Supreme Court hears presidential nomination appeal

The Supreme Court has begun hearing an appeal against a High Court decision which 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 local councillors not to facilitate the nomination of independent candidates is unconstitutional.

Opening his appeal this morning, 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.

Mr Byrne 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.

He 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".

Ms O’Neill 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.

She said for many years 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 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.

The case continues before a five-judge Supreme Court, which will this afternoon hear submissions by Séamus Clarke SC on behalf of the Tánaiste.