Supreme Court dismisses prisoner's claim that lack of voting facilities unfairly discriminates against him under the Constitution.

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

277/00 & 27/2001

Between:

Stiofán Breathnach

Respondent/Applicant

and

Ireland and the Attorney General

Appellants/Respondents

JUDGMENT delivered the 11th day of July 2001 by Keane C.J.

Introduction

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.”

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.

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

“2° 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 Éireann, shall have the right to vote at an election for members of Dáil Éireann.

“3° No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of

sex or disqualifying any citizen or other person from voting at an election for members of Dáil Éireann on that ground.”

While subsection (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.

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

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 18 years and he

was, on the qualifying date -

(a) a citizen of Ireland, and

(b) ordinarily resident in that constituency.”

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.”

The Electoral (Amendment) (No. 2) Act, 1986 (“the 1986 Act”) 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 1992 Act 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.”

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

The submissions on behalf of the appellants/respondents and the respondent/applicant on the hearing of the appeal can be

summarised as follows. On behalf of the appellants/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 1992 Act (cited above) 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.

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) IR 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 persons, who

through no fault whatever of their own, were similarly unable to vote.

It was further submitted that the learned High Court judge had misconstrued the decision of this court in Marie Murray and Noel

Murray .v. Ireland and the Attorney General (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.

On behalf of the respondent/applicant, it was submitted that the preliminary point taken by the appellants/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 appellants/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: 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

As already noted, Mr. Fitzsimons S.C. on behalf of the appellants/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.

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, 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 station, 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 be heard to complain that the State have 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 are 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, 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.

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 they were under such an obligation.

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.

It was held by the High Court (McMahon J.) and by this court on appeal in Draper that the 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:-

“In the opinion of the court, the present law, contained in the Electoral Act, provides a reasonable regulation of elections to

Dáil Éireann, 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, subs. 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.”

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 1986 Act.

The decisions of the High Court and this court in Murray .v. Ireland are even weightier authority against the submissions advanced on

behalf of the applicant/respondent in this case. The plaintiffs in those proceedings, who were husband and wife, were found guilty 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. (as he then was) said:-

“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.”

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 the exercise of their rights had been unconstitutionally restricted.

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

“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, to give some examples.”

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 be 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 their 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 applicants’ imprisonment.

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.”

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.

Three other points should be mentioned. I have already drawn attention to the provisions of s. 17(2) of the 1992 Act. 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 and has

no application to persons who are being lawfully detained.

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.”

Such jurisprudence as there is under the Convention, accordingly, does not lend any support to the case on behalf of the

applicant/respondent.

The position of prisoners on remand should finally be noted. Since the applicant/respondent 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/respondent, 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.

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