[1961] | 169 | |
1 I.R. |
Supreme Court.
Constitution - Bill passed by both Houses of Oireachtas - Validity - Repugnancy to Constitution - Revision of constituencies more than twelve years subsequent to last effective revision - Whether a sufficient compliance with constitutional obligation to "revise the constituencies at least once in every twelve years" - Total membership of Dáil Éireann éireann - Fixation thereof with reference to population - Revision of constituencies - Materials on which such fixation and revision to be based - Allocation of Dáil members to constituencies - Parity of representation as between constituencies - Such parity to be achieved "so far as it is practicable" - Departures from absolute mathematical parity - To what extent permissible.
The President referred to the Supreme Court, under Art. 26 of the Constitution, a Bill, entitled "An Act to Fix the Number of Members of Dáil Éireann éireann and to Revise their Constituencies and to Amend the Law Relating to the Election of such Members," for a decision on the question whether the said Bill was repugnant to the Constitution or to any provision thereof.
The Bill had been passed after the expiration of a period of twelve years subsequent to the last previous Act effectively revising the constituencies, namely, the Electoral (Amendment) Act, 1947, the delay being due to the fact that the Electoral (Amendment) Act, 1959, which had been passed just inside the twelve-year period, had been declared imvalid in part as repugnant to the Constitution by Budd J. in O'Donovan v. Attorney General , [1961] I. R. 114. The figures of population, both for the State as a whole and for the individual constituencies, on which the provisions of the Bill were based were those of the census of 1956, notwithstanding that the census of 1961 was in the course of completion at the time of the passing of the Bill, and that, both on the estimates of population for 1960 as furnished by the Central Statistics Office and on estimates based on the current register of electors, the total number of Dáil members prescribed by the Bill exceeded the maximum number of one Dáil member for each twenty thousand of the population permitted by Art. 16, clause 2, para. 2, of the Constitution. On the 1956 census figures, the total number of Dáil members did not exceed the number permitted by the said paragraph.
The Court was of opinion 1, That the failure of the Oireachtas effectively to comply with its obligation to revise the constituencies within the twelve-year period prescribed by Art. 16, clause 2, para. 4, did not render such obligation nugatory, but that the obligation remained to carry out such revision as soon as possible after the termination of the period.
2, That "the population" to be considered in the fixation of the total membership of Dáil Éireann éireann pursuant to para. 2 of clause 2 of Art. 16, and in the revision of the constituencies pursuant to para. 4 of that clause must be read to mean "the population . . . as ascertained at the last preceding census," specified in para. 3, and that "the last preceding census" so specified must be read to mean "the last preceding completed census" in as much as in no other way could the population be calculated with the degree of certainty requisite to comply with the provisions of para. 2 limiting the total membership of Dáil Éireann éireann by reference to the total population of the State. Accordingly, the total number of members of Dáil Éireann éireann provided for by the Bill was not excessive. nor was the ratio of Dáil members to population per constituency arrived at on a wrong basis.
3, That the Irish phrase, "sa mhéid gur féidir é" (literally, "so far as it is possible"), in the Irish text of Art. 16, clause 2, para. 3, of the Constitution, relating to the attainment of parity of ratio between Dáil members and population in each constituency must, in view of the impossibility of attaining exact mathematical parity, be construed as synonomous with the equivalent phrase, "so far as it is practicable," in the English text.
O'Donovan v. The Attorney General , [1961] I. R. 114 applied.
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 170 |
1 I.R. | Supreme Court. |
The decision as to the extent of parity which was practicable was a matter for the Oireachtas, which should not be reviewed by the Court unless there had been a manifest infringement of the provisions of the paragraph. The Court would not lay down a figure above or below which a deviation from the national average would not be permitted, but would interfere only in the case, which was not this case, where the divergences from the national average were such as to make it clear that the requirements of the Constitution had not been carried out.
The Court accordingly advised the President that the said Bill was not repugnant to the Constitution.
Reference, in pursuance of Article 26 of the Constitution, of a Bill—the Electoral (Amendment) Bill, 1961—passed by both Houses of the Oireachtas, to the Supreme Court for a decision on the question as to whether the said Bill was repugnant to the Constitution or to any provision thereof. The material provisions contained in the Bill are set out in the decision of the Court, post, at p. 178.
