Supreme Court hears presidential nomination appeal

The Supreme Court is to give its ruling at a later date after hearing an appeal against a High Court decision that upheld part of the process for nominating candidates in the presidential election by local authorities.

Businessman Niall Byrne claims a direction from the Fine Gael leadership to its councillors not to facilitate the nomination of independent candidates is unconstitutional.

Opening his appeal, Mr Byrne told the five-judge Supreme Court that the case arose from his participation in the presidential election process, which he did "not out of personal ambition but a sense of civic duty to offer my services where I believed I could contribute".

He said he was a politically neutral participant who became concerned that the constitutional pathway, in particular the role entrusted to local authorities, was not operating in a constitutional manner.

Mr Byrne told the court the question it must decide is whether the provision in the constitution under Article 12, which provides for the nomination of candidates by local authorities, remains real and capable of being exercised in light of such instructions by political parties.

He argues that a direction to Fine Gael members of local authorities was not merely a direction to support one particular candidate but an instruction to block or not to facilitate any other candidate.

Mr Byrne said that amounted to interference with a constitutional pathway that went beyond an instruction to "support our candidate".

In a High Court challenge, taken last October, he claimed the direction was an unconstitutional interference and that the nomination process for the presidency was repugnant to the Constitution.

The court ruled that the direction was a political directive and therefore "not justiciable" or capable of being decided by the courts.

Mr Byrne told the Supreme Court that a political party's whip system could not interfere with the constitutional expectation that members of local authorities could act independently and free from outside influence.

Asked by Judge Gerard Hogan and Chief Justice Donal O’Donnell if this argument would have consequences for other votes in the Oireachtas and the party system, Mr Byrne said the use of the whip system could not interfere with the exercise of any constitutional provisions.

Senior Counsel Bairbre O’Neill, acting for the State, said it was accepted that the email sent to councillors amounted to an instruction but said it did not articulate any consequences for it not being followed nor did it describe any sanction.

She said local authority members were still legally entitled to vote how they wanted and to hold their seat and it was not known as a matter of fact what influence that instruction had.

She agreed that all parties had internal rules and had the right to control their own internal system – a right which was also protected by the Constitution, she added.

"When local authority members are elected, they are elected as members of a political party so there is baked into our political system an understanding that political parties are active within that democratic system and there is no prohibition on that anywhere in the Constitution," she said.

Asked by the judges why the courts could act in some electoral processes, for example, in cases of alleged corruption, Ms O’Neill said "what we are concerned with here today is purely politics".

She said the issue was about the freedom of association and the choice made by political parties to organise their members behind particular issues or candidates.

For many years, she said, the Catholic Church would have instructed members how to vote on particular issues and this was not subject to scrutiny by the courts.

She said that if Mr Byrne was correct about the use of the whip system, then there would be difficulties with any of the other normal political processes being whipped.

Senior Counsel for the Tánaiste, Seamus Clarke, told the court that the issue was a purely political one and not justiciable by the courts.

He said the use of the party whip system was an aspect of freedom of expression.

The directive was used, Mr Clarke said, because the party wanted to be seen to be fully supportive or "rallying around" the Fine Gael candidate and it "would not be a good look for Fine Gael councillors to be facilitating the nomination of a non-Fine Gael candidate where there was already an FG candidate in the race."

He said the decision was not made quickly, came after consultation, and there was no sanction set out, but at the same time elected members sign a pledge to abide by the collective decisions of the party and its constitutional rules.

However, the application of the whip system at local authority level was less regimental.

Mr Clarke said that Fine Gael councillors were left with personal freedom and were not under a compulsion to vote in a particular way but the party was quite within its rights to use the whip as "a buffer" - where it has nominated a candidate - and say that it was not facilitating another person.

Chief Justice Donal O'Donnell said Mr Byrne was arguing that it was impermissible to give a positive instruction designed to influence a vote concerning a position that was above politics and should not be controlled by the pragmatism of politics.

However, Mr Clarke said this would be ignoring the political reality. He said most politicians want to support the candidate of their own party but there was no constraint on them.

He said that, in a democratic country, a decision by democratically-elected councillors is not the type of decision that is ripe for judicial oversight.

A challenge to the use of the whip was a challenge to local democracy, he added, and if the use of the whip was to be "policed" by the courts there would be all sorts of litigation before them.

The Supreme Court will give its judgment at a later date.