THE HIGH COURT
			1997 No. 4318P
BETWEEN
THOMAS REDMOND
			PLAINTIFF
AND 
THE MINISTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL
			DEFENDANTS
JUDGMENT of Mr. Justice Herbert delivered on the 31st day of July, 2001.
	The Plaintiff is a citizen of the State and resides at Coolree, County Wexford.
	In his pleadings, amended by consent at the commencement of the trial of this action, the Plaintiff claims:-
1.	A declaration that Section 47 of the Electoral Act 1992 is invalid having regard to the provisions of Article 5, Article 6 and Article 16 1.1 and/or Article 40.1 and/or Article 43.1 of the Constitution of Ireland.
2.	A declaration that Section 13 of the European Parliament Elections Act 1997 is invalid having regard to the provisions of Article 40.1 and/or Article 40.3.1 of the Constitution of Ireland.
3.	A declaration that any condition on candidature for election to Dail Eireann is ultra vires and void, or in the alternative a declaration that any condition imposed must be equal for all eligible persons.
4.	A declaration that any condition on candidature for election to the European Parliament which cannot be satisfied by all eligible persons is ultra vires and void.
5.	Such further and other declaratory order as to this Honourable Court shall seem neet and just.
6.	Damages.
7.	Costs.
	The particulars of this alleged invalidity are set out in the Statement of Claim as follows:-
A.	Failing to allow all eligible persons to offer themselves for election;
B.	Imposing a condition on a right conferred by the Constitution of Ireland;
C.	Imposing a monetary condition on candidature which in effect excludes or inhibits large numbers of eligible persons from seeking election to Dail Eireann and/or the European Assembly;
D.	Imposing a condition which cannot be satisfied by all eligible persons;
E.	Failing to hold all citizens as human persons equal before the law;
F.	Failing to respect, defend, or vindicate the personal rights of the citizen;
G.	Failing to vindicate the Plaintiff’s right to offer himself for election for membership of Dail Eireann conferred by Article 16 1.1 of the Constitution of Ireland;
H.	Invidiously discriminating between eligible citizens who do not have the means or the backing to pay the deposits required.  
I.	Setting an arbitrary precondition for candidature in Dail and European elections;
J.	Failing to provide alternative means by which an eligible person can meet any conditions for candidature.
	It is pleaded in the Statement of Claim that:-
	On the 16th of November, 1992 the Plaintiff as an eligible person 		submitted nomination papers as a candidate for election to membership of 		Dail Eireann for the constituency of Wexford in the General Election which took 		place on the 25th of November, 1992.
		The returning officer wrongfully decided that the nomination paper was invalid 			because no deposit had been paid and refused to include the Plaintiff as a candidate 			for election on the ballot paper.
	On the 13th May, 1994 the Plaintiff as an eligible person submitted nomination 		papers as a candidate for election to membership of the European Assembly for the 		constituency of Leinster in the election which took place on the 9th June, 1994.
	The returning officer accepted the Plaintiff’s nomination but refused to include him 		as an candidate on the ballot paper by reason of his failure to pay a deposit of £1,000 	as required by Section 10 of the European Assembly Elections, Act, 1977.
	The Plaintiff is and was at all material times unemployed and without suffering 		undue hardship does not have the means to provide the deposits required to allow 		him to stand for election either to the Dail or the European Assembly.
	The Plaintiff wishes to offer himself for election for the constituency of Wexford at 		the forthcoming general election and is by reason of the aforesaid provisions 		unfairly precluded and/or inhabited from so doing. 
	The Defendants in their defence, amended at the commencement of the trial to take account of the amendment of the Plaintiff’s pleadings to which I have already made reference, join issue with the Plaintiff on every matter pleaded in the Statement of Claim and in addition deny that the Plaintiff has sufficient locus standi to maintain this claim.
	Paragraph 7 of the defence delivered by the Defendants is in the following terms:-
“It is denied that the Plaintiff is and/or was at all material times unemployed and/or without suffering undue hardship did not and/or does not have the means to provide the deposits required to allow him to stand for election either to the Dail or to the European Assembly as alleged or at all and in the premises the Defendant does not have locus standi to seek the reliefs claimed or any of them.”

	Section 47 of the Electoral Act 1992, which the Plaintiff impugns, provides as follows:-	
1.	A candidate at a Dail Election, or someone on his behalf, shall, before the expiration of the time appointed by this Act for receiving nominations, deposit with the returning officer the sum of three hundred pounds and if he fails to do so his candidature shall be deemed to have been withdrawn.
2.	The deposit to be made by or on behalf of a candidate pursuant to this Section maybe made by means of legal tender or, with the consent of the returning officer, in any other manner.
	Section 49 of the Act provides that the latest time for delivery of nomination papers to the returning officer shall be 12 noon on the 9th day (disregarding any excluded day) next following the day on which the writ or writs for the election is or are issued.  By Section 45 it is provided that a person shall not be entitled to have his name included in a ballot paper as a candidate at a Dail Election unless nominated as provided by the Act and the nomination papers ruled valid by the returning officer.  This ruling is governed by Section 52 of the Act.  By Section 46(1) of the Act at a Dail Election a person may nominate himself as a candidate or with his consent be nominated by a person registered as a Dail elector in the constituency for which he proposes to nominate the candidate.
	By Section 48(2) of the Act a deposit is forfeited unless as provided by Section 48(1) the candidate is elected or if not elected is credited at any stage of the counting of votes with more than one quarter of the quota, or dies before the poll is closed or withdraws his nomination in the manner provided by Section 54 of the Act, or has not been validly nominated within the time provided for the receipt of nominations.
	Section 13 of the European Parliament Elections Act 1997, which the Plaintiff also impugns provides:-
“A candidate at a European election or someone on the candidates behalf shall, before the expiration of the time appointed by this Act for receiving nominations deposit with the returning officer the sum of £1,000 and if the said sum is not so deposited the candidature may be deemed to have been withdrawn.”

