Electoral Act, 1992
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THIRD SCHEDULE Dáil Election Petitions | ||
Questioning a Dáil election. | ||
1. Without prejudice to section 132 (4), where it appears to the Director of Public Prosecutions that a Dáil election may have been affected by the commission of electoral offences, he may question the election pursuant to this Act. | ||
Security for costs. | ||
2. (1) The security required to be given by section 132 shall be given either by recognisances entered into by any number of sureties satisfactory to the court not exceeding four or by a deposit of money, or partly in one way and partly in the other. | ||
(2) Where a petition is presented by the Director of Public Prosecutions, section 132 (3) shall not apply. | ||
Presentation of petition. | ||
3. (1) A petition shall be presented by being lodged in the Central Office of the High Court. | ||
(2) Subject to paragraph (3), a petition shall not be presented save within the twenty-eight days next after the result of the Dáil election is declared by the returning officer. | ||
(3) Where a petition alleges bribery and specifically alleges a payment or other consideration to have been made or to have passed after the result of the Dáil election was declared by the returning officer, notwithstanding the fact that another petition relating to the same election may have been previously presented or tried, the petition may be presented within the twenty-eight days next after the day on which the said payment or consideration is alleged to have been made or to have passed. | ||
(4) Where a petition has been lodged with the court, as soon as may be the petitioner shall give a copy of the petition— | ||
(a) to any person to whose election the petition relates, | ||
(b) to the Minister, | ||
(c) to the Clerk of the Dáil, | ||
(d) to the returning officer for the constituency to which the petition relates, and | ||
(e) except in the case of a petition presented by the Director of Public Prosecutions, to the Director of Public Prosecutions. | ||
Grounds for petition. | ||
4. (1) Without prejudice to the generality of section 132 any of the following grounds may be specified in a petition: | ||
(a) the Dáil election was affected by error or was not completed or was otherwise not conducted by the returning officer in accordance with law, | ||
(b) the Dáil election was affected by electoral offences, | ||
(c) a candidate at a Dáil election was not eligible for election to the Dáil. | ||
(2) Notwithstanding any other provision of this Schedule, a petition shall not be dismissed on account of an informality in its contents which does not materially affect its substance. | ||
(3) No Dáil election shall be declared invalid by reason of a non-compliance with any provision contained in this Act or any mistake in the use of forms provided for in this Act, or in regulations made thereunder, if it appears to the High Court that the election was conducted in accordance with the principles laid down in this Act taken as a whole and that such non-compliance or mistake did not affect the result of the election. | ||
Particulars in petition. | ||
5. A petition shall be signed and dated by the petitioner and shall specify— | ||
(a) the Dáil election to which it relates, | ||
(b) the grounds on which it is based, | ||
(c) the remedy it seeks, | ||
(d) the name and address of the petitioner and his solicitor or agent, if any. | ||
Trial of petition. | ||
6. (1) A petition shall be tried by the High Court and references to the court in this Schedule shall be construed as references to the High Court. | ||
(2) The following provisions shall have effect in relation to the trial of a petition: | ||
(a) in fixing the date for and conducting the trial, the court shall deal with the matter as soon as is reasonably possible; | ||
(b) notwithstanding the death of any person to whose election the petition relates, his resignation as a member of the Dáil or his otherwise ceasing to be such member, the court shall have power to continue the trial if it considers it to be in the interests of justice to do so; | ||
(c) the Director of Public Prosecutions may at any stage be represented at and take part in the trial as a party, whether of his own motion or at the request of the court; | ||
(d) the returning officer for the relevant constituency shall, at the request of the court, attend the trial and give such assistance as shall be requested of him by the court, but without prejudice to his being a party to the proceedings or being called as a witness by any such party. | ||
Counting of votes afresh. | ||
7. (1) The court may, for the purposes of the trial of a petition questioning a Dáil election, if it thinks fit, order— | ||
(a) that all the votes cast at the election in the constituency to which the petition relates shall be counted afresh, or | ||
