Court to decide on AG's application to dismiss referendum challenge

 

THE High Court will give its decision next Wednesday on an application for the dismissal of the challenge by Mr Des Hanafin to the divorce referendum result.

The application for dismissal was made by the Attorney General, Mr Dermot Gleeson SC, yesterday on the 11th day of the hearing. He made the submission, after the conclusion of the evidence called by Mr Hanafin's lawyers.

Mr Gleeson had made a previous application for dismissal on the second day of the hearing. The three judge divisional court said it was reluctant to make such an order on the petition until all the evidence had been adduced and postponed its decision.

Mr Hanafin is seeking to overturn the result of the November 24th referendum on the grounds that the Government wrongly spent public money promoting the Yes campaign. He wants the court to order a new referendum.

Yesterday Mr Gleeson said the funding irregularity did not vitiate the freedom and integrity of the referendum vote. The word "conduct" in Section 43 of the Referendum Act 1994 was not to be interpreted as meaning the conduct of the campaign. The onus was on the petitioner to show that the evidence at this stage displaced the poll result.

On any of the possible tests which the court should apply at this stage, the evidence of the plaintiffs witnesses fell notably short and the matter should not continue.

The 1.6 million ballot papers were retained in a locked room by the returning officer. All those votes were freely cast according to the will of the voter. There had been no electoral offence under the Act. The votes remained untouched by these proceedings. The ballot stood unscathed by what had gone on in this room.

Every individual vote and the cumulated vote was intact. The proper course was to confirm the certificate under the Act and return it forthwith to the returning officer.

No evidence forged any link btween the funding irregularity and the casting of votes on November 24th. The petitioner could not answer the question of what was wrong with the poll.

There was nothing wrong which would occasion a court to think of intervening. There was a logical deficit, a missing link, which the petitioner failed to address. This attempt to link matters of a different character was what the petition was based on.

The law was that a government was entitled to make its views known on referendums. There was no contention raised that any advertisements were misleading or deceptive. The advertisements could not have been objected to if placed in the name of the political parties which formed the Government.

There was no causal relationship between the funding of an advertisement and the freedom of the vote. No amount of passionate assertion by the witnesses was capable of surmounting this logical background.

Was the court of the view that the 1.6 million votes cast were outweighed by the totality of the evidence now heard, and whether the electorate had done enough or must it do more? Must the people be put on proof and bring evidence to sustain the verdict of November 24th?

There was the fascinating proposition that of 100 per cent of votes cast, 3 per cent could have a label attached to them whereas the other 97 per cent could not. Reasoning stopped after 3 per cent. That put at its starkest the untenability of the stance taken on behalf of the petitioner.

Witnesses had conceded that in order to disentangle one factor one needed to weigh others. The two UK witnesses, Mr Phil Harris and Mr Gordon Heald, clearly knew bits about the rest of the campaign but had startling gap in their knowledge.

Mr Anthony Coughlan, senior lecturer at TCD, said that hi could measure the advertising campaign but nothing else. His evidence was weightless.

Mr Cathal Brugha, lecturer at UCD, compared the 1986 referendum with that of 1995. There was no theoretic justification to say that was the legitimate way of doing it. He readily acknowledged the range of things that could have affected the voter.

Regarding the evidence of Mr Jack Jones, the chairman of MRBI, Mr Gleeson said that without the basis laid by Mr Jones, the other witnesses could not have given evidence at all.

Mr Peter Kelly SC, for Mr Hanafin, replying, said the Government wrong doing was established. Whether the Referendum Act provided a remedy for wrongdoing had already been addressed. The question remained: did the wrong doing have a material effect on the outcome?

In the McKenna judgment the Chief Justice had said the people were entitled to reach a decision free from unauthorised interference from any of the organs of State. Mr Kelly said the campaign was an unauthorised interference. It had the stamp and approval of the Government and that should never have been there.

He submitted that because the advertisements bore the Government stamp, they were effective and materially affected the out come of the referendum. All the witnesses gave expert testimony. The AG had taken the court through a check list of what the witnesses did not know. However, nowhere did it emerge that the experts resiled from the opinions which they expressed.

At this stage, the court had opinion evidence, but that had not been displaced in cross examination. There was evidence by the experts that there was material effect brought about advertisement campaign which they had quantified.

The onus now shifted to the State to controvert what was said. There was no doubt it was a very professional and vigorous campaign and it defied common sense and the experts to say there was no evidence.

There was no justification for having the case dismissed at this juncture, and the State should proceed to go into evidence.