Constituencies Constitutional Challenge - Legal Submissions - McGarr Solicitors

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

Defendants

OUTLINE LEGAL SUBMISSIONS
ON BEHALF OF THE PLAINTIFFS

Preliminary

1. Article 16.2. of the Constitution provides:
1Â° DÃ¡il Ãireann shall be composed of members who represent constituencies determined by law.
2Â° The number of members shall from time to time be fixed by law, but the total number of members of DÃ¡il Ãireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population.
3Â° The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.
4Â° The Oireachtas shall revise the constituencies at least once in every twelve years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of DÃ¡il Ãireann sitting when such revision is made.
5Â° The members shall be elected on the system of proportional representation by means of the single transferable vote.
2. The fundamental issue in the present case is whether the Electoral (Amendment) Act 2005 (âthe 2005 Actâ?) complies with these constitutional obligations. Subject to the possible question of the finality of the census figures compiled by the Central Statistics Office, there is no doubt but that the requirement of Article 16.2.3 in respect of the equality of ratio between the constituencies being âso far as it is practicableâ¦.the same throughout the countryâ? has not been complied with. In this regard it suffices to note the population of Dublin West is actually greater than that of Cork North West, but it has one less member: Dublin West elects three deputies, whereas Cork North West has four. The divergence between the constituencies in some instances is as great 30%.

3. The fundamental grievance of the plaintiffs is that this discrepancy is so great that it could never accord with the requirements of Article 16.2.3 and that the requirement of practicability could never extend to a divergence of this magnitude.

The OâDonovan case

4. Article 16.2.3 and 16.2.4 were first considered by the High Court in OâDonovan âv- The Attorney General . In that case, Budd J. held that certain provisions of the Electoral (Amendment) Act, 1959 were unconstitutional on the basis that they gave rise to serious and unjustified inequalities of representation. The judge also held that, in enacting the Act, the Oireachtas had failed to have âdue regardâ? to the changes in distribution of the population as required by Article 16.2.4.

5. Budd J. set out the objective of the Constitution as follows:-

âThe object of the Constitution was to provide in the form of a fundamental law a code of rules within which the organs of government and the people might function in an ordinary way of life befitting a modern State. While it necessarily contains certain philosophical principles, its purpose was to set up institutions which would be workable. This leads to the view that it should be construed in a practical fashion.â?

6. He noted that while Articles 16.2.3 and 16.2.4 was not drawn in a prohibitive form, he was of the view that:

âThe prohibition is one to be implied, but it is scarcely to be doubted that the object of stating the principle was to limit the legislatureâs power to enacting only such Statutes as should comply with the Directive. To say that a thing shall be done in a certain fashion is tantamount to prohibiting it being done in any other fashion. In the face of such a clear Directive, some doubt may be thought to arise as to the weight to be given in such a case to the presumption of constitutionality, since the prohibition is so obviously implied.â?

7. Budd J. then concluded that:-

âIt appears clear that the statement of the principles contained in the sub- clauses 2.3 and 2.4 of Article 16 of the Constitution limited the power of the Oireachtas in enacting an Electoral Act and bound it to maintain âso far as it is practicableâ? the ratio stipulated and to have âdue regardâ? to changes in the distribution of population when revising the constituencies. I fully appreciate that it is on the Oireachtas that the Constitution has imposed a duty of defining the constituencies and allocating members to them and I should say that I agree also with Counsel for the Attorney General that the Legislature has all the experience in these matters and that a reasonable latitude should be allowed to it in the performance of its important functions as an organ of State. But a departure from these principles, if clearly established, is unconstitutional.â?

8. Pausing at this point, the plaintiffs respectfully agree that, of course, the Oireachtas is entitled to a certain latitude (or, to use the ECHR term, margin of appreciation). The point here, of course, is that the discrepancies in this case are of such a magnitude that the Oireachtas has clearly exceeded any margin of appreciation that might reasonably be afforded to it.

9. In OâDonovan the evidence established that the national average ratio was one Deputy per 20,127 people. The biggest discrepancy was between Dublin South West which had 23,128 people per Deputy, while Galway South contained only 16,575 people. The highest level of deviation from the average per constituency was thus in the order of 25%, a figure which is at least matched in the present case.

