In the Matter of Article 26 of the Constitution and in the Matter of The Electoral (Amendment) Bill
, 1983

[S.C. No. 373 of 1983]

Supreme Court

8th February 1984  

Constitution - Bill - Validity - National parliament - Dáil Éireann - Extension of franchise - Right to vote restricted by Constitution to citizens - Bill conferring franchise upon resident British citizens - Repugnancy - Constitution of Ireland, 1937, Articles 6, 12, 16, 47.

Section 16, sub-s. 2, of the Constitution stated that "every citizen" without distinction of sex who had reached the age of 18 years, who was not disqualified by law and complied with the provisions of the law relating to elections, should have the right to vote at an election for members of Dáil Éireann . By Article 12, s. 2, sub-s. 2, every such citizen is given a right to vote at an election for President and, by Article 47, s. 3, he is given a right to vote at a referendum.

The Electoral (Amendment) Bill, 1983, as passed by both Houses of the National Parliament, contained provisions which would entitle a British citizen to be registered in a constituency as a Dáil elector if ordinarily resident in that constituency, and thus become entitled to vote at a Dáil election in that constitutency. Pursuant to Article 26 of the Constitution the President of Ireland referred the bill of 1983 to the Supreme Court for a decision on the question whether the bill, or any provision or provisions thereof, was or were repugnant to the Constitution or to any provision thereof. In pronouncing its decision on the question so referred, it was

Held by the Supreme Court, 1, that any repugnancy with the provisions of the Constitution must be clearly established by the opponents of the Bill.

 The Criminal Law (Jurisdiction) Bill, 1975  [1977] I.R. 129 applied.

2. That, in declaring that all powers of government derive, under God, from "the people"whose right it is "to designate the rulers of the State" and, in final appeal, to "decide all questions of national policy", the provisions of Article 6, s. 1, of the Constitution showed (with Articles 12 and 47) that the right to vote at elections for members of Dáil Éireann conferred on every citizen by Article 16 was a right which was restricted to citizens who formed part of the people of Ireland.

3. That, accordingly, the bill of 1983 was repugnant to the Constitution.

Cases mentioned in this report—

1  Levene v. Commissioners of Inland Revenue  [1928] A.C. 217.

2  Commissioners of Inland Revenue v. Lysaght  [1928] A.C. 234.

3  In re Norris  (1888) 4 T.L.R. 452.

4  Cooper v. Cadwalader  (1904) 5 T.C. 101

5  Macrae v. Macrae  [1949] P. 347.

6  The State (Browne) v. Feran  [1967] I.R. 147.

7  McGee v. The Attorney General  [1974] I.R. 284.

8  The State (D.P.P.) v. Walsh  [1981] I.R. 412.

9  The State (Goertz) v. Minister for Justice  [1948] I.R. 45

10  Calvin's Case  (1608) 7 Co. Rep. 1a.

11  Byrne v. Ireland  [1972] I.R. 241.

12  The Criminal Law Jurisdiction Bill, 1975  [1977] I.R. 129.

13  M. v. An Bord Uchtála  [1975] I.R. 81.

14  The State (Aherne) v. Cotter  [1982] I.R. 188.


15  Draper v. The Attorney General  (see p. 277, infra).

16  Norris v. The Attorney General  (see p. 36, supra).

17  Joyce v. Director of Public Prosecutions  [1946] A.C. 347.

Reference of Bill passed by the Oireachtas.

The Electoral (Amendment) Bill, 1983, was passed by both Houses of the Oireachtas on the 14th December, 1983. On the 21st December, 1983, the President of Ireland referred the bill to the Supreme Court pursuant to the provisions of Article 26, s. 1, sub-s. 1, of the Constitution of Ireland, 1937, for"a decision on the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof." By the provisions of the bill the legislature sought to confer on a British citizen who was ordinarily resident in a constituency in the State some of the rights of a citizen, viz., a right to be registered as a Dáil elector in that constituency so that, when registered, he would be entitled by s. 26, sub.-s. 1, of the Electoral Act, 1963, to vote at a Dáil election in that constituency and, by s. 51, sub.-s. 1, to vote at a presidential election and, by s. 70, sub.-s. 1, to vote at a referendum. The Supreme Court assigned solicitor and counsel to oppose the constitutionality of the bill.

Article 6, sub-s. 1, of the Constitution states:— "All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good."