(b) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted, | ||
and where the court so orders, the provisions of the following paragraphs shall have effect. | ||
(2) Votes to which an order under this Rule relates shall be counted afresh under the direction of the court and, subject to paragraphs (3)and (4) and to such modifications (if any) as the court considers necessary, the provisions of Part XIX relating to the counting of votes at an election shall apply to such counting. | ||
(3) Where votes are counted afresh pursuant to an order under this Rule, the court shall cause the following to be disregarded: | ||
(a) preferences recorded on ballot papers which are invalid by virtue of section 118 (2), | ||
(b) preferences recorded on forged or counterfeited ballot papers, and | ||
(c) preferences recorded for any person who, with respect to the relevant Dáil election, is found by the court not to have been eligible for election to the Dáil. | ||
(4) The court shall have power to reverse any decision of the returning officer at the original count. | ||
(5) The costs of giving effect to an order under this Rule shall be paid by the Minister for Finance out of the Central Fund or the growing produce thereof and section 32 shall, with respect to the services and expenses properly rendered or incurred by the returning officer for the purposes of, or in connection with, giving effect to the order, apply in the same manner as it applied in respect of the services and expenses rendered or incurred by the returning officer for, or in connection with, the relevant Dáil election. | ||
Withdrawal of petition. | ||
8. (1) A petition shall not be withdrawn without the leave of the court and in giving such leave the court shall be satisfied that the notice given by the petitioner pursuant to paragraphs (3) and (4) was reasonable, and in addition to the foregoing, where a petition is presented by more than one petitioner the court, before giving such leave, shall be satisfied that all the petitioners agree to the withdrawal. | ||
(2) Except in the case of a petition presented by the Director of Public Prosecutions, when applying for leave for the withdrawal of a petition, the petitioner shall submit to the court an affidavit stating— | ||
(a) the reasons for the proposed withdrawal, and | ||
(b) that, to the best of the petitioner's knowledge and belief, neither an agreement nor an undertaking has been made or entered into in relation to the withdrawal of the petition in consideration of any payment or the cesser of membership of the Dáil or for any substantial reason not stated in the affidavit. | ||
(3) Notice of intention to apply for leave to withdraw a petition shall be given by the petitioner by the publication in at least two daily newspapers circulating in the constituency to which the petition relates of a notice to that effect and the notice shall also state the time and place at which the application will be made and that any person may apply to the court to be substituted for the petitioner. | ||
(4) Except in the case of a petition presented by the Director of Public Prosecutions, a copy of the affidavit mentioned in paragraph (2) together with notice of the time and place at which the application will be made shall be given by the petitioner to the Director of Public Prosecutions who may be represented at, and if he thinks fit, oppose the application. | ||
(5) Where the petition has been presented by more than one petitioner, the affidavit mentioned in paragraph (2) shall, unless the court otherwise directs, be made by all the petitioners. | ||
(6) The withdrawal of a petition pursuant to this Rule shall not affect the liability of any person (or of his estate) for the payment of costs previously incurred. | ||
Substitution of new petitioner following withdrawal. | ||
9. (1) On the hearing of an application for leave to withdraw a petition, any person who, under section 132 , would be eligible to present a petition, may apply to the court to be substituted as a petitioner, and the court may, if it thinks fit, substitute him accordingly. | ||
(2) In case the court substitutes a petitioner under paragraph (1) and is of opinion that the application for leave to withdraw the petition was the result of any agreement or undertaking the making of which or the entering into which is declared by section 155 to be an offence, the court may direct that the security for costs given by the original petitioner shall remain as security for the costs that may be incurred by the substituted petitioner and that, to the extent of the sum named in the security, the original petitioner and his sureties, if any, shall be liable to pay the costs of the substituted petitioner. | ||
Substituted petitioners. | ||
10. (1) Subject to Rule 9 (2) a substituted petitioner shall, as nearly as may be, stand in the same position and be subject to the same liabilities as the original petitioner. | ||
