Equal representation denied
The election is being run on constituency boundaries that are unconstitutional but the courts seem unwilling to intervene
The constitutional challenge to the constituencies boundaries will have no effect on the election date or on the outcome of the election. This is even though the constituency boundaries, as presently drawn, are almost certainly unconstitutional and that the government had notice of this for almost a year and refused to take remedial action.
Lawyers representing the two TDs taking the action, Finian McGrath and Catherine Murphy, both Independents – have not asked the High Court to put a “stay” on the election until such time as the constitutional irregularity is remedied.
The decision not to seek a delay in the holding of the election is based on a curious judgment by the former Chief Justice, Liam Hamilton, when, as President of the High Court, he held in a similar case taken by the former Fine Gael MEP, Chris O'Malley, that the courts could not interfere with the Taoiseach's constitutional right to advise a President to dissolve the Dáil. That judgment simply asserted the courts could not interfere with that process, without stating why.
The constitutional right to fair representation might be seen as taking precedence over the discretionary powers of the Taoiseach but that issue is not now to be litigated. In a 1961 case taken by a Senator at the time, John O'Donovan (he was also a professor of economics at UCD and later a Labour TD) sued the State for failing to abide with the constitutional requirements to do with constituency representation.
Article 16.2.3 of the Constitution states: “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, as far as practicable, be the same throughout the country”.
John O'Donovan was able to show that the population in Dublin South West was 23,128, while that in Galway South was 16,575. In his judgment in the case, Mr Justice Budd (father of the present High Court judge, Declan Budd) rejected the contention advanced on behalf of the State that in the drawing of constituency boundaries regard should be had for the thinly populated areas of rural Ireland as compared with the relatively densely populated Dublin constituencies. He said there was “no (such) discretion whatever in the Constitution”.
He focused on the principle of political equality, which he said was latent in other articles of the Constitution and said: “That equality is not maintained if the vote of a person in one part of the country has a greater effect in securing parliamentary representation than the vote of a person in another part of the country”. He suggested deviations of 5 per cent or greater would, probably be unconstitutional.
The census of last April showed the population at 4,234,925, which works out at 25,512 per TD.
The following constituencies are over-represented:
• Dún Laoghaire: 22,787 – 89%
• Cork North-Central: 22,842 – 90%
• Kerry North: 23,128 – 91% • Dublin North East: 23,234 – 91%
• Kerry South: 23,411 – 92% • Sligo-North Leitrim: 23,591 – 92% • Limerick East: 23,617 – 93%
• Donegal South West: 23,657 – 93%
• Dublin South: 23,709 – 93% • Limerick West: 23,711 – 93%
• Cavan-Monaghan: 23,955 – 94%
These constituencies are under-represented:
• Kildare South: 27,034 – 106%
• Louth: 27,724 – 109%
• Meath West: 27,836 – 109%
• Meath East: 28,881 – 113%
• Dublin North: 29,996 – 117%
• Dublin West: 30,933 – 121%
The preliminary results of the census was published in July of last year. These significant disparities in representation were then apparent. However the attorney General, Rory Brady, advised the government that it would be unconstitutional to revise the constituency boundaries on the basis of a preliminary census return, the final census returns would have to be available. These final results became available on Thursday, 26 April, and the argument went that by then it was too late to redraw the constituency boundaries.
But the exercise could have been undertaken months previously on the basis of the preliminary census and the outcome published, which would have enable the political parties to accommodate to the new boundaries. Once the final results were published, the new boundaries could have taken legislative effect and there is no doubt but that would have been constitutional.
Alternatively, the election could have been deferred to 4 July (the last day that would be permitted by current legislation) orindeed the life of this Dáil could have been extended by a few weeks by a legislative change – the Constitution requires a general election every seven years. Instead the election is proceeding on the basis of boundaries that, clearly, in 17 instances, fail to accord with the constitutional requirements of equality.
Had the changes been made then it is likely Fianna Fáil would have lost seats in Dún Laoghaire, Cork North-Central, Dublin North East (this constituency would have had to be amalgamated with Dublin North Central or part of it), and in the Limerick area. But then it might pick up seats in other constituencies that could be expanded or altered, such as Dublin North (where it may take only one at present). Certainly in Dublin West both Joe Higgins and Joan Burton would have been safe – as of now one or other seems likely to lose their seat.