A Supreme Court decision yesterday has opened the possibility of legal challenge to the election of certain candidates in the last general election. The five-judge court dismissed the State's appeal against a High Court decision declaring unconstitutional provisions of the Electoral Act relating to the election expenses of outgoing TDs, senators and MEPs.
The judgment also leaves open the possible prosecution of candidates who may have exceeded spending limits unknowingly. The Supreme Court noted that possibility but said it was not for it to say how the issue should be dealt with.
The Supreme Court upheld a High Court finding on May 16th last, the day before the general election, that parts of the 1997 Electoral Act were unconstitutional. The provisions of the Act concerned a range of services provided free to outgoing TDs, senators and MEPs from the calculation of election expenses.
The High Court ruled that the provisions were unconstitutional because they created inequality between outgoing politicians and new candidates. Services involved include secretarial work, office space, phone services, postage, stationery and photocopying.
The challenge to the Act was taken by Fianna Fáil Dublin Mid West candidate Mr Des Kelly (30) of Lucan, who was not an outgoing TD and who stood in the general election. Mr Kelly said he would not challenge the outcome of the election in his constituency but added that he felt somebody elsewhere could.
In its judgment, the Supreme Court said it was satisfied that the decision of the High Court that the provisions in question were invalid having regard to the Constitution was correct and should be affirmed. It also turned down an application on behalf of the State for a declaration that in the event of the appeal being disallowed, the court order should be prospective only - applying in the future - and should not affect expenditure by members of the Oireachtas at the recent general election.
The Chief Justice, Mr Justice Keane, said that application was made because of the possible exposure of the deputies and senators concerned to criminal prosecutions, even though they participated in the election on the basis of the provisions of an Act ostensibly in force at the time and moreover, when the Public Offices Commission in its guidelines advised them they could do so.
"Whether, in such circumstances, any such prosecutions should be instituted and if so, how they should be dealt with by the courts, are not matters which this court feels it should anticipate," he added.
Earlier, Mr Justice Keane said Mr Kelly was aggrieved that outgoing TDs, senators and MEPs did not have to include in their return of election expenses the property, services and facilities paid for out of public funds to which they were entitled and which, Mr Kelly claimed, they made use of in their election campaigns.
The wording of the Act was plain and unambiguous. It provided that the expenses mentioned, including the provision of office accommodation, secretarial facilities and phone and postal facilities to members of the Oireachtas and European Parliament, were not to be treated as "election expenses" for the purposes of the Act. No other construction of the provisions in question, in the view of the court, was reasonably open.
The Oireachtas, in plain and unambiguous language, had said such expenditure was not to be treated as "election expenses". Costs of the hearing were awarded against the State in favour of Mr Kelly.