THE Supreme Court will hear arguments on February 27th as to whether Mr Des Hanafin may appeal against the High Court dismissal of his challenge to the divorce referendum.
Yesterday the Supreme Court decided that it would hear the preliminary issue and that consequently it would not be appropriate for the referendum certificate, confirming the official result of the poll, to be endorsed.
Earlier, the three judge divisional court of the High Court was told that if the certificate was endorsed, copies would be sent to the President and the Taoiseach and be written into law.
The High Court also made an order for the costs of the case. Mr Justice Murphy said the Attorney General and the State should make some contribution to Mr Hanafin's costs but not the full amount. Justice would be served by allowing the petitioner the costs of a four day hearing without witnesses.
The judge said that the general rule on costs was that if a petitioner was unsuccessful he must pay the costs of the successful party. The court bag a discretion to order otherwise if it was considered that a case was of considerable importance.
In this case, the court could identify certain circumstances to distinguish the present petition from others: it arose from an unconstitutional act on behalf of the Government; the proceedings were unique; and the divorce referendum was a matter of great public importance on which the electorate was divided.
Finally, the public interest was served in the court establishing that the referendum did represent the sovereign will of the people, and to allay any disquiet.
In the exceptional circumstances the Attorney General, the Minister for the Environment and the State should make some contribution, but not the full amount, he said.
Mr Garrett Cooney SC, for Mr Hanafin, asked for a stay on the order for the endorsement of the referendum certificate as, he said, he had a right to appeal to the Supreme Court in accordance with the Constitution. The Attorney General, Mr Dermot Gleeson SC, said there was no right of appeal under the Referendum Act.
Mr Justice Murphy said they had decided that it was "impertinent" for the High Court to decide as to the jurisdiction of the Supreme Court. However, the court was of the view that the duties cast on it by the Referendum Act precluded it from granting a stay on the order. He adjourned the matter until 2 p.m. today.
Later in the Supreme Court the Chief Justice, Mr Justice Hamilton, after hearing both parties said that Mr Hanafin came before the court in rather peculiar circumstances, in that the order in the High Court had not been perfected. However, in view of the importance of the case, the court was making no point about that.
The fundamental question was whether an appeal lay to that court arising from the judgment of the High Court. It was a very fundamental issue having regard to the Constitution and the jurisprudence of the Supreme Court. The court would direct the trial of this preliminary issue.
The High Court had indicated that, if directed by the Supreme Court, it would not endorse its finding on the referendum certificate.
Consequently, the Supreme Court was inclined to the view that it would not be appropriate to cause the certificate to be endorsed. The court recognised the urgency and would fix the hearing of the preliminary issue for February 27th.
It was an indication of the importance the court attached to this, case that it was willing to take another case out of the list.