A college lecturer applied to the Supreme Court yesterday to prevent the Government amending Articles 2 and 3 as provided for in a referendum approved by the people last May. Judgment was reserved.
Mr Denis Riordan is seeking an order preventing the Government from changing or interfering with the Articles until the court rules on the matter or until the provisions of Articles 46 and 47 of the Constitution, which deal with procedures whereby the Constitution may be amended, are complied with.
Two days before the May 22nd referendum on the Belfast Agreement, the High Court refused to grant Mr Riordan an injunction halting the poll.
In the referendum, voters endorsed the 19th Amendment to the Constitution Bill which provided for the amendment of Article 29 and also included a mechanism for the future amendment of Articles 2 and 3, which describe the national territory.
Yesterday, Mr Riordan, of Clonconane, Redgate, Co Limerick, brought an appeal against the High Court decision to refuse him declarations that the Government and Taoiseach had acted unconstitutionally in approving the 19th Amendment Bill.
He submitted the Bill and the May 22nd referendum violate, as a matter of law, Article 46 of the Constitution and the Government, not the people, is obliged to comply with Article 46 when submitting Bills for referendum.
He argued the 19th Amendment Bill approved in the May referendum provides only for the amendment of Article 29 of the Constitution and does not allow for the amendment of Articles 2 and 3. The Constitution cannot be amended unless the Bill to amend it refers to the specific provision that is sought to be amended, he said.
The procedure whereby the Government proposed to amend Articles 2 and 3 was "utterly corrupt", he said.
He said the 19th Amendment Bill violated Article 46.1 which states: "A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal".
Mr Riordan said the 19th Amendment Bill contains three proposals but the Government had attempted to insulate these by incorporating them into one single change to Article 29. "This practice by the Government, if upheld, will set a dangerous and cynical precedent for bypassing the constitutional safeguards of Article 46," he said.
Also yesterday, Mr Riordan challenged the constitutionality of the divorce legislation approved by the people in the November 1995 divorce referendum.
During sometimes heated submissions to the five-judge court, Mr Riordan said he was not opposed to there being divorce in the State but he objected to it having been introduced in "this corrupt way".
In his appeal against a High Court decision of November last rejecting his challenge to the divorce legislation, Mr Riordan claimed the 15th Amendment to the Constitution Act 1995 and the Family Law (Divorce) Act 1996 are unconstitutional, null, void and inoperable. He also sought a declaration that the establishment of the office of Tanaiste in 1993 was unconstitutional.
No judge can grant a decree of divorce while certain mandatory provisions, including Articles relating to the family, remain in the Constitution, he argued. By granting a divorce decree, a judge was violating the oath to uphold the Constitution.
He claimed the divorce legislation is repugnant to several constitutional provisions, including Article 41.3.1 which provides for the State to guard with special care the institution of marriage.
In its submissions, the State rejected all the arguments advanced.
