A member of political party Fianna Fail brought proceedings to the Supreme Court to challenge the constitutionality of a provision in the Electoral Act 1997. Originally, the litigant, Brian Mohan, had plans to run in the 2016 general election as a candidate for Fianna Fail in the Dublin Central constituency. Mr Mohan’s experience included acting as the chair of the Dublin Central Comhairle Dail Ceantar arm of Fianna Fail. However, he was deterred from standing as a candidate when he received a letter from the Fianna Fail general secretary in October 2015, stating that the candidate selected had to be a woman. Consequently, he was excluded from the election.
The disputed provision is section 17(4B) which was inserted by s.42(c) of the Electoral (Amendment) (Political Funding) Act 2012. The provision outlines that a registered political party will have its funding cut in half if the candidates in a subsequent general election are not at least 30 % male and 30% female. As the 2016 election was the next election after the 2012 Act, the provision comes into effect. Seven years later, in 2023, the gender quota will rise to 40% male and 40% female. The aim of this act is ‘to address the historic underrepresentation of female candidates in the Dail,’.
Mr Mohan did not succeed in either the High Court or the Court of Appeal. Justice Keane in the High Court asserted that Mr Mohan had not sufficiently demonstrated that his interests were adversely affected according to the rule in Cahill v Sutton. The Court of Appeal upheld this result, lauding the High Court’s analysis, as a ‘model of judicial analysis of case law,’. Then the Supreme Court reversed this finding.
Mr Justice O’Donnell, reading the judgment on behalf of the other members, pronounced the locus standi rule (which permits a person to bring a constitutional challenge only if their interests are affected) was not fully developed. He went on to say that Mr Mohan’s case came within the ambit of the right of equality guaranteed in Article 40.1. Mr Justice O’Donnell then stated that as the law had inadvertently discriminated against Mr Mohan due to this gender, along with harming his right to free association, it was not in doubt that his rights had been affected. O’Donnell J ended this analysis with the suggestion that the High Court and the Court of Appeal had committed a serious oversight and misinterpreted the principle of locuds standi. The case has ended with a remittal to the High Court, who will hear Mr Mohan’s challenge over s.17(4B).
By Daniel Forde – Law Editor