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Cite as: [1996] 2 ILRM 61, [1996] 2 IR 321, [1996] IESC 6

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Hanafin v. Minister for the Environment [1996] IESC 6; [1996] 2 ILRM 61 (12th June, 1996)

Supreme Court

Hanafin v Minister for the Environment and Others

86/96

12 June 1996

HAMILTON CJ:

1. This is an appeal brought by the above named Desmond Hanafin, (hereinafter referred to as the Petitioner) an Irish citizen and entitled by law to participate in any referendum conducted in accordance with the provisions of Article 47 of the Constitution of Ireland and the Referendum Act, 1994 (hereinafter referred to as the Act) against the judgments delivered by members of a Divisional Court of the High Court on the 7 day of February, 1996 and the orders made pursuant to the terms of the said judgment, whereby a petition presented on behalf of the Petitioner pursuant to the provisions of Section 42 of the Act was dismissed.

By the said petition (hereinafter referred to as the referendum petition), the Petitioner, who by order of the High Court made on the 4 day of December 1995 pursuant to the provisions of Section 42 of the Referendum Act, 1994 had been granted leave to present the said petition to the High Court principally sought:-

"An order of this Honourable Court declaring that the Referendum held on the 24 day of November, 1995 pursuant to the 15 Amendment to the Constitution Bill of 1995 was null and void on the basis that the result of the Referendum as a whole was affected materially by an obstruction and/or interference with the conduct of the Referendum and/or by an irregularity in the conduct of the Referendum."

The
purpose of the Referendum, referred to in the referendum petition, was to amend the Constitution by removing therefrom the absolute prohibition of legislation providing for the grant of a dissolution of marriage contained in Article 41.3.2 of the Constitution.

In enacting the Constitution, the People had provided for its amendment and set forth the procedures to be adopted with regard thereto.

Articles 46 and 47 of the Constitution provide for the amendment, whether by way of variation, addition or repeal of any provision of the Constitution.

By the said provisions, the People, in the Constitution, had provided that a proposal for the amendment of the Constitution be initiated in Dail Eireann as a Bill and provided that if the Bill is passed or deemed to have been passed by both Houses of the Oireachtas that it must be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.

The
people did not reserve to themselves any role in the initiation of proposals for the amendment of the Constitution but entrusted that role to the Oireachtas, together with the responsibility of providing by law for the manner in which a referendum would be conducted.

The
law in force relating to the Referendum was "the Act" (Referendum Act, 1994).

The
15 Amendment of the Constitution (No 2) Bill was published on the 13 day of September 1995 and passed by both Houses of the Oireachtas on the 18 day of October, 1995.

In accordance with the provisions of Section 10 of the Referendum Act 1994, the Minister for the Environment by order made on the 19 day of October appointed the 24 day of November, 1995 as the day upon which the poll at the Referendum on the proposal contained in the said Bill was to be taken.

On the same day, the said Minister appointed Mr Tadgh O Seasnain as the "Referendum Returning Officer" for the purposes of the Referendum.

On the 24 day of November, 1995 the poll was taken at all 41 constituencies in the State and on the following day, the Referendum Returning Officer directed a recount of the votes cast in every constituency.

On the 27 day of November, 1995 the Referendum Returning Officer prepared the provisional referendum certificate in the form prescribed by Section 20 of the Referendum Act 1994 showing the votes cast in favour and against the proposal contained in the said Bill as follows:-


For
818,842
Against
809,728


2. On the 28 day of November, 1995 the Referendum Returning Officer in accordance with the provisions of Section 40(2) of the Act published in Iris Oifigiuil a copy of that certificate together with a statement that such certificate would become final and incapable of being questioned when the Officer is informed by the Master of the High Court either that no referendum petition has been duly presented in respect thereof or that every referendum petition so presented has become null and void.

On the 4 day of December, 1995 the Petitioner was granted leave, pursuant to the provisions of Section 42 of the Referendum Act 1994, to present a petition to the High Court in relation to the said Provisional Referendum Certificate.

By virtue of the provisions of the Act, the validity of a provisional referendum certificate may only be questioned by a referendum petition in accordance with the Act and only on the grounds set forth in Section 43 of the Act.

Section 43 of the Act sets forth the grounds on which a referendum petition may question a provisional referendum certificate and provides that:-

"43(1) A referendum petition may question a provisional referendum certificate on the grounds that the result of the referendum as a whole was affected materially by --

(a) the commission of an offence referred to in Part XXII of the Act of 1992 (as applied by section 6),

(b) obstruction of or interference with or other hindrance to the conduct of the referendum,

(c) failure to complete or otherwise conduct the referendum in accordance with this Act, or

(d) mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate."

At no stage was it contended or submitted on behalf of the petitioner, and is not now so contended or submitted, that the result of the referendum as a whole was affected materially by

(a) the commission of an offence referred to in Part XXII of the Act of 1992, or

(c) failure to complete or otherwise conduct the referendum in accordance with the Act.

As stated by Mr Justice Murphy in the course of his judgment, the Petitioner claims that the result of the referendum -- and presumably the provisional referendum certificate recording that result -- was materially affected by:-

(a) obstruction and/or interference with the conduct of the referendum, and

(b) irregularity in the conduct of the referendum, being grounds referred to in (b) and (d) of Section 43 of the Referendum Act 1994.

As appears from the referendum petition and the points of claim delivered on behalf of the Petitioner, the petitioner's challenge to the result of the referendum and the provisional referendum certificate recording that result was based on the following claims:-

1 The Government of Ireland wrongfully sought to influence the outcome of the referendum by a deliberate and calculated expenditure of public monies and public funds for the purpose of mounting an advertising campaign to advocate support for the proposals contained in the referendum on the 15 Amendment to the Constitution Bill of 1994.

2 In accordance with this policy, the Government spent at least £250,000 to £300,000 of public funds in advocating and promoting an advertising campaign seeking to influence the electorate to vote in favour of the amendment.

3 Such expenditure for such purpose constituted an unlawful and unconstitutional interference and obstruction and/or an irregularity in the conduct of the referendum.

4 The said advertising campaign was intended by the Government to materially affect the outcome of the referendum.

5 The said advertising campaign clearly affected the result of the referendum as a whole.

6 In addition to the monies expended by the Government on the aforesaid advertising campaign, the Government expended further monies in the promotion of a "Yes" vote in the Referendum through the Department of Equality and Law Reform, the Council for the Status of Women and the Irish country Womens Association to facilitate and promote propaganda in favour of a "Yes" campaign.

7 The expenditure of public monies was an impermissible and unconstitutional interference with the Referendum process and in clear breach of the Order of the Supreme Court made on the 17 day of November, 1995.

8 The expenditure of public funds in this manner was calculated to, and did in fact, result in a considerable influence on the electorate with particular reference to undecided voters who formed a large group in the weeks leading up to the Referendum Vote.

9 The Governments wrongful and unconstitutional conduct in relation to the Referendum campaign materially affected the outcome of the Referendum as a whole.

10 The Government must not be allowed to obtain the benefit of a Constitutional and legal wrong where it has deliberately and consciously violated the constitutional rights of all the citizens of Ireland and has been in disregard for the democratic and legal process established by the Constitution of Ireland and the Referendum Act, 1994.

The
basis for the claim that the Government had wrongfully sought to influence the outcome of the referendum by a deliberate and calculated expenditure of public monies and public funds for the purpose of mounting an advertising campaign to advocate support for the proposals contained in the referendum on the 15 Amendment to the Constitution Bill was the decision of this Court in the case of Patricia McKenna v An Taoiseach & Ors [1995] 2 IR 10).

In that case, this Court had decided that the Government in expending public monies in the promotion of a particular result in the Referendum acted in breach of the Constitution. The decision in that case did not, however, mean that the Government was prevented from campaigning for the amendment or from advocating that the proposed amendment should be approved by the People.

In the course of my judgment in McKenna's case, I stated at page 40 of the Report that:-

"For the purposes of this case, I am prepared to accept that the Government was acting in accordance with its rights in the giving of factual information with regard to the proposal, which is the subject of the Referendum, in expressing its views thereon and in urging the acceptance of such views."

Mr Justice O'Flaherty in the course of his judgment stated at Page 42 of the Report:

"I hold that the Government is clearly entitled to spend money in providing information to the public on the implications of the Constitutional amendment. Further the Government, as such, is entitled to campaign for the change and the individual members of the government are entitled either in their personal, party or ministerial capacities to advocate the proposed change."

What was in issue in the McKenna case was whether the Government was entitled to expend State monies on funding a publicity campaign directed to persuading the public to vote in favour of the proposed amendment in the Referendum and the majority of this Court held that it was not on the ground that, as I stated at page 42 of the Report:-

"The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a 'Yes' vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State".

The
constitutional impropriety on the part of the Government lay in the expenditure of public funds on a campaign designed to influence the voters to vote in favour of the proposed amendment and not in advocating or campaigning for the proposed amendment.

As stated by Mr Justice Henchy in the course of his judgment in Crotty v An Taoiseach [1987] IR 713) at page 788 of the Report:-

"There is, of course, nothing in the Constitution to prevent the Government or any person or group or institution, from advocating or campaigning for or otherwise working for a change in the Constitution."

The
Referendum Petition was heard by a Divisional Court of the High Court over a period of 11 days between the 11 day of January 1996 and the 31 day of January 1996.

The
judgments of the members of the said Divisional Court were delivered on the 7 day of February, 1996.

As appears from the said judgments, the referendum petition was dismissed but the order giving effect to the said judgments was not made and perfected until the 9 day of February, 1996.

By the said Order, the provisional referendum certificate which was the subject of the said petition was confirmed without alteration.

It was further ordered pursuant to Section 57(3) of the Referendum Act 1994 that a statement of the fact of such confirmation be endorsed on the said provisional referendum certificate and that the said certificate when so endorsed be returned forthwith to the Referendum Returning Officer.

The
Order insofar as it related to costs and to endorsement and delivery of the said provisional referendum certificate was stayed pending further order of the Court.

The
aforesaid order was made by the Divisional Court in accordance with the provisions of Section 57 of the Referendum Act 1994 which provides that:-

"(1) At the trial of a referendum petition the Court shall determine the matter at issue and the final order of the Court on the trial of the referendum petition shall either --

(a) confirm without alteration the provisional referendum certificate which was the subject of the petition, or

(b) direct that the said certificate shall be amended in accordance with the findings of the Court (including the result of any counting afresh of votes or any retaking of the referendum) and confirmed the certificate as so amended.

(3) Where the Court confirms a provisional referendum certificate without alteration, the Court shall cause a statement of the fact of such confirmation to be endorsed on such certificate and shall cause such certificate so endorsed to be returned forthwith to the Referendum Returning Officer.

(5) A provisional referendum certificate duly endorsed in accordance with this Section shall, when it is received by the Referendum Returning Officer from the High Court, forthwith become and be, in the form in which it was confirmed by the Court, final and incapable of being further questioned in any court and shall, in that form, be conclusive evidence of the voting at the referendum to which it relates and of the result of such referendum."

Upon application made to this Court on the 8 day of February, 1996 on behalf of the Petitioner, this Court directed the trial of a preliminary issue as to whether or not an appeal lay to the Supreme Court from the judgments delivered by the Divisional Court of the High Court on the 7 day of February, 1996.

It was in view of the fact that this Court had directed the trial of such issue that the Divisional Court did on the 9 day of February, 1996 order that the Order made by it pursuant to Section 57(3) of the Referendum Act 1994 be stayed pending further order.

By order made by this Court on the 1 day of March, 1996 it was held that an appeal lay to this Court from the entire of the judgments of the Divisional Court and the Order made in pursuance thereof.

By notice dated the 8 day of March, 1996, the Petitioner has appealed against the aforesaid judgments and order of the Divisional Court of the High Court.

