Fianna Fáil activist Brian Mohan wants the Court of Appeal to find he is entitled to challenge the constitutionality of a law linking State funding of political parties to their meeting gender quotas when selecting election candidates.
Mr Mohan, as a member of the party and potential election candidate, is permanently affected by the law, his counsel Michael McDowell SC argued.
The State has no right to influence freely associating persons and political parties in relation to the kind of candidate they choose, he said.
Maurice Collins SC, for the State, rejected arguments that the High Court misapplied the law when it decided Mr Mohan had no standing to challenge the constitutionality of the law.
Mr Mohan had produced no evidence to support his claim that a September 2015 direction from party headquarters to a Dublin Central general election selection convention that the sole candidate selected must be female was due to the law and not Fianna Fáil’s own policy to have more women candidates, counsel argued.
The direction was issued in a context where, by summer 2015, there were 10 women among 47 Fianna Fáil candidates chosen in 31 constituencies. Mary Fitzpatrick was selected for Dublin Central.
Legal standing
In February 2016, the High Court ruled Mr Mohan did not have legal standing to bring his case and, as a result, did not determine whether or not the 2012 law was constitutional.
The three judge Court of Appeal heard Mr Mohan’s appeal against the High Court decision on Tuesday and reserved judgment.
The case concerns provisions of the Electoral (Political Funding) Act 2012 which halve State funding to parties who fail to ensure at least 30 per cent of their general election candidates are women and 30 per cent are men. That percentage is intended to rise to 40 per cent after seven years.
Women comprise 22 per cent of the current Dáil, up from 16.3 per cent before the last general election.
Mr Mohan claimed it would be impossible for Fianna Fáil to function if its State funding of some €1.16 million was halved.
The Court of Appeal must first decide if the legal standing finding was correct. If it finds otherwise, Mr Mohan wants the appeal court to determine the constitutionality of the legislation but the State argues that should go back to the High Court for a first instance decision.
On Tuesday, Mr McDowell argued Mr Mohan’s party is effectively being “coerced“ by a financial imperative to support gender quotas and that also made it difficult for Mr Mohan to argue internally with the party against such quotas.
It was “demanding too much” for the High Court to say Mr Mohan should have produced evidence from Fianna Fáil itself to say it was adversely affected by the legislation.
Ordinary members of the party had rejected the idea of gender quotas at two Ard Fheiseanna but the parliamentary party would probably be reluctant to publicly “tog out” in favour of Mr Mohan on the issue of quotas.
