THE funding irregularity by the Government found by the Supreme Court in the McKenna case did not result in compromising the freedom of any voter in the divorce referendum, the High Court was told by the Attorney General yesterday.
The three judge divisional court of the High Court was hearing an application by the Attorney General, Mr Dermot Gleeson SC, to have the challenge by former senator, Mr Des Hanafin, dismissed. He is seeking the order on the grounds that the courts had no power to overturn the freely expressed verdict of the people.
Mr Hanafin is seeking to overturn the result of the November 24th referendum on the grounds that the Government wrongly spent public money on promoting the Yes campaign. He wants the court to direct a new referendum
On the third day of the hearing, Mr Gleeson completed his application and a short submission was made by Mr James O'Reilly SC, for the referendum returning officer. Mr Peter Kelly SC, for Mr Hanafin, then began his submission.
The chairman of the divisional court, Mr Justice Murphy, asked whether or not any appeal was possible from that court. This could affect whether or not they gave a decision immediately after the submissions on the dismissal application.
When Mr Kelly started his submission, Mr Justice Murphy asked if he would give an indication of what evidence he was planning to call and the particular areas of expertise.
Earlier, Mr Gleeson said the Constitution installed the people as a law making authority and was superior to the three, branches of government. This was not to suggest that the referendum was conducted outside the law but was within the conditions in the Referendum Act 1994 and the Constitution.
What the Act provided was a mechanism to challenge the referendum result as not being the will of the sovereign people. The courts were obliged to assess whether that will was truly and freely ascertained.
The court was permitted to take into account for instance, electoral offences, personation, losing votes, intimidation, removing or destroying ballot papers, forging certificates, preventing access to polling stations. Each had the effect of potentially distorting the result.
Mr Gleeson said that questions to be asked were "Did you vote freely?" "Were there electoral offences. Was the referendum conducted in accordance with the Act?". Impermissible questions would be "How did you vote?" "Why did a segment of the population vote in a particular way?"
Asking how people voted was statutorily prohibited. Even if a voter was happy to waive the secrecy and say how they voted, this would result in diminishing and devaluing all the people who did not say how they voted and wished to maintain their secrecy. If this was impermissible, how could it be possible for the court to entertain secondary evidence? It was not one which the courts could contemplate.
The global secrecy of the ballot required every vote freely given to be taken at its face value. Even if 5,000 people said they voted in a certain way, it would in no way prove an influence on the ballot.
The courts were not entitled to inquire why or how people voted. If they could not ask people they certainly could not ask scientists or other experts as it was t6o sacrosanct for that.
The referendum was a transaction between the elected legislature and the people. The irregularity identified in the McKenna judgment was that of the Government. What was being sought to be done in the court was to overturn the votes of more than one million and to seek a remedy against a party that was guiltless.
It was not open to the court to operate some corrective measure, or to say it would set that aside or to direct that information be obliterated from a person's mind.
The Attorney General said Mr Kelly had said that he would not object if the advertisements were placed by political parties rather than the Government. It was a very important principle to be conceded. The petitioner was not contending that anybody, did not vote freely.
A voter was entitled to assume that when he or she went to vote on November 24th that the vote would not be analysed and therefore be reduced in significance.
Mr Gleeson said it would be a clear impropriety for the court to direct people to change their vote or control the vote or direct as to what they should have in their heads.
"It does not follow that because of a funding irregularity that the referendum should not be allowed," the Attorney General said. It would be to set aside the democratic effort of a large number of citizens.
The voters were not responsible for the funding irregularity. A remedy which set aside their vote was inappropriate. Those who voted Yes freely were entitled to have that vote respected.
"The funding irregularity did not result in compromising the freedom of any voter," he said.
In the McKenna case it was the use of public funds that was found to be unconstitutional. Neither Ms McKenna nor Mr Hanafin contended that the referendum was invalid after the Supreme Court judgment on November 17th and before it was actually held.
In the light of the McKenna judgment, could someone stand silent, and then when the result was not to their liking, seek to change it, the AG asked.
Mr James O'Reilly SC, for the Referendum Returning Officer, said that the only grounds for bringing such a petition were contained in Section 43 (1) of the Act. There were four grounds and he was unable to identify any express reliance in the pleadings on these grounds.
Mr Kelly in his reply said that the AG had sought to persuade the court that there was no jurisdiction to hear the proceedings. The AG had taken a "jurisprudential Cook's tour" of the US, Australia and Hawaii in the court cases he quoted.
Mr Kelly said all trips abroad ended with a return home and a landscape which was not quite as attractive from the State's point of view. The Irish courts had said the Constitution and its rights were matters for the Irish courts. The second unattractive feature from the State's view was the decision in the McKenna case.
The nexus between the wrong doing of the funding and the referendum was a matter for evidence and why, he said, the application for dismissal was unfounded. They were not asking the court to violate the secrecy of the ballot.
He submitted the question of the whole debate was whether the Act was taken as a literal, sterile instruction of whether it had more flesh. If the court decided on the narrow construction, the effect would be there was no remedy for the mischief they maintained had been done by the Government's wrong doing. This wrong doing was perhaps something never envisaged by the legislators.
The only way the material effect of the wrong doing could be demonstrated must be by competent evidence being given by competent people who had a made a science of this.