It is necessary for the purposes of ascertaining the issues to be determined by this Court to set forth at this stage the nature of the relief which the Petitioner seeks from this Court.

The
Petitioner seeks:-

1 An order by way of a declaration that the outcome of the referendum held on the 24 day of November 1995 pursuant to the 15 Amendment to the Constitution Bill of 1995 was affected materially by an obstruction and/or interference with the conduct of the referendum and/or by an irregularity in the conduct of the referendum by reason inter alia of the unconstitutional and wrongful expenditure by the Respondents their servants or agents of public funds to promote a campaign to secure an affirmative result in the said referendum.

2 Alternatively, an Order remitting this petition to the High Court and directing the High Court to order the re-taking of the referendum as a whole.

3 Alternatively an order remitting the petition to the High Court and directing the High Court to hear and determine the petition in accordance with such directions as to this Honourable Court appear proper.

4 Such further and other relief as to the Court may appear just.

5 An order directing the High Court not to confirm the provisional referendum certificate pending the re-taking of the referendum as a whole.

It appears from a consideration of the grounds of appeal delivered on behalf of the Petitioner that the issues which arise for determination by this Court may be summarised as follows:-

1 Whether the majority in the High Court misdirected themselves in law in construing the provisions of the Referendum Act, 1994 and in particular Section 43 thereof and the phrase "conduct of the Referendum".

2 Whether the constitutional wrong perpetrated by the Government in funding an advertising campaign in an unconstitutional manner and in providing other public funds to bring about a "Yes" result to the referendum campaign constituted wrongdoing of a type within the provisions of Section 43(1)(b) or (c) of the Referendum Act 1994 or is otherwise capable of remedy under the provisions of the Act.

3 Whether the campaign conducted by the Government, which was funded unlawfully and unconstitutionally, altered the nature of that campaign from a permissible communication of information to an impermissible interference with the free will of the electorate.

4 Whether the High Court was wrong in law and in fact and misdirected itself in its approach to the burden of proof which had to be undertaken by the Petitioner.

5 Whether the High Court failed to apply the appropriate legal principles to the application for dismissal of the referendum petition.

6 Whether the High Court was entitled to hold that there was insufficient evidence to establish a prima facie case that the unconstitutional conduct of the Government in funding the campaign materially affected the outcome of the referendum as a whole.

7 Whether the trial of the referendum petition was unsatisfactory on any of the grounds set forth at paragraph 7(a)(2)(h) in the Notice of Appeal.

When dealing with the construction of Section 43 of the Referendum Act 1994 and the Petitioner's claim that the Government's constitutional wrongdoing constituted electoral wrongdoing within the meaning of that section, the presiding judge, Murphy J, stated:-

"In my view, there is no justification for interpreting the words used in Section 43 of the 1994 Act otherwise than in accordance with their ordinary meaning.

As pointed out in the oral and written submissions on behalf of the Referendum Returning Officer, Section 14 of the Act does give some guidance in the proper interpretation of the expression "conduct of the referendum". Sub-section 3 of that Section which I have already quoted expressly provides that:

"It shall be the duty of the referendum returning officer to conduct the referendum . . ."

From that I would infer that the legislature intended the words "conduct of the Referendum" to embrace those aspects of the organisation of and for the referendum: the taking of the poll and the holding of the counts and such other matters as were entrusted to the Referendum Returning Officer and the other statutory officers by the 1994 legislation and any statutory instruments made thereunder. The expression "conduct of the referendum" would not of itself or the context in which it appears in Section 43 of the Referendum Act 1994 justify interpreting those words as including or extending to a campaign carried on by political parties or other interested groups or persons in relation to the Referendum. This conclusion is, in my view, confirmed by the use of the words "interference", "obstruction", "hindrance", and "irregularity". It would seem to me that these words would be appropriate to identify an improper intrusion in the procedural or mechanical activity of organising a referendum. They would a require a strained or special interpretation if they were to extend to an advertising or political campaign which was intended to influence, and even one which did influence, the outcome of a referendum. Counsel for the Petitioner did not rest his case on that basis. It was not said that any party could not campaign vigorously and advertise widely and expensively in support of his or her viewpoint. It was not said that the campaign carried on by the Government was objectively or in its outward presentation to the public, deceitful or misleading or that it constituted an electoral abuse or offence of any description. It was conceded on behalf of the Petitioner from the outset that the campaign carried on by the Government would have been entirely unobjectionable if first, it was not funded out of the Central Exchequer and secondly, that it had not been promoted by the Government.

Whilst the Supreme Court have decided that public funds may not be used to promote, or at any rate to promote in an unfair or unbalanced way, the acceptance or rejection of a proposed amendment of the Constitution, I do not accept that the decision of the Supreme Court in McKenna (No 2) prohibits the Government from lending its authority to a particular viewpoint. To my mind, it would be unreal to attempt to draw a distinction between the attitude of the Government as Government and the attitude propounded by exactly the same persons in a non-governmental capacity. Such a distinction would move beyond the boundaries of the subtle into the realms of the metaphysical. However, for the purposes of my judgment, I would be satisfied to approach the petition on the basis that what the Government did both in relation to the provision of finances and the use of their authority as government was constitutionally impermissible.

In my view, the Petitioner's claim fails fairly and squarely on the grounds that the constitutional wrong perpetrated by the Government, whether it be as a serious as the Petitioner contends or as innocent as the Respondents would suggest, does not translate into an electoral wrongdoing within the meaning of Section 43 of the Referendum Act 1994 Act. The unconstitutional activity itself was not an electoral wrongdoing and the manifestation of the constitutional abuse in the form of a highly organised advertising campaign whether or not an influential factor in the outcome was not an interference, obstruction, hindrance or irregularity in the conduct of the referendum. The fact that the costs of a campaign are defrayed out of monies which are obtained unlawfully, unconstitutionally or even illegally could not, in my view alter the nature of the campaign from a permissable communication of information to an impermissible interference with the free will of the electorate."

The
important findings contained in that portion of his judgment are his statement that:-

1 "The expression 'conduct of the Referendum' would not of itself or the context in which it appears in Section 43 of the Referendum Act 1994 justify interpreting these words as including or extending to a campaign carried on by political parties or other interested groups or persons in relation to the Referendum", and

2 "the constitutional wrongdoing perpetrated by the Government . . . does not translate into an electoral wrongdoing within the meaning of Section 43 of the Act."

In the course of his judgment, Barr J stated:-

"I accept without reservation that the will of the people properly ascertained and freely expressed in the Referendum on an amendment of the Constitution conducted in accordance with law is supreme and is beyond review by the judicial or any other organ of State. However, in my opinion, the core of this case is the question 'was the will of the people properly ascertained?'

Whether or not the High Court has power to hear and determine the issues raised in the petition turns upon the proper construction of the relevant provisions in Section 43 of the Referendum Act 1994 . . .

It seems to me that the fundamental importance of the concept that the will of the people should be properly ascertained in accordance with law in a referendum on constitutional change requires that the words "the conduct of the Referendum" in Section 43(1)(b) and (d) should be interpreted sufficiently widely to include unlawful conduct on the part of the Government in its referendum campaign and the consequences thereof which are alleged to have caused an obstruction, interference, hindrance to or irregularity in the conduct of the Referendum of such gravity as to vitiate its apparent result. This is the issue which the Petitioner puts before the Court and on which, in my view, he is entitled to a decision. The only avenue open to a citizen to challenge a referendum result is by petition to the High Court under the Act. The right conferred on him/her in that regard is one of fundamental importance which, in my view, requires an expansive rather than a restrictive response from the Court in interpreting the grounds in Section 43(1) of the Referendum Act 1994 on which a referendum petition may be brought, where it is open to the Court to take that course, as I believe it is in the present case."

Barr J further stated, after referring to the provisions of Section 42(1) of the Referendum Act 1994, that:-

"This sub-section lays down in clear, unambiguous terms that the only avenue for challenging a referendum result is by petition to the High Court in accordance with the Act: which in turn brings us back to the relevant ground for so doing specified in Section 43(1). An interpretation of the words "the conduct of the referendum" to include a referendum campaign avoids the statutory impediment, which otherwise exists in this case, in the way of challenging in particular circumstances a referendum result by petition and it enables a serious issue, such as that raised in the petition, to be investigated by the Court. It also avoids any question of incompatibility between the Constitution and the Act."

The
third member of the Court, Lynch J stated that he was in full agreement with the judgment delivered by Murphy J and with the order therein proposed.

However, he stated in the course of his judgment that:-

"It is further submitted on behalf of the Petitioner that this Government public funded campaign constituted an obstruction of or interference with or irregularity in the conduct of the referendum within the meaning of those expressions as used in Section 43(1)(b) and (d) of the 1994 Referendum Act and if necessary that these words and the term "conduct of the referendum" should be given a wide construction to enable the Court to protect the constitutional integrity of the Referendum. It was further submitted that a Government might act in such an unconstitutional manner without doing any of the things specifically mentioned in Section 43 of the 1994 Act to such an extent as unduly to influence citizens to cast their votes in a particular way and that in those circumstances the courts would not only have a right to intervene but would have a duty to do so notwithstanding Section 42(1) of the 1994 Act which provides that the Referendum result may be questioned only by petition under Part IV of the Referendum Act 1994. I find it very difficult to imagine such unconstitutional conduct by the Government or indeed by anyone else either which would not fall within one or more of the four paragraphs mentioned in Section 43(1) of the 1994 Act. However the permutations and combinations of events that human society throws up are so infinite that one cannot rule out the possibility of such an event occurring and if it did occur, then in such circumstances I agree that the Courts would have a right and a duty to intervene to protect the citizens constitutional rights and the constitutional integrity of the Referendum. Whatever might be such circumstances, they would have to be such as clearly to damage the integrity of the Referendum such that it could not be said that the Referendum does or very probably may not, reflect the true will of the citizens who cast their votes on the day of the Referendum."

While there was undoubtedly a difference of opinion among the judges of the Divisional Court with regard to the manner in which Section 43 of the Referendum Act 1994 should be interpreted, there was complete unanimity amongst the members of the Divisional Court on the issue as to whether the campaign carried on by the Government using public funds affected materially the result of the Referendum.

In his judgment, Murphy J stated:-

"Having heard all of the witnesses giving their evidence and being cross-examined thereon, I am unconvinced that the campaign affected materially the result of the Referendum."

Barr J stated in the course of his judgment that:-

"In my view, it is impossible to assess with any confidence the conflicting affects of such factors on the ultimate decisions made by voters as to whether they would support or reject the proposed amendment of the Constitution. I am satisfied that if the government's advertising campaign should be regarded as tainted with the illegality of its funding, which I do not accept, there is no evidence which might reasonably be regarded as establishing in accordance with the standard of proof postulated by the Supreme Court in Hetherington & O'Toole that the will of the people was not properly ascertained and freely expressed in accordance with law in the divorce referendum on the 24 day of November, 1995."

Lynch J stated:-

"I regard the evidence adduced in support of the allegation that the Government's unconstitutionally funded campaign had a significantly persuasive influence on the electorate as speculative and unsatisfactory. I do not accept that it has been established by the evidence adduced by the Petitioner even as a matter of reasonable probability that the campaign unconstitutionally funded had any ascertainable or measurable influence on the electorate when they cast their votes on the 24 November, 1995 especially in the light of the four factors mentioned above in this judgment."

It was submitted on behalf of the Petitioner that --

(1) having regard to the nature and extent of the evidence adduced on behalf of the Petitioner it was not open to the members of the Divisional Court to make such findings;

(2) Counsel on behalf of the Respondents, having indicated his intention to call evidence if his application for a direction was refused, the Divisional Court erred, having regard to the decision in Hetherington v Ultra Tyre Service Ltd [1993] 2 IR p 535 in ruling on the application, and

(3) in the consideration of the evidence, the Divisional Court applied the wrong standard of proof namely proof beyond a reasonable doubt.

