The Government's proposed method for dealing with the abortion referendum, and consequent legislation if it is passed, were challenged yesterday in the High Court.
Two students, Ms Joanna Morris, a law student of Iona Road, Glasnevin, Dublin, and Ms Sian ni Mhaoldomhnaigh, a postgraduate politics student of Ard Righ Road, Cabra, Dublin, contend that before the referendum can proceed the mechanisms for making amendment to the Constitution must first be changed.
They are seeking a declaration that the 25th Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill 2001 conflicts with Article 26 of the Constitution. They also want an order prohibiting the Minister for the Environment and Local Government from setting a polling day for a referendum on the Bill.
Under the Government proposals, the people will be asked in a referendum to vote for an amendment to the Constitution 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 Act 2002".
A decision in favour would allow the Oireachtas to decide whether the legislation contained in the Bill should be passed to become the 2002 Act. If the proposed legislation is not enacted into law the amendment will lapse. The amendment would not come into effect unless the legislation was passed and within 180 days of the referendum.
Mr Paul Callan SC, for the students, said they were challenging the mechanism being used to effect this amendment and the manner in which it was proposed to be done. He argued the people should have a clear proposal put before them and the amendment should not be complex.
He said the Bill was in three parts. It contained an amendment to Article 46 of the Constitution, the text of the proposed amendment and the text of a proposed Act which, it was envisaged, would have the same status as the provisions of the Constitution in the sense that it would be "refererendum proofed".
Dr Michael Forde SC, also for the students, argued that Article 46 of the Constitution required that a variation or addition to the Constitution must be contained in the text of the Constitution. It should not have a separate existence, as proposed by the Government, in the form of an Act of the Oireachtas and possessing a constitutionally entrenched status.
The Attorney General, Mr Michael McDowell SC, said it was not necessary to add the text of the Bill to the amendment. That had not been done in relation to EU treaties which had been the subject of referendums here.
The proposed amendment was not a device to deceive people, he said. It was simply a provision to create an entitlement for the Oireacthas to do something. If the Oireachtas decided to do something different then the people would have to be consulted.
He said the text of the amendment did not amount to another proposal within the meaning of Article 46 (4) but was linked to the proposal to amend the Constitution provided for in the Bill. 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 Oireacthas within 180 days from the date of the passage of the referendum.
The hearing continues before Mr Justice Kelly on Tuesday.