Referendum result challenged
Two women, a Dublin homemaker and a nursing home resident, have initiated a legal challenge aimed at overturning the result of the Children Referendum. The referendum was passed by a majority of 58 to 41 per cent based on a 33.49 per cent turnout.
The petition is by Joanna Jordan, a homemaker of St Kevin's Villas, Glenageary Road Upper, Dun Laoghaire, Co Dublin, who campaigned for a No vote in the referendum.
The second petitioner is Nancy Kennelly, Abbot Close Nursing Home, Askeaton, Co Limerick, who voted Yes by post before the Supreme Court ruled some information distributed by the Government during the referendum campaign was not impartial.
Mr Justice Iarfhlaith O'Neill today directed that the State be placed on notice of the application by the women for leave to bring a petition challenging the November 10th referendum result and he returned the matter to next Tuesday.
The women claim the Government's use of public money to fund an unbalanced information campaign on the proposed amendment to the Constitution amounted to wrongful conduct that materially affected the outcome of the referendum.
The Supreme Court, in a ruling earlier this month upholding Dublin engineer Mark McCrystal's challenge to the Government's information campaign, found "extensive passages" in the Government's information booklet and on its website about the referendum did not conform to the 1995 Supreme Court judgment in the McKenna case requiring referendums to be explained to the public in an impartial manner. The material contained a misstatement as to the effect of the referendum, the court also found.
It granted a declaration the State parties "acted wrongfully in expending or arranging to expend public monies on the website, booklet, and advertisement in relation to the Referendum on the Thirty First Amendment of the Constitution (Childrens) Bill in a manner that was not fair, equal or impartial."
Today, Mr Justice O'Neill agreed with Paul Sreenan SC, for the petitioners, they will need to have the text of the full Supreme Court judgment, to be delivered on December 11th, before their application for leave to bring the petition may be heard.
The women are also seeking leave to bring a parallel challenge to the constitutionality of those provisions of the referendum Act 1994 which require that those seeking leave to bring a petition challenging the outcome of a referendum must first show a referendum was "affected materially" by an irregularity.
The standard of "material" effect set out in Sections 42 (3) and Section 43 of the Referendum Act 1994 is too high, they claim.
Those Sections provide the High Court cannot grant leave to present a referendum petition unless it is satisfied there is prima facae evidence the result was affected materially by an offence set out in Part XXII of the Electoral Act 1992 or there was obstruction or hindrance to the conduct of the referendum.
Leave for a petition may also be granted if the court finds the result was affected materially by a mistake or other irregularity in the conduct of the referendum.
The woman contend the onus should be on the entity that has committed any wrongful conduct to show that breach did not have a material effect on the referendum. Alternatively, they contend there should be no burden on a petitioner to show an effect on a referendum in order to be entitled to a remedy or, of there is to be a burden, that should go no further than requiring them to show the alleged wrongful conduct "may" have affected the referendum.