10. Referring to Article 16.2.3 Budd J. stated:

âThe primary aim and object of the sub- clause is thus to achieve equality of ratio and representations; that is the dominant principle. It is qualified only by the lesser considerations of practicability.â?

11. Budd J. went on to state that the clause must be read in the context of the Constitution as a whole and he was of the view that several articles of the Constitution were relevant in this regard. He referred to Article 5 which provides, inter alia, that Ireland was a democratic State and also to Article 16.1.4 which provides that no voter could exercise more than one vote at an election for DÃ¡il Ãireann. In addition he referred to the guarantee of equality before the law enshrined in Article 40.1.

12. Budd J. then stated:

âA âdemocratic Stateâ? is one where government by the people prevails. In modern usage of the words I believe it to be correct to say a âdemocratic Stateâ? denotes one in which all citizens have equal political rights. That the words should be given such a meaning in our Constitution seems to be supported by the other two Articles I have referred to as to the restriction of voting power to one vote per person and the equality of all before the law. That equality is not maintained if the vote of a person in one part of the country has a greater effect in securing parliamentary representation than a vote of a person in another part of the country. To illustrate this simply, if 80,000 people in one part of the country can return five deputies, while 80,000 people in another part of the country can only return two deputies, the spirit of equality is not maintained. There are thus contained in the Constitution other Articles the spirit of which demands equality of voting power and representation. The Articles I have just referred to admittedly have reference to equality of voting power, but are relevant in construing sub-clause 2.3 of Article 16 to this extent that if it be established, as I believe it is, that the spirit and intendment of these other Articles is that the notion of equality in political matters is to be maintained, it would be illogical to find a different and inconsistent principle adumbrated elsewhere in the Constitution. If a departure from the principles to be implied from those Articles was intended, one would at least expect to find such form of words used as would clearly indicate a different principle. On examining sub-clause 2.3 nothing of the kind is apparent. On the contrary, the whole object of the clause would seem to be designed to achieve the spirit of equality to be found in these other Articles. Thus, all of the relevant clauses harmonise. This all leads to the conclusion that any construction of sub-clause 2.3 which would have the effect of destroying the dominant principle of equality should be rejected.â?

13. As to the proper construction of Article 16.2.3, Budd J. concluded as follows:

âFirst, that the dominant principle of that sub-clause is the achievement as near an equality of the parliamentary representation of the population as can be attained, paying due regard to practical difficulties. Secondly, that there are difficulties of an administrative and statistical nature so plain to be seen that it may be safely assumed they, at any rate, must have been in the minds of those enacting the Constitution. Thirdly, that these difficulties are of themselves alone sufficient to explain and justify the qualification of the principle of equality. Four, that there is no indication to be found in the Constitution that it was intended that any of the difficulties as to the working of the parliamentary system should be taken into consideration on the question of practicability. Fifthly, that if matters of the kind mentioned as to the working of the parliamentary system were to be taken into consideration, the result would be that the dominant principle of equality would be departed from so far as to be destroyed and the intention of the people in enacting the relevant sub-clause would be entirely frustrated. Finally, that this fifth conclusion involves rejecting, with one qualification, the contention that the difficulties of the operation of the parliamentary system should be considered in determining what is practicable. In the result, it would seem to me that the difficulties to which the Legislature should have regard are those of an administrative and statistical nature, and the principle question to be decided will be as to whether equality of ratio of members of the population has been achieved in so far as practicable having regard to such difficulties. There is, it seems to me, only one possible qualification of this: that if it be shown that the result would involve the collapse of the parliamentary system that factor would have to be most seriously considered, having regard to the view that I have expressed that our fundamental law must be deemed to have been intended to be workable.â?

14. In passing, it may be observed that the need to ensure that equality of ratio to representative has also been the subject of decisions of the United States Supreme Court. In Wesberry v Sanders the US Supreme Court held that an apportionment of congressional seats which, âcontracts the value of some votes and expands that of othersâ? was unconstitutional since:

âThe Federal Constitution intends that when qualified voters elect members of Congress each vote be given as much weight as any other voteâ?

15. The Court concluded that:

âIt would defeat the principle solemnly embodied in the Great Compromise âequal representation in the House for equal numbers of people â for us to hold that , within the States, legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than othersâ¦â¦â¦â¦

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.â?