(2) In case the court substitutes a petitioner under Rule 9 and does not make a direction under paragraph (2) of that Rule, or in case the court substitutes a petitioner under Rule 11 the security required by section 132 in the case of a new petition, and subject to the like conditions, shall be given by the substituted petitioner, and in casesuch security is not so given no further proceedings shall be had on the petition and the petition shall abate, but the abatement shall not affect the liability of any person (or of his estate) for the payment of costs previously incurred. | ||
Abatement of petition. | ||
11. (1) A petition shall be abated by the death of a sole petitioner or of the survivor of several petitioners. | ||
(2) The abatement of a petition by virtue of paragraph (1) shall not affect the liability of the petitioner or any other person (or of his estate) for the payment of costs previously incurred. | ||
(3) At any time within the fourteen days next after the day of any such abatement, any person may apply to the court to be substituted as a petitioner and the court may, if it thinks fit, substitute him accordingly, and in case the court makes an order under this Rule the petition shall thereupon be revived. | ||
Matters relating to final order on trial of petition. | ||
12. (1) A copy of the order determining the petition in accordance with section 132 shall be given forthwith by the court to each of the following, namely, any person to whose election the order relates, the Minister, the Chairman of the Dáil, the returning officer concerned and the Director of Public Prosecutions. | ||
(2) The court shall have power to make such amendments in the return of persons elected made to the Clerk of the Dáil by a returning officer as it considers necessary in consequence of its decision on a petition. | ||
Effect of certain declarations by court. | ||
13. (1) Where the order of the court determining the trial of a petition declares that a person was not duly elected to the Dáil, or was not qualified for election as a member of the Dáil, or that the whole or part of a Dáil election was void, the person to whom the declaration relates, or any person declared to be elected at such void election or void part of such election (as the case may be) shall, without prejudice to his having ceased otherwise to be such member, be regarded as having ceased to be a member of the Dáil on (but not before) the day next following the day on which a copy of the order of the court is given to the Chairman of the Dáil pursuant to Rule 12 (1) and, subject to paragraph (2), a vacancy shall exist accordingly. | ||
(2) Where an order mentioned in paragraph (1) declares that, in the place of any person declared by the order not to have been duly elected or not to have been eligible for election as a member of the Dáil, a specified other person was ascertained to have been elected, that other person shall, without prejudice to any dissolution of the Dáil, stand elected as a member of the Dáil on (but not before) the day next following the day on which a copy of the order is given as aforesaid to the Chairman of the Dáil. | ||
(3) As soon as practicable after a copy of an order is given to him pursuant to Rule 12 the Chairman of the Dáil shall inform the Dáil of the terms of the order. | ||
(4) Where a person has been returned as a member to serve in the Dáil and, subsequent to being so returned, the person sits, votes or otherwise participates as a member in the business of the Dáil or purports to do anything by virtue of membership of the Dáil and is also declared by the court not to have been duly elected as a member to serve in the Dáil, or not to have been eligible for membership of the Dáil, for the avoidance of doubt it is hereby declared that anything done by the person while so participating and anything purporting to have been so done, either on or before the day on which a copy of the said order is given as aforesaid to the Chairman of the Dáil shall, notwithstanding the order, be valid and effectual. | ||
No action to be taken in certain circumstances to fill vacancy in Dáil. | ||
14. Except by a general election of members of the Dáil, no action shall be taken to fill a vacancy in the Dáil caused by the death or cesser as such member of a person who has died or resigned or otherwise ceased to be a member of the Dáil while the trial of the petition relating to him is pending or proceeding. | ||
Witnesses. | ||
15. (1) The court shall be entitled of its own volition, at any time during the trial of a petition, to direct that a particular person shall be brought before the court and shall give evidence at the trial, and where the court so directs the cost of bringing the person before the court (including any moneys payable to him as witness's expenses) shall be regarded as part of the costs of the petition. | ||
