from the constitution which
the plaintiff may enjoy are infringed by this provision nor is the equal
enjoyment of any of her constitutionally protected rights diminished. There is,
of course, a difference of treatment of the two political groupings involved in
the campaign but it is one derived from the operation of administration
machinery established for the appointment of agents and is not based on any
distinction which has been derived from an assumption that persons in one group
are inferior or superior in some respect to those in another. The section does
not, in my opinion, infringe any of the plaintiff's Article 40 rights.
In
particular I cannot agree that any right which the plaintiff may possess to
fair procedures in the political process is infringed by the section.
With
regard to the appointment of agents at the count, again no guaranteed personal
right of the plaintiff or her associates is breached by the provisions of the
section. Agents are appointed to help returning officers count the votes
properly -- not to detect possible malpractice by political opponents. The
difference of treatment which in the appointment of agents between the groups
supporting and those opposing the amendment arose from the operation of
administrative machinery established by statute and was not based on any
considerations relating to the personal characteristics of the individuals
comprising the groups. The limitations arising from the operation of this
machinery did not impinge on any political rights which the plaintiff may
enjoy, or any right to fair procedures derived from the Constitution.
I
will consider now the argument that even if the plaintiffs rights were not
infringed the
Referendum Act 1994 infringed the constitutional provisions
relating to referenda.
It
is submitted on behalf of the plaintiff that by enacting
section 26 the
Oireachtas invalidly interfered with the manner in which the constitution
requires referenda to be held and that the section is therefore
unconstitutional. In support of this particular submission reliance is placed
on the decision of the Supreme Court in McKenna v An Taoiseach [1995] 2 IR 1.
This was a case concerning the funding out of proceeds of taxation by the
government of an advertising campaign to attempt to influence the electorate to
support the proposed amendment of the constitution. The Supreme Court held that
this was an unconstitutional interference with the referendum process as
required by the Constitution. The plaintiff urges that
section 26 offends more
seriously than did the wrongful act in McKenna -- that act merely interfered
with the election campaign whereas the impugned section interferes with the
voting procedures of the referendum. It is claimed that the Oireachtas wrongly
arrogated to its own members the power to nominate personation agents and
agents to monitor the count and that this interfered with the democratic
process by which the people itself decides every issue relating to the
amendment of the Constitution. I cannot agree. The appointment of agents to
assist in deterring and in detecting possible personation and to assist in
ensuring that the count is conducted according to law does not "interfere" with
the democratic process -- it assists it. The appointment of such agents by
members of the Oireachtas cannot in itself be considered an "interference" in
the democratic process. I have already explained why the law does not infringe
any constitutional concept of equality or of any constitutional requirement
that electoral procedures be fair. The facts of this case are entirely
different to those in McKenna and I must reject the submission based on it.
Finally,
it was suggested that because the count was not held in public and open to all
members of the public to attend the section was unconstitutional. The
constitution permits the Oireachtas to regulate the manner in which referenda
are held and there are obvious practical reasons why access to the count should
be limited in some fashion. There can be no possible constitutional objection
to doing so.
I
should add that I did not read all the foreign statutes which counsel supplied
me with as unfortunately I was unable to read the language in which some were
printed. The documents established very clearly how varied are the statutory
provisions relating to the holding of elections and referenda in different
states, but I do not think that they assist in establishing that the measure
adopted in this jurisdiction infringed the Irish Constitution.
The
fact that the section is constitutionally valid does not mean that the Minister
cannot decide that circumstances of special difficulty have arisen in the
operation of
section 24 of the 1994 Act and that remedial action is required
should he be asked to exercise his powers under section 164 of the 1992 Act.
