Equality in air time possible, court told

The Supreme Court should ensure that one of the significant decisions for which it will be remembered is that there must be impartiality and fairness in the conduct of constitutional referendums, the court was told.

Mr Paul Callan SC, for law lecturer Mr Anthony Coughlan, said there was no reason why a scheme which would ensure fairness in allocating uncontested air time to each side in referendums could not be devised by RTE.

But lawyers for the Attorney General and RTE argued there cannot be absolute 50/50 equality when allocating air time for uncontested broadcasts. They said this would amount to a "form of inequality".

Presided over by the Chief Justice, Mr Justice Hamilton, the Supreme Court was hearing an appeal by RTE and the Broadcasting Complaints Commission, (BCC), supported by the Attorney General, against a High Court decision that RTE's failure to allocate equal time for uncontested broadcasts to the Yes and No sides in the 1995 divorce referendum had resulted in inequality amounting to unconstitutional unfairness.

In proceedings taken by Mr Coughlan, of Crawford Avenue, Drumcondra, the High Court also quashed a decision by the BCC insofar as it dismissed a complaint by Mr Coughlan about the allocation of the uncontested broadcasts.

The three-day appeal ended yesterday and judgment was reserved.

In closing submissions, Mr Callan said the Supreme Court had decided, in the 1995 challenge by MEP Ms Patricia McKenna, that a government could not spend public money to achieve a particular result in a referendum.

But what RTE, a station with a statutory monopoly, did in the divorce referendum was even worse and was "grossly disproportionate and unfair". RTE gave more unchallenged broadcast time to one side.

It was clearly possible to devise a scheme where RTE could treat opposing viewpoints fairly in a referendum in relation to allocating uncontested broadcast time.

Mr Callan said RTE should not be asking the Supreme Court to accept an unfair and meaningless formula based on the wrong view that Section 18 (2) of the Broadcasting Acts - which stipulates that nothing in Section 18 of the Acts shall prevent the transmission of party political broadcasts - gave a right to blanket uncontested broadcasting by political parties irrespective of fairness and balance.

Replying, Mr Eoghan Fitzsimons SC, for the AG, submitted that Section 18.2 of the Broadcasting Act qualifies Section 18.1, which stipulates that RTE, in its current affairs coverage, must be fair to all interests.

Mr Fitzsimons said the AG felt it was for the Dail to decide how referendums should be conducted. The AG was not seeking to overturn McKenna, but that decision was confined to a situation where a government said it was intent on using public funds to achieve a particular referendum result. ail, elected by the people, would decide that the referendum process would be assisted by having a Referendum Commission which would provide funds to all interest groups, including political parties and the government.

Counsel said voters have particular rights in referendums but these did not include a right to silence political parties or governments on referendum issues.

All rights had to be balanced in referendums via a principle of fairness and RTE, in allocating uncontested broadcast time, applied such a principle, which included proportionality, not 50/50 equality.

Counsel said life was not a mathematics exercise. If 50/50 equality was to be applied to referendums and broadcasts, how could a small interest group match political parties when it came to producing flashy broadcasts?

Mr James O'Reilly SC, for the BCC, submitted the commission, in deciding Mr Coughlan's complaint, had worked within the parameters of Section 18 of the Broadcasting Act. There could not be absolute 50/50 equality in relation to uncontested broadcasts. That would be a form of inequality. Elected politicians with a mandate were "obviously different to the Joe Soap from Ballydehob" who had not gone before the people in elections.

Ms Mary Finlay SC, with Mr John Trainor SC, for RTE, said the station has obligations of fairness when allocating party political broadcasts. But it also had to look at the number of active participants in referendum campaigns and decide what allocation of air time should be made to those.

Mr Coughlan was advancing a simplistic solution of 50/50 equality to both sides. If, in a referendum, there were several political parties and interest groups with 20,000 activists advocating a Yes vote and only two organisations with 200 active people urging a No vote, would the principle of equality be upheld if equal time was allocated to each side?