THE Attorney General applied to the High Court yesterday to have Mr Des Hanafin's challenge to the divorce referendum result dismissed on the grounds that the courts had no power to overturn the freely expressed verdict of the people.
Mr Dermot Gleeson made the application on the second day of the hearing of the petition brought by the former senator, which is before a three judge divisional of the High Court.
Mr Hanafin seeks to overturn the result of the November 24th referendum on the grounds that the Government wrongly spent money on promoting the Yes campaign. He wants the court to direct a new referendum.
Mr Hanafin's petition, said Mr Gleeson, was based on the proposition that where every citizen voted freely and in accordance with his free will and where there was no intimidation, no failure of state procedures and no error in counting, the court was obliged to inquire into the motivation and causation of the citizens' vote with a view to overturning the stated will of the people.
The claim was being made on the grounds that some segment of citizens may have been influenced by advertisements which were not in themselves alleged to have been deceptive or misleading.
It was claimed that the objection was taken because the "cost of those messages was coming from public funds.
The obligation on the court was, to dismiss the petition, said the Attorney General. There was no court in this State with the power to inquire into and adjudicate on the motivation of citizens voting at the polls.
The court had no power to overturn the freely expressed verdict of the people in a referendum properly held and properly counted.
In relation to the secrecy of the ballot, the court had no power to ask any voter how they voted and it followed that there was no power to compel any voter to say why they voted. Still less had the court the power to entertain the opinion of experts as to why people had voted.
The scheme of the State formed the cornerstone of the Constitution which was that the supremacy of the people should be preserved and respected in a manner which prevented the judicial arm of the State from seeking to interrogate the mind of the people.
What Mr Hanafin proposed was a power of judicial review not over the Government, lower courts or the legislature but over `the free' verdict of the people in relation to wrongful expenditure of public funds.
The court was being asked to disallow the effect of freely given votes, not because of any wrongdoing by any voter or any falsity in any message they heeded but because of a constitutional breach by the Government in relation to funding.
If the petition was to prevail then voters who voted freely and did no wrong were to have their verdict overturned.
What was now sought was that a transaction conducted between the legislature and the people should be set at naught and reversed because of a Government error.
Mr Gleeson said the courts could not inquire into the motivation of voters, could not disallow the force of votes and could not review a referendum, save to the extent under which it was contended that the result was not the view of the people if it was found that 20,000 votes were burned or lost, or people were prevented from voting.
The Attorney General referred the people and the doctrine of the secrecy of the ballot.
He said that Mr Peter Kelly SC, for Mr Hanafin, had made it clear that the objection was not to the messages and that there would be no objection if there had been funding by a political party.
Mr Gleeson said the funding by the Government in itself would not affect the way in which the message was received.
Another referendum was the only remedy available if Mr Hanafin's petition succeeded. If this was true, messages that were read six weeks ago could not be "unread". Another referendum in six weeks' time would be held in the same circumstances.
The petitioner had not alleged that the Government's unconstitutional spending involved misleading voters.
If the interpretation of the word "conduct" in the Referendum Act meant the conduct of the referendum campaign then it followed that a vista opened up. Then every untruth, exaggeration, in the course of a campaign could be analysed. It would be an accountancy of error.
There could never be a referendum where a statement made by one side or the other would not be objected to as misleading or giving false information. The courts would then have to entertain a plethora of petitions founded on every nuance.
Mr Gleeson said the people had the right to vote in whatever way they wished, even if it was to toss a coin to decide. It could never be the business of the courts to examine their motive. In this petition, they reached the limits beyond which the courts could not go.
The status of the Referendum Act 1994 fitted into a unique constitutional slot. No operation of the Act could be constitutional which allowed it to interfere with the constitutional scheme.
The Act's purpose was to provide a mechanism in certain circumstances for a challenge by petition to a referendum outcome. The key for a challenge would bed where a result was not in accordance with the sovereign will of the people.
The Act did not provide any mechanism to allow the will to be overturned once the vote had been freely expressed and counted.
The hearing resumes on, Tuesday.