	Section 10 of the European Assembly Elections Act, 1977, (repealed), which was the law in force on the 13th May, 1994 and at the date of the pleadings in this case was in  essentially identical terms to Section 13 of the European Parliament Elections Act 1997 but was gender positive.
	A deposit under Section 13 of the European Parliament Elections Act 1997 is forfeited on the same terms as Section 48 of the Electoral Act 1992 except that the candidate must have obtained votes exceeding one third rather than one quarter of the quota.
	In neither the Electoral Act 1992 nor the European Parliament Elections Act 1997 is any power given to the returning officer to waive or to reduce the deposit required and the same was true of the repealed European Assembly Elections Act 1977.
	An issue arose on the pleadings as to whether the returning officer for the Wexford Dail constituency on the 16th November, 1992 wrongfully withdrew his acceptance of the Plaintiff’s nominations papers because the Plaintiff could not make the deposit of £300 at the same time and issued in lieu a ruling that the nomination was not acceptable.  At the commencement of this trial Counsel for the Plaintiff indicated that this issue which was contested by the Defendants on the facts and in law was no longer being persued.
	The Plaintiff was born in 1932.  It is not disputed that he is a citizen of the state it is not disputed by the Defendants is not placed under disability or incapacity as regards eligibility for membership of Dail Eireann by the terms of the constitution itself or by law, meaning the provisions of Section 41 of the Electoral Act 1992 which enumerates the classes of persons who are not eligible for election as members of Dail Eireann.  It is not disputed by the Defendants that the Plaintiff is not excluded by the provisions of Section 11 of the European Parliament Elections Act 1997 from candidature for membership of the European Parliament.  This action was brought by the Plaintiff as an individual citizen.  It is not a representative action.
	In 1993 the Plaintiff returned to Ireland having spent the previous six years as a construction worker in British Colombia and England.  He had savings of about £700.  He purchased a site outside the town the Wexford and built a dwelling house on it.  He set up a building company with his brothers, building mostly local authority houses and schools.  In 1975 he suffered an injury to his back and soon thereafter had to retire from the business.  At that time he had savings of £2,000 and some land which he sold for £110,000 nett. 
	In 1979 he purchased a field at Tagoath County Wexford.  In 1980 he built a house on the field for approximately £31,000.  His wife carried on a guesthouse business at this house until they separated in 1985 and thereafter she retained this property as part of the separation agreement.
	In 1980 he also purchased 19 acres at Coolree County Wexford.  He built a house on this land for approximately £17,000.  In 1988 he sold this house and half an acre of land for £37,000 nett.  He used £10,000 in building a poultry unit on the remainder of the land.  As he was unable to obtain planning permission for an additional dwelling house on the land he lived in a single room within the poultry shed.  His poultry business failed because of a market recession related to a series of outbreaks of salmonella poisoning nation-wide.  He then spent an additional sum of £5,000 converting half of the shed into a living area.
	In 1991 he inherited a sum of £5,000 on the death of his father.  He used this money in purchasing materials to fit out a kitchen and a bathroom in the shed doing the work himself.  In 1992 the balance remaining of the £37,000 had been used up.  In 1992 his only income was from the land of which nine acres was suitable for pasture the remainder being covered in rock and scrub.  He received £900 per annum from the Rural Environment Protection Scheme and between £500 and £700 per annum from the sale of hay from the nine acres.  He lived and lives he said very frugally.  His daughter, his own child, provides him with his main meal every day.  He has no debts.  He allows himself one beer on Saturday nights.  He has no savings.  
	Though unemployed since 1980, he is not in receipt of any form of social welfare payments because he said he declined to furnish the relevant authorities with an authorisation to make enquiries concerning him from financial institutions though he stated that he had informed the authorities that he was willing to accompany an officer of the Department to any bank of their choosing and to answer any queries.
	In the mid 1980’s he became interested in becoming a member of Dail Eireann with the intention of representing the unemployed and people at the lower end of the socio-economic scale whom he believed were not being adequately represented by the existing political parties.  He did not put himself forward as a candidate in the Dail elections of 1982 and 1989.  In 1991 he tried to form a political party with the name,” Natural Justice Party”.  He placed some advertisements in newspapers inviting interested persons to contact him.  Some persons from Wexford. Limerick and Galway did contact him but the party never came to be formed.  He decided thereafter to contest the election for the 27th Dail on the 25th of November, 1992 in the Wexford constituency as an independent candidate.  It was not disputed by the Defendants that Mr. Redmond a man of very strong and genuinely held political views.
	On the 5th November, 1992 the Electoral Act 1992 was passed into law.  By Section 47 of that Act the amount of the deposit required to be made by candidates at Dail elections was increased to £300 from £100 at which level it had been fixed by Section 20(1) of the Electoral Act, 1923.  It is interesting to note the other provisions of Section 21 of the Electoral Act, 1923 regarding deposits:-
(1)	“the deposit may be made by the deposit of any legal tender or, with the consent of the returning officer, in any other manner.
(2)	If after a deposit is made the candidate is withdrawn the deposit shall be returned to the person by whom the deposit was made, and if the candidate dies after the deposit is made and before the poll is closed, the deposit, if made by him, shall be returned to his legal personal representative, or if not made by him, shall be returned to the person by whom the deposit was made.
(3)	If a candidate is not elected the deposit made by him or his behalf shall be returned to the person by whom the deposit was made as soon as practicable after the result of the election is declared, unless the number of votes polled by the candidate does not exceed one third of the quota as ascertained in accordance with the rules contained in the Third Schedule of this Act, and in such case the deposit shall be forfeited to Saorstat Eireann.  For the purposes of this subsection the number of votes polled by the candidate shall be deemed to be the greatest number of votes at any time credited to him in accordance with the Rules contained in the Third Schedule to this Act.
(4)	If a candidate is elected the deposit made by him or on his behalf shall be dealt with as follows:-
(a)	If the candidate takes the oath as a member of the Oireachtas to which he is so elected the deposit made by him or on his behalf shall be returned to him as soon as he has taken such oath.
(b)	If a candidate does not take the oath as a member of the Oireachtas to which he is so elected the deposit made by him or on his behalf shall, on the dissolution of such Oireachtas, be forfeited to Saorstat Eireann unless the candidate shall, before the dissolution of such Oireachtas have died without having taken such oath, and without having regained membership or become disqualified, in which case the deposit aforesaid shall, as soon as practicable after his death, be returned to his legal personal representative.
(1)	If a candidate is nominated at a general election in more than one constituency he shall in no case be entitled to have more than one deposit returned to him, and if but for such subsection such candidate would be entitled under this section to have more than one deposit returned to him, only such one as the Minister for Finance shall direct of such deposits shall be returned to him, and the other deposit or deposits shall be forfeited to Saorstat Eireann.”