Article 9 of the Constitution provides:—

"1. 1 On the coming into operation of this Constitution any person who was a citizen of Saorstát Éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.

2 The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.

3 No person may be excluded from Irish nationality and citizenship by reason of the sex of such person.

2. Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens."

The procedure by which an alien may acquire Irish citizenship is specified in the naturalisation provisions of Part III of the Irish Nationality and Citizenship Act, 1956.

Section 5, sub-s. 1, of the Electoral Act, 1963, stated:—

"A person shall be entitled to be registered as a Dáil elector in a constituency if he has reached the age of eighteen years and he was, on the


qualifying date— (a) a citizen of Ireland, and (b) ordinarily resident in that constituency."

Section 26, sub-s. 1, of the Act of 1963 states:— "Subject to the subsequent provisions of this section, every person whose name is on the register of Dáil electors for the time being in force for a constituency, and no other person, shall be entitled to vote at the poll at a Dáil election in that constituency."

Pursuant to Article 26, s. 2, sub-s. 1, of the Constitution the Supreme Court (O'Higgins C.J., Finlay P., Henchy, Griffin and McCarthy JJ.) on the 17th and 18th January, 1984, heard arguments presented by the Attorney General and by counsel assigned by the Court to oppose the constitutionality of the bill.

G.W. Lardner S.C. and N. Fennelly S.C. (with them Mary Laffoy ) of counsel assigned by the Court:—

The description "ordinarily resident" contained in s. 5, sub-s. 1, of the Electoral Act, 1963, is not sufficiently precise to be used as the test in this context, particularly when it is to be applied to British citizens who live in the State. The description "British citizen" is defined in the bill by reference to the British Nationality Act, 1981, and that definition, accordingly, may be altered from time to time by amendments of the Act of 1981 made by the British Parliament. [They referred to  Levene v. Commissioners of Inland Revenue 1 ; Commissioners of Inland Revenue v. Lysaght 2 ;  In re Norris 3 ;  Cooper v.Cadwalader 4 and  Macrae v. Macrae 5 ]

Although there is a presumption that no provision of the bill is repugnant to the Constitution, the matter must be tested in the light of all the provisions of the Constitution and not merely by reference to the provisions of Article 16. [They referred to  The State (Browne) v. Feran 6 ;  McGee v. The Attorney General 7 and  The State (D.P.P.) v. Walsh 8 ] In the preamble to the Constitution it is stated that it is "the people of Eire" who "give to ourselves this Constitution." Further, Article 6 expressly states that all powers of government, legislative, executive and judicial derive, under god, from "the people" whose right it is to designate the rulers of the State and to decide all questions of national policy. The description "every citizen" in Article 16, s. 1, sub-s. 2, of the Constitution is thus limited by the provisions of the preamble and those of Article 6. [They referred to  The State (Goertz) v. Minister for Justice 9 ;  Calvin's Case 10 ;  Byrne v. Ireland 11 ;  The Criminal Law (Jurisdiction) Bill, 1975 12 ;  M. v. An Bord Uchtála 13 and  The State (Aherne) v. Cotter 14 ]

Article 9 of the Constitution, which governs the question of citizenship, imposes on citizens the duties of fidelity to the nation and loyalty to the State and those are the persons who are given by the Constitution the right to vote at Dáil elections.


T.K. Liston S.C. and D. Gleeson S.C. (with them J.D. O'Reilly ) for the Attorney General.

The fact that the right to vote is vested in a person by reason of his status as a citizen does not preclude a similar right being conferred by statute on a person who is not a citizen. There is nothing in Article 16 of the Constitution, or in the other Articles thereof, which justifies an exclusion of British citizens resident in the State from the category of persons entitled to vote at Dáil elections. The only discrimination which is expressly prohibited is one formed "on the ground of sex." The various references to citizens and to the people do not warrant that exclusion.

The requirement that the elector must be "ordinarily resident" in his constituency does not create any special difficulty for Irish nationals and should not do so when applied to resident British citizens. The regulations contained in the Registration of Electors and Juries Acts (Specification of Dates) Regulations, 1963, as amended by the Registration of Electors (Amendment) Regulations, 1977, are clear and practicable in their requirements. Leaving aside, for the moment, the issue now in contention, it has not been the practice to deny to aliens constitutional rights which are enjoyed by citizens. Citizens of the United Kingdom already have rights and privileges similar to those enjoyed by citizens of the State: see United Kingdom and Colonies (Irish Citizenship Rights) Order, 1949, and s. 26 of the Irish Nationality and Citizenship Act, 1956. Despite the definition of "British citizen" by reference to the British Nationality Act, 1981, control would still be exercised by the Oireachtas by reason of its power to amend the Electoral Act, 1963. [They referred to the judgment of McMahon J. in  Draper v. The Attorney General 15 ;  Norris v. The Attorney General 16 ;  The State (D.P.P.) v. Walsh 8 ;  Joyce v. Director of Public Prosecutions 17 and  The State (Aherne) v. Cotter. 14

Cur. adv. vult.

