By Tom Arden
The Supreme Court has overturned a High Court ruling that the State breached prisoner Stiofan Breathnach's constitutional right to equality by failing to provide a way for him to vote while in custody.
The High Court had declared in July 2000 that Breathnach retained his right to vote and that the State's failure to provide the necessary voting arrangements unfairly discriminated against him. The State and Attorney General appealed.
Mrs Justice Susan Denham said the case was not a challenge to any electoral law under Article 16 of the Constitution. Instead, Breathnach relied on Article 40.1, which provides that citizens are equal before the law.
The Supreme Court held that lawful imprisonment has consequences for the exercise of constitutional rights. Earlier case law had established that several rights may be suspended or placed in abeyance while a person is lawfully detained.
The court also noted that Irish law did not expressly disqualify Breathnach from the electoral register. Section 11(5) of the Electoral Act 1992 treated a person in legal custody as ordinarily resident where they would otherwise have lived. The practical problem was that no system existed to enable prisoners to cast ballots from prison.
That absence, the court held, did not amount to unconstitutional inequality. All prisoners were in the same position. The distinction between prisoners and people at liberty arose from lawful custody rather than an arbitrary State decision.
The court referred to earlier authority holding that inability to attend a polling station does not automatically create an entitlement to a postal vote.
The ruling did not prevent the Oireachtas from introducing prisoner voting arrangements in the future. It decided only that the Constitution did not, on the case presented, require the State to provide such facilities.
The State's appeal was allowed and the High Court declaration was set aside. Breathnach's cross-appeal seeking mandatory legislative action was not pursued.