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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Hanafin v. Minister for the Environment [1996] IESC 6; [1996] 2 ILRM 61 (12th June, 1996) URL: http://www.bailii.org/ie/cases/IESC/1996/6.html Cite as: [1996] 2 IR 321, [1996] 2 ILRM 61, [1996] IESC 6 |
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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.