	Considerable emphasis was placed by Counsel for the Plaintiff on the timing and threefold amount of this increase.
	On the 16th November, 1992, the Plaintiff in person delivered his nomination papers to the returning officer.  The details of what occurred thereafter are no longer an issue in these proceedings and suffice it to record that the returning officer refused to accept the nomination papers as the Plaintiff was unable to provide the deposit of £300.  The Plaintiff’s name did not therefore appear on the ballot paper.  Unfortunately by way of protest he chose to picket the Polling Station and was arrested and charged with obstructing an election.
	In the course of cross examination the Plaintiff accepted that he was aware in  1991 that a deposit would be required if he wished to stand as a candidate in the Dail Eireann Election.  When asked why he did not make provision for this deposit out of his inheritance in 1991 of £5,000, he responded that the provision of a bathroom and kitchen were urgent necessities and the purchase of the materials alone absorbed the whole of his inheritance.  He said that he had no other resources and was living, “on the breadline”.  He stated that he had gone to a bank in Wexford town where he was known and sought a loan for the purpose of fighting the election.  He said that although he was prepared to offer the shed and the land as security for the loan the bank refused to make the loan on, he believes, policy grounds.  He rejected the suggestion by Counsel for the Defendants that he had sought this loan in a manner which invited refusal.
	In 1993 he published a 127 page booklet entitled, “The Rules of Natural Justice”.  He gave evidence that all the typing for this work was done by his daughter who also provided the £600 or thereabouts necessary for printing and publishing.  I have read this booklet which despite its title is not an academic treatise on moral philosophy of political theory but sets out Mr. Redmond’s own social, moral and political opinions and his proposals for reform including indeed constitutional reform.  
	The text is divided into 22 chapters with the following headings: Constitution and Artificial Laws: Antiques and Diamonds: The Arms Industries: The New Electoral System based on Natural Justice: Constitutions based on Natural Justice: How Natural Law Works and Guarantees our Survival: Fundamental Natural Rights of All Life: Natural Rights and Duties of Citizens under Natural Law: Contracts, Agreements, etc, to comply with Natural Justice: State Employment and Family Incomes: Health Care and Competitive Services: Education Policy and the Rules of Natural Justice: Tax Revenues, Licences Levies and Social Welfare Contributions: Unemployment, Pensions and Social Welfare Entitlements: Inflation, its Causes Effects and Possible Remedies: Bottom Up Investment Alternatives: Media, News, Reports, Selective Interviews, Corrections: Inflation-Devaluation: Foreign Borrowings and Debt: Restrictions on Growth and Market Quotas: Nationalism: United Nations.  At p.42 of the Booklet, the Plaintiff makes the following statement:-
“The illegal practice of demanding Election Fees or so called Deposits from Candidates, which only the wealthy can afford and all forms of political censorship would be abolished, (under a new Electoral System based on Natural Justice for General Elections; Ireland and the European Community).”

	On the 29th November, 1993 the Plaintiff was convicted on a charge of interfering with and obstructing an election and was fined £300.  On the 9th of December, 1993 the Plaintiff issued a Civil Bill, No. 791 - 93 Eastern Circuit County of Wexford, naming the County Registrar and Returning Officer, the Attorney General, the Government and State of Ireland and their Agents as Defendants.  These proceedings were issued by Mr. Redmond in person and claimed:-
“£30,000 damages and loss of earnings, suffered to date as a result of the Defendants actions which denied me my natural right to stand as a candidate to freely contest the Leadership in the Irish General Elections of November 1992 at the Courthouse Co. Hall, Wexford.
After legislating for and demanding candidate fees or deposits knowing that such fees are well beyond the financial means of nearly one third of all Irish Citizens, most of whom are forced to live on or below the poverty line failing to provide a reasonable alternative for Irish citizens with no financial means, wishing to contest the Elections to represent their constituencies.
Attempting to manipulate the voters, and their dependants, by electoral fraud, and predetermining the results of the Elections in their own favour. 
Kidnapping and holding me as a political hostage at “Johns Road Wexford” to facilitate the Electoral Fraud.
Wrongful imprisonment.”

	A defence was entered on behalf of the Defendants to this Civil Bill on the 24th March, 1994.  On the 30th March, 1994 the Plaintiff was arrested for failure to pay the fine imposed by the Court.  He was taken to Mountjoy Prison where he went on hunger strike and refused to wear prison clothes.  He served 4 days of the default term of 10 days.  His Civil Bill action came on for hearing at Wexford Circuit Court in May 1996 and was dismissed.
	In April 1997 the Plaintiff sought a loan of £300 from the Bank of Ireland in Wexford town as a deposit to fight the then anticipated General Election.  What was subsequently called for the 6th June, 1997.  His application was refused as the bank considered that he did not have the capacity to repay the loan.  He attempted to obtain a loan from other financial institutions utilising the services of Finbar Gahan and Company Accountants, but his application was refused in all cases on grounds of insufficient capacity to service the loan.  He denied that he had sought these loans in such a manner as to guarantee a refusal.  On the 15th April, 1997 the Plenary Summons in these Proceedings was issued, and the Statement of Claim followed on the 23rd April, 1997.
	On the 13th May, 1997 the Plaintiff obtained an Order abridging the time for the service of a Notice of Motion returnable for the 15th May, 1997 seeking an Order, “directing the Defendants their servants or agents to place the Plaintiff on the ballot paper when duly nominated as a candidate in the forthcoming General Election for the constituency of Wexford without the requirement of him furnishing £300 deposit.
	This Motion came on for hearing before Mr. Justice Shanley who, I am informed, by Counsel for the Plaintiff, without contradiction by the Defendants, held that though there was a serious issue to be tried the balance of convenience lay in permitting the election to proceed and that in addition there had been considerable delay on the part of the Plaintiff in seeking relief following upon the dismissal of his Circuit Court Proceedings in May 1996.
	On the 23rd May, 1997 the Plaintiff presented a signed nomination form to the Returning Officer for the Dail Constitutency of Wexford but as he did not pay the required deposit of £300 by 12 noon on the 26th May, 1997 his name was not entered on the ballot paper.
	After two motions for Judgment in Default of Defence, the Defence of the Defendants was delivered in these proceedings on the 13th October, 1997.
	In 1998 the Plaintiff transferred the lands and shed to his daughter while retaining a right of residence in the shed and the income from the land.  This transfer was effected through the offices of M.J. O’Connor and Company, Solicitors, Wexford.  His daughter is single and works as a part time secretary for a Building Contractor.  She lives nearby at Clonard, County Wexford.  The Plaintiff denied that he made this transfer with the intention of rendering himself without assets for the purposes of these proceedings.
	The Plaintiff stated that he last held a bank account in the early part of the decade 1980/1990.  He said that he had no need for such an account since then.  He recalled that he had obtained the £37,000 on the sale of the house and half acre of land at Cloonree in the form of a cheque from the Solicitors for the purchaser.  He believed that he had taken the cheque to the branch of the bank on which it was drawn and had obtained cash and bank drafts for the total amount.
	Mr. Redmond said that he had not sought to become a member of the County Council or the Urban District Council.  He said that he considered this to be a waste of time as power was concentrated in the hands of the County Manager.  He also claimed that statistics showed that an involvement in local politics could be a disadvantage in seeking election to membership of Dail Eireann.  He believed that it was better to concentrate upon seeking such membership.  He said that if no deposit was required he would stand for election to Dail Eireann in the next Dail Elections.  His programme would be to highlight the problems of poor people and the unemployed who he was convinced had no voice in the government of the country.  
	On the 23rd March, 1999 a Notice of Intention to Proceed was served by the Plaintiff and these proceedings were set down for trial in April 1999.  I have been furnished with a Book of Affidavits which were sworn on behalf of both sides for the purpose of the Interlocutory Application.  They are not evidence in these proceedings other than prima facie evidence of the fact that they were sworn by the individual deponents and filed on behalf of the indicated party on the dates set out.
	No evidence was called by the Defendants relative to these matters.  I state this merely as a fact without any criticism whatsoever intended.
	For a person deliberately and consciously to dispossess himself of assets or to neglect to avail without some reasonable cause of a lawful and readily available means of bettering his financial position unattended by any unacceptable risk with the sole or principle object of pleading impoverishment would be an abuse of the legal process.  A necessity thus arising, however genuine, could not legitimately form the basis of a cause of action or a defence to an action.  Having had the opportunity of observing the Plaintiff giving his evidence, and his bearing under a very fair but rigorous cross examination, and having carefully considered that evidence I make the following findings:-
	The Plaintiff is now and has been unemployed since in or about 1980.
	The Plaintiff now exists and in 1992, 1994 and 1997 existed in very impoverished 		circumstances.
	His unemployment and impoverishment are not due to any deliberate act or 		omission on his part.  
	He was in 1992, 1994 and 1997, and he would now be, unable without undue 		hardship to provide the deposit of £300 and £1,000 required by law.
	As a citizen otherwise eligible for membership of Dail Eireann and membership of 		the European Parliament he was unable in 1992, 1994 and 1997 and would now be 		unable to have his name inserted in a ballot paper solely by reason of this inability.  
	The impact of the legal requirement for a deposit of £300 in Dail elections and 		£1,000 in European Parliament elections in the Plaintiff’s very impoverished 		circumstances has resulted in prejudice to the Plaintiff as depriving him of a 		constitutional right to stand for election to those Institutions.
		Having made these findings I am satisfied that the Plaintiff, as an individual citizen has a sufficient locus standi to maintain these proceedings, (East Donegal Co-operative Livestock Mart Limited -v- The Attorney General (1970) I.R. 317: Cahill -v- Sutton, (1980) I.R. 269: Norris -v- The Attorney General (1984) I.R. 36).
		In these circumstances I do not consider it necessary or appropriate to set out a full statement of the evidence of Professor Nolan the distinguished expert in demography who gave evidence in the Plaintiff’s case.  This evidence addressed the question of defining, “poverty”: the eight criteria and the income threshold levels adopted for this purpose by the National Anti Poverty Strategy: the national percentage of actual households living in poverty in the years 1987, 1994 and 1997 based upon surveys: and derived from these figures, the number of citizens over the age of 21 living in poverty in each of these years.
	No evidence was adduced by the Plaintiff from which the Court could determine whether or not the Plaintiff was, “poor” by reference to these eight criteria.  However what may fairly be said is that in 1994 and 1997 his average weekly income of between £26.84 and £30.68 was very substantially below the income threshold for poverty for a single adult household.
	Professor Nolan also gave evidence that a person on a low threshold income would have a very limited capacity to raise a sum of £300 and would be most unlikely to have savings of that amount.  He stated that while it was generally possible for even poor persons to raise money through Credit Unions or from Money Lenders, the repayment of such borrowings would impose another severe burden on persons who were already in difficulty.  He gave evidence that the number of poor households in the state remained unchanged between 1987 and 1994, at 15% of the population.  This had been reduced to 10% in 1997.  He agreed that this reduction of 5% represented a significant number of people.
	I shall first consider the submission by the Plaintiff that Section 47 of the Electoral Act 1992 is unconstitutional having regard to Article 5, Article 6 and Article 16 Section 1 subsection 1 of the 1937 constitution.
	Article 16 section 1 and Article 16 section 7 of the constitution provide as follows:-
1.	“Every citizen without distinction of sex who has reached the age of 21 years and who is not placed under a disability or incapacity by this Constitution or by law, shall be eligible for membership of Dail Eireann.
2.	I. All citizens
	II. 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 Dail Eireann, shall have the right to vote at an election for members of Dail Eireann.
1.	No law shall be enacted placing any citizen under disability or incapacity for membership of Dail Eireann on the ground of sex or disqualifying any citizen or other person from voting at an election for members of Dail Eireann on that ground.
2.	No voter may exercise more than one vote at an election for Dail Eireann, and the voting shall be by secret ballot.
1.	Subject to the foregoing provisions of this Article, elections for membership of Dail Eireann, including the filling of casual vacancies shall be regulated in accordance with law.”  

