Two students of Trinity College Dublin yesterday began High Court proceedings aimed at preventing the Government from setting a date for the abortion referendum pending the resolution of issues relating to how the Constitution should be amended. If they win their case, the date for the referendum would probably have to be delayed considerably beyond that envisaged by the Cabinet.
The President of the High Court, Mr Justice Finnegan, adjourned the judicial review proceedings until next Monday to give time for the State to be represented. He said that he would make arrangements for a prompt hearing of the application.
The proceedings have been brought by Ms Johanna Morris, a law student, of Iona Road, Glasnevin, Dublin, and Ms Sian Ní Mhaoldomhaigh, a postgraduate politics student, of Ard Righ Road, Cabra, Dublin. The Minister for the Environment and Local Government is named as respondent to the action.
Dr Michael Forde SC, for the applicants, said they were not saying that the abortion amendment could not be achieved, but they were saying that the mechanism for making amendments to the Constitution should first be changed.
Conceivably, he added, the two amendment proposals could be put to the people on the same day or on subsequent days. His clients could not make any complaint about the content of the amendment.
The applicants are seeking a declaration that the 25th Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, conflicts with Article 46 of the Constitution. They want an order prohibiting the Minister from setting a polling day for holding a referendum in respect of the Bill. They are also seeking a stay on the setting of a polling day pending the determination of the proceedings.
It is submitted that, except in cases of proposed repeals, Article 46 requires that the proposed "variation, addition" to the Constitution be contained in the body/text of the Constitution itself and not have a separate existence in the form of an "entrenched" Act of the Oireachtas (or statutory instrument, ministerial circular, memorandum of agreement or government press statement) purporting to possess constitutionally-entrenched status in every respect.
It is also claimed that the Bill contains a proposal in addition to the proposed amendment - a proposed Act (repealing 19th-century criminal legislation) contained in a schedule. The only way in which such an amendment might be made is by first amending Article 46 (4) of the Constitution, it is submitted.
In an affidavit, Ms Morris said she was advised that the Bill passed by both Houses of the Oireachtas for the purpose of the envisaged amendments to the Constitution did not comply with the mandatory requirements of Article 46, in particular, as it contained in it a proposal - the intended Bill - in addition to the amendment.
Giving liberty for the applicants' motion to be made returnable to court next Monday, Mr Justice Finnegan said that the Attorney General might want to respond to the submissions of the applicants by way of affidavit.