The fact the Constitution is a living document is not a licence to allow for the setting up of conflicts which render its meaning indeterminate, the State has argued in a case over the alleged failure to extend voting rights for Seanad elections.
If one looks at the inter-relationship of fundamental rights of the Constitution and its structure, if that structure is indeterminate or open to radical modification through litigation in the courts then the framework under which individual rights are protected “begins to fall away”, Frank Callanan SC, for the State, argued.
“And one might ask, is there a constitution in the world that is without its oddities, idiosyncrasies, anomalies and archaisms,” counsel said.
While they can be addressed through constitutional amendment and reform, the idea that the prescribed mechanics of a Constitution can be ironed out “by a rolling process of judicial interpretation is radical and extremely problematical”, he said.
Mr Callanan was making submissions on behalf of the Minister for Housing Planning and Local Government and the Government of Ireland in opposition to a challenge by University of Limerick (UL) graduate, Tomás Heneghan.
Mr Heneghan says a refusal to allow him to register as an elector on either the university panels or the vocational panels for Seanad Eireann 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. There has been an alleged failure to implement a 1979 amendment providing for the extension of the franchise to other third level colleges, it is claimed.
He is also challenging a refusal to allow him the alternative of a right to to vote for the vocational panels as he is not a councillor, a former senator or a TD.
He 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.
He seeks various declarations and reliefs including that the refusal to allow him register to vote in the elections is unlawful. He also claims the provisions are incompatible with the European Convention on Human Rights.
The case is being heard by a three-judge High Court comprising the president of the court, Ms Justice Mary Irvine, Mr Justice Garrett Simons and Mr Justice Brian O'Moore.
Mr Callanan said Mr Heneghan’s claims that certain personal rights enjoyed by him under the Constitution are being denied could not be allowed to override Article 18 which established the structure of electing senators.
He said his claim that the refusal to allow him register to vote in Seanad elections was misconceived because the provisions allowing for the system of voting was done in accordance with law.
It was argued on behalf of Mr Heneghan there was a lack of political will to implement reform of the Seanad, including the failure to give effect to a 1979 constitutional amendment allowing for the expansion of the electorate for the six NUI and TCD university seats to other third level institutions, counsel said.
But there had been two comprehensive reports on reform in 2015 and 2018 which might reflect the more practical difficulties of effecting Seanad reform, he said.
Mr Callanan also said Mr Heneghan’s claims of incompatibility with the European Convention are not well founded.
Following the submissions, Mr Justice Irvine said the court was reserving its judgment.
