6/10/2020 Sinnott -v- The Minister for The Environment [2017] IEHC 214 (30 March 2017) incapacity would not only be desirable but would be necessary [emphasis added by this Court] to implement the right to vote conferred on such a person by the Constitution. I do not look upon the exercise, with less than full secrecy, of the incapacitated voter’s franchise as being based on the principle of waiver by the voter; willy-nilly and of necessity his vote cannot be cast otherwise”. Oireachtas Mandate 53. The Oireachtas over twenty years ago recognised that the Minister should be empowered to make appropriate arrangements for visually impaired voters in order to vindicate their right to exercise their franchise by secret ballot where such systems are developed or can be developed. This followed a constitutional imperative and is consistent with the recognition of the right of those with disabilities to vote independently and in secret where reasonably possible. Draper 54. The case of Draper v. The Attorney General [1984] I.R. 277 was cited in submissions also. This unsuccessful application was brought by a long time sufferer of multiple sclerosis who could not go to a polling station without severe physical discomfort. She sought a declaration that she was entitled to a postal vote or in the alternative a declaration that insofar as the legislation did not provide for same, it was unconstitutional. 55. The appeal to the Supreme Court involved a challenge to the constitutionality of the legislation and therefore the then one judgment rule (then Article 34.4.5 of the Constitution) applied. It is important to remember at this stage that the plaintiff is not challenging the constitutionality of the 1992 Act as amended but rather he challenges the alleged failure of the defendant Minister to consider or introduce Regulations like the 2016 Regulations which concern referenda, for other elections routinely held as provided by the Constitution. 56. In Draper, a Joint Oireachtas Committee some twenty years previously in 1962 was alerted to “the dangers of extending too widely the facilities for postal voting which are more easily open to abuse than the provisions for voting in person” before recommending the provision of postal voting for members of the defence forces. 57. This Court is indeed attentive to the express reservation by O’Higgins C.J. in the last paragraph of the judgment in Draper (p. 29):“The trial judge (McMahon J.) expressed the view that the right to vote "is a personal right which is entitled to the benefit of the guarantee contained in Article 40.3.1, of the Constitution." The Court reserves its opinion as to whether this view of the nature of the right is correct. Even if the right were such a personal right, the Court is not satisfied, for the reasons already given, that the State has failed to defend and vindicate this right. Accordingly, this appeal will be dismissed.” 58. By way of similar reasoning and conclusion on the debate had in these proceedings relating to an individual’s right to vote in secret, this Court also finds it unnecessary in view of its ultimate determination to decide on whether the plaintiff has a right by virtue of Article 40.3.1 to vote independently and in secret as he seeks. Mutual respect between arms of the State 59. The Court notes at this stage that the respect which it owes to the executive and in particular the defendant Minister in these proceedings is a form of restraint. In the words of Hamilton C.J. in District Court Judge McMenamin v. Ireland [1996] 3 I.R. 100 at 136: “I do not propose to make a declaration giving effect to my views because, having regard to the respect which the separate organs of government, the legislature, the Government and the judiciary have traditionally shown to each other, I am satisfied that once the Government is made aware of the situation with regard to this constitutional injustice, it will take the necessary steps to have the matter remedied in accordance with law and in accordance with its constitutional obligations.” www.bailii.org/ie/cases/IEHC/2017/H214.html 9/15