Constituencies Constitutional Challenge: Statement of Claim

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

STATEMENT OF CLAIM

Delivered this 5th day of April 2007 by McGarr Solicitors of 12 City Gate, Lower Bridge St. Dublin 8

1. The 1st Named Plaintiff is an independent Member of Dail Eireann in the constituency of Kildare North and will be a candidate for Dáil Éireann for election to the 30th Dáil within the Constituency of Kildare North which said constituency is a three seat constituency and is currently defined and determined by the Electoral (Amendment) Act, 2005.

2. The 1st Named Plaintiff is also a citizen of Ireland and is anxious both in that capacity and in her capacity as a member of Dail Eireann to ensure that there is fair and equal representation of voters and equality as between constituencies in the manner required by the provisions of Article 5, Article 16 and Article 40.1 of Bunreacht na hEireann.

3. The 2nd Named Plaintiff is an independent Member of Dail Eireann in the constituency of Dublin North Central and will be a candidate for Dáil Éireann for election to the 30th Dáil within the Constituency of Dublin North Central which said constituency is a three seat constituency and is currently defined and determined by the Electoral (Amendment) Act, 2005.

4. The 2nd Named Plaintiff is also a citizen of Ireland and is anxious both in that capacity and in his capacity as a member of Dail Eireann to ensure that there is fair and equal representation of voters and equality as between constituencies in the manner required by the provisions of Article 5, Article 16 and Article 40.1 of Bunreacht na hEireann.

5. The first named Defendant is the Minister for Environment, Heritage and Local Government and is a corporate sole with his principal office at the Custom House Dublin 1 The said Minister is the Minister with responsibility for the revision of the constituencies within the State as is required by Article 16.2 of Bunreacht na hÉireann.

6. The second named Defendant is the juristic person answerable at law for the actions of the first named Defendant, his servants or agents.

7. The third named Defendant is the law officer of the State designated by the Constitution of Ireland and is sued in his representative capacity.

8. Article 16.1.2 of Bunreacht na hÉireann provides that all citizens who have reached the age of eighteen and are not disqualified by law and comply with the provisions of thelaw relating to theelection of members of Dail Eireann shall have the right to vote at an election of members of Dáil Éireann.

9. Article 16.2.2 of Bunreacht na hÉireann provides that Dáil Éireann shall be composed of members who represent constituencies determined by law with a ratio of members to population of not less than one member for each thirty thousand of the population and not more than one member for each twenty thousand of the population.

10. Article 16.2.3 of Bunreacht na hÉireann provides that the ratio between the number of members to be elected to Dáil Éireann at any time for each constituency and the population of each constituency as ascertained at the last preceding Census, shall, so far as is practicable, be the same throughout the State.

11. Article 16.2.4 of Bunreacht na hÉireann provides that the Oireachtas shall revise the constituencies at least once in every 12 years with due regard to changes in distribution of population.

12. In or about the month of July 2003 the Central Statistics Office published the results of the 2002 Census, regarding the population of the State.

13. On the 9th day of July 2005 the Electoral (Amendment) Act 2005 was enacted into law.

14. On or about the 15th day of July 2006 the Central Statistics Office published the Census 2006 Preliminary Report, which detailed the major population changes in the State from 2002 to 2006 and which established that in the event that the constituencies specified in the Schedule to the Electoral (Amendment) Act 2005 were not redrawn prior to a general election, significant and material inequality in the ratio between the number of members to be elected for each constituency and the population of each constituency would result.

15. Without prejudice to the generality of the foregoing, the Census 2006 Preliminary Report established that five constituencies were over 7.9% above the national average of 25,512 persons per member of Dail Eireann, and five constituencies were over 7.9% below the national average, where 7.89% represents the conventionally accepted norm of deviation,

16. It was in the premises incumbent on the defendants under the provisions of Bunreacht na hEireann to procure the revision of the constituencies with due regard to the changes in the distribution of the population so as to ensure 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 preceding census would, so far as practicable, be the same throughout the State.

17. The final census figures were published by the Central Statistics Office on or about the 29th day of March 2007 which were entirely consistent with the results of the Census 2006 preliminary report as hereinbefore pleaded. Without prejudice to the case hereinbefore pleaded it was therefore incumbent on the defendants to procure a revision of the constituencies under Article 16.2.4 prior to a general election to ensure compliance with Article 16.2.3 which constitutional obligation the defendants have failed neglected and refused to comply with.