The decision of the Supreme Court was pronounced by one of the judges of that court in accordance with the provisions of s. 2, sub.-s. 2, of Article 26 of the Constitution.

O'Higgins C.J.

8th February 1984  

On the 21st December, 1983, the President of Ireland referred the Electoral (Amendment) Bill, 1983, to this Court under Article 26 of the Constitution. The Bill, which contains two sections, is entitled "An Act to confer on certain persons certain rights to vote and for that purpose to amend section 5 of the Electoral Act, 1963." The entire of the effective provisions of the Bill are contained in section 1. Section 2 is a provision for its short title, construction and collective citation. Section 1 reads as follows:—


"Section 5 of the Electoral Act, 1963, is hereby amended by the insertion after subsection (1) of the following subsection:

'(1A)

  1. (a) In addition to those entitled to be registered under subsection (1) of this section, a person shall be entitled to be registered as a Dáil elector in a constituency if he is a person who has reached the age of eighteen years and who on the qualifying date—

    1. (i) complied with the requirement of subsection (1)(b) of this section, and

    2. (ii) was a British citizen.

  2. (b) In this subsection "a British citizen" means a person who under the Act of the British Parliament entitled "The British Nationality Act 1981" is a British citizen.'"

Section 5, sub-s. 1, of the Electoral Act, 1963, as amended by s. 2 of the Electoral (Amendment) Act, 1973, reads as follows:—

"(1) A person shall be entitled to be registered as a Dáil elector in a constituency if he has reached the age of eighteen years and he was, on the qualifying date—(a) a citizen of Ireland, and (b) ordinarily resident in that constituency."

Section 51, sub-s. 1, of the Act of 1963 provides:— "Subject to the subsequent provisions of this section, every person whose name is on the register of Dáil electors for the time being in force for a constituency, and no other person, shall be entitled to vote in that constituency at the poll at a presidential election." The subsequent provisions referred to are provisions dealing with the identification of the voter. Section 70, sub-s. 1, of the Act of 1963 provides:— "Subject to the subsequent provisions of this section, every person whose name is on the register of Dáil electors for the time being in force for a constituency, and no other person, shall be entitled to vote in that constituency at the poll at a referendum." The subsequent provisions of s. 70 of the Act of 1963 are again provisions dealing with the identification of the voter.

The Bill which has been referred to the Court amounts to a proposal that a person who is a British citizen under the British Nationality Act, 1981, and is ordinarily resident in a constituency and over the age of 18 years, shall have a right to vote in an election of members of Dáil Éireann; at an election of the President; and at a referendum, whether the subject of such referendum is a proposal to amend the Constitution or a proposal to approve legislation referred to referendum pursuant to Article 27 of the Constitution.

The question as to whether this Bill is repugnant to the Constitution depends primarily on the interpretation of Article 16, s. 1, sub-s. 2, of the Constitution and, secondly, on the application of that interpretion to Article 12, s. 2, sub-s. 2, and s. 3 of Article 47.

Article 16, s. 1, sub-s. 2, of the Constitution provides:—

"Every citizen without distinction of sex who has reached the age


of eighteen years who is not disqualified by law and complies 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 ."

Article 12, s. 2, sub-s. 2, provides:—

"Every citizen who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at an election for President."

Article 47, s. 3, provides:—

"Every citizen who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at a Referendum."

The net effect of the arguments submitted by the opponents of the Bill is that Article 16, s. 1, sub-s. 2, of the Constitution and, by analogous interpretation, Article 12. s. 2, sub-s. 2, and Article 47, s. 3, should be construed as not merely granting to every citizen a right to vote but as being a comprehensive definition of the franchise, thus excluding from voting rights any person who is not a citizen.

