THE decision on whether Mr Des Hanafin has a right of appeal against the High Court dismissal of his challenge to the divorce referendum result was reserved in the Supreme Court yesterday.
The three judge divisional court of the High Court on February 7th unanimously dismissed the case, saying the evidence did not establish that the Government's advertising campaign would have materially affected the outcome.
The Attorney General had applied for its dismissal following evidence given by Mr Hanafin's witnesses on the 11th day of the hearing. Mr Hanafin had sought to overthrow the referendum result of the November 24th poll on the grounds that the Government wrongly spent public money on promoting a Yes vote. He wanted the court to declare a new referendum.
When the Supreme Court ruled it would hear the preliminary issue on the right of appeal, it directed it would not be appropriate for the referendum certificate, confirming the official result of the poll, to be endorsed.
Yesterday, the Supreme Court heard the parties submissions on the preliminary issue.
Mr Garrett Cooney SC, for Mr Hanafin, said the petitioner had the right of appeal under the Constitution. The wording of Article 34.4.3 made it obvious that all decisions of the High Court were capable of being appealed to the Supreme Court unless the right appeal is excepted or regulated. Any such exception of regulation must be prescribed by law.
There was no provision of the Constitution which removed Mr Hanafin's right of appeal to the Supreme Court. Neither the constitutional provisions, which dealt with referendums, nor those dealing with the administration of justice in general, suggested that a challenge to the validity of the provisional referendum certificate which failed in the High Court was incapable of appeal to the Supreme Court.
Mr Cooney said nowhere in the Referendum Act 1994 was it unambiguously stated there was no right of appeal from a High Court decision on a referendum petition.
Section 55 of the Act provided a mechanism whereby the High Court may state a case to the Supreme Court on any question of law arising at the trial. The mere existence of a provision which permitted a form of consultative case stated to the Supreme Court did not affect the general right to appeal.
The section provided that once the certificate was endorsed, it must be returned forthwith to the referendum returning officer. The word "forthwith" was referable only to the return of the duly endorsed certificate to the returning officer.
It was to be noted that it was only after the returning officer received the certificate duly endorsed from the High Court that it became final and incapable of being further questioned in any court.
The Attorney General, Mr Dermot Gleeson SC, submitted that no appeal lay to the Supreme Court. The provisions of the Act constituted a scheme which operated to exclude a right of appeal permitted by Article 34.4.3 of the Constitution.
Section 55, in providing for a case to be stated during a trial on any question of law arising at the trial implicitly excluded an appeal when considered with the provision of Section 57.
Section 57 provided for the Final order which was made on the certificate and required the High Court to return it "forth with" to the returning officer.
The Effect of the section was that once the certificate had been duly endorsed and received by the returning officer, it was "final and incapable of being further questioned in any court".
If it had been intended to permit an appeal then it was difficult to see why the Oireachtas would have made provision for a stated procedure from the High Court to the Supreme Court. If right of appeal existed, little purpose would be served by the stated procedure in the Act.
Mr Gleeson said the alacrity with which the petitioner went the Supreme Court to stop the final endorsement spoke very loudly of the lack of an appeal procedure.
By reason of the clear and unambiguous terms of Section 57 the decision of the divisional court to dismiss the petition and confirm the provisional referendum certificate was final and could not be in court, including the Supreme Court.