18. As obligated under the Constitution it was incumbent upon the defendants to take all practical steps to ensure equality of representation inconformity with Article 16.2.2 with which obligation the defendants have failed and continue to fail to comply.

19. In particular the defendants are thereby in breach of their obligations under Articles 5, 16.1.2, 16.2.2, 16.2.3, 16.2.4, 16,1.4, 40.1 and 40.3 thereof.

20. Furthermore Sections 3 and 4 of the Electoral (Amendment) Act 2005 together with the Schedule thereto are invalid having regard to the provisions of Bunreacht na hEireann and in particular Articles 16.2.2, 16.2.3, 16.2.4, and Article 16.1.4 thereof.

PARTICULARS

a. The 2006 Census figures reveal that the ratio of members to be elected, to population is one member per 30,967 persons in the constituency of Dublin West when the minimum allowed by Article 16.2.2 is one member per 30,000 of the population in respect of each constituency.

b. The ratio of members to population in the constituencies throughout the country is not as far as practicable the same throughout the country.

c. Sections 3 and 4 of the 2005 Act fails to have due regard to changes in distribution of the population as it is required to do by virtue of Article 16.2.4.

21. It is expressly pleaded that the deviations in the ratio of Dail deputies to the number of the population adversely affects the equality of representation of the citizens of Ireland in all of the constituencies defined by the 2005 Act and the said inequality impacts on the method and manner whereby all such constituencies (including the Plaintiffs’ constituencies of Kildare North and Dublin North Central) have been drawn and devised by law. Furthermore sections 3 and 4 of the Electoral (Amendment) Act, 2005 together with the Schedule thereto are invalid having regard to the provisions of Bunreacht na hÉireann and in particular Articles 5, 40.1 and 40.3 thereof.

PARTICULARS

a. Pursuant to the said provisions of Bunreacht na hÉireann all citizens have equal political rights with one vote of equal value per person.

b. There is an inequality of voting power and representation.

c. Sections 3 and 4 of the 2005 Act fail to hold the citizens of the State equal before the law in the matter of voting entitlements and political representation.

AND THE PLAINTIFFS CLAIM:

A. A Declaration that the Defendants have failed in their constitutional obligation to ensure that the ratio between the numbers to be elected to Dail Eireann for each constituency and the population of each constituency as ascertained at the last census, is, so far as is practicable, the same throughout the country.

B. A Declaration that the Defendant have failed in their constitutional obligation to ensure that the constituencies were revised to have due regard to changes in distribution of population.

C. If necessary, such order by way of injunction or Mandamus directing the Defendants to revise the constituencies in light of the result of the 2006 census as to this Honourable Court shall seem meet.

D. A Declaration that Section 3 of the Electoral (Amendment) Act, 2005 together with the Schedule thereto is invalid having regard to the provisions of Articles 16.2.2, 16.2.3, 16.2.4, and Article 16.1.4 of Bunreacht na hÉireann.

E. A Declaration that Section 3 of the Electoral (Amendment) Act, 2005 together with the Schedule thereto, is invalid having regard to the provisions of Articles 16.1.2, 16.2.2, 16.2.3, 16.2.4, and Article 16.1.4 of Bunreacht na hÉireann.

F. A Declaration that Section 4 of the Electoral (Amendment) Act, 2005 together with the Schedule thereto is invalid having regard to the provisions of Articles 16.1.2, 16.2.2, 16.2.3, 16.2.4, and Article 16.1.4 of Bunreacht na hÉireann.

G. A Declaration that Sections 3 and 4 of the Electoral (Amendment) Act, 2005 together with the Schedule thereto are invalid having regard to the provisions of Articles 5, 40.1 and 40.3 of Bunreacht na hÉireann.

H. A Declaration that the Defendants have failed to protect and vindicate the Plaintiffs’ constitutional rights as members of the electorate.

I. Such further Orders or Declaratory or other relief respecting the compliance of the Defendants with their obligations under Bunreacht na hEireann as this Honourable Court deems meet and just.

J. Such Interlocutory Order or Orders as this Honourable Court deems meet and just.

K. Further and other relief.

L. Costs.

Mark J Dunne
Frank Callanan SC
Gerard Hogan SC