The Court, in accordance with Article 26, clause 2, para. 1, of the Constitution, heard arguments on behalf of the Attorney General and by counsel assigned by the Court. At the hearing it was agreed by counsel that owing to the nature of the provisions contained in the Bill it would be more convenient if counsel assigned by the Court should open the argument and state the grounds upon which it would be submitted that the Bill was repugnant to the Constitution, and this course was approved by the Court.
Sean MacBride, Senior Counsel and T. J. Conolly, Senior Counsel (with them H. R. McWilliam ), of counsel assigned by the Court:—
Five matters arise on this Bill, any one of which, we submit, renders it repugnant to the Constitution. The first three matters did not arise, and could not have arisen, in O'Donovan v. Attorney General (1), the last two were considered in that case, but the Oireachtas, notwithstanding the guidance given to it by Budd J. in O'Donovan's Case (1), none the less failed to comply with the provisions laid down in Art. 16, clause 2, paras. 3 and 4, as governing the allocation of members of Dáil Éireann éireann to constituencies.
First, Art. 16, clause 2, para. 4, prescribes that "the Oireachtas shall revise the constituencies at least once in every twelve years." The revision effected by this Bill was made over thirteen years after the last effective electoral revision, namely, that carried out by the Electoral (Amendment) Act, 1947, which became law on the 27th November, 1947. While the delay in effective revision was rendered inevitable by the fact that the revision made by the Act of 1959, and declared ineffective, was made immediately before
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 171 |
1 I.R. | Supreme Court. |
Secondly, it is now apparent that the total number of members in Dáil Éireann éireann has been fixed at more than one member for each twenty thousand of the population, contrary to Art. 16, clause 2, para. 2. The figure of 144 members fixed for the Dáil by the Act of 1959 which was fixed on the basis of the 1956 census returns, showing a total population of 2,898,264 in the State, has not been departed from in the present Bill, notwithstanding that the Annual Estimates furnished by the Central Statistics Office show that the estimated population of the State is April, 1960, was 2,834,000 (which would allow for a Dáil of, at most, 141 members), while, on the basis of the register of electors for 1961 and of the figure of 61 Dáil electors per 100 of population, the population would amount only to 2,757,801 (which would allow for a Dáil of, at most, 137 members). While these figures are admittedly less precise than the 1956 census figures, nevertheless one or other of these sets of figures ought to have been adopted by the Oireachtas, as affording a more accurate guide than the 1956 census figures to the exact population of the State at the time of the passing of the Bill.
A deliberate change of expression in one section of a statute from that used in an earlier section, must be takenprima facie to import a change of intention: Ricket v.Directors, &c of Metropolitan Railway Co. (1). The primary and natural meaning of the words of a statute or other authoritative document ought never to be extended by the Court "unless for a case amounting to a necessity, or approaching to it": per Lord Bramwell in M'Cowan v.Baine (2). [They also referred to Maxwell on the Interpretation of Statutes, 1946 ed., pp. 14 and 324.] Accordingly, the reference in para. 3 of Art. 16, clause 2, to "the population of each constituency, as ascertained at the last preceding census," when contrasted with the absence of reference to the last preceding census in paras. 2 and 4 of that clause, indicates that the Oireachtas is bound by the figures of the last preceding census only in so far as it is required by para. 3 to seek to achieve parity of representation as between the various constituencies. The provisions of para. 4 qualify those of para. 3 to this extent: that, where a change in distribution of population sufficient to require a revision of constituencies is ascertained to have taken place in an intercensal period, the Oireachtas is bound to make such revision
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 172 |
1 I.R. | Supreme Court. |
Thirdly, it is submitted that the Bill under review contravenes Art. 16, clause 2, para. 3, of the Constitution in as much as it purports to determine the number of Dáil members per constituency by reference to the population of each constituency as ascertained at a census earlier than the last preceding census, which, it is submitted, in this context means the census taken in April, 1961. The provision in para. 4 that the constituencies are to be revised "with due regard to changes in distribution of the population"indicates that the intent of the Constitution was that, where the results of a recent census are on the verge of being ascertained, such revision ought to be deferred pending such ascertainment, rather than be made with reference to a more distant census.