16. In Reynolds v Sims the Supreme Court had to consider whether the state legislative apportionment provisions were unconstitutional in circumstances whereby there had been population growth in some counties since the census upon which the apportionment was based was taken. In finding the apportionment scheme unconstitutional the US Supreme Court held that the Equal Protection Clause required substantial equal legislative representation for all citizens in a State regardless of where they reside and that the federal constitutional requirement that both houses of a state legislature must be apportioned on a population basis means that, as nearly as practicable, districts be of equal population, though mechanical exactness was not required.

17. Warren CJ, delivering the opinion of the Court, stated:

âWe hold that, as basic constitutional standard, the Equal Protection clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individualâs right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.â?

18. In finding that the Electoral (Amendment) Act, 1959 was unconstitutional, Budd J. pointed out however that mathematical accuracy could not be achieved nor was it required:

âThe examples which I have cited and many more besides, indicate beyond reasonable doubt that not only does there exist a very substantial divergencey indeed between the ratio of members to population in a large number of constituencies, but also that grave inequalities will in fact result from this state of affairs. It must, however, be conceded that a near mathematical accuracy cannot be achieved without grave difficulty, and the next question that arises is this: has the plaintiff clearly shown that the divergences that exist cannot be justified having regard to the existence of such practical difficulties as it is proper to consider? This is only another way of asking whether there are genuine and proper objections existing to achieve a closer approximation to the ratio required by the Constitution?

It is, I stress, the function of the Legislature – and not of the Court- to formulate the appropriate scheme for the division of the country into constituencies with their proper constitutional ratio of deputies to population and to bring it into operation by legislation. The Court must be careful not to trespass on that domain of the Legislature. But where a particular scheme has been brought into being it is quite permissible for those challenging the legislation to say that, even working on the broad basis of that scheme as adopted by the Legislature, they can show that many changes can be made without any great practical difficulty which would get rid of at least some of the most obvious discrepancies. If that can be done, the Plaintiff will have shown that in such instances at any rate the required ratio has not been maintained âso far as it is practicable,â? in the present scheme, although such ratio could well have been achieved even within the framework of the scheme by adjustment.â?

19. In response to the decision of Budd J. in OâDonovan âv- The Attorney General the Oireachtas passed the Electoral (Amendment) Bill, 1961 which was then referred to the Supreme Court for the President pursuant to the provisions of Article 26. While the 1961 Bill did not provide for mathematic exactness – this would, of course, be impossible – the striking aspect of the 1961 Bill is that it contained nothing like the same degree of disparities as had been contained in the 1959 Act. The Court upheld its constitutional validity in In re the Electoral (Amendment) Bill, 1961 . At the conclusion of his judgement, having cited a passage from the judgement of Budd J. in OâDonovan where he rejected the suggestion that Article 16.2.3 required all but mathematical parity of ratio to be attained, Maguire CJ delivering the decision of the Court expressed his view of Article 16.2.3 as follows:

âThe sub-clause recognises that exact parity in the ratio between members and the population of each constituency is unlikely to be obtained and is not required. The decision as to what is practical is within the jurisdiction of the Oireachtas. It may reasonably take into consideration a variety of factors, such as the desirability so far as possible to adhere to well known boundaries such as those of counties, townlands and electoral divisions. The existence of divisions created by such physical features as rivers, lakes and mountains may also have to be reckoned with. The problem of what is practical is primarily one for the Oireachtas, whose members have a knowledge of the problems and difficulties to be solved which this Court cannot have. Its decision could not be reviewed by this Court unless there is a manifest infringement of the Article. This Court cannot, as is suggested, lay down a figure above or below which a variation from what is called the national average is not permitted. This, of course, is not to say that a Court cannot be informed of the difficulties and may not pronounce on whether there has been such a serious divergence from uniformity as to violate the requirements of the Constitution.â?

20. In OâMalley âv- An Taoiseach the plaintiff sought an injunction to restrain the Taoiseach from advising the President to dissolve DÃ¡il Ãireann unless and until legislation was enacted revising the DÃ¡il constituencies to comply with Article 16 of the Constitution. The application was refused on the basis that the Constitution gave the Taoiseach a right to advise the President as to the dissolution of DÃ¡il Ãireann and the constitutional duty of dissolving DÃ¡il Ãireann vested in the President of Ireland who is not answerable to any Court for the exercise and performance of that duty. As it happens, as of the time of writing, a dissolution of the 29th DÃ¡il has already been called, but it has never been part of the plaintiffsâ case that there was any impediment to the dissolution of the DÃ¡il, the constitutional infirmities with the constituencies notwithstanding.

