The High Court will decide tomorrow whether the proposed anti-abortion amendment to the Constitution can go to referendum in its current form.
Mr Justice Kelly will give judgment on a challenge brought by two Trinity College students, Ms Joanna Morris, a law student, and Ms Sian Ní Mhaoldomhnaigh, a postgraduate politics student, to the Government's mechanism for changing the law and amending the Constitution.
The students argue that Article 46.4 of the Constitution, which states: "A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal", will be breached if the current proposal is voted on in its present form.
The proposed 25th Amendment to the Constitution Bill will ask people to vote in favour of an amendment stating that "the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Bill 2002." If passed, this would allow the legislation contained in this Bill, which has already been published, to be passed by the Oireachtas, and become the 2002 Act of the same name. The amendment would not come into effect unless the legislation was passed by the Oireachtas within 180 days of the referendum.
Because of the constitutional amendment, any amendment to this Act would also have to go to referendum. By this device, according to proponents of the Government's proposals, the protection of the unborn would be written into the Constitution.
The proposed Bill contains the phrase, "notwithstanding Article 46.4" of the Constitution, as a way of dealing with the issue of including reference to legislation in a proposal to amend the Constitution. However, the students argued through their lawyers in the High Court last week that this was insufficient to solve the problem with the proposal.
They said three proposals were being put to the people. These were an amendment to Article 46 of the Constitution, the text of the proposed amendment and the text of a proposed Act which would have the same status as a constitutional provision in that it would be referendum-proofed. They were all in the same proposal, which was not permitted by the Constitution. The students' case is that each proposal should be voted on separately, and the text of the legislation appended to the Constitution.
The proposed amendment and legislation were defended by the Attorney General, Mr Michael McDowell, who pointed out that various EU treaties which had been the subject of constitutional referendums were not appended to the Constitution. He said the text of the amendment did not come within the meaning of Article 46.4. The Bill set out that the proposed amendment should cease to have effect unless a subsequent Act, containing the text of the legislation, was enacted by the Oireachtas within 180 days of the passage of the referendum.