It had at all times been submitted by Counsel for the Respondents that the onus which lay on the Petitioner in these proceedings to establish the wrongdoings of which he complained and the affect thereof on the will of the electorate was the criminal standard of proof "beyond all reasonable doubt" whereas the Petitioner submitted that the onus which lay on him was to establish the facts on the balance probabilities as enunciated by the Supreme Court in Banco Ambrosiano [1987] ILRM page 669.

In the course of his judgment in the Banco Ambrosiano case, Henchy J stated:-

"The normal rule in a civil case is that the person on whom lies the onus of proving a particular averment is held to have discharged that onus if the Court is satisfied on the balance of probabilities that the averment in question is correct."

He also stated:-

"I am unable therefore to discern, in principle or in practice, any rational or cogent reason why fraud in civil cases should require a higher degree of proof than is required for the proof of other issues in the civil claims."

I am satisfied that the standard of proof which lay on the Petitioner in this case is to establish his case on the balance of probabilities.

In connection with the onus of proof however, Murphy J in the course of his judgment stated:-

"I have refrained from expressing an opinion as to whether the nature of the burden of proof lying on the Petitioner was the burden of 'proof' beyond reasonable doubt. As required for the conviction of a criminal offence or proof on "the balance of probabilities" which is the standard required in all civil cases. I do not think that it is necessary to resolve that issue in the present case. However, I believe the answer may well depend upon the nature of the wrong asserted and against whom the complaint is made. For the purposes of the present case, it is, I believe, sufficient to say that having heard all of the evidence on behalf of the Petitioner, I would not have been satisfied as to the effect of the Government's campaign even on the lower of these two standards."

In the course of his judgment when dealing with this point, Barr J stated:-

"The effect of the relief which the Petitioner seeks is that the sovereign will of the people, which in this case it is conceded was freely expressed in a lawfully conducted referendum, will be set aside. This is a fundamental, far-reaching consequence which in my view should arise only if it is established beyond reasonable doubt that in fact the result of the Referendum cannot be regarded as reflecting the real wishes of a number of voters who collectively are at least sufficient to establish, in the light of the apparent result, that the referendum was not a true measure of the will of the majority of the people on the issue before them. The onus of proof resting upon the Petitioner to establish that proposition is, and must in the interest of the people, be very onerous indeed."

In the course of his judgment, Lynch J stated:-

"I regard the evidence adduced in support of the allegation that the Government's unconstitutionally funded campaign had a significantly persuasive influence on the electorate as speculative and unsatisfactory. I do not accept that it has been established by the evidence adduced by the petitioner even as a matter of reasonable probability that the campaign unconstitutionally funded had any ascertainable or measurable influence on the electorate when they cast their votes on the 24 day of November 1995."

It is clear from these passages from the judgments of the members of the Divisional Court that, in their view, the Petitioner had failed to discharge the onus on him even on the basis of the standard of "balance of probabilities".

In the course of his judgment in Hetherington v Ultra Tyre Service Ltd & Ors [1993] 2 IR page 535) Finlay CJ stated at page 541 of the Report that:-

"There is one other matter which I feel I should mention, though it does not, by reason of the findings which I have made, arise directly in this case and it may require very careful consideration, possibly even by a full court, but it is this. Having regard to the trial of actions for negligence by judges sitting alone with a jury, where they involve personal injuries, which is now common form, it may be of assistance if I express a view with which I understand my colleagues to be in substantial agreement at present, on the position arising when applications for direction are made. If a defendant to an action being tried by a judge sitting without a jury applies for a direction on the basis that the evidence adduced by the plaintiff is not sufficient to establish a case against him, I think it is reasonable for a judge, if he sees fit, on a trial to enquire from that person as to whether he intends to stand on that application. If he indicates that he intends to give evidence in the event of the application failing, the judge may well properly defer the decision on the issue as to whether a case is being made out by the plaintiff until he has heard all the evidence."

While this passage specifically referred to personal injuries actions it may well apply to civil actions of every nature, even to referenda or election petitions.

It is clear however that this statement does not impose any obligation to adopt the course suggested therein namely deferring a decision on the application for a direction until all of the evidence is heard.

It is clearly a matter for the discretion of the judge or court hearing the matter and such judge or court is under no obligation to defer a decision on the application before it.

The
Divisional Court, having heard the application and having been informed that if the application were refused it was the intention of the Respondents to call evidence dealing with the matters in issue, decided not to defer its decision until such evidence was called but to rule on the application on the basis of the evidence adduced before it on behalf of the Petitioner.

I am satisfied that this was a matter completely within their discretion and that they were entitled to adopt the course which they did and that the appeal based on these grounds should be dismissed.

Conduct of the Referendum

In their consideration of the Referendum Petition, the majority of the members of the Divisional Court interpreted the provisions of the Act and in particular Section 43 of the Referendum Act 1994 thereof as limiting the grounds upon which a provisional referendum certificate could be questioned by the High Court to the grounds --

(1) alleging obstruction of or interference with or other hindrance to the conduct of the Referendum and,

(2) mistake or other irregularity in the conduct of the Referendum or in the particulars stated in the provisional referendum certificate.

And held that the words "conduct of the Referendum" were intended by the Legislature "to embrace those aspects of the organisation of and for the Referendum; the taking of the poll and the holding of the counts and such other matters as were entrusted to the Referendum Returning Officer and the other statutory officers by the 1994 legislation and any statutory instruments made thereunder."

The
Attorney General and Counsel on behalf of the Respondents submitted that the aforesaid interpretation by the majority of the Divisional Court was correct and submitted that the term "conduct of the Referendum" refers to the matters under the aegis, control or direction of the Referendum Officer under the provisions of the Act and the relevant provisions of the 1992 Referendum Act; that the term relates only and was intended to refer only to what was described loosely as "the mechanics" of the Referendum and not the referendum campaign itself.

Counsel for the Petitioner submitted that the interpretation adopted by the Divisional Court was a strained and narrow interpretation of the words of the Act itself and such an interpretation would lead to the conclusion that, since the outcome of a referendum can only be challenged by referendum petition in accordance with Section 42 of the Referendum Act 1994 that a constitutional wrongdoing which materially and even decisively affected the outcome of a referendum could never be remedied.

The
constitutional process involved in the amendment of the Constitution involves more than the initiation of the proposal for the amendment of the Constitution in Dail Eireann, the passing thereof by both Houses of the Oireachtas and the submission of the Proposal by Referendum to the decision of the people as specifically required by Article 46 of the Constitution.

Having regard to the democratic nature of the State, as stated in Article 5 of the Constitution, and the right of the people to decide in final appeal all questions of national policy, according to the requirements of the common good, as stated in Article 6, the submission to the people of a proposal for the amendment of the Constitution, undoubtedly a question of national policy, must be in accord with and have due regard to the processes and rights acknowledged by the Constitution, and inherent in and implied by the democratic nature of the State and the constitutional role of the people therein.

The
role of the people in the amendment process is paramount because as stated by Walsh J in Crotty v An Taoiseach [1987] IR 713 "it is the people themselves who are the guardians of the constitution" and by McCarthy J in the same case, the People "in having a referendum are taking a direct role in government by amending the Constitution or refusing to amend it."

The
people, in the Constitution which they gave to themselves, did not reserve to themselves any role in the initiation of proposals for the amendment of the Constitution but entrusted that role to the Oireachtas: they however provided that any such proposal should be submitted to their decision and that it should not be enacted into law unless it was approved by a majority of the votes cast as a referendum.

In the course of my judgment in McKenna's case, I stated and now repeat that:-

"The constitutional process to be followed in the amendment of the Constitution involves not only compliance with the provisions of Articles 46 and 47 of the Constitution and the terms of the Referendum Act, 1994, but also that regard be had for the constitutional rights of the citizens and the adoption of fair procedures."

The
submission to the people of a proposal to amend the Constitution must of necessity be made in a manner which has regard to the democratic process and the constitutional rights of the citizens to participate therein and in particular must have regard to the right of the people to be informed with regard to the nature of the issue involved and its implications; the right of freedom of discussion thereon; the right of people to persuade and to be persuaded; the right of people to campaign, either individually or in association, in favour of or against the proposal; the right of the people to vote thereon in the secrecy of the ballot and to have the proposal enacted into law if the majority of the votes cast shall have been cast in favour of the proposal.

This is the democratic process by which the will of the people is ascertained and is a process, with which the members of the Oireachtas are familiar and which extends over the period from the initiation of the Bill in the Oireachtas until the people have exercised their right to cast their votes thereon.

It is within the compass of this process and the obligation on the part of the Oireachtas, not only not to interfere therewith, but to respect, and, so far as practicable, to defend and vindicate the personal rights of the citizens involved therein, that the relevant terms of the Act must be construed and interpreted.

Though the question of the validity of the Act having regard to the provisions of the Constitution does not arise in this case, the statements made by Walsh J in the course of his judgment in East Donegal Co-Operative Livestock Mart Limited and Ors v The Attorney General [1970] IR 317 are relevant.

At page 341 of the Report he stated:-

"In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an apposite meaning. At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that the proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice."

The
relevance of this statement to these proceedings is that it identifies that the constitutional interpretation or construction of an Act or any provision thereof is the one intended by the Oireachtas.

Can it be said that the Oireachtas, being one of the organs of government established by the Constitution, being subject to the provisions thereof and having been entrusted with the obligation to respect and, so far as practicable, to defend and vindicate the rights of the citizens, intended that, on the hearing of a referendum petition in accordance with the provisions of Section 42 of the Referendum Act 1994, the High Court be precluded from questioning the validity of a provisional referendum certificate challenged on the grounds that there had been an obstruction of or interference with or other irregularity, involving constitutional wrongdoing and alleged to have affected materially the result of the Referendum, in the conduct of the referendum campaign, and that the challenge to the validity of the certificate must only relate to an obstruction, interference or irregularity in the conduct of the poll and that the word "referendum", as used in the Act meant and was intended to mean merely 'the poll' and the manner in which it was conducted?

If, on the interpretation or construction of the Act, and in particular of Section 42 and 43 thereof, it were held that such was the intention of the Oireachtas, then this meant that the Oireachtas intended that a constitutional wrongdoing committed by the Government, or any other party, during the course of the campaign and proved to have materially affected the result of the Referendum could not be considered by the High Court on the hearing of a referendum petition, which was the only way it could be questioned, as a ground for questioning the validity of the Provisional Referendum Certificate.

If such was the intention of the Oireachtas, it would have failed in its obligation to respect, and so far as practicable, to defend and vindicate the democratic process, as outlined herein and the constitutional rights of the citizens.

The
Court must however presume that the Oireachtas did not so intend but intended that such rights should be defended and vindicated. The defense and vindication of such rights requires that the words 'the conduct of the Referendum' contained in Section 43(1)(b) and (d) of the Referendum Act 1994 should be interpreted sufficiently widely to include unlawful and unconstitutional conduct in the Referendum campaign which materially affected the result of the Referendum. There is nothing in the other provisions of the Act which prevents this construction, which construction accords with the provisions of the Constitution.

I accept as being correct the statement made by Barr J when dealing with this issue where he stated that:-

"It seems to me that the fundamental importance of the concept that the will of the people should be properly ascertained in accordance with law in a referendum on constitutional change requires that the words 'the conduct of the Referendum' in Sections 43(1)(b) and (d) should be interpreted sufficiently widely to include unlawful conduct on the part of the government in its referendum campaign and the consequences thereof which are alleged to have caused an obstruction, interference, hindrance to or irregularity in the conduct of the Referendum of such gravity as to vitiate its apparent result. This is an issue which the Petitioner puts before the Court and on which, in my view he is entitled to a decision."