21. The more relevant aspect of OâMalley is that in examining the statistics relating to the constituencies at that time, Hamilton P. noted that 17 of the 141 constituencies showed a variation in excess of 7% with 8 showing a variation in excess of 10% and one with a variation of 25% from the national average. He also noted a difference between the representation afforded to various different constituencies and stated that:

âIt is clear from these figures that the ratio between the numbers of members to be elected at any time for each of these constituencies and the population of these constituencies as ascertained at the last proceeding census are not the same, in so far as it is practicable.â?

22. In viewing Article 16.2.4 which puts an obligation on the Oireachtas to revise constituencies at least once in every twelve years with due regard to changes in distribution of the population Hamilton P. stated:

âThe constitutional obligation placed on the Oireachtas is not discharged by revising the constituencies once every twelve years. They are obliged to revise the constituencies with due regard to changes in distribution of the population and when a census returned discloses major changes in the distribution of the population; there is a constitutional obligation on the Oireachtas to revise the constituencies. No revision has taken place since the last census in 1986 and I am satisfied that the Oireachtas is in breach of its constitutional obligation to revise the constituencies particularly when the Census discloses a major change in the distribution of population and the fact that the ratio between the number of members to be elected at any time for each constituency and the population of each constituency as ascertained at the last proceeding census is not so far as is practicable the same throughout the country.â?

The Presumption of Constitutionality

23. The presumption of constitutionality which operates in favour of an Act of the Oireachtas is based on what OâByrne J. stated in Buckley âv- The Attorney General as the ârespect which one great organ of State owes to anotherâ?. In Pig Marketing Board v Donnelly (Dublin) Ltd Hanna J stated:

âWhen the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representative of the people, is presumed to be constitutional unless the contrary is clearly established.â?

24. Indeed in Goodman International âv- Hamilton Finlay CJ said that the ânecessary comity between the different organs of Stateâ? meant that a presumption of constitutional validity âmust apply in precisely the same way to a resolution of both Houses of the Oireachtas, even though it does not constitute legislation.â?

25. Thus, at the outset, the onus is on the plaintiffs to show that the provisions of the Electoral (Amendment) Act, 2005 are unconstitutional. However, it is submitted that once it is shown that there is a substantial departure in the ratio of deputies to population in the constituencies throughout the country, by virtue of the 2005 Act, the evidential burden shifts onto the defendants to prove that the departure can be accounted for the by the practical considerations relevant to determining what is âas far as practicable.â?. In this regard, in OâDonovan âv- The Attorney General Budd J. while accepting the presumption of constitutionality which an Act of the Oireachtas has stated:

âhas is been shown clearly that there will be a substantial, as distinct from a mere mathematical or negligible departure in the ratio of deputies to population in the constituencies throughout the country when the 1959 Act comes into operation? If it has, has it also been clearly shown that the departure cannot be accounted for by practical considerations of the kind I have held to be relevant to consider or otherwise justify? The Plaintiff says that the scheme of the Act of 1959 involves inequitable results and inequalities in the representation of the people. If that be shown, it may not be conclusive, but it would indicate prima facie a departure from the dominant principle of equality of parliamentary representation and thus call for a very close scrutiny of all possible practical reasons alleged to exist for any substantial departure from the principle.â?

Level of Deviation

26. As we have already noted, in OâDonovan âv- The Attorney General Budd J, in finding that the Electoral (Amendment) Act, 1959 was unconstitutional, also held that mathematical accuracy could not be achieved nor was in required:

âThe examples which I have cited and many more besides, indicate beyond reasonable doubt that not only does there exist a very substantial divergencey indeed between the ratio of members to population in a large number of constituencies, but also that grave inequalities will in fact result from this state of affairs. It must, however, be conceded that a near mathematical accuracy cannot be achieved without grave difficulty, and the next question that arises is this: has the Plaintiff clearly shown that the divergences that exist cannot be justified having regard to the existence of such practical difficulties as it is proper to consider? This is only another way of asking whether there are genuine and proper objections existing to achieve a closer approximation to the ratio required by the Constitution?

