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
NOTICE OF MOTION
TAKE NOTICE that on the 23rd day of April 2007 at 11:00 OâClock in the forenoon or the first available opportunity thereafter Counsel on behalf of the Plaintiffs will apply to this Honourable Court sitting at the Four Courts, Inns Quay in the City of Dublin for:
1. An Order abridging the time for the service of this Notice of Motion;
2. Such Directions as to Pleadings as to this Honorable Court deems meet;
3. Such further and other Orders as this Honourable Court deems meet;
4. Costs.
WHICH APPLICATION will be grounded upon the proceedings already had herein, this Notice of Motion and Affidavit of Service thereof, the Affidavit of Edward McGarr sworn the 19th day of April 2007 and the exhibits therein referred to the nature of the case and the reasons to be offered.
Dated 19th day of April 2007
_______________________________________
McGARR Solicitors
Solicitors for the Plaintiff,
34/35 Wicklow Street, Dublin 2
To:
The Chief State Solicitor.
Solicitor for the Defendants
Little Ship St. Dublin 8.
And:
The Registrar
Central Office
Four Courts
Dublin 7
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
AFFIDAVIT OF EDWARD McGARR
Sworn 19th April 2007
I, Edward McGarr, solicitor, of 12 City Gate, Lower Bridge Street, Dublin 8, being aged 18 years and upwards MAKE OATH and say as follows:
1. I am the Principal of McGarr Solicitors of 12 City Gate, Lower Bridge Street, Dublin 8 who are the solicitors on record for the Plaintiffs in the above entitled action and I make this Affidavit for and on behalf of the Plaintiffs from facts within my own knowledge save where otherwise appears and whereso appearing I believe the same to be true and accurate.
2. I beg to refer to the proceedings already had herein when produced.
3. As appears therefrom the Plaintiffsâ claim relates to the failure of the State and the Government to ensure that the Dáil constituencies were redrawn to take account of the changes in population as detailed in the 2006 Census results and the failure to ensure that the constituencies are defined as mandated by the Constitution so that the ratio between the numbers to be elected to Dáil Eireann for each constituency and the population of each constituency as ascertained at the last census are, so far as practicable, the same throughout the country and so as to ensure that the constituencies are drawn by law so as to ensure a ratio of members to population of not less than one member to each 30,000 of population and not more than one member for each 20,000 of population.
4. I say and believe that there is a constitutional obligation on the Government and the State to ensure that the election of members for the formation of the 30th Dáil is democratic and in accordance with the requirements of the Constitution. I say and believe that the minimum required for such democratic elections is prescribed in Bunreacht Na Eireann. The final figures for the 2006 Census as published on the 29th March 2007 clearly show that there are a number of constituencies where the people will be under represented by virtue of the constituencies as drawn as defined in the Schedule to the Electoral (Amendment) Act, 2005 and there are a number of constituencies which will be over represented. I beg to refer to a table of the said figures as published by the Central Statistics Office on that date showing this, upon which marked âEMcG 1â? I have endorsed my name prior to the swearing hereof.
5. I say and believe that the Defendants have been aware since the publication of the preliminary report from the Central Statistics Office on the 15th July 2006, which detailed a major population change in the State from 2002-2006, that if the constituencies as defined in the Schedule to the Electoral (Amendment) Act, 2005 were not redrawn prior to the 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 will result.
6. I say the proceedings were issued in this case on the 5th April 2007 and were served together with the Statement of Claim, on the Defendants on the 5th April 2007 and I beg to refer to the Affidavit of Service when produced.
7. I say that by letter dated 11th April 2007 and sent by post and facsimile I wrote to the Chief State Solicitorâs Office indicating, inter alia the need for urgent action by the Government and offering the Plaintiffs assistance in terms of urgent applications to Court for directions in an attempt to have the proceedings dealt with quickly. In this regard I beg to refer to a true copy of the said letters upon which marked with the letters âEMcG 2â? I have signed my name prior to the swearing hereof.
8. I say that by letter dated the 12th April 2007 and received on the 13th April 2007 a response was received from the Chief State Solicitorâs Office acknowledging receipt of the letter and stating that they would reply more formally when they had a chance to take their clientâs instructions. In this regard I beg to refer to a true copy of the said letter upon which marked with the letters âEMcG 3â? I have signed my name prior to the swearing hereof.
9. I say that the Defendants have not communicated further with your Deponent nor have they entered an Appearance to the proceedings despite the fact that the time for entry of an Appearance has expired and despite the fact that these proceedings are required to be dealt with as a matter of urgency in light of the constitutional requirement to have an election for the formation of the 30th Dáil in early course.
10. I say by letter dated the 16th April 2007 I again wrote to the Chief State Solicitorâs Office indicating that the time for entry of the Memorandum of Appearance had expired and again pointing out that there was now beyond dispute a constitutional obligation on the Government to ensure that the forthcoming elections were democratic and constitutional and that this could not be done on the basis of the Electoral (Amendment) Act, 2005 or on the basis of the constituencies drawn thereby. It was further pointed out that a failure to meet this constitutional obligation would drain the outcome of any elections of democratic and constitutional legitimacy. The Defendants were called upon to introduce the necessary amending legislation to redraw the constituency boundaries for the purposes of the election and to serve their Memorandum of Appearance. In this regard I beg to refer to a true copy of the said letter upon which marked with the letters âEMcG 4â? I have signed my name prior to the swearing hereof
11. I say that by further letter of the 18th April 2007 I again wrote to the Defendantsâ solicitors putting them on notice of the present application and in this regard I beg to refer to a true copy of the said letter upon which marked with the letters âEMcG 5â? I have signed my name prior to the swearing hereof.
12. I say that the Defendants have failed, refused and neglected to respond to this letter or take any action on foot thereof.
13. Ultimately, by letter dated 17th April 2007, received in my office on 19th April 2007, the Defendants served a copy of a Memorandum of Appearance herein. I beg to refer to a true copy of the said letter upon which marked with the letters âEMcG 6â? I have signed my name prior to the swearing hereof and I beg to refer to a copy of the Memorandum of Appearance when produced.
14. There must be a concern that any delay in these proceedings will ensure that the issues raised thereby will not be dealt with prior to the general election being called. I say and believe that the proceedings raise extremely serious constitutional matters in relation to the constituencies as defined in the Schedule to the Electoral (Amendment) Act, 2005 and in relation to any election held on foot thereof.
15. I therefore pray this Honourable Court for the Orders and directions sought.
SWORN before me,
a Commissioner of Oaths/practicing
solicitor, by the said Edward McGarr
who is personally known to me
at
this 19th day of April 2007.
______________________________
COMMISSIONER FOR OATHS/
PRACTISING SOLICITOR
This Affidavit is filed on 19th day of April 2007 by McGarr Solicitors
12 City Gate, Lower Bridge Street, Dublin 8 Solicitors for Plaintiffs.