THE nullification of the divorce referendum result would be an unprecedented interference with democracy, the Attorney General told the Supreme Court yesterday.
He said it would challenge the core value that the people's vote is supreme.
Mr Dermot Gleeson SC was speaking on the third day of the appeal by the former senator Mr Des Hanafin, against the High Court dismissal of his challenge to the divorce referendum. He wants a new referendum.
Last February three divisional, court judges of the High Court rejected his petition on the grounds that it did not establish that the Government's advertising campaign materially affected the result.
The Government spending of public funds for a Yes vote was declared unconstitutional in the McKenna Supreme Court judgment last November.
Mr Gleeson said voting was the supreme act of law making. For it to be set aside by the court, it would have to be a very clear cut case. The provisional referendum certificate was a statement of the people last November 24th. Everyone voted freely and there was no interference.
Nobody knew how or why people voted. It was simplistic of any expert to estimate that, for instance, 3 per cent of people voted because of X or Y. When the High Court came to find evidence of actual effect on the result, there was none.
A UK witness did not know Mr Hanafin was involved in the campaign. Another UK pollster spoke of advertising volume yet had no idea of the cost of ads in Irish or UK newspapers.
Mr Jack Jones, of the Market Research Bureau of Ireland, was best qualified. He in effect said the petitioner did not have a case.
The implication of the divisional court's decision was clear - the petitioner's evidence was, in hopeless disarray at the case's end.
Mr Gleeson said he accepted that people would be against Unconstitutional funding, but that was not what they voted on. They voted in favour of divorce and that vote stood apart.
There was nothing misleading in the advertisements and this had been agreed by all. That central fact had been agreed and had far reaching implications for the petitioner's case.
The questions to be asked were: what was the quality of evidence needed to overturn the referendum certificate? What was the strength of evidence needed in this or any other referendum to gainsay the votes of the people?
After careful reading of the evidence and the decision by the High Court judges, there was no doubt the evidence fell well short.
He would return again to the supremacy of the people and whether that was best served by upholding the vote freely cast or setting it at naught.
Mr Paul Gallagher SC, also for the State, said the illegality of the funding did not tarnish the referendum result. He did not believe it was something the court should be involved in and, if it was involved, it gave unequal weight to the votes.
It was not possible to determine retrospectively the factors that influenced a vote. For instance, there could be no assessment of the numbers who voted No because of the Government's breach of the Constitution.