News Analysis

Friday 22 August 2014

Kenny must accept that we face crisis over referendums

Published 17/12/2012 | 17:00

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We face a crisis in our much-battered democratic system over referendums, a crisis that will test the Coalition Government led by Enda Kenny. I refer of course to last week's McCrystal judgment in the Supreme Court finding deliberate corruption by the State in the Children's Referendum through its now notorious booklet. This distorted the people's right and duty to judge freely on constitutional change. The crisis resulted from one-sided referendum 'advice'. Taxpayers' money was used without parliamentary consultation.

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The State breached the constitutional rights established in the Patricia McKenna case. Her brave intrusion into constitutional corruption by the Albert Reynolds-led Government was heroic. The country then faced the 1992 Maastricht Treaty referendum adopting the euro currency. The Government campaigned for a Yes vote, engaging a private advertising agency and filling the country with publicly financed billboards. Ms McKenna challenged this.

Her action in the High Court was dismissed by Mr Justice Declan Costello. Because the judgment came virtually on the eve of the Maastricht referendum, she did not appeal. She revived her case with the divorce poll three years later. She lost again in the High Court but appealed and succeeded in the Supreme Court. That court laid down the "McKenna principles" setting out clearly the rights of Irish citizens to fairness, equality and democracy in constitutional referendums.

These principles should have become state practice. They did not. Instead, there was one-sided government intrusion aimed at influencing the 2008 and 2009 Lisbon referendums, the 2012 Fiscal Treaty referendum and, most recently, the Children's Referendum.

Mark McCrystal challenged this unconstitutional practice and won his case. The Supreme Court unanimously ruled that the referendum booklet, advertisements and the Government website were in breach of the 1995 McKenna Judgment and ran directly against the McKenna principles.

The Supreme Court ruled that if both sides of the argument were put, it would not be unconstitutional because public spending would not be partisan. One-sided public spending is, however, unconstitutional.

Citizens should be informed of the main arguments. Publicly-funded partisan referendum arguments violate citizens' rights to fairness, equality, neutrality and democracy.

The Chief Justice, Mrs Susan Denham, said that it was questionable whether a minister promoting a referendum on behalf of the Government should be entrusted with the publication of 'neutral' information. She suggested that that task would be "best performed by a body not invested in the referendum."

She supported the recommendation of previous referendum commissions for "a permanent and ongoing body which would have ample time to prepare and promote public awareness of important constitutional amendments."

The judgment may well be extended if the present High Court petition to invalidate the Children's Referendum goes to the Supreme Court. It will be open to that court to declare the result of the referendum invalid and would help resolve the undoubted crisis. If the petition is upheld this will result in a sanction against the Government's unconstitutional actions now and in the future. But if the Children's Referendum is upheld it will licence the State to continue in breach of the Constitution.

The McCrystal judgment leaves hanging in the air what should happen next. There are no mechanisms in place by which such unconstitutional government behaviour can be rectified or prevented in future.

Fianna Fail and the Coalition have ignored the McKenna Principles and can do so again. Because it has not been asked, the Supreme Court cannot declare the Children's Referendum null and void, calling for a fresh process free of publicly-funded 'persuasion', nor can it prevent a recurrence.

Under the current Referendum Acts this is achieved if there is a petition and this depends on a private citizen taking on the expense of going to law. If the High Court found in favour of the petitioner and the Government side did not appeal to the Supreme Court the change would take effect. That, or a Supreme Court judgment would be the only practicable sanction.

Alternatively, Micheal Martin could draft a motion of legal recognition of the McKenna Principles through a strengthened Referendum Commission, a move that could not have been given stronger legal recognition already than the Supreme Court gave last week.Action by Mr Martin could reverse what Fianna Fail did in 2001. It then took away the Referendum Commission's task of giving pros and cons of referendum propositions.

Fianna Fail action was opposed at the time by all other parties. This would confirm, in law, Mr Martin's new view that the Government made "a fundamental mistake" in running its own Children's Referendum campaign undermining 'the integrity and credibility of the Referendum Commission's campaign of non-partisan information.'

Unfortunately, those remarks represented an arrogant piece of hypocrisy on the part of Mr Martin. For it was Mr Martin's Fianna Fail Government which first violated the McKenna principles, running a partisan government "information" campaign during the Lisbon Treaty referendums!

The present Government should set in motion the changes implicitly recommended by the Supreme Court.

It should also confirm what was made clear in statements made by the State in the McCrystal case that the Attorney General, Mrs Maire Whelan, did not actually see the Government's Referendum Booklet and therefore did not have the chance to compel ministers to avoid unconstitutional behaviour.

Such a reform package would be welcome and would establish the proper auditing of the people's expression of their wishes in referendums.

Irish Independent

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