Fourthly, the Oireachtas has not yet succeeded in complying with the requirement of Art. 16, clause 2, para. 3, that the ratio between the number of Dáil members for each constituency and its population, even on the basis of the 1956 census, should, as far as it is possible, be the same throughout the country: see the Irish text of the paragraph, which prescribes that the ratio between Dáil members and population in each constituency must be "ar cothrom, sa mhéid gur féidir é, ar fuaid na dúiche uile." Here, as the Irish and the English texts of the paragraph do not coincide ("gan [iad] . . . do bheith do réir a chéile": Art. 25, clause 5, para. 6), the Irish text of the paragraph must prevail. [They also referred to Art. 63]. This imposes a slightly more stringent obligation on the Oireachtas than does the English text, which requires parity of representation as between the constituencies merely "so far as it is practicable." While it is conceded that absolute mathematical parity of representation as between the constituencies is not possible, the paragraph requires as near an approach thereto as can reasonably be achieved. It is suggested that the degree of parity which should be required is that the population per Dáil member of each constituency should be not more than 500 above or below the national average. Here, taking the 1956 census figures as a basis throughout, out of a total of thirty-nine constituencies, nineteen have an average population per Dáil member deviating by more than 500 from the national average—eight above it and eleven below it; six
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 173 |
1 I.R. | Supreme Court. |
In particular, the two groups of adjoining constituencies consisting of the eight constituencies for the City and County of Dublin, and of the nine constituencies for the province of Connaught and the Counties of Clare and Limerick have each been allocated 34 Dáil members. The former group has a total population of 705,006, which gives it one Dáil member for each 20,735 of population, while the latter group has a total population of 664,278, which gives it one Dáil member for each 19,449 of population. It would have been not only physically possible, but administratively practicable, so to have allocated Dáil members to constituencies as to give the former group an extra Dáil member at the expense of the latter—when virtual mathematical parity of representation as between the two groups and a close correspondence between the ratio for each group and the national average would have been achieved. The provision of Art. 16, clause 2, para. 2, that the total number of members of Dáil Éireann éireann should not be fixed at less than one member for each thirty thousand, or at more than one member for each twenty thousand, of the population, appeared to envisage the original fixation of the membership of Dáil Éireann éireann on the basis of one member for each twenty-five thousand of the population, approximately. If this basis had been adhered to by the Oireachtas in enacting this Bill, it would have been a simple matter to remedy the disparity of ratio of Dáil members to population between Dublin and the West, by allocating another seat or two to Dublin without necessarily interfering with the Western constituencies. The administrative difficulties which might be created by such interference resulted from the action of the Oireachtas in providing that the Dáil should contain the maximum number of members constitutionally permissible, having regard to the 1956 census figures.
Fifthly, the Oireachtas, in purporting to revise the constituencies in this Bill has failed to have due regard to changes in distribution of the population as required by Art. 16, clause 2, para. 4. If the Court takes the view that the Oireachtas. in revising the constituencies pursuant to this
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 174 |
1 I.R. | Supreme Court. |
While the consideration of the constitutionality of Acts of the Oireachtas must be approached with a presumption in favour of such constitutionality (per Murnaghan J. in National Union of Railwaymen and Others v. Sullivan and Others (1),it is submitted that no such presumption operates in favour of a Bill referred by the President to this Court in pursuance of the provisions of Art. 26 of the Constitution, in as much as such reference of itself indicates that the President was aware of the possibility that such Bill, if signed by him and promulgated as a law, might later be found to be unconstitutional. This presumption of constitutionality is expressly related by this Court in In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill (2)to "any particular law" which, it is submitted means an Act which has been signed by the President pursuant to Art. 13, clause 3, para 1, and promulgated by him pursuant to Art. 13, clause 3, para. 2, as distinct from a Bill which has merely been passed by the Oireachtas.
The necessity of rebutting such presumption of constitutionality arises only where it is sought to establish that a measure is repugnant to the Constitution by reason of some implied prohibition or repugnance: In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill , 1940 (1); In re Art. 26 of the Constitution and the School Attendance Bill , 1942 (3). Where, as here, it is sought to establish that a measure is repugnant to the Constitution by reason of the contravention of an express prohibition contained therein, the Court, in considering the measure, ought not to exercise any presumption in its favour.