Notwithstanding the ruling made by the majority of the Divisional Court that the expression "conduct of the Referendum" would not justify interpreting these words as including or extending to a campaign carried on by political parties or other interested groups or persons in relation to the Referendum, the Divisional Court proceeded to deal with the claim made by the Petitioner in his petition that the action of the Government in unconstitutionally and illegally funding the "Yes" campaign materially affected the result of the Referendum as a whole, though this claim related to wrongdoing alleged to have been committed during the course of the campaign and not, in their view, in the conduct of the Referendum.

No organ of State is entitled to review or interfere with the will of the people as expressed in their votes cast in a referendum to consider a proposal for the amendment of the Constitution because the will of the people as so expressed is binding on all the organs of the State as it is the fundamental right of the people to decide all questions of national policy via the referendum process.

While the judicial arm of Government is not entitled to interfere with the right of the people to cast their votes at a referendum or with the results of the Referendum, it is entitled to intervene in order to protect the rights of the citizens to exercise freely their constitutional right to vote if the constitutional rights of the citizens in regard thereto are violated by any body or individual.

The
will of the people as expressed in a referendum providing for the amendment of the Constitution is sacrosanct and if freely given, cannot be interfered with. The decision is theirs and theirs alone.

This position is undoubtedly recognised by the Oireachtas in the Act because it provides that the validity of the provisional referendum certificate, which is the document containing the result of the referendum, can only be questioned if it is established that the wrongdoing or irregularity complained of and set forth in Section 43 of The Referendum Act 1994 materially affected the result of the referendum as a whole. In effect, this means that no matter what the nature and extent of the wrongdoing may be, the result of the Referendum cannot be impugned or interfered with if the result of the referendum as a whole was not materially affected by such wrongdoing.

Consequently, the onus lay on the Petitioner to establish on the balance of probabilities --

(1) the nature and extent of the obstruction of or interference with or other hindrance or mistake or other irregularity (hereinafter referred to in the circumstances of this case as 'constitutional wrongdoing'), and

(2) that such 'constitutional wrongdoing' materially affected the result of the Referendum as a whole.

Counsel for the Petitioner has however submitted that:-

(a) the Act does not explicitly require the Petitioner to establish a 'material effect' as a separate requirement of success in a petition;

(b) any consideration of 'material effect', necessarily follows a determination that there has been unconstitutional wrongdoing such as to amount to an interference with the conduct of the referendum and that the logic of the Act demands that the concept of material effect be understood as equivalent to a showing that the interference or wrongdoing was not trivial or inconsequential and not a separate matter to be established with almost mathematical certainty by a criminal standard of proof.

I cannot accept that the logic of the Act demands or requires that the concept of material effect be understood as equivalent to showing, or establishing, that the interference or wrongdoing was not trivial or inconsequential or that the Act does not require the Petitioner to establish that the wrongdoing complained of materially affected the result of the Referendum as a whole.

Sections 42, 43 and 48(2) of the Referendum Act 1994 refer to this requirement.

Under Section 42(3) of the Act, the High Court shall not grant leave for the presentation of a Referendum petition unless it is satisfied that the matters complained of are such 'as to affect materially the result of the Referendum as a whole'.

Under Section 43(1), a referendum petition may question a provisional referendum certificate on the grounds that 'the result of the Referendum as a whole was affected materially by one or all of the matters set forth at (a), (b), (c) and (d) of the sub-section.

Section 48(2) provides that:-

"The Court shall not order a referendum to be taken again in any constituency . . . where it appears to the Court that . . . the non-compliance did not affect the result of the referendum as a whole."

From a consideration of these sub-sections of the Act, it is clear that the Act provided and intended that the result of the Referendum as a whole could only be questioned if it was established to the satisfaction of the Court that the result was materially affected by the alleged wrongdoing. The onus of so establishing rests on the Petitioner who questions the result of the Referendum.

This is not only required by the Act but is in accord with the constitutional right of the citizens to vote in a constitutional referendum and to have the result thereof accepted, respected and not interfered with unless it is established that such result was materially affected by alleged wrongdoing of such a nature and effect as to vitiate the Referendum.

Nature of Constitutional Wrongdoing

The
constitutional wrongdoing relied upon by the Petitioner, is that identified and established in the majority judgments of this Court in McKenna's case, namely, the expenditure by the Government of public funds in advocating a "Yes" vote in the Referendum. The constitutional impropriety lay, not in the fact that the Government campaigned for such a vote but that they expended public funds in so doing.

It is not submitted on behalf of the Petitioner that the Government was not entitled to conduct such a campaign or that the advertisements funded by the Government were false or misleading.

In McKenna's case, the Court dealt with the expenditure of public funds on the advertising campaign which was the subject of the proceedings in that case. However, it was established and conceded by the Government that in addition to the expenditure of public funds on that campaign, further public funds were expended on the use of public servants, in the employ of the Government, in advising on and assisting in the conduct of the campaign and in the making of grants to a number of bodies in order to enable them to campaign for a "Yes" vote.

For the reasons set forth in the McKenna judgment, it is submitted that in so doing that the Government acted in breach of the Constitution and the concept of fair procedures.

I am satisfied that in so doing, the Government was acting in breach of their obligations under the Constitution.

Their action in so doing was deliberate and conscious in the sense that they knew exactly what they were doing; their campaign was designed to influence the electorate to vote in favour of the proposal to amend the Constitution and the said campaign was wrongfully financed by the use of public funds and that their actions in this regard were unconstitutional. Having regard to the decision of Costello J in McKenna (1) [1995] 2 IR 1 and Keane J in McKenna (2) [1995] 2 IR 10, they were justified in considering that in so doing they were acting within their constitutional rights. The fact that they were so justified, however, does not provide any justification for their actions, which were held by this Court in McKenna's case (No 2) to be in breach of the Constitution.

While the advertising campaign conducted by the Government would be unobjectionable if it had not been financed by public funds, its complexion is altered by the fact that it was so financed in an unconstitutional manner.

I cannot accept the submission made by the Attorney General that because the advertisements were not misleading and would have been unobjectionable if not financed unconstitutionally with public funds, they should not be treated as being in any way tainted by the unconstitutional funding.

As stated by Mr Justice Blayney in the course of the judgment, which he is about to deliver and which I have read:-

"The advertising campaign cannot be severed from the funding because without the funding there would have been no such campaign. They are inextricably linked together. The campaign was the product of the funding."

Having regard to the admitted purpose of the campaign and its unconstitutional funding, I am satisfied that it constituted an interference with the conduct of the Referendum.

The
Petitioner, as a citizen of the State, has the right to expect that the Government will act in accordance with the provisions of the Constitution and the concept of fair procedures inherent therein and has established a breach of that right.

In the course of his judgment in Meskell v Coras Iompair Eireann [1973] IR p 121 Walsh J stated at page 132-133 of the Report that:-

"it has been said on a number of occasions in this Court, and most notably in the decision of Byrne v Ireland, that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it. Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right. As was pointed out by Mr Justice Budd in Educational Company of Ireland Ltd v Fitzpatrick (No 2) (1961 IR p 345) it follows that 'if one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it'. He went on to say that the courts would act so as not to permit a person to be deprived of his constitutional rights and would see to it that those rights were protected."

By its decision in McKenna's case, this Court intervened to protect her constitutional rights with regard to the expenditure of public monies and the petitioner is entitled to the benefit of that decision; the remedy granted by this Court was the appropriate remedy, at the time, for the breach by the government of its constitutional obligations.

In this case, however, the Petitioner claims to be entitled to

"an order of this honourable court declaring that the Referendum held on the 24 day of November, 1995 pursuant to the 15th Amendment to the Constitutional Bill of 1995 was null and void."

The
remedy sought therein is not a remedy against the Government who committed the breach of the Constitution but a remedy which seeks to override and reverse the sovereign will of the people as expressed in the provisional referendum certificate containing the record of votes cast at the Referendum.

It is a remedy sought by the Petitioner in a referendum petition presented to the Court pursuant to the provisions of Section 42 of the Referendum Act 1994 Act and the relief to which he is entitled is subject to the provisions of the Act, and in particular Section 43(1) thereof which provides that a provisional referendum certificate may be questioned on the grounds that the result of the Referendum as a whole was affected materially by the constitutional wrongdoing.

It is not sufficient to establish an interference with the conduct of the Referendum by way of a constitutional wrongdoing: it must be further established that the result of the referendum as a whole was affected materially by the said constitutional wrongdoing.

On behalf of the Petitioner, Mrs O'Donnell while accepting and indeed emphasising the role of the people submitted that, because of the constitutional wrongdoing of the Government, the right of the people to vote freely at the Referendum was interfered with.

He referred to a passage from the opinion of the American Supreme Court in Reynolds v Simms 377 US 533 where it was stated that:-

"the right to vote freely for the candidate of one's choice is of the essence of democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or delusion of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."

He submitted that the vote of the people at the Referendum was diluted, debased and interfered with by the action of the Government in expending public funds on a campaign advocating a "Yes" vote and that the expression of the will of the people as contained in the provisional referendum certificate did not represent the true will of the people on the proposal for the amendment of the Constitution which was the subject of the Referendum. The onus was on the petitioner to so establish.

Because of the secrecy of the ballot, it is not possible to ascertain, by direct evidence, the factors which influenced the people in casting their votes, what their motives were in casting their votes or the reasons why they cast their votes in a particular way.

I agree with the statement of the Supreme Court of North Dakota in Larkin v Gronna (285 NW 59) referred to by the Attorney General, where they state that:-

"the people are presumed to know what they want, to have understood the propositions submitted to them and all of its implications, and by their approval vote to have determined that the amendment is for the public good and expresses the free opinion of a sovereign people."

I also agree with the statement from the judgment of the Supreme Court of Hawaii in Kahalekai and Others v Nelson Doi and Others (590 p 2nd Edition 543) where they stated that:-

"this body of authority rests we believe upon the principle that the motives of the voters may not be enquired into where their will has been expressed. If avoidance of the effort of casting a negative vote is sufficient reason for any number of votes to cast in affirmative vote, we cannot deny effect to their vote simply because we regard that reason as inadequate, misguided or otherwise defective."

Such statements are in accord with the constitutional position in this State.

The
people are presumed to know what they want, to have understood the proposed amendment submitted to them and all of its implications.

The
Petitioner sought to rebut this presumption by producing evidence of the opinions of various experts with regard to opinion polls and the factors which affected the voting pattern and intentions of the electorate.

The
question of the assessment of such evidence and its probative effect was a matter for consideration of the members of the Divisional Court.

As pointed out in the earlier portion of this judgment, the members of the Divisional Court, for the reasons set forth in their judgments, rejected such evidence and were not satisfied that the Petitioner had discharged the onus of proof of establishing that the constitutional wrongdoing had materially affected the result of the Referendum as a whole.

In particular Murphy J stated:-

"Having heard all the witnesses giving their evidence and being cross-examined thereon, I am unconvinced that the campaign affected materially the result of the Referendum."

Barr J stated:-

"There is no evidence which might reasonably be regarded as establishing in accordance with the standard of proof postulated by the Supreme Court in Hetherington and O'Toole that the will of the people was not properly ascertained and freely expressed in accordance with law in the divorce referendum on the 24 day of November 1995."

Lynch J stated:-

I do not accept that it has been established by evidence adduced by the Petitioner even as a matter of reasonable probability that the campaign unconstitutionally funded had any ascertainable or measurable influence on the electorate when they cast their votes on the 24 day of November, 1995."

On the basis of the nature of the evidence adduced by the Petitioner at the hearing of the referendum petition and their assessment of such evidence, it was open to the members of the Divisional Court to reach such conclusions.

Once it was open to the members of the Divisional Court to reach such conclusions on the evidence, it is not open to this Court to interfere with such conclusions and findings.

