AN APPEAL by Mr Des Hanafin against the High Court dismissal of his challenge to the divorce referendum result began in the Supreme Court yesterday.
Last February three judges of the divisional court of the High Court rejected the former senator's challenge on the grounds the evidence did not establish that she Government's advertising campaign materially affected the outcome.
His petition was rejected by the High Court on the application of the Attorney General, Mr Dermot Gleeson SC, who applied for its dismissal at the end of Mr Hanafin's witnesses on the 11th day of the hearing.
Before the referendum last November, Ms Patricia McKenna won a Supreme Court appeal that the campaign by the Government to procure a Yes vote using public funds was in breach of the Constitution.
Mr Donal O'Donnell SC, for Mr Hanafin, said yesterday that if the appellant won his appeal, he was looking for the rehearing of his petition in the High Court. Ultimately, he wanted orders declaring the November 24th referendum null and void and directing a new poll to be held.
Mr O'Donnell said this was the most contentious referendum in the history of the State. The fundamental issue was the relationship between the people and the State. The decision of the divisional court significantly altered this and was to the detriment of the people.
The Government parties carried out a vigorous, professional and effective campaign and the resources of the State were used to mount it.
He said the Government campaign involved a great deal more than the expenditure of £480,000 on advertising. MRBI was commissioned to conduct opinion polls for advice, and the advertising agency Quinn McDonnell Pattison was contracted for the campaign. There were also frequent meetings with pro divorce groups.
The advertising campaign was due to finish after the McKenna decision on November 21st, but the full scale effort of state employees, full time and particularly part time employees, continued at full pace.
The narrowness of the result of the poll of less than 1 per cent was significant. The people had an absolutely central role in the Constitution. The wrongdoing in this case was that there was a breach of trust by one of the organs of the State and an abuse of the power received from the people against the people themselves.
He contended there was an obstruction or interference or irregularity with the conduct of the referendum under the Referendum Act 1994 and this materially affected the outcome. Under the Constitution the State was under a duty to respect and avoid breaching the rights of the citizen. It had breached those rights.
The divisional court had made two errors. The first was the lack of attention it paid to the constitutional context and, secondly, the minimalist reading of the McKenna decision. It missed the principle that the resources of the State could not be used against one section of the people to get a partisan result.
The High Court entirely misunderstood the nature of the proceedings before it. For example, it refused to exercise the powers conferred upon it to call witnesses for the State. This impeded the conduct of the petition.
As a result of the ruling of the High Court during the trial, Mr Hanafin was forced to call an important witness who was undoubtedly hostile to him, Mr Jack Jones of the MRBI. Other witnesses were excluded from giving relevant testimony and others had their testimony devalued.
The State will be denying that the impact of alleged Government interference shifted support towards a Yes vote. It will contend that the sovereign will of the people was expressed in the referendum and deny there was obstruction or interference with its conduct within the meaning of the Act.
The hearing is expected to last until Friday. The five judges hearing it are the Chief Justice, Mr Justice Hamilton, Mr O'Flaherty, Mr Justice Blayney, Mrs Justice Denham and Mr Justice Barrington.