The Attorney General (with him R. McGonigal, Senior Counsel , and Sean Butler ):—
The provisions of s. 5 of the Bill before the Court, relating to the outgoing Ceann Comhairle, are necessitated by the combined effects of Art. 16, clause 6, of the Constitution, which requires provision to be made by law to enable an
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 175 |
1 I.R. | Supreme Court. |
The provisions of Art. 16, clause 2, para. 4, of the Constitution, which require the Oireachtas to revise the constituencies"at least once in every twelve years" are directory, not mandatory. If, for any reason, the Oireachtas has failed to carry out such revision within the twelve-year period, its obligation under this paragraph of the Article is fulfilled by a revision as soon as reasonably possible after the expiration of the period. If this requirement were to be construed as mandatory, there could, on the next dissolution of Dáil Éireann éireann, be no constituencies in existence to which members of Dáil Éireann éireann could be elected.
"The last preceding census" to be considered in determining the ratio between the population of the respective constituencies and the number of Dáil members to be elected for each, pursuant to Art. 16, clause 2, para. 3, is still the census of 1956. The census of 1961 has not yet been taken, in as much as the counting of the population under such census has not yet been completed. The Irish version of the paragraph refers to "an daonáirimh is déanaí dá ndearnadh,", which might literally be translated "the last counting of the population which was made," the Irish word,"daonáirimh," involving the concept of counting. This indicates that the phrase, "the last preceding census," in the paragraph was intended to refer, in this context, to"the last preceding census which has been completed."Paragraphs 2, 3 and 4 of Art. 16, clause 2, ought to be read together as all being based on the determination of the population, both of the State as a whole and of the individual constituencies, in a particular way, specified only in para. 3. This construction finds support in the fact that the one of the three calculations described in the three paragraphs for which the most precise information possible is most essential is that described in para. 2, which involves the fixation of
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 176 |
1 I.R. | Supreme Court. |
The revision of the constituencies by reference to the proportion of electors to the total population in each could not be carried out in such a way as to comply with Art. 16, clause 2, para. 3, in view of the grave variation of that proportion as between the constituencies, ranging from 53 per cent. in Dublin County to 66 per cent. in West Donegal.
The provision in Art. 16, clause 2, para. 3, that the ratio of members of the Dáil for each constituency to the population of that constituency shall be the same throughout the State "so far as it is practicable," is made in recognition of the necessity of some departure from absolute mathematical equality. It is the function of the Oireachtas to determine the extent to which such departure is necessary and the Court, in considering whether or not the Oireachtas has exceeded such function, is bound to have regard to the law as it existed at the time of the enactment of the Constitution. [He referred to Melling v. Ó Mathghamhna ó mathghamhna (unreported) and to In re Article 26 of the Constitution and the Offences Against the State (Amendment) Bill , 1940 (1)]. The Court is, therefore, bound to consider the operation of the Electoral Acts of 1923 and of 1935, both accepted as implementing the Constitution of 1922, and therefore, it must be assumed, accepted by those who framed the Constitution of 1937 as indicating the extent to which absolute mathematical parity might be departed from. The total variation of persons per member between the most highly represented and the least highly represented constituencies under the Act of 1923 was 3,708, the maximum divergence from the national average being 2,458. Under the Act of 1935 the corresponding figures were 4,411 and 2,923. It is submitted that, if departures to that extent from absolute mathematical parity could be sanctioned as being as close approximations to absolute mathematical parity as were practicable, the much smaller departures from parity contained in the Bill under review must be regarded as permissible under the provisions of Art. 16, clause 2, para. 3. It is conceded that,
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 177 |
1 I.R. | Supreme Court. |
Sean MacBride, Senior Counsel , in reply:—
The issue, as between our construction of the three relevant paragraphs of Art. 16, clause 2, and that of the Attorney General is based in essence on the construction to be placed on para. 4. Our submission is that para. 3 is designed to deal with a revision of constituencies made immediately after the completion of a census, and para. 4 with a revision made, either by the will of the Oireachtas or by the compulsion of para. 2 in the light of the most recent population figures, in an intercensal period. The Attorney General, on the other hand, construes both para. 3 and para. 4 as deriving effect from a completed census. While both constructions enable effect to be given to paras. 3 and 4 without adding words to the paragraphs or taking words therefrom, it is submitted that, once the population is found to have passed beyond the maximum or minimum number of persons per member of Dáil Éireann éireann prescribed by para. 2, the Oireachtas then has no option but to revise the constituencies forthwith; otherwise, para. 2 can be regarded only as surplusage.