	The official text of the Constitution in the English Language uses the expression, “shall be eligible for membership of Dail Eireann”.  The Official Text in the National Language uses the words, “Ta se intofa ar chomhaltas Dhail Eireann”, which the parties agreed, literally translated, means “shall be electable to the membership of Dail Eireann”, (Bunreacht na hEireann: a study of the Irish Text” Micheal O’ Cearuil, page, 264).  This latter more clearly expresses the limited right guaranteed to citizens of the State by Article 16 Section 1 subsection 1 of the Constitution.  Since it is manifest from a consideration of Article 16 as a whole and in particular Article 16 Section 2 subsection 5 that only the member who was Chairman immediately before the dissolution of the Dail can attain to membership without being elected in the manner provided, I do not consider that there is any real lack of correspondence between the two Official Texts.
	In a case entitled, In Re: The Matter of Reference under Article 26 of the Constitution to the Supreme Court of the Electoral (Amendment) Bill, 1983, (1984) I.R. 268, O’Higgins C., J., delivering the decision of the Supreme Court held as follows at page 274:-
“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 Dail Eireann 	on the grounds of sex, or disqualifying on the same grounds any citizen from 		voting at an election for Dail Eireann; (2) prohibit the exercise by any voter of 		more than one vote at an election for Dail Eireann; (3) provide for the secrecy 		of the ballot; (4) provide for the ratio between members of Dail Eireann and 		the population; (5) impose upon the Oireachtas an obligation to revise 		constituencies at least one 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 a 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 Dail 		Eireann; (9) provide that the same Dail Eireann 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 Dail Eireann 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 Dail Eireann who is the 		Chairman immediately before the dissolution to be deemed, without an actual 		election to be elected a member of Dail Eireann at the ensuing general 		election; (12) finally, by Article 16, s. 7, they provide that, subject to the 		foregoing provisions, elections for memberships of Dail Eireann, 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 Dail 		Eireann 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 Dail; a provision for the 		timing of polling throughout the country; and an obligation to provide for the 		automatic election of the Chairman of the Dail.
	In contrast with this code of essential features of elections for Dail Eireann, 		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 Dail Eireann 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 Dail; (f) the 		period during which the same Dail may continue subject to the Constitutional 		maximum of seven years; (g) the details of the mandatory provision for the 		re-election of the Chairman of Dail Eireann. 
	Viewed in this way the entire provisions for Article 16 would appear to form a 		constitutional code for the holding of an election to Dail Eireann, subject only 		to the statutory regulation of such election.”  

	And at page 276:-
“It is the view of the Court that the 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 in relation to the organs of the State.”