(2) Subject to paragraph (3) a person who is called as a witness at the trial of a petition shall not be excused from answering any question relating to any offence at or connected with the relevant Dáil election on the ground that the answer thereto may incriminate or tend to incriminate him or on grounds of privilege: provided that— | ||
(a) a witness who satisfies the court that he has answered truly all the questions which he is required by the court to answer shall be entitled to receive from the court a certificate stating that the witness has so answered, and | ||
(b) an answer by a witness who has received such a certificate to a question put at the trial of a petition shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be in any proceeding, civil or criminal, admissible in evidence against him. | ||
(3) Nothing in this Rule shall be construed as affecting the right of any party to a petition to call any person as a witness. | ||
Costs of petition. | ||
16. (1) All costs, other than the costs of counting votes afresh under Rule 7, of and incidental to a petition shall be in the discretion of the court which shall have power to order such costs or any part of such costs of any party to the petition to be paid by any other such party, and, where the costs or any part of the costs of any such party are so ordered to be paid by the petitioner, the court shall, where necessary, make provision for the payment of those costs, to the extent of the amount named in the security given by the petitioner, out of or by means of such security. | ||
(2) Without prejudice to paragraph (1), where on the trial of a petition, it appears to the court that any person or persons committed electoral offences in relation to the relevant Dáil election, the court may, after giving the person or persons an opportunity of being heard to show cause why the order should not be made, if it so thinks fit, order the whole or part of the costs of the petition other than the costs of counting votes afresh under Rule 7, to be paid by that person, or those persons or any of them, and may order that in case such costs cannot be wholly recovered from the person or persons they shall be paid by some other or others of those persons. | ||
Further provisions regarding costs. | ||
17. (1) Subject to paragraph (4) the costs and other expenses incurred on his behalf by a returning officer at the trial of a petition shall be paid out of the Central Fund. | ||
(2) Costs awarded to a returning officer at the trial of a petition shall be a simple contract debt due to the Minister for Finance andsuch debt, in default of being discharged, may be recovered by that Minister in any court of competent jurisdiction. | ||
(3) Subject to paragraphs (4) and (5), costs awarded against a returning officer at the trial of a petition shall be paid out of the Central Fund. | ||
(4) Where the court is satisfied that the returning officer has been grossly negligent in the discharge of his duties, the court may order that the officer shall be liable for any costs awarded against him by the court. | ||
(5) Where an order is made under paragraph (4) any costs awarded against an officer which are paid out of the Central Fund shall be a debt due to the Minister for Finance by the officer, and such debt, in default of being discharged, shall be recoverable by that Minister in any court of competent jurisdiction as a simple contract debt due to him. | ||
Statement of case to Supreme Court. | ||
18. (1) At any stage of the trial of a petition the court may, if it so thinks proper, on its own motion or on the application of any party to the petition, state a case for the opinion of the Supreme Court on any question of law arising at the trial. | ||
(2) Notwithstanding anything contained in this Schedule, where a case is stated under this Rule the court shall not determine the petition until the Supreme Court has given its decision and may adjourn the trial or any part thereof until such decision is given. | ||
(3) Costs incurred in relation to a case stated under this Rule shall for all purposes be part of the costs incurred in relation to the petition. | ||
Service of documents. | ||
19. Where a copy of an order, petition or other document is required by this Schedule to be given to a person, it shall be addressed to him and shall be given to him in some one of the following ways: | ||
(a) by delivering it to him; | ||
(b) by leaving it at the address at which he ordinarily resides or, in a case in which an address for service has been furnished, at that address; | ||
(c) by sending it by post in a prepaid registered letter addressed to him at the address at which he ordinarily resides, or in a case in which an address for service has been furnished, at that address. |