The net effect of the arguments submitted on behalf of the Attorney General in support of the Bill is that these three Articles should be construed together as providing for the basic right of citizens to vote, subject to not being disqualified by law and to compliance with the law relating to elections. It was further contended that the provision by the Constitution of this basic right for citizens was not intended to prevent the granting by law of similar rights to non-citizens, and that such was to be gathered from the absence of any words in Article 16, s. 1, sub-s. 2, prohibiting the Oireachtas from so doing or excluding non-citizens from voting.

In considering this Bill, the Court accepts the principles laid down by it in The Criminal Law (Jurisdiction) Bill, 1975 12 (and in the other references of bills to this Court) to the effect that, where it is claimed that a bill is repugnant to the Constitution, such repugnancy must be clearly established.

There does not appear to the Court to be any logical distinction between the provisions of Article 16, s. 1, sub-s. 2, Article 12, s. 2, sub-s. 2, and Article 47, s. 3, which would admit of any difference in construction on this issue as to whether these Articles are to be construed as a finite and complete determination of the franchise or, alternatively, as permitting the extension of the franchise by legislation.

The Court has also considered the provisions of the Constitution dealing with eligibility for membership of Dáil Éireann and eligibility for election to the office of President. Article 16, s. 1, sub-s. 1, provides:— "Every citizen without distinction of sex who has reached the age of eighteen years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann ." Article 12, s. 4, sub-s. 1, provides:—


"Every citizen who has reached his thirty-fifth year of age is eligible for election to the office of President." Again it is difficult to see a logical distinction between these provisions and the provisions of Article 16, s. 1, sub-s. 2, in relation to the question as to whether they are to be construed as being finite and complete or to be construed as the granting of a right only.

The issues raised by this reference, therefore, are as to whether not only the right to vote in elections of Dáil Éireann , of the President and on a referendum but also the right to be eligible for membership of Dáil Éireann and for the office of President can be extended by legislation to persons other than citizens.

The construction of Article 16, s. 1, sub-s. 2, must first be approached by a consideration of other provisions contained in that Article and, further, of course, by a consideration of other provisions contained in the Constitution.

These other provisions of that Article (1) prohibit the enactment of any law placing a citizen under disability or incapacity for membership of Dáil Éireann on the grounds of sex, or disqualifying on the same grounds any citizen from voting at an election for Dáil Éireann; (2) prohibit the exercise by any voter of more than one vote at an election for Dáil Éireann; (3) provide for the secrecy of the ballot; (4) provide for the ratio between members of Dáil Éireann and the population; (5) impose upon the Oireachtas an obligation to revise constituencies at least once in every 12 years, with due regard to changes in distribution of the population; (6) provide for elections to be on the system of proportional representation by means of the single transferable vote; (7) prohibit the enactment of any law providing for the number of members to be returned for any constituency being less than three; (8) provide that a general election shall take place not later than 30 days after the dissolution of Dáil Éireann; (9) provide that the same Dáil Éireann shall not continue for a longer period than seven years from the date of its first meeting; (10) provide that polling at every election for Dáil Éireann shall, as far as practicable, take place on the same day throughout the country; (11) impose an obligation to make provision by law to enable the member of Dáil Éireann who is the chairman immediately before the dissolution to be deemed, without any actual election, to be elected a member of Dáil Éireann at the ensuing general election; and (12) finally, by Article 16, s. 7, they provide that, subject to the foregoing provisions, elections for membership of Dáil Éireann , including the filling of casual vacancies, shall be regulated in accordance with law.

These provisions indicate a total code for the holding of elections to Dáil Éireann , setting out the matters which would appear to be necessary other than minor regulatory provisions. This code provides for the eligibility of candidates; the persons entitled to vote; the limitation of one vote for each voter; the standards for determining the number of members; the obligation to revise constituencies; proportional representation, the single transferable vote and a secret ballot as the method of election; a minimum of three members for


each constituency; a limit in time within which general elections must take place after a dissolution; the maximum term of a Dáil; a provision for the timing of polling throughout the country; and an obligation to provide for the automatic election of the chairman of the Dáil.

In contrast with this code of essential features of elections for Dáil Éireann , the matters which are left to be regulated by law would appear to be (a) the disqualification of citizens from voting; (b) the provisions with which citizens must comply in order to have the right to vote; (c) the fixing of the number of members of Dáil Éireann within the ratio laid down by the Constitution; (d) the provision, subject to the minimum of three, of the number of members for each constituency; (e) the fixing of the date of a general election subject to a restriction as to the maximum period after the dissolution of the Dáil; (f) the period during which the same Dáil may continue subject to the constitutional maximum of seven years; and (g) the details of the mandatory provision for the re-election of the chairman of Dáil Éireann .