	The limited right of citizens to be electable to membership of Dail Eireann is thus clearly identified as deriving from and constituting an essential feature of this Article 16 code and not from any regulatory laws authorised by Article 16 Section 7.  O’Higgins C., J., expressly contrasts this essential feature of the Article 16 code with what he termed the, “minor regulatory provisions”, authorised by Article 16 Section 7 and which he enumerates in his Judgment. 
	The fundamental entitlement of citizens to participate in government as a right must follow from the declaration in Article 5 of the Constitution that, “Ireland is a ............ democratic State.”  Article 6 of the Constitution additionally proclaims the right of the Irish people to designate the rulers of the State.   The right of all adult citizens to stand for election to the national legislature is an essential feature of a democratic State.  The power therefore granted to the Oireachtas by the Constitution to place citizens under disability or incapacity for eligibility for membership of Dail Eireann must be limited in its application.
	In my judgment this power conferred on the Oireachtas is only to be exercised for objective and weighty reasons, for example to maintain in changing circumstances the tripartite division of the powers of government upon which our democratic system is based and perhaps to safeguard the security of the State.  I am satisfied that the Oireachtas does not have power under Article 16 Section 1 subsection 1 to create impediments to, or impose conditions on, eligibility for membership of Dail Eireann in the nature of deposit requirements.
	The only citizens placed under disability or incapacity by the Constitution itself are those exercising a particular social function, - The President (Article 12 Section 6 subsection 1); the Comptroller and Auditor General, (Article 33 Section 3); the Judges, (Article 35 Section 3),- who are incapacitated solely by reason of their office.  Article 16 Section 1 subsection 3 provides that a citizen may not be placed under such disability
or incapacity by a reason of sex and Article 44 Section 2 subsection 3 provides that the State shall not impose any disabilities on the ground of religious profession belief or status.  These expressed references in the Constitution are probably an incident of Irish history and what Kenny, J., termed, “the constitutional intellectual climate of 1937,” (Crowley and Others -v- Ireland and Others, (1980) I.R. 102 at 126).
	Power to render citizens ineligible for election to Dail Eireann is expressly conferred upon the Oireachtas by Article 16, Section 1 subsection 1 of the Constitution.  It is therefore totally unlikely that the framers of the Constitution intended to confer the self-same powers by Article 16 Section 7.  That this is so is clearly observable by a consideration of the provisions of Article 16 Section 7 itself.  It is first stated to be “subject to the foregoing provisions of this Article”, and then it confers nothing more than a right to regulate elections.  The Oireachtas is empowered to establish by law procedural and administrative rules and measures for the proper and orderly conduct of elections.  The requirement of a deposit is not just a matter of rules and procedures.  Such a requirement involves the imposition of an impediment to participation in the election and is not, as was clearly intended by Article 16 Section 7, nothing more than the ordering of such participation.
	I am driven therefore to the conclusion that as contended by the Plaintiff the provisions of Section 47 of the Electoral Act, 1992, are ultra vires the powers of the Oireachtas and are unconstitutional.  
	I now come to deal with the Plaintiff’s main argument as regards Section 13 of the European Parliament Elections Act, 1997 and his alternative argument with regard to Section 47 of the Electoral Act, 1992, that both are repugnant to the provisions of Article 40, Section 1 of the Constitution as infringing his fundamental right as a human being to be held equal before the law.
	These impugned sections apply to all citizens electable to membership of Dail Eireann or the European Parliament without distinction or qualification.  That they will impact upon such persons differently according to their means, or perhaps, more accurately, their disposable income hardly admits of argument.  On the evidence the majority of citizens would not be deterred from standing for election to Dail Eireann or the European Parliament by the requirement to make such a deposit.  However, on the evidence a considerable percentage of the adult population of the State who would otherwise be eligible to stand for election to Dail Eireann or the European Parliament would be prevented by these requirements from putting themselves forward for election.
	This right to stand for election to Dail Eireann, though it is subject to certain limitations remains a most basic and important right guaranteed to all citizens over the age of 21 years by Article 16 Section 1 subsection 1 of the Constitution and is an essential aspect of the nature of this State, which is proclaimed by Article 5 of the Constitution to be a democratic State (as to the characteristics of which see McKenna -v- An Taoiseach and Others (1995) 2 I.R. 10 at 52 per Denham, J.).  It is contended by the Plaintiff that these statutory requirements discriminate invidiously between eligible citizens such as the Plaintiff without means and eligible citizens with sufficient or ample means.  The plaintiff contends that this is a breach of the fundamental right guaranteed to him by Article 40 Section 1 of the Constitution which provides that:-
“All citizens shall, as human persons, shall be held equal before the law.
	This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

	It is essential to note, as has time and again been emphasised by the Courts that what is guaranteed by Article 40 Section 1 to every citizen is a right to be treated equally by the laws of the State as human persons.
	In the case of Quinn’s Supermarket Limited and Another -v- The Attorney General and Others, (1972) I.R. 1 at 13, Mr. Justice Walsh with whom Ó Dálaigh C.J., Budd J., and Fitzgerald J., concurred held as follows:
“The provisions of Article 40, s. 1, of the Constitution were discussed in the decision of this Court in The State (Nicolaou) -v- An Bord Uchtála, (1966) I.R. 567 at 639.  As was there decided this provision is not a guarantee of absolute equality for all citizens in all circumstances but is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community.  This list does not pretend to be complete;  but it is merely intended to illustrate the view that this guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow.  Furthermore, it needs scarcely be pointed out that under no possible construction of the Constitutional guarantee could a body corporate or any entity but a human being be considered to be a human person for the purpose of this provision.  In my view this provision has no bearing whatsoever upon the point to be considered in the present case, as no question of human equality or inequality arises.  It is also quite clear that the provision cannot be invoked to support the terms of the Order of 1948 by reference to differences of capacity, physical or moral, and of social function.”

	And at page 31 of the Report, Kenny, J., held that:-
	“This guarantee, however, is one of equality before the law insofar as the characteristics inherent in the idea of human personality are involved:  it does not relate to trading activities or to the hours during which persons may carry on business for neither of these is connected with the essentials of the concept of human personality.  The qualifying clause in the Article which provides that the State may in its enactments have regard to differences of capacity and social function shows that the Article is not a guarantee of equality before the law in all matters:  see the decision of this Court in The State (Nicolaou) -v- An Bord Uchtála.”

	In my Judgment a law which has the effect, even if totally unintended of discriminating between human persons on the basis of money is an attack upon the dignity of those persons as human beings who do not have money.  This is far removed for instance from issues such as alleged rights to wage parity or increases or issues of the uneven impact of taxation upon citizens in various marital or non-marital relationships or on farmers or householders or occupiers.  The history of poverty and of social deprivation in Ireland, but by no means exclusively in Ireland, demonstrates overwhelmingly the extent to which the essential dignity of persons as human beings is involved.  In my Judgment this is exactly the type of discrimination for which the framers of the first sentence of Article 40 Section 1 of the Constitution were providing.  
	But there is no absolutism involved here:  it is clear from the second sentence of Article 40 Section 1 itself that the State in its enactments may discriminate between citizens in the interest of the common good.  But there is a limit to such discrimination.  In the case of O’B -v- S. (1984) I.R. 316 at 335, the Supreme Court, per., Walsh, J., held that:-
“Thus, it may be seen from the decisions of this Court referred to above that the object and the nature of the legislation concerned must be taken into account, and that the distinctions or discriminations which the legislation creates must not be unjust, unreasonable or arbitrary and must, of course, be relevant to the legislation in question.  Legislation which differentiates citizens or which discriminates between them does not need to be justified under the proviso if justification for it can be found in other provisions of the Constitution.  Legislation which is unjust, unreasonable or arbitrary cannot be justified under any provision of the Constitution conversely if legislation can be justified under one or more Articles of the Constitution, when read with all the others, it cannot be held to be unjust within the meaning of any Article: see the decision of this Court in Dreher -v- The Irish Land Commission and also Quinn’s Supermarket Limited -v- The Attorney General at p. 24 of the report.”  

