THE Supreme Court yesterday reserved its decision in the appeal by a former senator, Mr Des Hanafin, against the High Court dismissal of his challenge to the divorce referendum result.
The Chief Justice, Mr Justice Hamilton, said the court would need to consider the submissions and would reserve judgment.
The appeal, which took four days, was against a decision in February of three divisional court judges of the High Court. They rejected Mr Hanafin's petition on the grounds that it did not establish that the Government's advertising campaign materially affected the result.
The Government spending of public funds for a Yes vote was declared unconstitutional in the McKenna Supreme Court judgment last November. Mr Hanafin wants the nullification of the divorce referendum result and a new poll to be held.
Earlier, Mr Paul Gallagher SC, for the State, said that Mr Hanafin, in asking for the invalidation of the result, was in effect asking the Yes voters to tell him their motive for voting.
What the petitioner was saying was that if the voters did not tell him their motive, which could not be done because of the secrecy of the ballot, then he would obtain experts to second guess their motives and therefore set the result aside.
The system did not allow retrospective calculation on motive. If they were talking about material effect on the result then it concerned those who voted Yes and those who voted No.
If one were only to inquire into those who voted Yes, then there was an inequality of the vote, which, fundamentally, was not allowed in our system.
If there was a new referendum, there must be a new provisional certificate. It was not just a simple question of retaking the referendum. A voter voted on a particular day believing that vote would count. The Referendum Act 1994 preserved that.
Mr Donal O'Donnell SC, for Mr Hanafin, said that the divisional court assessed the evidence by the wrong measurement.
The Chief Justice said it was impossible to show that the voter was affected by the advertising campaign one way or another.
Mr O'Donnell said this did not mean that they threw up their hands and allowed an unconstitutional act to proceed. This was not a free vote, not in the sense that the will of any individual was overborne, but the respondents were unable to say this was not a vote free from unconstitutional interference.
The remedy was to investigate if it did contaminate the poll. If it did, it was necessary to set aside the result.