SETTING aside a referendum result was an "awesome undertaking", Mr Justice O'Flaherty stated. The Government's constitutional wrongdoing, established in the McKenna case, was undoubtedly done during the referendum campaign, which was equivalent to being done "in the conduct of the referendum".
That left a single question to be resolved: did the constitution wrong of the Government in spending public money to influence the referendum's outcome materially affect the result?
Mr Hanafin's argument was that public money had been spent, not merely on Yes advertisements but also in retaining a private firm to hold opinion polls.
In addition, civil servants spent time and energy aiding Yes, groups. A great deal of their time was thus devoted to implementing this aspect of Government policy. This, allied to the retention of the pollster firm, giving public money to certain groups and the advertising campaign, constituted a misspending of public funds.
As for the opinion polls, Mr Justice O'Flaherty said a government was entitled to gauge public opinion. Government had to be aware of the public's disposition on any given issue. It could then use this information to advance policies it wished to propose to the public.
Polls were simply an instrument to determine public opinion and so he rejected the criticism made about retaining the pollster firm.
On the matter of civil servants it would be invidious for the judiciary to police the relationship between them and Government members.
The rapport and spirit of cooperation that would exist between individual civil servants and their particular Minister was not capable of any compendious description; their permutations were legion.
The court should accord to the executive a proper freedom to deploy the time of civil servants.
To set limits of civil service involvement for the Government or a particular Minister would be to set boundaries for what was best left to the judgment of Government members and the civil service. Both would be aware of the "discipline and tradition" so well established in our administrative culture. It required that their duty to protect the public interest was never neglected.
Mr Justice O'Flaherty said he did not think anything was to be gained by assigning a description of "deliberate and conscious violation" of the Constitution, as opposed to innocent wrongdoing, to the Government's action.
Either of those descriptions was more appropriate to police action by servants of the State and in general, would be inappropriate to apply to, government action when the Government was exercising the executive power of the State.
While there was no doubt the Government set out to influence the referendum result in what the court had found were unconstitutional means, the Government had considered it was entitled to do so by reason of two High Court decisions. The question was whether, viewed objectively, the result of the referendum was materially affected by this wrongdoing.
Mr Justice O'Flaherty said the nub of the case was how was the people's verdict to be assessed when there was no evidence to prove or disprove that the advertising campaign materially affected the referendum result.
Both sides agreed on the sanctity of the people's role in our constitutional scheme of things. Once the majority of voters decided, it was agreed the people had spoken. There was no doubt that a free and democratic secret ballot was the bedrock of a nation's freedom and its best protection against disharmony and strife.
Where the Attorney General and Mr Hanafin differed was on how best to decide whether the majority vote was sufficiently free from unconstitutional interference as to bind all. Could it be that the poll was so contaminated that what was apparently a vote of the majority was not a free vote at all?
Mr Justice O'Flaherty said there could be no doubt the Government action was calculated to and did influence the course of events up to the date of the McKenna decision. The Government then dropped its advertising campaign. It stopped using public money for campaign advertising.
A week remained to polling day. The Irish experience showed the final week of any electoral campaign was critical. In this case, the people had a week to reflect on the referendum issues.
No case was made but each citizen voted in accordance with his or her own free will. Each voter must be taken to have been sufficiently enlightened to exercise a free choice. Therefore, Mr Justice O'Flaherty believed the presumption of constitutionality in favour of the result had not been displaced.