27. The United States Supreme Court has also considered the issue of mathematical precision. In Wesbery âv- Saunders the US Supreme Court required States to draw their congressional districts so that:

âAs nearly as is practicable, one manâs vote in a congressional election is to be worth as much as anotherâsâ?.

28. The highest level of deviation from the average per constituency disclosed in OâDonovan case was in the order of 25% in the case of Dublin South West. However, Budd J commented that a deviation of greater than 5% from the national average might be unconstitutional. In Wells âv- Rockerfeller the US Supreme Court invalidated a New York plan where the most populous district was 6.488% above the average with the least populous district being 6.608% below the average.

29. It may be noted that in its 2004 Report (on which the 2005 Act was based) the Constituency Commission recommended the departure from the 5% tolerance in a number of the constituencies with the maximum of deviation at 7.87%. This clearly shows the degree of mathematical approximation that can be achieved once the Oireachtas puts its mind to it.

The Census Requirement

30. The issue arises as to what figures can be used for the purposes of ascertaining the population of each constituency and changes in distribution of population. It appears from the decision in OâDonovan that the Oireachtas used the preliminary 1946 census figures for the purposes of the Electoral (Amendment) Act, 1947. However, in Re the Electoral (Amendment) Bill, 1946 the Bill had been based on the 1956 Census figure, at a time when the 1961 Census was under way. Amongst the arguments made against the Bill was that a further Census having been taken, the Oireachtas was obliged to await the results of it before legislating. However, the Supreme Court concluded that what was required was the figures from a completed Census. The Court stated:

âThe duty of the Oireachtas, it is said, once a Census is taken, is to stay its hand until the figures are counted. During this interval, the Oireachtas is, it was submitted, disabled from proceeding with a revision of the constituencies. If the idea of ascertainment of population were absent from the Irish text, it would be somewhat surprising to find the Oireachtas in the position of having to await the publication of these figures of population before it could act under para 4. It would be a more reasonable construction in such instance to construe the Irish text as pointing- and intended to point- to a complete census and not to a mere taking of censusâ?.

31. Maguire CJ went on to state that:

âMuch has to happen between the taking of a census and the ascertainment of the result.â?

32. It was also argued that rather than relying on the 1956 Census, the Oireachtas should have proceeded on the basis of the CSOâs annual estimates of population or in the alternative on the Register of Electors. It was argued that the Oireachtas was free to adopt such an approach on the basis that Article 16.2.4 made no reference to a census. These arguments were rejected by the Supreme Court and Maguire CJ. stated:

âIt is submitted further by Mr McBride that where the Constitution intended that the figures of the last census should be used as a basis as in clause 2.3 of the Article it did so in plain language and that on the principle expressio unius re est exculsio alterius it did not intend that the census figures should be used for the calculation required by clause 2.2. This Court is of the opinion that this principle does not apply for the following reasons. It is necessary in order to determine whether the law keeps within the constitutional limits laid down in clause 2.2 to obtain an exact figure. Neither of the methods suggested of calculating the numbers of the population provide such a figure. They are only estimates and in a degree are expressions of opinion and not statements of fact. The ordinary way of obtaining the population of a country and the only way of ascertaining an exact figure is by reference to the last completed census of the population. After a few years, an estimate based on vital statistics may well provide a closer approximation to the actual numbers but being at best an estimate, it can never provide a figure for exact calculation as is required by clause 2.2. The same objection applies with even greater force to a figure of population based on the electorsâ list. For these reasons it seems to the Court that the figure of population cannot be anything other than the figure ascertained by the last census. The reason why clause 2.2 does not specify that the figure is to be that given by the last census is that this was sufficiently plain and that it was unnecessary to do so. On no other basis may the calculation be made.â?

33. In section 3 of the Statistics Act, 1993 âofficial statisticsâ? are defined as âstatistics compiled by the Office or any other public authority whether under this Act or otherwise.â? Section 45 of the 1993 Act provides that:

âPrima Facie evidence of any official statistics may be given in all legal proceedings by the production of a document purporting to contain such statistics and to be issued by the Central Statistics Office or to be signed by the Director General.â?

34. In Karcher âv- Daggett Brennan J. delivering the opinion of the US Supreme Court seems to suggest what was required was the using of the âbest census data available. Adopting any standard other than population equality, using the best census data available, would subtly erode the constitutionâs ideal of equal representationâ?.