The
Petitioner has failed to establish that the constitutional wrongdoing on the part of the Government materially affected the result of the Referendum as a whole and his appeal against the decision of the Divisional Court on the referendum petition must be dismissed.

BARRINGTON J: As Mr O'Donnell, for the petitioner, pointed out in his able submissions to this Court, this case is not concerned with divorce but with the integrity of the referendum process. Consequently it raises important issues for future referenda.

The
facts of the case are fully set out in the Judgment of the Chief Justice and it is not necessary to repeat them here.

SOVEREIGNTY OF PEOPLE

The
Petitioner and the Attorney General are agreed that the concept of the sovereignty of the people is central to our constitutional system. No organ of the State, therefore, including this Court, is competent to review or nullify a decision of the people. But, Mr O'Donnell submits, that the means whereby the people exercise their sovereign power is the referendum. Article 46 of the Constitution provides that any bill to amend the Constitution must be initiated in Dail Eireann and that it shall, upon having been passed or being deemed to have been passed by both Houses of the Oireachtas, be submitted by referendum to the decision of the people in accordance with the "law" for the time being in force relating to the referendum. The President, once satisfied that a bill containing a proposal for amendment to the Constitution "has been duly approved by the people" must sign it "forthwith". Mr O'Donnell submits that the "law" referred to is the law for the time being regulating the taking of a referendum and that this law, like other laws, must respect the values enshrined in the Constitution. Primary among these are the right of all citizens to equality before the law and the right to vote at elections and at referenda which latter right Mr O'Donnell, borrowing a phrase from the American Federal Supreme Court, describes as "preservative of all rights" [See Yick Wo v Hopkins 118 US page 356 at page 370; quoted with approval by Warren CJ in Reynolds v Sims 377 US p 533 at page 562].

I fully accept this submission.

I also accept that the fact that the President must sign a bill "forthwith" upon being satisfied that the provisions of Article 46 have been complied with and that the proposal has been "duly approved" by the people in accordance with the provisions of Section 1 of Article 47, emphasises at once the sovereignty of the people and the importance of preserving the integrity of the referendum process.

INTERPRETATION OF REFERENDUM ACT

It is common case that "the law for the time being in force relating to the referendum" referred to in Article 46 of the Constitution is the Referendum Act 1994. Much debate has taken place as to whether this Act should be given a "narrow" or a "broad" interpretation. I have read the analysis of the Act made by Blayney, J and I agree that the word "conduct" when used in relation to the referendum is used to refer to the actions of different officers and cannot be confined to the way the Referendum Returning Officer carried out his duties in administering the referendum. Moreover I accept that the Referendum Act 1994, like any other post Constitutional Act which confers discretions on different people, must be interpreted as meaning that those discretions are to be exercised in a way which respects the Constitution and not otherwise. I am reinforced in this view by the provisions of Section 42 of the Act which provides that a provisional referendum certificate may "and may only" be questioned by a petition to the High Court under the Referendum Act 1994. I totally agree, therefore, with the conclusion of the Chief Justice that the phrase the "conduct" of the referendum used in Section 43 of the Referendum Act 1994 cannot be confined to administrative procedures and the taking of the poll but must include any unlawful or unconstitutional obstruction interference or hindrance whether connected with the referendum campaign or the administration of the poll which materially affects the result of the referendum as a whole.

Having regard to the wide range of electoral offences referred to in Section 43 sub-section 1 paragraph (a) of the Act it may be difficult to envisage what additional obstructions interferences or hindrances are referred to in paragraph (b). They could refer to natural disasters such as floods or earthquakes which might prevent the taking of the poll in certain areas but they also seem to be wide enough to cover the kind of unconstitutional conduct of which the Petitioner complains.

THE
ALLEGED CONSTITUTIONAL BREACH

The
constitutional breach alleged was the Government's use of taxpayers money to fund an advertising campaign to persuade the people to vote "yes" on the referendum proposal. The advertising campaign involved the taking of public opinion polls to ascertain the aspects of the proposal which worried various sections of the people in order that the advertising campaign could target these concerns. There can be no doubt therefore that the intention of the advertising campaign was to influence votes and the Government would have been unlikely to have expended the sum of £480,000 on this campaign had it not believed that the campaign would be effective in achieving its purpose. During the High Court proceedings the Petitioner was also able to establish that the Government had made available to the Council for the Status of Women a grant of some £60,000 to advance the pro-divorce case and that public officials had also assisted the pro-divorce lobby.

In the McKenna (No 2) case [1995] 2 IR p 10 the Supreme Court held that it violated the principle of equality before the law for the Government to divert for the purposes of an advertising campaign monies which were the property of all the citizens to advance the views of one section of the citizens over those of another. There can be no doubt that the Government knew what it was doing and therefore the Petitioner submits that the Government was in conscious and deliberate violation of the constitutional rights of that section of the community which opposed divorce. This is true in the technical sense that the Government was objectively in the wrong. On the other hand, as the Attorney General has pointed out, the Government in acting the way it did was following a course which two High Court Judges, in two separate cases, had held not to be illegal or unconstitutional. [Costello J in McKenna v An Taoiseach (No 1) [1995] 2 IR p 1) and Keane J in McKenna v An Taoiseach (No 2) [1995] 2 IR page 10)]

More important however is the fact that the Supreme Court in McKenna No 2 declared the diversion of public money for the purposes of a one-sided advertising campaign to be unconstitutional. This was the only unconstitutional conduct complained of at the time and is still the principal unconstitutional conduct complained of. It is important to emphasise that the Supreme Court provided the remedy for it. The Government immediately acknowledged itself in the wrong and wound down its advertising campaign. The Supreme Court Judgment was handed down on the 17 November 1995 and the referendum was held on the 24 November 1995.

THE
GOVERNMENTS DUTY TO LEAD

It should also be remembered that the Government has the right and duty to lead the people. Presumably the Government does not go to the trouble of formulating a proposal to amend the Constitution and persuading the the two Houses of the Oireachtas to accept it unless it believes that there is some serious problem which needs to be addressed by the people. "Government by discussion" is one of the values of a liberal democracy but this does not mean that the Government is merely the chairman of a debating society. Politicians who think that the Constitution should be amended have the right and duty to attempt to persuade their fellow citizens to adopt the proposed amendment. It appears to me that they are entitled to do this individually, as private citizens, or collectively as members of a political party or of the Government. The problem is that anything they do collectively as members of the Government is likely to cost money and, almost inevitably, this will be taxpayers' money. In McKenna (No 2) however, this Court decided that the Government by spending public funds on the one-sided professional advertising campaign designed to persuade the voters to vote for the Government's proposed amendment to the Constitution had exceeded the limits of it's discretion and had been unfair to those taxpayers who opposed the introduction of divorce.

ONUS OF PROOF

A great deal of debate took place in this Court and in the Court below on the question of the onus of proof which rests on a Petitioner who attempts to challenge a provisional referendum certificate. But it appears to me that, whatever the onus is, it cannot be the criminal onus of proof. I accept the force of Mr O'Donnell's submission on this point. I could not envisage a situation where this Court if it were satisfied, on the balance of probabilities, that the referendum had been conducted in such a way as to violate the constitution and materially affect the result, would refuse to quash the provisional referendum certificate. Were it to fail to do so it would in my opinion fall short of its duty as the final defender of the constitution.

In my opinion the position concerning the onus of proof is as follows. A citizen wishing to present a referendum petition must first obtain the leave of the High Court pursuant to Section 42 of the Referendum Act 1994. The High Court may not grant such leave unless satisfied (a) that their is prima facie evidence of a matter referred to in Section 43(a) in relation to which the referendum Petition questions the provisional referendum certificate concerned and (b) that the said matter is such as to affect materially the result of the referendum as a whole.

The
application will usually be ex parte and no doubt Affidavit evidence will be sufficient to establish prima facie evidence at this stage of the proceedings. When however it comes to the trial of the referendum petition the Petitioner will have to produce his witnesses.

At this stage the Petitioner has to attack a provisional referendum certificate purporting to record the decision of the people at a referendum. The situation is not unlike which exists when the President refers to this Court a bill which has been passed by both houses of the Oireachtas. The Court pays the Oireachtas the courtesy of assuming that it has not violated the Constitution. It therefore presumes that the bill is not repugnant to the Constitution until the contrary is clearly established [See In re School Attendance Bill 1942 [1943] IR p 334]. Likewise this Court will not likely set aside what appears, prima facie, to be an act of the sovereign people. Unless therefore what has happened is an express and obvious constitutional abuse affecting the outcome of the referendum the onus of proof on the Petitioner will be a heavy one. This does not mean that the onus is higher than the civil onus of proof but rather that the Court will be particularly vigilant in examining serious allegations.

MATERIAL EFFECT ON RESULT OF THE REFERENDUM AS A WHOLE

The
Divisional Court was satisfied that the Petitioner had not proved, even on the balance of probability, that the result of the election was materially affected by the unconstitutional conduct of the Government. This was essentially a matter for the Divisional Court which heard the evidence of the Petitioner's witnesses. I do not see how this Court can interfere with it. But even assuming that the Plaintiff's experts could have accurately assessed the movement of public opinion in the course of the election campaign the vital question is what happened on the 24 November 1995 the day of the referendum poll. Even assuming one could measure the effect of the Government's advertising campaign in the weeks before November 17 a totally new factor entered into the situation on November 17 when the Supreme Court ruled that the Government's advertising campaign was unconstitutional. It seems to me to be impossible to assess on any scientific basis what effect the Supreme Court ruling, and the reaction of the Government and the various parties to it, had upon public opinion. The most important week of the campaign was undoubtedly the last week but whether the Government's advertising campaign, viewed in the light of the Supreme Court ruling, had a positive or negative impact on the voters appears to me to be impossible to estimate.

It is worth emphasising that there is no suggestion in this case that the will of the people was overborne by any form of coercion nor is there any suggestion that the material placed before the people by the Government in the course of its advertising campaign was untrue. No-one has come forward to say that he was misled or that he would have voted in a different way but for the Government's advertising campaign. The Government was guilty of a constitutional wrong but this wrong was discovered before the date of the referendum and the people voted with full knowledge of what the Government had done. We know how they voted. We don't know why they voted the way they did. We are not competent to interrogate them as to do so would amount to breaking the secrecy of the ballot. Primary evidence being thus excluded it seems to me that we cannot accept secondary evidence from experts who seek to second guess why the people voted the way they did.

In all these circumstances I think that the Appeal should be rejected.

O'FLAHERTY J: While the referendum returning officer is named as a respondent in the title to these proceedings and submissions were made on his behalf in the High Court, his conduct is not in any way impugned by the petitioner and, in fact, he took no part in these appeal proceedings. Therefore, when I refer to the "respondents" in the course of this judgment, I do not include the referendum returning officer in that description.

Once the Minister for the Environment by his order of the 19 October, 1995 set the date on which the referendum would be held as 24 November, 1995, the referendum campaign could truly be said to be "on" and an interference of sufficient weight and moment occurring between the two dates which was executed in an unconstitutional, or otherwise illegal manner, should be regarded as an interference in the "conduct of the referendum", the phrase used in the legislation. I know that it is possible to argue for an earlier date or to say, as the Attorney General does here, that the ambit of the Referendum Act, 1994, should be confined to the "mechanics" of the actual holding of the referendum. One construction is too wide and the other too narrow, however, and as far as the latter construction is concerned it is so narrow an interpretation as to fail to ensure proper safeguards for the integrity of the poll. When given a wider interpretation the Act's efficacy is sufficient to accord with the Constitution: McDonald v Bord na gCon (No 2) [1965] IR 217 and East Donegal Cooperative v Attorney General [1970] IR 317. So, in my judgment, the constitutional wrong-doing of the Government which was established in McKenna v An Taoiseach [1996] 1 ILRM 81 was undoubtedly done in the course of the referendum campaign which I regard as equivalent to being done "in the conduct of the referendum", giving as I do, an interpretation of the Act which best accords with the Constitution.

