Supreme Court: Fianna Fáil member has locus standi to challenge constitutionality of female representation law

A man who brought proceedings to challenge the constitutionality of a provision of the Electoral Act 1997 after he was told by Fianna Fáil that the candidate in his constituency “must be a woman” has successfully appealed the finding that he did not have locus standi to bring the challenge.

Finding that the High Court and Court of Appeal had fallen into “serious error”, Mr Justice Donal O’Donnell remitted the case to the High Court for a full hearing of the constitutional challenge.

The Electoral Act 1997

Brian Mohan seeks to challenge the constitutionality of s. 17(4B) of the Electoral Act 1997, as inserted by s. 42(c) of the Electoral (Amendment) (Political Funding) Act 2012.

Section 17(4B)(a) provides that the payment due to a registered political party will be reduced by 50 per cent if the candidates presented for election by the party at the next following general election were not at least 30 per cent male and 30 per cent female. The first general election held after the 2012 Act was the 2016 general election, so this provision came into operation on 26 February 2016.

After the expiry of seven years, i.e. from 2023, the 50 per cent reduction in funding will apply if the candidates presented at all subsequent elections are not at least 40 per cent male and 40 per cent female.

The primary objective is “to address the historic underrepresentation of female candidates in the Dáil” and “increase the number of female elected representatives”.

Mr Mohan, a member of the Fianna Fáil party, had hoped to obtain the Fianna Fáil nomination for the 2016 general election in the Dublin Central constituency. However, in September 2015, he received a letter from the general secretary of the Fianna Fáil party containing a direction that “the candidate selected must be a woman”. In the event, and in accordance with the direction, Mr Mohan was excluded from consideration, and a female candidate was nominated. 

Locus standi

In the High Court, Mr Justice David Keane concluded that Mr Mohan did not have locus standi to challenge the section. He considered that Mr Mohan was unable to satisfy the primary rule in Cahill v Sutton [1980] IR 269, to demonstrate that his interests had been adversely affected by the operation of the section. 

The Court of Appeal dismissed the appeal on the same basis, holding that the finding that the appellant did not satisfy the primary rule in Cahill v Sutton was “entirely correct and in accordance with the jurisprudence”, and that the approach of the High Court to the rules as to standing was an “unimpeachable” analysis and a “model of judicial analysis of case law” .

Supreme Court

Mr Mohan argued, variously, that he was entitled to establish standing:

  1. In his capacity as a candidate who had sought nomination;
  2. As a member of a political party;
  3. As a citizen.

Mr Mohan argued that he could satisfy the primary rule set out in Cahill v. Sutton in that his interests “have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of the statute”.

Stating that the issue of locus standi was “neither precisely nor fully developed”, Mr Justice O’Donnell said that  Cahill v Sutton “remains the most developed discussion of locus standi in Irish law”, but that it was a case decided on the jus tertii rule.

Mr Justice O’Donnell said the primary finding  in Norris v. The Attorney General[1984] I.R. 36, that Mr Norris had standing to challenge the provision in question, was “a useful guide to the understanding of the concept of the adverse effect on interests and the manner in which it has been applied in Irish law”.

Mr Mohan asserted the following Constitutional rights:

  • Article 16.1.1° – to stand as a candidate;
  • Article 40.1 – to equal treatment;
  • Article 40.6.1 – to freedom of expression, assembly, and association

Mr Justice O’Donnell said that Mr Mohan’s case could be most helpfully considered with reference to the rights of equality and freedom of association. In particular, Article 40.1 was “normally understood to comprehend a right not to be discriminated against by law unjustifiably on grounds such as gender”.

In this case, Mr Mohan “sought a nomination as a candidate, and was excluded exclusively on grounds of gender: an exclusion he contends was caused, or contributed to, by the legislative provisions he seeks to challenge in these proceedings. Moreover, he was a member of an unincorporated association, in this case a political party, and thus was exercising his freedom of association. In the normal course, the making of decisions by members of political party or local branch on the nomination is an exercise of that freedom. He contends that that process was interfered with, impermissibly, by s. 17(4B) of the 1997 Act”.

Mr Justice O’Donnell added that it would be necessary to establish that the interference with these rights was unjustifiable or impermissible before the provision could be determined repugnant to the Constitution, but that the fact that the rights were affected would normally be sufficient to permit arguments regarding that interference.

On that basis, Mr Justice O’Donnell said that Mr Mohan’s interests, “both in the broad sense of his personal interest in being selected as a candidate and his interest in participating in the nomination process as a member of the party, and the more specific sense of the rights (of equality) and freedoms (of association) he asserts under the Constitution would appear, at least prima facie, to be affected by s. 17(4B)”. 

Serious error

Considering the argument that because s.17(4B) operates directly on the political party, and therefore only indirectly operates on aspiring candidates like Mr Mohan, Mr Justice O’Donnell said that the suggestion that this deprived Mr Mohan of standing illustrated a “serious error… in the approach taken in the High Court and the Court of Appeal”. Further, “the argument that, simply because the Act operates indirectly, no individual so affected has standing to raise the question of the validity of the legislation is… misconceived and contrary to both authority and principle”.

Reversing the finding of the Court of Appeal, Mr Justice O’Donnell remitted the case to the High Court for a full hearing of Mr Mohan’s challenge to the validity of s. 17(4B) of the Electoral Act 1997.

  • by Seosamh Gráinséir for Irish Legal News
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