THE questioning of the divorce referendum result by Mr Des Hanafin perfected democracy and did not interfere with the will of the people, the Supreme Court was told yesterday.
It was the second day of an appeal by the former senator against the High Court dismissal of his challenge to the divorce referendum result. He wants a new referendum poll.
Last February, three judges of a divisional court of the High Court rejected his petition on the grounds that it did not establish that the Government's advertising campaign materially affected the result. The hearing was dismissed at the end of testimony by Mr Hanafin witnesses on its 11th day.
The Government's spending of public funds for a Yes vote was declared to be unconstitutional in the McKenna supreme Court case last November.
Yesterday, Mr Donal O'Donnell SC, for Mr Hanafin, said the referendum petition was not an anti democratic device. It questioned, the value of the referendum provisional certificate. It perfected democracy and certainly did not interfere with the will of the people. It allowed more democracy.
If Mr Hanafin won his case, people would be again asked to express their will in a new referendum so it would not be interfering with that will.
People were entitled to be satisfied with the integrity of the process by which the Constitution was amended. The majority was as entitled to be satisfied as the minority.
The case involved constitutional architecture. The amendment was a bit like a proposed extension to a building where the foundations were unsafe. In this amendment, the foundations were still uncovered but were about to be covered. If the appellant failed and the amendment went through, it was unlikely it would be challenged again.
The issue was not about divorce or its merits but was about procedures and how to ensure they were fair. It was about the integrity and protection of the process.
If the decision of the divisional, court were upheld, it would emasculate the Referendum Act 1994 under which the petition was taken. It would reduce it to an accountancy exercise. The courts were not being asked to interfere with the votes but to ensure that the channels of the political process were clear.
The divisional court should have conducted the petition hearing as a much broader inquiry to satisfy itself of the validity of the provisional certificate. It should have allowed Mr Hanafin to cross examine. The test accepted by the divisional court was that the petitioner had to show that Government advertising had a material mathematical effect on the result. It was the wrong test.
The Chief Justice, Mr Justice Hamilton, said had they not got the problem of ballot secrecy. There was no way either side could prove the result was or was not materially affected by the Government campaign. Mr O'Donnell said that did not stop the court assessing the conduct of the referendum and its legal consequences.
Opening the State case, the Attorney General, Mr Dermot Gleeson SC, said sovereignty of the people was at the heart of the matter. Some 1.6 million had voted in the referendum, all of whom knew of the unconstitutional behaviour over Government funds before the poll. Not one person had said they had been misled or deceived.
If the courts were satisfied a person voted freely on that day, his or her motivation could never be a matter of judicial review. The sovereignty of the people and the secrecy of the ballot made inquiries into motivation impermissible.
The wrong identified in the McKenna case did not translate into an electoral offence. The referendum result was the verdict of all the people, those for and against. The court's inquiries about the referendum should be was the Act complied with and did the people vote freely?
The hearing continues today.