That leaves for resolution the single question: did the constitutional wrong of the Government in expending public money to influence the outcome of the referendum materially affect that outcome? However, before answering that question I want to pass a number of comments.

In the first place, the argument was advanced on behalf of the petitioner that public money was spent not merely on advertisements to advocate a "YES" vote but also that such money was spent in retaining a private business firm to hold opinion polls which would help it to gauge public opinion, as well as the fact that the time and energies of civil servants were spent aiding groups who supported a "YES" vote as well as being in general supportive of one side in the referendum campaign, and that a great deal of the time of these civil servants was thus devoted to implementing this particular aspect of government policy and that this, allied to the retention of the pollster firm, the giving of grants of public money to certain groups and the advertising campaign, all constituted a mis-spending of public funds. The submission proceeded on the basis that these activities should all be regarded as components of a single scheme.

As regards the opinion polls, I hold that a Government must always be entitled to gauge public opinion: it is of the essence of government that it is aware about the public disposition on any given issue. And it can use the information thus gleaned to advance any particular policy that it wishes to propose to the public. Polls are simply an instrument to find out the public's view on a given topic from time to time. So I reject the criticism made about retaining the pollster firm. As regards how a government expends the time and energies of civil servants: this must be peculiarly a matter for the sense of delicacy that has prevailed in our system of government since the foundation of the State, and it would be invidious for the judiciary to attempt to police the relationship that will exist between members of the Government and the civil servants who are employed in particular departments, or by the Government as a whole from time to time, as well as to attempt to define the appropriate duties that should be reposed in them. The nature of the rapport and spirit of co-operation that will exist between individual civil servants and their particular Minister is not capable of any compendious description: the permutations are legion. Kingsmill-Moore J at the conclusion of a discourse on the history and disposition of the Irish public service spoke of "civil service discipline and tradition": McLoughlin v Minister for Social Welfare [1958] IR 1. By that he meant, I think, to include a large area which is not capable of any precise delineation. The Court should accord the Executive a proper freedom to deploy the time of civil servants. To attempt to set the limits of civil service involvement for the Government as a whole, or a particular Minister, would be to attempt to set boundaries for what is best left to the judgment of members of the Government as well as the civil service when both will be aware of the "discipline and tradition" which is so well established in our administrative culture and which requires that their duties with regard to the protection of the public interest as a whole is never neglected.

As I leave to one side the grant of monies to interested groups as being of minimal import, I come to the view that we should keep the case to its essential point which is that public money was expended unconstitutionally by the Government in placing advertisements to promote one side of the campaign to the detriment of the other and to decide what consequence that has for the referendum result.

In the second place, I want to say that the advertising placed by the government was not quite as harmless as I allowed myself to believe in the course of the McKenna hearing. An examination of the advertisements made available on discovery in the instant case gives a different perspective. For example, to say: "YES you've been lied to. Income tax will not increase by 10% with divorce", in answer to those opposing the introduction of divorce, is certainly not to pull any punches. So that the fact that this was a campaign with an aggressive element has to be confronted, I believe. In saying that I am not oblivious to the fact that the "NO" side gave as good as it got in its advertising.

In the third place, I do not think anything is to be gained by assigning a description of "deliberate and conscious violation" of the Constitution, as opposed to innocent wrong-doing, to the Government's action. Either of those descriptions are more appropriate to police action by servants of the State and, in general, would be inappropriate to apply to government action when the Government is exercising the Executive power of the State. While there is no doubt that the Government set out to influence the result of the referendum in what was found by this Court to be by unconstitutional means, the Government had considered that it was entitled to do so by reason of two High Court decisions. The question is rather whether, viewed in an objective manner, the result of the referendum was materially affected by this wrong-doing.

I reject the thesis put forward by the respondents, which received a measure of acceptance in the Divisional Court -- but which was not persisted in before this Court to any extent, that the advertising campaign did not advance the Government's position at all but, rather, may have been counterproductive and cost the Government support. I freely confess that I regard this theory as one which occupies realms which are at the outer bounds of unreality. That leads me to hold with the submission which was advanced on behalf of the petitioner that it would have been better in carrying out its essential task, which was to determine whether the referendum result was in harmony with the Constitution and the legislative provisions that regulate how the Constitution is to be amended, if the Divisional Court had conducted this petition in the form of an inquiry since the Government's wrong was not in issue in the case, only its affect. There was a serious obligation on the Government, in those circumstances, to allow the Court to carry out a full and free investigation as to the affect the wrong-doing might or might not have had on the referendum result. In that way, the precepts contained in The State (Quinn) v Ryan [1965] IR 70 and Meskell v CIE [1973] IR 121 have been best implemented. Instead, I am afraid the case went its way with all the trappings and disadvantages (as far as this case was concerned, in any event) of an adversarial content. The petitioner was made to attempt to prove his case. And so while some matters of fact were admitted by the Government, there was an objection to the admissibility of the results of the opinion polls commissioned by the Government, for example. This objection had no discernable reason or purpose. The advertising campaign was conducted in the light of what opinion polls taken from time to time were throwing up and that information would, in turn, be used to power the advertising campaign. It should, of course, be said that the objection concerning the reception of the opinion poll evidence was over-ruled and that this evidence was received, evidence which was both relevant and pertinent.

While the petitioner was put on strict proof of his case, in the result however, as I think all the members of the Court are agreed, the evidence adduced by the petitioner did not advance his case. Neither, in my view, would the Attorney General have been able to advance the respondents' point of view to any great extent by adducing evidence which he said he had in reserve if his application for a "non-suit" was refused.

Consideration of the evidence in the case led to much debate in the court of trial, as well as here, on the appropriate standard of proof. Ever since the decision of this Court in Banco Ambrosiano SPA v Ansbacher and Company Limited & Ors [1987] ILRM 669, I regard it as settled in Irish law that in civil cases the standard of proof is on the balance of probabilities and that the necessity to prove something beyond reasonable doubt is reserved to the criminal law.

In any event, questions concerning both the burden and standard of proof are most apt for consideration in the light of the evidence in a case; therefore, we often speak of the evidentiary burden of proof. Here the more pertinent point is that since legislation passed by the Oireachtas (cf In re Article 26 and the School Attendance Bill, 1942 [1943] IR 334; McDonald v Bord na gCon [1965] IR 217; East Donegal Co-operative Ltd v Attorney General [1970] IR 317; In re Haughey [1971] IR 217; Boland v An Taoiseach [1974] IR 338; R v R [1984] IR 296; McMahon v Leahy [1984] IR 525; Russell v Fanning [1988] 505; Harvey v Minister for Social Welfare [1990] 2 IR 232; McDaid v Sheehy [1991] 1 IR 1 and O'Leary v Attorney General [1995] 1 IR 254) as well as bills passed by the Dail and Seanad, and which are sent by the President to the Court on Article 26 references (cf In re the Matrimonial Home Bill, 1993 [1994] 1 IR 305 which deals with this matter comprehensively) enjoy a presumption of constitutionality, so should a decision of the people exercising their law-making capacity be respected and enjoy a presumption which is at least as strong. Since the basic presumption is grounded on the respect which one organ of State owes to another and since all powers of government, legislative, executive and judicial, derive, under God, from the people (Article 6), it would seem to follow that even greater respect must be accorded to the decision of the people made in a referendum.

Decisions of certain State Supreme Courts of the United States of America were cited to us: Board of Liquidation of State Debt of Louisiana v Whitney-Central Trust and Savings Bank, 122 So 850 (1982), Louisiana; Larkin v Gronna, 285 NW 59 (1939), North Dakota and City of Glendale v Buchanan, 578 P 221 (1978), Colorado which have as a common theme that every reasonable presumption is to be indulged in favour of a constitutional that every reasonable presumption is to be indulged in favour of a constitutional amendment after the people have adopted it in an election. (Because the United States Federal Constitution contains no provision for a constitutional amendment referendum, the referendum process has been interpreted in many different ways depending upon the dictates of individual state constitutions. In the course of her opinion speaking for the Supreme Court of the United States, in Michigan v Long, 463 US 1032 (1983), Justice O'Conner reiterated the need and desirability for state court judges to develop an adequate and independent body of state constitutional law at pp 1040-1044). The points in dispute in the cited cases were different to what is involved in the instant case and it does appear that the challenge to the election result in each case was mounted after the amendment was incorporated into the constitutional document; a challenge as late as that is not possible in our system: cf Articles 46 and 47 of the Constitution and s 42(1) of the Referendum Act, 1994.

So I come to the nub of this case: how is the verdict of the people to be assessed in the circumstances that there was no way to prove by the evidence adduced, or to rebut by any evidence that was held in reserve, that the advertising campaign did or did not materially affect the result of the referendum.

The
one thing that both sides are agreed on -- indeed, they vie with each other in the eloquence with which they proclaim it -- is the sanctity of the role of the people in our constitutional scheme of things. Once the majority of voters decide, it is agreed that the people have spoken. There is no doubt that a free and democratic secret ballot is the bedrock of a nation's freedom and its best protection against disharmony and strife.

Where the Attorney General and the petitioner part company is on how best to decide whether the vote of the majority was sufficiently free from unconstitutional interference as to bind all, or whether the poll was so contaminated that what was apparently a vote of the majority was not in fact a free vote at all. In a word, as the petitioner asserts, that the integrity of the referendum was unconstitutionally affected and, therefore, the result cannot stand.

There can be no doubt, I believe, that the Government action was calculated to and did influence the course of events up to the date of this Court's decision in McKenna, viz 17 November, 1995. But then, without hesitation or prevarication, the Government dropped its advertising campaign (with the exception of one newspaper advertisement about which it was too late to do anything). It put its campaign in order -- as regards not using public money for advertising, in any event.

At this stage there was a week remaining to polling day. The Irish experience, through the years, shows that the final week of any electoral campaign is a critical time. In this case the people had that week to reflect again on the issues in the referendum. They were now told they would not be subject to any advertising which was unconstitutionally funded in favour of one side. The fact that the Government had been held in breach of the Constitution must have adversely affected the support it had commanded with some voters. Equally, the advertising must have continued to affect positively some other voters at least with its residual message.

The
people came to a decision by the very narrow margin of .56% in favour of amending the Constitution.

Can it be said that the "YES" side were not influenced to the extent of that small percentage at least by the Government's advertising campaign? Of course, that cannot be said: it is something incapable of proof.

However, no case was made but that each citizen who voted did so in accordance with his or her own free will within the basic meaning of that term. Each voter must, therefore, be taken to have been sufficiently enlightened at that stage on the issue involved to exercise what was a free choice. Therefore, I believe that the presumption of constitutionality in favour of the result has not been displaced.

That brings me, then, to an additional concept which is that of proportionality and which is of relevance in the situation prevailing here -- it would be different if a case of material interference had been made out by the petitioner: we are bound, I believe, to preserve a proportion between the wrong committed; its possible affect and the remedy proposed to right the wrong. When the Court strikes down legislation as being unconstitutional a remedy is immediately available to the Oireachtas: it can bring forward fresh legislation stripped of the provision that was found unconstitutional: see, for example, In the Matter of Article 26 of the Constitution and In the Matter of the Offences Against the State (Amendment) Bill, 1940, [1940] IR 470. No such direct course is available if a referendum is declared null and void. A fresh referendum would have to be held where there would be a different electorate; new voters would have come on the scene and others would have departed for one reason or another. Those who had constituted the de facto majority in the void referendum would complain that their rights had not been properly respected. So the setting aside of a referendum must be regarded as an awesome undertaking.

On this point, that the presumption of constitutionality which the verdict of the people enjoys has not been displaced, and which is as narrow as the verdict in the disputed referendum, I rest my judgment.

I would disallow the appeal.