In determining what the total number of Dáil members should be in relation to the total population of the State, the Oireachtas ought to have relied on the more accurate, if not precise, figures provided either by the current electoral lists or by the most recent population estimates, rather than on the precise, but no longer accurate, figures provided by the census of 1956. The fixing of the total membership of Dáil Éireann éireann and the revision of the constituencies by reference to an out-of-date census can be justified only by the importation of the phrase, "as ascertained at the last preceding census," into paras. 2 and 4, as well as into para. 3, of clause 2 of Art. 16. This phrase must be deemed to have been omitted designedly from those two paragraphs, in the light of the rule of construction, expressio unius rei est exclusio alterius.
The degree of elasticity with which para. 3 may be construed cannot be extended in the manner sought by the
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 178 |
1 I.R. | Maguire C.J. | Supreme Court. |
Cur. adv. vult.
The decision of the Court was delivered by Maguire C.J.
Maguire C.J. :— |
14 July
|
In this case the President, in pursuance of Article 26 of the Constitution and after consultation with the Council of State, referred to this Court a Bill entitled the Electoral (Amendment) Bill, 1961, for decision whether the Bill (or any provision or provisions thereof) is repugnant to the Constitution or to any provision thereof.
In accordance with the said Article, this Court having heard arguments by the Attorney General and by counsel assigned by it and having considered such arguments has arrived at the following decision.
The Bill is entitled "An Act to Fix the Number of Members of Dáil Éireann éireann and to Revise their Constituencies and to Amend the Law Relating to the Election of Such Members."
By s. 2 it provides that after the next dissolution Dáil Éireann éireann shall consist of 144 members.
Sect. 3 provides that after the next dissolution the members of Dáil Éireann éireann shall represent the constituencies specified in the Schedule to the Act.
Sect. 4 provides that a constituency specified in the Schedule shall return the number of members in the third column of the Schedule.
Sect. 5 provides for the re-election of the outgoing Ceann Comhairle.
We are not concerned with the three sections which follow. They deal only with arrangements in connection with the holding of elections.
Sect. 9 repeals the Electoral (Amendment) Acts of 1947 and 1959.
The Court accepts the principle laid down by this Court
in In re Art. 26 of the Constitution and the Offences Against
the State (Amendment) Bill , 1940 (1) and adopted in In re
Art. 26 of the Constitution and the School Attendance Bill ,1942 (2) that "where any particular law is not expressly
prohibited and it is sought to establish that it is repugnant
to the Constitution by reason of some implied prohibition
or repugnancy, such repugnancy must be clearly established"(per Sullivan C.J., at p. 344).[1961] In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. 179 1 I.R. Maguire C.J.
Supreme Court.
The authority of the Oireachtas to fix the number of members of Dáil Éireann éireann and to revise the constituencies derives from Article 16, clause 2, of the Constitution. The decision of the Court turns on the construction of this clause. It reads as follows:—
"2. 1 Dáil Éireann éireann shall be composed of members who represent constituencies determined by law.
2 The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann éireann 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.
3 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.
4 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 Dáil Éireann éireann sitting when such revision is made.
5 The members shall be elected on the system of proportional representation by means of the single transferable vote.
6 No law shall be enacted whereby the number of members to be returned for any constituency shall be less than three."
Although in the two earlier cases of a reference of a Bill to the Court under the Article counsel for the Attorney General opened the argument, it was agreed by counsel that owing to the nature of the provisions contained in this Bill it would be more convenient if counsel assigned by the Court should open the argument and state the grounds on which it would be submitted that the Bill was repugnant to the Constitution. This course was approved by the Court.