	Such unjust, unreasonable or arbitrary distinctions or discriminations are commonly referred to in reported cases as, “invidious”.  In my Judgment the terms unjust, unreasonable or arbitrary are used disjunctively by Walsh. J., so that the existence of any one of these circumstances would be sufficient to render the particular discrimination or distinction unconstitutional.
	In the case of Cox -v- Ireland (1992) 2. I.R. 503, the Supreme Court per Finlay, C.J., at 523 held that:-
“The State must in its Laws as far as practicable in pursuing these objectives continue to protect the constitutional rights of the citizen.  (This case related to crime deterrent measures.)”
	
	In the case of de Burca and Anor -v- The Attorney General (1976) I.R. 38, (a case relating to the Juries Act, 1927), O’Higgins C.J., in the course of his Judgment at p. 61 said:-
“I come now to the provisions of the Act which lay down a minimum property qualification.  These provide that, in order to be eligible for jury service, a citizen must not only be within the statutory ages but must also be rated, either alone or jointly, in respect of land in a jury district for a rateable value which equals or exceeds the minimum rating qualification declared by the Minister.  Here again there is a discrimination amongst citizens.  Is this discrimination permissible, or is it of such a nature as to be regarded as being invidious?  This is a discrimination based not only on property but necessarily on a particular kind of property, viz, an interest in lands, tenements and hereditaments, the possession of which constitutes the person concerned a ratepayer.  The operation of such a qualification means, in effect, that the vast majority of male citizens in each jury district are excluded from jury service.  If service be regarded as a right, then this means the exclusion of many thousands of citizens merely because they do not possess a particular type of property.  On the other hand if service be regarded as a duty, these provisions mean that the obligation to discharge this duty is confined to a particular section of citizens not because they are property owners but because they have a particular interest in a particular type of property.  Without question, this is not holding all citizens as human persons to be equal before the law, such as would be the case with an age discrimination, generally applied.  I cannot see that this discrimination can be excused or condoned by the second sentence of s. 1 of Article 40.  This is not a question of having due regard to the differences of capacity, physical or moral, or of social functions because it is based on a particular type of property qualification.  Therefore it appears to me that the inclusion in s. 3 of the Act of 1927 of a minimum rate in qualification is not consistent with the provisions of Article 40, s. 1 of the Constitution.”

	In the same case, in the course of his Judgment Walsh, J., at p. 68/69 said:-
“The property qualification in the Act of 1927 has been impugned as being inconsistent with the provisions of Article 40.  It is true that for a long time before the foundation of the State and since then, jury service was based upon a property qualification.  So also was the franchise in other periods.  Up to comparatively recent times, the franchise in local government elections in this State was based upon a property qualification.  The fact of the existence of property qualifications in such circumstances, now or in the past, is not a valid argument to rebut a claim of inconsistency with the provisions of Article 40 of the Constitution.  The property qualification undoubtedly discriminates between those citizens who have the qualification and those who have not and does so solely upon the basis on the amount of the poor-law valuation of property in a particular district.  This property qualification could not conceivably be said to refer to the physical or moral capacity of a prospective juror.  Can it seriously be suggested that a person who is not the rated occupier of any property, or who is not the rated occupier of property of a certain value, is less intelligent or less honest or less impartial than one who is so rated?  The answer can only be in the negative.  Can such a discrimination be based on social function? Just as a man’s intelligence and honesty is not directly or at all proportionate to the poor-law valuation of his houses or lands, which seems to be the underlying assumption of the property qualification, so it cannot be said that such a qualification marks him out as having a social function which makes him more fitted for jury service than another-if, indeed it does in any way constitute a social function within the meaning of Article 40, s. 1, of the Constitution.
	If a case could be made for having a property qualification, it could not  reasonably be confined to one particular type of property.  It would be just as rational to suggest that jury service should be confined to the owners of motor cars exceeding a certain horse-power, or motor cars of more than a certain value.  This particular type of property qualification totally ignores the realties of wealth.  A man may be a most highly qualified person for jury service and may be a very wealthy man and yet he may not be the rated occupier of any property.  On the other hand, the rated occupier of property may be illiterate and poverty stricken; he may be even a person of unsound mind.  For the reasons I have stated I am of opinion that such discrimination as is created by the distinction between the rated occupier of property of a certain value and everybody else is one which is inconsistent with and violates Article 40, s. 1, of the Constitution and, therefore, is a distinction which could not be validly the subject of legislation by the Oireachtas.”