BLAYNEY J: While this appeal gives rise to a great many issues it seems to me that ultimately how it should be decided depends principally on the answer to two questions:-

1 Was the advertising campaign conducted by the Government using public funds, which was found in the case of McKenna v An Taoiseach and Others (No 2) [1995] 2 IR 10 to be unconstitutional, an interference in the "conduct of the referendum" within s 43(1)(b) of the Referendum Act, 1994 (the 1994 Act).

2 If it was such an interference, was the Divisional Court correct in holding that the result of the referendum as a whole was not materially affected by such campaign?

The
background facts have been fully set out in the judgment of the Chief Justice so it is not necessary for me to repeat them. I will proceed directly to considering the two questions that I have outlined.

The
first question calls for the construction of s 43(1) of the Referendum Act 1994 which is as follows:-

"43(1) A referendum petition may question a provisional referendum certificate on the grounds that the result of the referendum as a whole was affected materially by --

(a) the commission of an offence referred to in Part XXII of the Act of 1992 (as applied by s 6),

(b) obstruction of or interference with or other hindrance to the conduct of the referendum,

(c) failure to complete or otherwise conduct the referendum in accordance with this Act, or

(d) mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate."

The
phrase "conduct of the referendum" occurs in paragraphs (b) and (d) and paragraph (c) refers to 'failure to . . . conduct the referendum in accordance with the Act". It is not stated, however, whose conduct of the referendum is in question. But it seems clear that it can only be the conduct of either the referendum returning officer or of the local returning officers. It was submitted on behalf of the State that it is the conduct of the referendum returning officer that is in question and in support of this reliance was placed on s 14(3) of the Referendum Act 1994 which provides as follows:-

"14(3) It shall be the duty of the referendum returning officer to conduct the referendum for the purposes of which the officer is appointed, to ascertain and declare the result thereof in accordance with this Act, and to do such other acts and things in respect of the referendum as are required by this Act."

However, the local returning officers are also referred to in the Act as conducting the referendum as is clear from the provisions of s 48:-

"Section 48(1) At the trial of a referendum petition the Court may order that the referendum to which the referendum petition relates shall be taken again in a constituency . . .

(2) The Court shall not order a referendum to be taken again in any constituency merely on account of a non-compliance with any of the provisions contained in this Act or an error in the use of forms provided for in this Act where it appears to the Court that the referendum was conducted in the constituency in accordance with the general principles laid down in this Act and that the non-compliance or error did not affect the result of the referendum as a whole."

The
main functions of the local returning officers are dealt with in s 15 subsections 1 and 3 of the Referendum Act 1994:-

"15(1) The person who would be the returning officer at a Dail election in a constituency shall be the returning officer (in this Act referred to as "the local returning officer") in that constituency for the purposes of a referendum.

(3) It shall be the duty of the local returning officer for a constituency to take the poll at the referendum in the constituency and to count the votes cast thereat and to do such acts and things as may be necessary for effectually taking the poll and counting the votes in the constituency in accordance with this Act."

If the relative functions of the referendum returning officer and the local returning officers are analysed it emerges clearly that the functions of the referendum returning officer are extremely limited. They can be summarised as follows:-

"1 To send to each local returning officer a copy of the Minister's Order appointing the polling day and a copy of the Bill containing the proposal which is the subject of the referendum (section 20).

2 To receive particulars of the result of the poll from each local returning officer. (Sections 35 and 37)

3 To receive from each local returning officer and retain for six months all the papers relating to the ballot. (Section 38)

4 To prepare, sign, and publish in Iris Oifigiuil the provisional referendum certificate giving the result of the referendum." (Section 40)

It can be seen from this that the referendum returning officer is not directly concerned with what is referred to in s 48 of the Referendum Act 1994 as the taking of the referendum in each constituency. This is entrusted to the local returning officers so it is they who conduct the referendum in each constituency, and they do this by taking the poll in their respective constituencies.

Against this background, when one has to determine whose conduct of the referendum is in question when that phrase is used in s 43(1)(b) of the Referendum Act 1994 I think it is reasonable to conclude that it is the local returning officer's conduct rather than that of the referendum returning officer. Furthermore, having regard to the nature of the functions of the referendum returning officer as set out in the 1994 Act, it is clear that the advertising campaign conducted by the Government could not have constituted any interference with his functions and accordingly could not have constituted any interference with his conduct of the referendum. So, if the unconstitutional action of the Government constituted an interference with the conduct of the referendum, it can only have been an interference with the conduct of the referendum by the local returning officers. The question that has to be considered therefore is what construction is to be given to the phrase "conduct of the referendum" by the local returning officers, and what might amount to an interference with such conduct.

The
manner in which each local returning officer conducts the referendum is by taking the poll in his constituency. S 32 subs (1) of the Referendum Act 1994 provides that in relation to the taking of the poll the provisions of ss 90 to 95, 97, 98 and 101 to 111 of the Electoral Act, 1992 are to apply subject to certain modifications specified in s 2(3) of the 1994 Act. These sections deal with all the practical matters relating to the taking of the poll, ballot boxes, polling stations, the procedure for voting etc. They are concerned with the physical aspects of taking the poll and there would be no difficulty in identifying anything which constituted an interference with these. But should the concept of an interference with the conduct of the poll be confined to an interference with its physical aspects? The purpose of the taking of the poll is to enable each voter to record an opinion reached freely without having been subjected to any unlawful influence or pressure. It is not simply a mechanical process of putting a voting paper in a ballot box. What is on the voting paper is a voter's opinion and essentially it is this which is the subject of the taking of the poll. It seems to me, accordingly, that anything which would unlawfully interfere with the formation of the voter's opinion would also count as an interference with the taking of the poll. It would prevent the poll from being a true record of the voter's opinion. In my opinion, therefore, the meaning to be given to an interference with the conduct of the referendum should not be confined to the physical aspects of the taking of the poll but should extend to any unlawful activity which would interfere with the vote expressing the freely determined opinions of the electorate.

That this is the construction which should be adopted is in my opinion supported by another important consideration which was dealt with by Mr O'Donnell in the course of his able submissions. S 42(1) of the Referendum Act 1994 provides that a provisional referendum certificate may only be questioned by a petition to the High Court in accordance with the Act. This means that the only way in which the result of a referendum may be questioned is by a petition based on the grounds set out in s 43(1). If the narrow construction of paragraph (b) of s 43(1) were adopted it would mean that the Act gave no remedy for any interference with the conduct of the referendum by the local returning officers other than an interference with the physical aspects of the taking of the poll. An interference which would unlawfully influence the manner in which the electorate voted would be excluded. Such a conclusion would risk giving s 43(1)(b) of the Referendum Act 1994 an unconstitutional construction so it seems to me that what the Court is faced with here is a choice between two constructions, one which is clearly constitutional, and one which may not be since it would exclude as a ground for challenging the provisional referendum certificate a type of interference which could clearly affect the result of the referendum, and in these circumstances it seems to me that the Court must choose the construction which is constitutional where such construction is possible, as in my opinion it is. While this is not a case in which the constitutionality of the 1994 Act is being challenged, it seems to me nonetheless that in so far as construing the Act is concerned the same principles apply as if the constitutionality of the Act were in issue. The principles set out in the following passage of the judgment of Walsh J in East Donegal Co-operative v The Attorney General [1970] IR 317 at 341 are accordingly relevant:-

"Therefore, an Act of the Oireachtas, or any provision thereof will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the junctions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning."

In my opinion there is no question here of s 43(1)(b) of the Referendum Act 1994 being given such a construction that the Court is usurping the function of the Oireachtas or that a clear statutory provision is being given an opposite meaning. The alternatives are simply a narrow or a broad construction and I agree with the Chief Justice that it is the latter construction which should be adopted.

Applying that construction of s 43(1)(b) of the Referendum Act 1994 I am satisfied that the advertising campaign carried out by the Government amounted to an interference with the conduct of the referendum by the local returning officers. The purpose of the campaign was to influence the electorate to vote in the manner favoured by the Government and in my opinion it is not open to the State to contend that it wholly failed to achieve this purpose. It was submitted by the Attorney General that because the advertisements were not misleading, and would have been unobjectionable if not financed unconstitutionally with public funds, they should not be treated as being in any way tainted by the unconstitutional funding. I am wholly unable to accept this submission. The advertising campaign cannot be severed from the funding because without the funding there would have been no such campaign. They are inextricably linked together. The campaign was the product of the funding and it did in my opinion constitute an interference with the conduct of the referendum by the local returning officers.

I now turn to the second question, namely, whether the Divisional Court was correct in holding that the result of the referendum as a whole was not materially affected by the advertising campaign.

It is necessary to start by considering the extent of the "obstruction of or interference with or hindrance to the conduct of the referendum" envisaged by s 43(1)(b) of the Referendum Act 1994. As I pointed out earlier in this judgment, "conduct of the referendum in the context of the present case" must be read as meaning "conduct of the referendum" by the local returning officers. So, what this paragraph of s 43(1) is referring to is any obstruction of, interference with or hindrance to the taking of the poll in any of the separate forty one constituencies. The manner in which the opening of s 43(1) of the Referendum Act 1994 is phrased would seem to confirm this:-

"A referendum petition may question a provisional referendum certificate on the grounds that the result of the referendum as a whole was affected materially by --".

The
use of the phrase "as a whole" suggests that what the section envisages, particularly in regard to paragraphs (a) and (b), is that some electoral offence or some other circumstance might interfere with or obstruct the taking of the poll in one or more constituencies, but that this should not be a ground for questioning the provisional referendum certificate unless it materially affected the overall result of the referendum and not simply the result in the particular constituency or constituencies in which the offence or interference took place. If something like this were to occur, there would be no difficulty in determining whether or not it had materially affected the result of the referendum as a whole since it would simply be a mathematical calculation to determine if the number of votes cast in the affected constituency or constituencies could have affected the overall result no matter how they were cast.

That the section envisages principally circumstances affecting the poll in individual constituencies is supported also by the terms of s 48 which I cited earlier. This section gives the Court power, at the trial of a referendum petition, to order that the referendum be taken again in a constituency. Nowhere in the Act is an express power given to the Court to direct that the referendum be taken again in every constituency, though no doubt s 48 of the Referendum Act 1994 might be construed as impliedly giving that power on the ground that s 11 of the Interpretation Act, 1937 provides that "every word importing the singular shall, unless the contrary intention appears, be construed as if it also imported the plural". But the fact that no express power is given is significant. It emphasises that what the Act is primarily designed to deal with is circumstances affecting individual constituencies which might also materially affect the overall result of the referendum. The Act does not appear to be designed to deal with a circumstance which could affect the poll in every constituency.

This creates a special problem for the petitioner. He has to try to satisfy a condition which was appropriate for the type of situation envisaged by the Act, namely, a circumstance obstructing or interfering with the taking of the referendum in a single constituency, or perhaps in a few constituencies, but is inappropriate when the circumstance is something which affects the referendum in every constituency. In such a case, to prove that the result of the referendum as a whole has been materially affected becomes extremely difficult because, as was submitted by the Attorney General, the secrecy of the vote prevents any evidence being obtained as to how people voted or as to why they voted in the way they did. The position might have been different, and the Attorney General appeared to be ready to concede this, if the Government advertising campaign had continued right up to the date of the referendum, instead of being brought to an end one week before that date. Since it did not continue right up to the date of the taking of the poll, there was a period of one week during which the electorate could take stock of the position in the full knowledge of what had taken place and this made it extremely difficult to assess what effect, if any, the advertising campaign had on the electorate on the actual polling day.

