Failure to extend Seanad vote is unconstitutional, High Court told

University of Limerick graduate says refusal to allow him to register as elector is unconstitutional

The case is against the Minister for Housing Planning and Local Government, the Government of Ireland and the State. The respondents deny the claims. File photograph: Alan Betson/The Irish Times

The case is against the Minister for Housing Planning and Local Government, the Government of Ireland and the State. The respondents deny the claims. File photograph: Alan Betson/The Irish Times

 

A three-judge High Court is being asked to decide whether an alleged failure to extend the franchise for voting in Seanad elections is unconstitutional.

University of Limerick (UL) graduate of criminal justice and journalism, Tomás Heneghan, says a refusal to allow him to register as an elector on either the university panels or the vocational panels for Seanad Éireann elections is unconstitutional.

He claims that as a UL graduate he is not entitled to vote on the panel set aside for graduates of the National University of Ireland (NUI) or the panel selected by registered graduates of Trinity College Dublin.

He is also challenging a refusal to allow him to register to vote for the vocational panels as he is not a councillor, a former senator or a TD.

Mr Heneghan originally represented himself when he sought leave from the High Court to bring the challenge. The Free Legal Aid Centre later agreed to represent him.

Mr Heneghan claims he is being discriminated against on the basis of the location where he achieved his third-level education and the basis of his employment.

Mr Heneghan, from Church Square, East Wall, Dublin, seeks various declarations including that the refusal to allow him register to vote in the elections is unlawful.

The case, which is being heard by the president of the High Court, Ms Justice Mary Irvine, Mr Justice Garrett Simons and Mr Justice Brian O’Moore, is against the Minister for Housing Planning and Local Government, the Government of Ireland and the State. The respondents deny the claims.

Opening Mr Heneghan’s case on Tuesday, Rosario Boyle SC, said Article 18 of the 1937 Constitution establishing the 60-member Seanad provided that 43 seats should be elected on the basis of vocational panels representing various strands of society including culture, industry, labour and public services. Six of the seats were to be elected by graduates of NUI and Trinity with the remaining 11 nominated by the Taoiseach.

It was their case the exclusion of others than 1,169 elected politicians - councillors, TDs and former senators - and graduates of two universities interferes with Mr Heneghan’s constitutional right to choose a democratic government (Article 6), his right to free expression through the democratic process and the right to have his personal rights vindicated (Article 40).

The Government failed to extend voting rights to graduates of other higher education institutions as it was required to do by the Seventh Amendment to the Constitution in 1979 and despite promising to do so, it is claimed.

Ms Boyle said the Seanad was intended to operate as an independent and democratic check to the power of the Dáil. It was to contain diverse voices which were different from members of the Dáil who are direct representatives of the people. This was a duty taken seriously by the first Senate set up in 1922 which was why Éamon de Valera abolished it in 1936, counsel said.

The current Seanad is subservient to the Dáil and how then can it be independent and also reflect experience and diversity in society, she said.

The current system of electing senators is not democratic, a view among the public which was shown when the people voted to retain the Seanad in 2013. The 1937 Constitution is silent in relation to the franchise of the vocational panels in the Seanad, counsel said.

Mr Heneghan also says the restriction of voting rights for six university panel representatives to graduates of NUI and Trinity (totalling some 170,000 eligible voters) interferes with his right to be represented equally before the law.

He claims the various provisions are incompatible with the European Convention on Human Rights.

In reply to questions from Mr Justice Simons, Ms Boyle accepted universal suffrage in relation to the Seanad was not possible. What the Heneghan side was saying was the current system which only allows elected politicians to vote is unconstitutional, she said.

It was being argued that the criteria for the franchise for vocational representatives are not democratic.

The court heard evidence from constitutional experts Dr Laura Cahalane of UL, called by the Heneghan side, and Dr Eoin O’Malley of DCU who was called by the State side, who both prepared reports for the hearing.

There was also supporting reports from a number of others, including an NUI professor and an independent senator, Ms Boyle said.

The case continues.