35. What is meant by practicable has been considered in a number of cases. In Lee v Nursery Furnishings Ltd Lord Goddard LCJ accepted the meaning of âpracticableâ? as being âcapable of being â¦ carried out in action â¦feasible.

36. In Adsett v K & L Steelfounders and Engineers Ltd the Court of Appeal referred with approval to the definition of practicable in Websterâs Dictionary of âpossible to be accomplished with known means or known resources.â? In Knight v.Demolition & Construction Co. Ltd Parker J after reviewing the definitions set out in Lee and Adsett stated:

In other words, the test here has nothing to do with whether it is reasonably practicable, but merely whether it is possible and practicable in that sense.

37. In OâDonovan âv- The Attorney General Budd J stated:

âI must determine whether or not the alleged difficulties of working the parliamentary system are relevant to consider in determining what is “practicable.â?
There is, it is to be observed, no direction whatsoever contained in the Constitution that these matters of difficulties of communications, differing economic interests, differing modes of life or the convenience of constituents or the difficulties of deputies or any of the other matters relied on by the defendant, should be taken into consideration when the Legislature is performing its functions in enacting the electoral laws. All of these are, in their own sphere, important matters, and if those who enacted the Constitution had intended them to be taken into consideration when the Legislature was enacting the electoral laws, pursuant to subclause 2 of Article 16, it is scarcely credible that they would not have said so. Most important functions are positively assigned to deputies by the Constitution, the paramount duty being that of making laws for the country. It is also for them to nominate the Taoiseach and approve the members of the Government. It will be found again, however, that the Constitution does not anywhere in the Articles relating to the functions of deputies recognise or sanction their intervention in administrative affairs. Furthermore, the indications in the Constitution are that the representation of vocational interests is a matter for the Senate, while the DÃ¡il is to represent the entire population. No justification can thus be found in any Articles of the Constitution for regarding any of these matters as being relevant to consider when the Legislature is engaged in the legislative function of forming the constituencies with the required ratios of members to population. These are negative considerations, but indications of a more positive nature as to what may properly be taken into consideration in considering what is practicable are to be found on construing sub-clause 2, 3, of Article 16 in the light of its context and in the light of the Constitution taken as a whole.â?

38. Budd J. added:

âIn the result, it would seem to me that the difficulties to which the Legislature should have regard are those of an administrative and statistical nature, and the principal question to decide will be as to whether equality of ratio of members to population has been achieved in so far as practicable having regard to such difficulties.â?

39. But, at the risk of stating the obvious, it clearly would be practicable for the Oireachtas to avoid the situation where, for example, Dublin West has more voters but fewer seats than Cork North West. Indeed, the plaintiffs are not aware of a single instance where this has previously occurred in the history of the State.

The consequences of Invalidity

40. In Dillion Leech âv- Calleary the Supreme Court held that it would only set aside an election result where the irregularity might have affected the result. However, this must be balanced against public policy considerations and the need to prevent electoral chaos.

41. In De Burca âv- The Attorney General speaking in the context of the potential invalidation of thousands of Jury verdicts which had been unconstitutionally arrived at, OâHiggins CJ. stated that:

âthe overriding requirements of an âordered societyâ? would prevent the Courts invalidating such verdictsâ?.

42. Likewise, in McMahon v Attorney General the Supreme Court found that certain provisions of the Electoral Act, 1923 were inconsistent with the Constitution, however in so finding Ã DÃ¡laigh CJ observed that:

âIn doing so I should note that it has been no part of the plaintiffâs case, either in this Court or in the High Court, that the validity of the last or any previous election has been, or can be, affected by the irregularity of which he has complained in these proceedings .

43. In A v The Governor of Arbour Hill Prison the Supreme Court held inter alia that a court should differentiate between the declaration of unconstitutionality and the application of such a decision. This was required in the interest of legal certainty, the avoidance of injustice and the overriding interest of the common good in an ordered society.

44. This very point was addressed in Reynolds v Sims Warren CJ noted that:

âRemedial techniques in this new and developing area of the law will probably often differ with the circumstances of the challenged apportionment and a variety of local conditions. It is enough to say that, once a Stateâs legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking apportionment action to insure that no further elections are conducted under the invalid plan. However, under certain circumstances, such as where an impending election is imminent and a Stateâs election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavour to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the courtâs decree.â?