	This passage from the Judgment of Mr. Justice Walsh disposes of what I might term the long pedigree argument advanced by the Defendants in support of the impugned sections.  I adopt what was held by Mr. Justice Walsh and I will not refer further to this aspect of the case.
	I accept the argument of the Defendants that Article 16 Section 7 of the Constitution confers on the Oireachtas a power to regulate elections by law which imposes on the Oireachtas a corresponding duty so to do.  But, on an integrated construction of the Constitution, such a power, which in any event has been categorised in the Judgment of Chief Justice O’Higgins to which I have already referred as, “minor”, and, “regulatory”, could not entitle the Oireachtas to impose on prospective candidates for membership of Dail Eireann conditions of entry to the poll which are repugnant to Article 40, Section 1 of the Constitution.
	The Defendants contended that an essential feature of the regulation of Elections was the necessity to protect the system in all its aspects from abuse by frivolous or vexatious persons, and from commercial or other improper exploitation.  
	Professor Richard Sinnott of University College Dublin, an acknowledged expert in the matter of elections and voting behaviour on which he has written a number of acclaimed works gave evidence during the course of the case for the Plaintiff.  Professor Michael Laver, Professor of Political Science at Trinity College Dublin, and author and editor of numerous leading texts on voting, elections, and representative government was called in evidence during the course of the Defendant’s case.  Both Professors addressed this issue.  I shall now set out the aspects of their evidence which I consider to be relevant to my determination.
	Professor Sinnott dealt with the history of payments by candidates for election in Ireland and Britain from the 19th Century to the present day.   He considered and compared the requirements to secure a place on the ballot paper in Germany, India, Canada and Ireland.
	In his opinion, there was no real evidence to establish that the deposit requirement has acted as a deterrent to frivolous, vexatious and exploitive persons. He did not believe he said, that the removal of the deposit requirements would result in a proliferation of candidates in Dáil Eireann and European Parliament elections.  In considering who might be described as frivolous or vexatious candidates, - in more common parlance often referred to as, “spurious” or “no hopers”, - one had to exercise particular care because candidates were seldom elected on the first occasion of standing for membership of Dáil Eireann, and a not inconsiderable number of distinguished parliamentarians and persons who achieved ministerial office in various Governments had lost their deposits on numerous occasions before being elected.
	In his opinion a system of nomination with additional assessors or supporting signatures would be just as, if not more effective as a deterrent to the frivolous the vexatious and the exploitive.  He accepted that no European or other accepted democratic system permitted an entirely open access to the ballot paper: all had some provisions designed to protect the system from abuse.  He accepted that apart from the deposit requirement the Irish system was exceptional open.  In his opinion, some form of deterrent to the abuse of the electoral system was desirable.  He believed that a system which provided an alternative route to entry onto the ballot paper, even if retaining a deposit option, was less objectionable than the present system of deposit alone.
	He agreed that the larger the number of candidates on a ballot paper the higher the cost to the State in providing free postal communication to candidates and in the effective supervision of the poll and the counting of the votes.  He said that he believed that the likelihood of confusion arising amongst voters from increased numbers of candidates on a ballot paper was at best marginal.  He did not accept that an increase in the number of persons standing for election would in any way undermine the effective operation of the system of proportional representation mandated by the Constitution.
	Professor Sinnott gave his opinion that a system of refundable deposits was less open to objection than a system were there is a highly predictable risk of loosing a deposit despite the reduction of the non-return threshold from one third to one quarter of the quota.  He accepted that the deposit for candidature in Britain had been £500 since 1985, but he pointed out that this was a parliamentary system where Parliament was supreme and could control the conditions of election to itself, and, also that the system of election there was a, “first past the post” system, so that the issue of wasted votes was important which was far from the situation under the proportional representation single transferable vote system in this jurisdiction.  He stated that lost deposits affected small parties and independent candidates most and recalled that in the 1997 Dáil Eireann elections 37% of all candidates lost their deposits.
	He agreed that the sum of £300 was small by comparison with the overall cost of election campaigns but he pointed out that this was entirely a factor of the funds available.  He was emphatic in his opinion that the present deposit requirements of £300 for Dáil Eireann elections and £1000 for European Parliament elections was unfair and unjust.
	Professor Laver agreed with his distinguished colleague that all western democracies insisted upon some earnest of bona fides being shown by prospective candidates for membership to the national legislature.  As respects this jurisdiction, the Professor considered that there were a number of considerations which merited such an imposition and I summarise these as follows:-
1.	Excessively, (Professor Laver’s term), large numbers of citizens offering themselves for election to membership of Dáil Eireann would undermine the democratic nature of the State.
2.	The presence of a large number of names on a ballot paper would serve to confuse the electorate.
3.	Voters would be likely to make a choice before reading a long list of candidates to the end and this would not serve democracy.
4.	The more unsuccessful candidates there are in an election the more difficult it is to achieve proportional representation so that a major (his term) increase in the number of candidates would serve to undermine the proportional representation single transferable vote system of election mandated by Article 16 Section 2 subsection (5) of the Constitution.
5.	The greater the number of unsuccessful candidates the more difficult it becomes for voters to predict the outcome of the election so that their ability to properly manage their vote is lost or impaired.
6.	The counting of votes would take longer as the numbers of candidates increased and with more candidates there was a greater scope for more and longer recounts.
7.	With many candidates seeking to persuade the electorate within the maximum period of 30 days allowed by Article 16 Section 3 subsection (2) of the Constitution, election campaigns would become disruptive and the electorate could become confused or apathetic.
8.	The process of nomination, delivering nominations, and ruling on the validity of nominations would become overwhelmed if large numbers of candidates were to stand for election.

