OPINION:The role assigned to the Referendum Commission in the wake of the 1995 Supreme Court judgment has been seriously weakened, writes Patricia McKenna.
REFERENDUMS ARE a form of democracy where the people themselves make a decision or enact a law directly rather than indirectly through their elected representatives. Our right to a fair and democratic referendum implies a right to equality in the referendum process.
The most important principle regarding fairness in referendums is to recognise that each citizen is an interested party and that therefore the referendum rules should not implicitly prejudge the outcome by being drawn up to favour one side as against another.
Any such provision - for example, using public or State resources, which are contributed to by all citizens, to favour the position of one group of citizens - would be unfair to some interested parties.
Citizens, furthermore, have a right to full information on the referendum proposition and the likely consequences of accepting or rejecting it.
Democracy requires that one side should not be privileged over the other just because its supporters happen to be temporarily in government, or because a particular referendum proposition may be regarded by one side as being subscribed to by all "right-thinking" people.
There are always two sides to any referendum proposition, and for a government to act as if the result were judged in advance is to make a mockery of the referendum process.
During the divorce referendum, despite being on the Yes side and supporting the Government's constitutional amendment, I went to the courts to challenge the Government's use of public funds to achieve a Yes vote.
Although criticised by friends and fellow Yes campaigners, I felt it was the right thing to do. The Supreme Court ruled that the Government was indeed acting unconstitutionally, stating:
"The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a Yes vote is an interference with the democratic process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State . . ." (Mr Justice Liam Hamilton)
"No branch of the Government is entitled to use taxpayers' monies from the Central Fund to interfere with the democratic process either as to the voting process or as to the campaign prior to the vote." (Mrs Justice Susan Denham)
" . . . has the Executive observed fair procedures in submitting the amendment to the people? In my view it has not. The Government has not held the scales equally between those who support and those who oppose the amendment. It has thrown its weight behind those who support it." (Mr Justice John Blayney)
". . . nor, finally, is it any answer to say that it is either the entitlement or the 'duty' of a Government so to educate the public. If the Government regards itself as having that right or duty, it must exercise it without resort to public funds. (Mr Justice Hugh O'Flaherty)
As a result of the Supreme Court ruling the Referendum Commission was established with all-party approval by the Oireachtas. Under the 1998 Referendum Act the commission initially had the role of setting out the arguments for and against referendum proposals, having regard to submissions received from the public. In 2001, following the No vote in the first Nice referendum, the Act was amended on the last day before the Christmas recess. With just one day's notice to the Opposition, legislation was rushed through all stages of the Oireachtas in a single day removing from the commission its function of presenting the arguments for and against referendum proposals, as well as the function of fostering and promoting debate or discussion on them.
At the time our current Environment Minister, John Gormley, aptly described the legislation as an attempt to "clip the wings" of the Referendum Commission. He said: "The real intention is to ensure that the Irish people do not get real information."
The Referendum Commission was statutorily obliged to be fair to both sides. Despite facing difficult practical circumstance in having to publicise multiple referendum issues on the same day in the minimum time required by law, the commission's press adverts were a fair setting-out of the key arguments for and against particular referendum propositions. The arguments were solicited from members of the public, were statutorily required to be relevant to the referendum proposition and to be related to the substantive text of the constitutional amendment proposed. The commission itself vetted the arguments for relevance. In other words, the Yes and No advertisements which it placed could not tell lies, bring in extraneous matter unrelated to the issue or be slanted by spin doctors.
Gormley is shortly to re-establish the Referendum Commission after legislation for the Lisbon Treaty referendum has been published by the Government. However, a spokesman for the Minister has confirmed that the original remit of the Referendum Commission - to outline the cases for and against a referendum to the public and to promote debate and discussion on it - would not be restored by the Government.
What is the new Government afraid of? It could easily restore the Commission's original functions of giving out the Yes and No arguments and promoting balanced debate and discussion. Failure to do this denies the public access to reliable vetted arguments. Instead they must rely on information emanating from political parties and campaigning groups on both sides who can and do tell lies, abuse their opponents, distort the truth and use extraneous arguments unrelated to the issue before the people.
Turning one's back on the principle of equality and the right to balanced debate in referendums just because one happens to be in a position of power and on the side of the majority is a major error of judgment on the part of Gormley. Fianna Fáil has already attempted, in 1959 and 1968, to abolish PR and replace it with the British first-past-the-post election system. It is unlikely that Gormley would approve of a Government's right to use an unfair process to push through such a proposal.