The
Divisional Court, having heard all the evidence called by the petitioner, held unanimously that the advertising campaign had not materially affected the result of the referendum as a whole and I cannot see any ground on which this Court could interfere with their decision. It is clear from the judgments given by the members of the Court that they did not accept the opinion evidence on which the petitioner's case was based and their decision in that regard cannot be reviewed by this Court. It was entirely a matter for the Divisional Court to decide what evidence they accepted and what evidence they rejected and once they rejected the only evidence which was possible for the petitioner to put forward in support of this essential element in proving his case, it was an inevitable consequence that the petition had to be dismissed. And since this Court cannot interfere with the decision of the Divisional Court on this fundamental part of the case, it follows in my opinion that the appeal cannot succeed.

One of the important issues debated before the Divisional Court and also before this Court was the question of the nature of the onus of proof resting on the petitioner. It was submitted on behalf of the State that the onus was the same as that which the State undertakes in a criminal trial whereas counsel for the petitioner submitted that it was the normal onus obtaining in civil trials, namely, proof on the balance of probabilities. This matter is dealt with very fully by Barrington J in the judgment which he is about to deliver and which I have had the opportunity of reading, and I am in complete agreement with his conclusion that the correct onus of proof is that which obtains in civil actions.

For the reasons set out earlier in this judgment I agree that this appeal should be dismissed.

DENHAM J: Issues

The
facts of this case have been stated fully by the Chief Justice. Fundamentally, there are two issues before the Court and both relate to the process of a referendum. First, as a matter of law, there is the question of the construction of Section 43 of the Referendum Act, 1994, in particular, the meaning of the words conduct of the referendum". Secondly, is the issue whether the Divisional Court was correct in its determination of the question as to whether the activity of the government was such that the result of the referendum as a whole was affected materially by obstruction of, or interference with, or irregularity in the conduct of the referendum.

CONSTITUTIONAL CONTEXT

The
interpretation of the Referendum Act, 1994 (hereinafter referred to as "the Act") and its application to the facts of this case need to be placed in their constitutional context. The issues revolve around the constitutional relationship of the people to their government. This may be analysed by considering the concept of sovereignty.

SOVEREIGNTY

There are three aspects of sovereignty:-

(a) State sovereignty;

(b) Internal sovereignty, and

(c) Popular sovereignty.

(a) STATE SOVEREIGNTY

The
Constitution of Ireland established the sovereignty of the State of Ireland. Article 5 states:-

"Ireland is a sovereign, independent, democratic state."

Thus, the State has its place in the international arena as the sovereign power over its people. This aspect of sovereignty is not in issue in this case.

(b) INTERNAL SOVEREIGNTY

There is the sovereignty of the organs of the State: which I shall call internal sovereignty. The people have delegated powers of government to the organs of the State established by the Constitution. These are primarily the three branches of government: the legislative, the executive and the judicial. Power is divided to enable the institutions to check and balance one upon the other. Each of these organs of government has duties and responsibilities. These duties and responsibilities co-exist with the decision-making power of the people in the referendum to enhance that process.

(c) POPULAR SOVEREIGNTY

Underpinning the whole concept of sovereignty is what I shall call popular sovereignty meaning the power of the people. The Constitution is grounded on the will of the people. Thus,

We, the people of Eire, . . .

Do hereby adopt, enact, and give to ourselves this Constitution."

The
Preamble;

and

"The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.": Article 1;

and

"1 All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2 These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.": Article 6;

and

"Every proposal for an amendment of this Constitution shall be initiated in Dail Eireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.": Article 46.2;

and

"Every proposal for an amendment of this Constitution which is submitted by Referendum to the decision of the people shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law." Article 47.1.

Hence, the Constitution, while establishing an independent sovereign democracy with representative government has retained some direct decision-making procedures for the people. On the one hand, there is the democratic process of elections whereby the people's representatives are elected who then make decisions for the people. On the other hand, there is also a direct vote, direct democracy, by way of referendum.

This is not an active process, it is not a system such as an Initiative. Rather it is a passive process whereby the necessary steps are taken in the Dail and upon having been passed by both Houses of the Oireachtas the issue is submitted to the people. It is not a process directly initiated by the people but rather the initiative lies with organs of government. Thus it is necessary to ensure that the people's position as direct decision-makers is preserved as against the power of any organ of government.

In this referendum the executive had an active role in preparing for the referendum. The legislature then took all the necessary steps to bring the matter to the people. It was in accordance with the concept of internal sovereignty that these steps were taken. Both organs of State had to act in accordance with their constitutional duties and responsibilities.

Similarly, the third organ of State, the judiciary, undertook its constitutional duties to protect fair process and individual rights. In McKenna v An Taoiseach and Others (No 2), [1995] 2 IR 10 it was held that the government in expending public monies in the promotion of a particular result in the referendum acted in breach of the Constitution. Such actions infringed at least three constitutional rights:-

(i) The right of equality;

(ii) The right of freedom of expression, and

(iii) The right of a fair democratic process in referenda.

The
referendum process is one of the most fundamental parts of our system of government and in relation to that process duties and responsibilities are placed on organs of State. The referendum process itself is enabled by the internal sovereignty of the organs of State and is not in conflict with those powers of representative government but rather is a form of direct decision-making arising from the fundamental nature of the roots of the Constitution. It is a basic instrument of popular sovereignty, yet the various roles of the organs of State retain the element of internal sovereignty, to enhance a constitutionally fair process for the exercise of popular sovereignty by the people.

The
referendum process is for the benefit of the people to exercise their will. It is not a device to extend internal sovereignty, nor the power of any organ of State.

The
overwhelming majority of governmental decisions are taken by the organs of government made up in accordance with the decisions of representatives of the people. It is only rarely that the people vote directly on issues of the Constitution.

That fact alone makes it imperative that when the process of direct decision-making by the people is used that it be done in accordance with the Constitution and the law. The fact that the organs of State function, exercising their internal sovereignty, is to the benefit of the people in their making a free vote, and is not a derogation of popular sovereignty.

FIRST ISSUE: CONSTRUCTION OF THE REFERENDUM ACT, 1994

On the first issue, the interpretation of the Act and in particular the construction of Section 43(1)(b) and (d), I am Satisfied that the words "conduct of the referendum" have a wider meaning than the mere mechanics of the process. I agree with the judgment of Blayney J. Further, I agree that a broad construction of the words "conduct of the referendum", if there be an alternative construction, is that which is constitutional. The wider construction is that which protects the votes of the people in exercising their popular sovereignty by direct decision-making through the referendum process.

STATUTE NOT NECESSARY

It is well settled in our jurisprudence that the protection of constitutional rights through the Courts is not dependent on the provision of legislative machinery. In State (Mead) v Governor of Limerick Prison, Supreme Court 26 July 1972 the law was stated clearly by O'Dalaigh CJ when he said:-

"Constitutional rights, for enforcement, do not require statutory vesture unless the Constitution itself were to express such a limitation."

The
law envisaged by Article 46 and now to be found in the Act is capable of being construed, and is so construed, to enable the enforcement of constitutional rights. Thus there is no need to look outside the statute for the protection of rights.

RIGHT TO A REMEDY

It was submitted that there having been a constitutional wrong that the petitioner is entitled to a remedy: that to fail to grant the petitioner a remedy would be to make a determination that set his constitutional rights at nought.

State (Quinn) v Ryan [1965] IR 70 was relied upon. In that case Garda officers removed a prisoner out of the jurisdiction of the Irish Courts on an English warrant with such speed that he had no opportunity to apply to the Courts to question the validity of the warrant. O'Dalaigh CJ stated (at page 122):-

"It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts' powers in this regard are as ample as the defence of the Constitution requires."

The
facts of this case are entirely different. In this referendum an unconstitutional activity was stopped during the campaign (the McKenna case) and there has been no bar to the petitioner's access to the Courts at any time. Nor is there any lack of procedure for the petitioner who, while not seeking access to the Courts earlier, either before the 17 November or between the 17 and 24 November, 1995, has now brought a petition before the Courts. The law, as required by the Constitution, has been established by the Oireachtas in the Act and has not been set at nought or circumvented. The Courts (in the McKenna case) have exercised already their jurisdiction as custodians of the fundamental rights of citizens, and the Act envisages full access to the Courts which is being exercised by the petitioner.

Walsh J in Byrne v Ireland [1972] IR 241 stated:-

"Where the people by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available."

The
absence of a remedy is not an issue here: it existed as exercised in the McKenna case and this very case illustrates the existence of a process for remedy to the petitioner. Legislation has created a form of action to protect rights. That then brings us to the second issue.

SECOND ISSUE

The
second issue for determination is whether the result of the referendum as a whole was affected materially by the government's interference with the conduct of the referendum. This issue raises matters of law and fact.

INTERFERENCE

The
petitioner claimed that the referendum and in particular the result was as a whole affected materially by (a) obstruction and/or interference with the conduct of the referendum and (b) irregularity in the conduct of the referendum. The issue as developed was as to the "interference" with the referendum by the government. It has already been decided that the activities of the government in expending public monies to promote a particular result in the referendum was unconstitutional. Such a constitutional wrong was an interference in the referendum process. It was also an "interference" in accordance with the term in Section 43 of the Referendum Act 1994.

ONUS OF PROOF

This is a civil case involving fundamental constitutional principles. The onus of proof lies with the petitioner and remains that of the balance of probabilities. No higher degree of proof is required. I agree with the analysis and determination in the judgment of Barrington J.

This burden and onus must be viewed in the constitutional context. I would adopt the approach of McCarthy J in Finucane v McMahon, [1990] IR 165 at 226 when he stated (of an application for extradition):-

"In my view, the courts charged with the protection of the Constitution and of the citizens whose fundamental rights are thereby guaranteed defence and vindication would fail in their duty if, being satisfied that there is a real danger that a citizen delivered out of the jurisdiction will be ill-treated, did not refuse to permit such delivery. In the light of that, the courts must look at the circumstances of each case."

The
situation of the petitioner under the Act is similar to an applicant seeking to avoid extradition in that the consequences of failure to both are irretrievable. In both instances the Courts have the duty to protect the individual rights of the citizens. In both instances there is a duty also to protect the Constitution: in this instance, the referendum process. The Court would fail in both duties and responsibilities if, satisfied that there was a real danger to either the process or the individual's rights, it did not act accordingly. To determine these matters the Court has to look at the circumstances, the facts, which in this case it is required to consider under the Act. That then brings us to the role of the Appellate Court on issues of fact.

ROLE OF THE APPELLATE COURT

The
jurisprudence regarding the role of the Appellate Court on issues of fact is quite clear. If the findings of fact made by the Divisional Court are supported by credible evidence the Supreme Court is bound by them: Hay v O'Grady [1992] IR 210.

"RESULT OF THE REFERENDUM AS A WHOLE . . . AFFECTED MATERIALLY"

As to the words "result of the referendum as a whole . . . affected materially" as regards the issues of law in the construction of Section 43, I agree with the judgment of Blayney J. The issues of fact were before the trial Court. The Divisional Court considered the evidence as to whether the advertising campaign was such an interference in the conduct of the referendum as to affect materially the result of the referendum as a whole. It concluded that it was not established that the government's unconstitutionally funded campaign had affected materially the result as a whole.

In my view it is more appropriate, in these important cases held by way of the petition process, to have a full enquiry when evidence may be offered by the respondents rather than cut the proceedings short. However, that does not alter the fundamental role of the Court in this case.

The
Divisional Court made a clear determination on fact which is binding in law. I would add, however, that having considered the transcript carefully, that if it were necessary to reach a conclusion on fact, I would agree with the trial Court.

The
referendum took place a week after the McKenna decision. Given that this is a State with an educated and sophisticated electorate who had immediate access to information on the decision and the reaction thereto I have no doubt but that the Divisional Court was correct in its determination.

CONCLUSION

The
will of the people was expressed in this referendum on 24 November, 1995. The petitioner did not succeed in the Divisional Court in proving that by its conduct in the referendum the government had affected materially the referendum as a whole. For the reasons stated herein, I would dismiss the appeal from that decision.


© 1996 Irish Supreme Court


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