	Professor Laver said that in his opinion it was reasonable that there should be some test of bona fides to entry onto the ballot paper.  He believed that the deposit system had exercised an effective control over the number of candidates standing in Dáil Eireann elections since 1937.  He considered that the existence of a deposit requirement in which the deposit is not guaranteed returnable had not acted as a deterrent to bona fides candidates.  He believed that a nomination and signatures system would interfere with freedom of expression and favour persons who could afford to pay others to obtain the necessary number of endorsements on their behalf, and, would also favour the larger political parties with a considerable availability of manpower.
	Under cross examination he accepted that the Irish electorate had demonstrated great sophistication in political matters but he added that until now they had only to choose as between a reasonable number of candidates. He accepted that the deposit requirements would prevent some persons from standing for election but in this regard he said that a most important consideration was the amount of the deposit.  He accepted that the present system of deposit requirements presented problems for some but he argued that the amount of the deposits were reasonable particularly having regard to the fact that the European Parliament Constituencies were approximately 10 times the size of Dáil Eireann constituencies.  The deposit requirements in his view prevented the system of election from been overwhelmed by large numbers of candidates standing for election.  He accepted that the present deposit system does bear unequally on low income persons and that a nomination system with signatures would bear less hard on poor persons.
	Professor Laver denied that the lower socio-economic classes were not properly represented in Dáil Eireann and, that this had led to an unstable political situation.  He felt that a nomination and signatures system could cause problems as regards the verification of the signatures within the very limited time frame allowed for Dáil Eireann elections.  He agreed that a nomination and signatures system, if it could be operated in an orderly manner within our electoral system, would be a fair alternative to a deposit system.  He considered that if many candidates ran for election the electoral system, would administratively speaking be unable to cope.  He said that one had to balance the right to stand with the right to preserve the electoral system from abuse.  
	I find that both Professors agree that a test of bona fides, provided it is fair and reasonable, should be imposed on prospective candidates for election to Dáil Eireann and the European Parliament.  Both agree that a nomination and signatures system would provide an alternative to, or an option with, the deposits system and would bear less unequally on low income persons.  However, Professor Laver had reservations as to whether such a system could operate in an effective and orderly manner in the event of a considerable increase in the number of persons seeking election.  Professor Sinnott was of the opinion that the deposit system standing alone is unjust and unfair, but Professor Laver, while accepting that it bore unequally on low income persons and prevented some persons who might wish to stand from offering themselves for election, considered that the system was not unjust, unreasonable or arbitrary in the context of the electoral system in this State.
	Mr. Thomas Owens, Solicitor, County Registrar for Cavan and Returning Officer for the Dáil Constituency of Cavan-Monaghan, and, the European Parliament Constituency of Connaught-Ulster, gave evidence during the course of the case for the Defendants.  Mr. Owens was accepted by both sides as a Returning Officer of enormous experience.  He gave evidence as to the administrative programme which must be carried out and the very many practical problems which may arise and which require solutions in the relatively short period following the dissolution of Dáil Eireann. 
	He said that a person had never come to him who wished to stand in an election but who did not have the necessary deposit.  People, he said, would telephone his office and make enquiries in advance about the requirements for entry onto the ballot paper.  He said that he had never been obliged to turn down a candidate or to defer a ruling on the validity of a nomination because of the absence of a deposit. 
	In cross-examination he stated that he implemented to the best of his ability whatever electoral programme was set out by the Oireachtas.  He had an entitlement to retain extra staff but this was limited by the Fees Order within which he had to operate.  He agreed that candidates had at least eleven days to collect signatures and could have made full arrangements for nomination and supporting signatures before Dáil Eireann was dissolved.  If the duty of verifying such signatures devolved to Returning Officers it could create an additional burden.  However, he believed, that provision could be made in an Act of the Oireachtas providing that a Returning Officer should deem good without further inquiry signatures verified in some appropriate manner, for example, by countersigning or stamping, by some other person such as a member of An Gárda Siochána.  
	No other witnesses were called by either side.  
	I am satisfied, having considered the evidence, and the submissions of Counsel, that the deposits systems required by Section 47 of the Electoral Act, 1992, and Section 13 of the European Parliament Elections, Act, 1997, are not equal or fair in the manner in which they discriminate between the Plaintiff and other citizens of the State as regards electability to membership of Dáil Eireann and the European Parliament.  In my judgment none of the matters advanced by the Defendants as stated to be necessary to prevent abuse of the electoral system are sufficient to justify such discrimination and unfairness.  
	What might be categorised as a type of “floodgates” argument, that is, that but for these deposit provisions an excessively large number of citizens would stand for election for membership of Dáil Eireann and the European Parliament and thereby overwhelm the system of election, and in the case of Dáil Eireann elections undermine the democratic nature of the State, is not supported by any evidence other than the opinion of Professor Laver that this is so.
	There was evidence that persons genuinely interested in becoming members of Dáil Eireannn and who, one assumes, had sufficient means themselves or had access to monetary assistance were not deterred by these deposit provisions or by their predecessors and despite the loss of their deposits, often on several occasions, persisted until they had achieved such membership.  In the interests of brevity I decided not to set out this evidence in the judgment.  In my judgment, no connection has been established between the existence of these deposit requirements and the numbers of citizens who have stood for election to Dáil Eireann or the European Parliament over the past 64 years.  
	It is altogether improbable that the percentage of poor adult citizens likely to offer themselves for election to these Institutions would be any greater than has been the case with respect to their more fortunate fellow citizens in the same period.  In my judgment all the arguments which postulate the emergence, but for these deposit requirements, of “excessively large” numbers of candidates or suggest that but for these requirements there would be, “major” increases in the numbers of adult citizens wishing to stand for election to Dáil Eireann or the European Parliament appear to be based upon surmise and no evidential link has been shown to exist between the number of persons in fact standing for election and these requirements.
	Likewise, I find no evidence to support the proposition that individual voters would be confused or confounded by an increase in the number of candidates on a ballot paper.  It was accepted by the Defendants that Irish voters have shown a high degree of sophistication in making political decisions within what some political theorists consider to be a very complex system of voting.  I see no reason why I should accept that such an electorate would suddenly become bereft of this capacity of discernment in the face of a larger choice of candidates on a ballot paper.  In the absence of some compelling evidence I simply could not accept such an argument.
	No evidence has been adduced that an increase in numbers of candidates for membership of Dáil Eireann or the European Parliament would result in insoluble problems in the management of elections or unacceptably long delays in the checking and counting of votes.  In any event, in my judgment, it behoves the Oireachtas which has the power and the corresponding duty under Article 16 Section 7 of the Constitution to regulate elections, to adapt the regulatory and administrative system to accommodate this supposed increase in the number of candidates and not to seek to restrict the number of candidates by reference to the capacity of the existing system.  The electoral system must be the servant of democracy not its master.  
	It was urged upon the Court by the Defendants that these deposit provisions are necessary and justified as protection to the electoral system from abuse, that is, from misuse by the outlandish, the eccentric, the frivolous, the obsessive, the anti-democratic, and, those wishing to exploit the system for commercial gain.  It has not been demonstrated by evidence that these deposits have provided or would provide a deterrent of this nature.  It seems trite to comment that these potential abusers of the electoral system would have to be persons of limited means in order to be so discouraged.  No evidence was adduced to indicate any tendency to such abuses of the electoral system in this State.
	If the Court was prepared to accept that such deposits might have such deterrent effect in this regard, and, that the existence of such deterrents was considered to be necessary regardless of whether there was any actual evidence of attempted abuse of the electoral system, the Court would still have to consider whether such a system is just, reasonable and non arbitrary so as to be rationally connected to this declared objective in the context of a democratic State.
	In my judgment, in the absence of some reasonable alternative route to the ballot paper, such as the nomination and signatures system, to which reference has already been made, the fact that the deposit system, on the evidence, has the effect, even if unsought, of excluding from the ballot paper a considerable percentage of the adult citizens of this State who would be otherwise eligible to stand for membership of Dail Eireann and the European Parliament renders that system unjust, unreasonable and arbitrary.  (Figueroa -v- Canada (Attorney General), Ontario Court of Justice, per Molloy, J., paragraphs 40 to 49 of the Judgment: Bullock -v- Van Phillip Carter and Others, (1972) Supreme Court of the United States, (US SCR, 31 L.E.d. ii d. 92): Lubin -v- Panish, (1974) Supreme Court of the United States, (US SCR 39 L.E.d. ii d. 702).
	The decision of the Supreme Court in the case of Finnegan -v- An Bord Pleanala and Others (1979) I.L.R.M. 134 is distinguishable as relating to the exercise of a statutory right and not a constitutional right and in any event two of the reasons given by the Court for upholding as constitutional the deposit provision in Sections 15 of the Local Government (Planning and Development) Act, 1976, which provided for the lodgment of a deposit of £10 with an appeal to An Bord Pleanala, were the fact that the deposit was not so high as to deter genuine appeals and was returnable regardless of the outcome of the appeal.
	In the circumstances, I find Section 47 and Section 48 of the Electoral Act, 1992, and Section 13 and Rules 8 and 9 in the Second Schedule of the European Parliament, Elections, Act, 1997, to be repugnant to the provisions of Article 40 Section 1 of the Constitution and this is without prejudice to my previous finding with regard to Section 47 of the Electoral Act, 1992.  In my Judgment Section 47 and Section 48 of the Electoral Act, 1992, and Section 13 and Rules 8 and 9 of the Second Schedule of the European Parliament Elections Act, 1997, are severable from the remainder of these acts so that this finding of the Court does not impact in any way on the remaining provisions of those Acts.  (Desmond and Dedeir -v- Glackin and Others (1993) 3.I.R. 67 at 107 per Finlay, C.J., in these circumstances.
	 I do not consider it necessary to determine whether there is also an infringement of Article 40 Section 3 subsection 1 of the Constitution whereby the State guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate the personal rights of the citizen.
fgredmondvireland(JH)