45. In Walden âv- Liechtenstein the European Court of Human Rights had to consider whether the decision of the State Court of Liechtenstein infringed the Convention on Human Rights. In that case, the State Court of Liechtenstein had found that provisions concerning a married coupleâs pension were unconstitutional but it rejected the Applicantsâ request to quash and set aside the relevant provisions of the Old Age Pension Act. The State Court had found that the married coupleâs pension system based on a traditional view of marriage was unconstitutional as being contrary to the principle of non- discrimination on the basis of gender, in particular as only the husbandâs contribution years were decisive for the calculation of the married coupleâs pension and that it was unconstitutional as being contrary to the general principle of equal treatment in that married and unmarried couples were treated differently in regard to their pension benefits. However, the State Court rejected the application to set aside the provisions of the Pensions Act on the basis inter alia that this would cause massive disadvantage to others, in particular, to married couples where the wife did not have an own insurance career.

46. The Court did not feel it was in a position to set aside the contested provision given the complexity of the social security law and the statutory time limit of a maximum of six months for suspending an abrogation. The State Court went on to say that despite these considerations the continuing application of unconstitutional legislation for a protracted period would be unacceptable. The European Court of Human Rights held that the State Court was entitled to make the decision it did without violating the Convention on Human Rights and stated:

âIn this context, the Court recalls its case law according to which the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from questioning legal acts or situations that antedate judgements of the Court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutionalâ¦

Moreover, it has also been accepted, in view of the principle of legal certainty that a constitutional Court may set a time limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period.

It is true that, in the present case, the State Court in its decision of the 24th May 1996 did not annul the provisions concerning the married coupleâs pension which it found to be unconstitutional. It refrained from doing so, having particular regard to the fact that it could only suspend an abrogation for a maximum of six months. Given the complexity of the social security law, this appeared too short a period for enacting new legislation, even though a comprehensive reform of social security law with the aim of guaranteeing gender equality was already in progress and was scheduled to be completed by the end of 1996. In view of the detrimental effects which an annulment of the relevant provisions might have on the pension claims of others, the State Court refused to annul the provisions with a six month suspension, as the holding of a referendum for instance could delay the legislative procedure. The Court observes that in fact, the amendment of the Old Age Pension Act was adopted in September 1996. Taking all these circumstances into account, the Court finds that the present case does not differ substantially from the case in which a Constitutional Court annuls an unconstitutional provision and sets a time limit for enacting new legislation. It therefore, considers that the State Court decision, which had the effect that unconstitutional legislation remained applicable to the applicant for a limited period, served the interests of legal certainty. Given the brevity of this period which ended about seven months after the State Courtâs decision, namely, on the 1st January 1997 when new legislation entered into force, the continued application of the pension provisions at issue can also be regarded as proportionate.â?

47. In the present case, authorities as diverse as A, Reynolds and Walden are authority for the proposition that, irrespective of the date on which the election is called or the judgment pronounced, the validity of an election cannot be called into question merely because the underlying legislation governing the constituencies has been found to be unconstitutional. This should not – and, it is submitted, cannot – prevent this Court from declaring that the 2005 Act is unconstitutional. It will be a matter for the new Oireachtas to take immediate steps to ensure that the ensuing legislative void is filled and that no new election is held on the basis of these constituencies.

Conclusions

48. In summary, therefore, the plaintiffs submit:

A. The 2005 Act does not accord with the obligations imposed by Article 16.2.3 and is accordingly unconstitutional.

B. The discrepancies disclosed by the census returns are stark and significant. A divergence of up to 30% could never meet the constitutional requirement and, indeed, the situation disclosed whereby one constituency has more voters but less seats than another constituency is unprecedented in the history of the State.

C. The plaintiffs do not seek to impede the holding of the election. They accept the validity of the election, even if the results were based on unconstitutional constituencies. In this respect, the timing of the action or any judgment of the Court has no bearing on the validity of the election, even if the 2005 Act is declared unconstitutional. The plaintiffs are, however, anxious to secure a declaration from this Court that discrepancies of this kind are not constitutionally acceptable.

Mark J Dunne
Frank Callanan SC
Gerard Hogan SC

April 30, 2007

Constituencies Constitutional Challenge – Legal Submissions