Monday 21 May 2018

Belfast student loses bid to be entitled to a vote in abortion referendum

The High Court, Dublin
The High Court, Dublin

Tim Healy

A Belfast student who claimed she should be entitled to vote in the Eighth Amendment repeal referendum because of her Irish citizenship has lost her application to bring a High Court challenge over the matter.

Roisin Morelli (26), who is studying for a Masters in Translational Medicine at Queens University, wanted to bring a judicial review claiming a refusal to grant her a vote was contrary to the Constitution, the Belfast Agreement and the European Convention on Human Rights (ECHR).

Mr Justice Charles Meenan, on Friday, rejected her application saying the case she made "falls well short of being arguable".

He also rejected a separate judicial review application from journalist Michael Fisher, who worked for RTE for 28 years and lives in Monaghan, seeking to be given a postal vote because he would out of the country for a pre-planned family visit on May 25, the day of the referendum.

The judge said his case also fell well short of being arguable.

Mr Justice Meenan said he would make no order as to costs, which means both sides pay their own costs.

This was because these were different from other cases where an applicant has a material or financial interest in the litigation. There was also the fact that applications such as these are normally brought on an ex-parte (one side only represented) basis and there would be no issue as to costs if it was refused but because of the nature of this case the State was put on notice, he said.

In his judgment, Mr Justice Meenan said to meet the "arguability test" (to be permitted to bring judicial review), an applicant has to point to provision of the Constitution, statute or legal authority that, on a reasonable interpretation, would support the case being made.

It was clearly not open to the Oireachtas to extend the franchise for elections and referenda beyond what is provided for in the Constitution, he said.

The wording of Article 47.3 (on referenda) was clear in that there is a direct link between voting in Dail and referenda. The 1992 Electoral Act, which arises from the the constitutional provision, requires a voter to be normally resident in the Republic.

Ms Morelli's argument that a law could be passed to divide up Northern Ireland into various constituencies would be impermissible under Article 3 (will of the nation for a united Ireland through consent), he said.

The problem raised by the requirement to have constituencies becomes even more acute when one considers Irish citizens living in the rest of the EU and elsewhere, he said.

In relation to the Belfast Agreement, the judge said there are no provisions in it concerning voting entitlements. Ms Morelli cannot make a case under that agreement, he said.

In relation to her claim of breach of right to freedom of expression under Article 10 of the ECHR, and in relation to her claim under Article 3 Protocol 1 (right to free and fair elections), the judge was satisfied she had no case under these provisions.

He concluded that if Ms Morelli is to be entitled to vote in any future referendum, assuming she does not become resident in any constituency here in the interim, then this would require an amendment to Article 47.3 of the Constitution.

In relation to Mr Fisher's case, the judge said he was going to England on May 25 for a short holiday and will be babysitting for his daughter who is going to a wedding.

It was open to Mr Fisher to rearrange his holiday or his flights to enable him to get to his polling station and his affidavit was silent on this, the judge said.

The Supreme Court had already decided in the case of a woman suffering from Multiple Sclerosis, who wanted a postal vote because she was unable to leave her home, that she was not entitled to such a vote. 

The principles in that case equally applied here, Mr Justice Meenan said. The absence of any statutory provision to make postal voting available to people such as Mr Fisher who will be out of the country on holidays, is not contrary to the Constitution, he said. 

He also did not have a case for breach of Article 10 of the ECHR, the judge said.

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