The first ground relied upon was that the Bill was not passed within the period of twelve years set as a limit in para. 4 of clause 2 of Article 16. The last effective Act passed in accordance with the sub-section, viz., the Electoral
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 180 |
1 I.R. | Maguire C.J. | Supreme Court. |
The next ground of objection is that clause 2, para. 2, of Article 16 has not been complied with. This paragraph provides for the fixing of the number of members of Dáil Éireann éireann. The number of members of Dáil Éireann éireann to be fixed is variable within prescribed limits. There must be not less than one member for each 30,000 of the population and not more than one for each 20,000. The Oireachtas obviously has taken as the population the figure ascertained at the census of 1956, viz., 2,898,264. On this basis, the figure of 144 members is within the limit permitted by the sub-section.
It is submitted, however, that the figures of the annual estimates of population compiled by the Central Statistics Office show a steady decline in population and that on the basis of such statistics the population had by April, 1960, fallen to 2,834,000. This would only allow a membership of 141.
Alternatively, it is suggested that a reliable yearly estimate of population may be had from the register of electors which is compiled annually for electoral purposes. It is stated that the ratio of electors to population is approximately 61 to every 100 of the population. If calculated on this basis, it is submitted that the population of the State is shown to have fallen in April, 1961, to 2,757,801 and if accepted as a basis for the calculation to be made under clause 2, 2, of Article 16, it would only justify a membership
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 181 |
1 I.R. | Maguire C.J. | Supreme Court. |
The next submission is that the Bill fails to comply with the requirements of Article 16, clause 2, 3, in two respects; firstly because the figures of population to be used as the basis for determining the ratio of members to be elected for each constituency to the population of each constituency should be those which will be obtained as a result of the census taken in April, 1961, and not those of the census of 1956. It is clear that if the language of the English text alone is looked at this argument fails as the figures to be used are those of "the population . . . as ascertained at the last preceding census."
The submission, however, is made that the Irish and English text of the Constitution are here in conflict. The concept of "ascertainment," it is said, is absent from the Irish version; and the 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
[1961] | In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. | 182 |
1 I.R. | Maguire C.J. | Supreme Court. |
Secondly, it is contended that the requirement of the same clause that so far as practicable the ratio of members of each constituency to the population of each constituency should be the same throughout the country has not been complied with. The English text requires that this uniformity should be achieved as far as practicable. It is, however, argued that the Irish text is more stringent and requires that this uniformity should be achieved "as far as possible." It is submitted that there is thus a conflict between the two texts which in accordance with the provisions of Article 63 must be resolved by accepting the Irish text.
The same point was taken in argument in the case of O'Donovan v. Attorney General (1) before Mr. Justice Budd, in which the question for decision was whether the Electoral Act of 1959 was valid. This Court agrees with the conclusion which Mr. Justice Budd reached and with the reasoning upon which he supports it. He held that no material discordance exists between the English and Irish texts of clause 2, 3, of Article 16. He proceeded upon the basis that the clause, properly construed, means that the ratio specified must be the same throughout the country "so far as it is practicable." He cites with approval Lord Goddard C.J., who in Lee v. Nursery Furnishings, Ltd. (2) accepted the meaning of "practicable" contained in the Oxford Dictionary, i.e., "capable of being . . . carried out in action . . . feasible." Mr. Justice Budd went on to say:—
"Applying that to sub-clause 2, 3, I therefore reject the view that an all but mathematical parity of ratio is to be
attained and I construe the sub-clause as meaning that a parity of ratio of members to population in the constituencies throughout the country is to be attained by the Oireachtas as far as that is capable of being carried into action in a practical way having regard to such practical difficulties as exist and may legitimately, having regard to the context and the provisions of the Constitution generally, be taken into consideration."
[1961] In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961. 183 1 I.R. Maguire C.J.
Supreme Court.
The 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 practicable 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 practicable 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 should 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.
To justify the Court in holding that the sub-section has been infringed it must, however, be shown that the failure to maintain the ratio between the number of members for each constituency and the population of each constituency involves such a divergence as to make it clear that the Oireachtas has not carried out the intention of the sub-clause.
In the opinion of the Court the divergencies shown in the Bill are within reasonable limits.
Accordingly, the Court is of opinion that this ground of objection has not been established.
For these reasons this Court decides that the Bill is in no respect repugnant to the Constitution and will advise the President accordingly.
Solicitor instructing counsel assigned by the Court:Richard Ryan.
Solicitor for the Attorney General: The Chief State Solicitor.
E. P. DE B.
[1961] I.R. 169