Viewed in this way, the entire provisions of Article 16 would appear to form a constitutional code for the holding of an election to Dáil Éireann ,subject only to the statutory regulation of such election. Can, therefore, so comprehensive an Article properly be construed as contemplating the extension of the franchise to persons who are not citizens? If it can, then by an analogous interpretation of Articles 16, s. 1, sub-s. 1, and 12, s. 4, sub-s. 1, it would be constitutionally possible to enact a law permitting a non-citizen to be elected President or to be elected a member of Dáil Éireann . It is the view of the Court that Article 16 of the Constitution, taken in its entirety, cannot be so construed.

Support for this view is to be found in other provisions and in the general scheme of the Constitution. Article 6 proclaims that all powers of government derive under God from the people and, further, that it is the people's right to designate the rulers of the State and, in final appeal, to decide all questions of national policy. There can be little doubt that "the people" here referred to are the people of Ireland by, and for, whom the Constitution was enacted. In short, this Article proclaims that it is the Irish people who are the rulers of Ireland and that from them, under God, all powers of government derive and that by them the rulers are designated and national policy decided. It is not possible to regard this Article as contemplating the sharing of such powers with persons who do not come within the constitutional concept of the Irish people in Article 6.

In the scheme of the Constitution this right of the people to designate the rulers of the State and to decide questions of national policy is carried into effect in the Articles already mentioned (Articles 12, 16 and 47) which are the provisions made for the election of the President, of the Dáil and for the determination of referenda. Article 12, s. 2, sub-s. 1, provides that "The President shall be elected by direct vote of the people" and Article 47, ss. 1 and


2, refers to proposals being submitted by referendum "to the decision of the people." In the view of the Court "the people" or, in the Irish text an pobal,referred to in these two Articles, are "the people" mentioned in Article 6 from whom all powers derive and who have the right to decide all questions of national policy. This is so notwithstanding the use of the word pobal in the Irish text of other Articles of the Constitution in a sense or with a meaning more equivalent to "public" or "general." In Article 16 the right is given not to the people but to citizens. This, however, as already noted, is a comprehensive Article providing for the franchise and dealing in detail with membership and qualification of Dáil Éireann and with the manner of election thereto. The Article necessarily deals with voting rights in a corresponding detail and gives such rights to citizens of a certain age who are not disqualified and who comply with the relevant electoral law. Such detail is absent from both Article 12 and Article 47. These Articles refer to the people as being the decisive authority but, in relation to the right to vote, each of these Articles declares that right to be exercisable by "every citizen who has the right to vote at an election for members of Dáil Éireann ." In these Articles, therefore, there is an equation for electoral and referendum purposes of "the people" with "citizens" who have the right to vote at an election for Dáil Éireann .

The most powerful argument against this interpretation of Article 16 and, in particular, of Article 16, s. 1, sub-s. 2, and of the associated Articles is the contention, strenuously submitted on behalf of the Attorney General, that various other rights such as the freedom of association, the freedom of conscience, inviolability of a dwelling and other similar rights are granted in the Constitution to citizens, and the Courts have interpreted those provisions as having the effect, at least in certain circumstances, of not excluding the existence or the granting of similar or identical rights to persons who are not citizens. It is the view of the Court that that argument fails by reason of the clear distinction between the provisions of Article 16, Article 12 and Article 47, which provide the mechanism by which the people may choose and control their rulers and their legislators, and Articles such as Article 40 and Article 44, which grant to individuals particular rights within society and in relation to the organs of State.

For these reasons, the Court decides that the Bill is repugnant to the Constitution and will so advise the President.

[The provisions of s. 1 of the Ninth Amendment of the Constitution Act, 1984, were duly approved by the people at a referendum held (before its enactment as law) in accordance with Articles 46 and 47 of the Constitution. Section 1 of the Act of 1984 substituted a new sub-section for sub-section 2 of s. 1 of Article 16 of the Constitution. The new sub-section 2 states that all citizens, and such other persons in the State as may be determined by law, without distinction of sex who


have reached the age of 18 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 .]

Solicitor for the opponents: N.D. McLaughlin.

Solicitor for the Attorney General: Chief State Solicitor.

M.D.

[1984] I.R. 268