THE Supreme Court ruled yesterday that Mr Des Hanafin has the right to appeal against the High Court dismissal of his challenge to the divorce referendum result.
By a unanimous decision, the judges of the Supreme Court ruled that Mr Hanafin can bring a Supreme Court appeal.
The State had argued that, "under the Referendum Act, 1924, in conjunction with the Constitution, there was no right to bring an appeal against the High Court's decision in this case.
Mr Hanafin is seeking to overthrow the referendum result on grounds that the Government wrongly spent money promoting a Yes vote. He is also seeking to have a new referendum held.
After deciding yesterday that Mr Hanafin can appeal, the Supreme Court set April 29th next for the opening of the hearing. It is expected to last a number of days.
A continuing stay has been placed on the provisional referendum certificate, confirming the result of the poll, being endorsed, pending the determination of the Supreme Court hearing.
The Chief Justice, Mr Justice Hamilton, in his judgment, said the plain words of Article 34 (4.3) of the Constitution provided that the Supreme Court had appellate jurisdiction from all decisions of the High Court, with such exceptions as may be prescribed by law and subject to such regulations as may be prescribed by law.
It was open to the legislature to exclude certain decisions of the High Court from the appellate jurisdiction of the Supreme Court and to regulate the conduct of certain appeals from decisions of the High Court.
It was submitted on behalf of Mr Hanafin that nowhere in the Referendum Act was it expressly, clearly and unambiguously stated that there was no right of appeal to the Supreme Court from the High, Court on a referendum petition.
It was also submitted that if the Oireachtas had desired to exclude such right, it could have done so without difficulty.
The Attorney General had submitted that the words used in the Referendum Act, and in particular section 57(1) and (5), were clear and unambiguous in expressing the intention of the Oireachtas in excepting from the jurisdiction of the Supreme Court the right to hear and determine an appeal from the High Court divisional court on the validity of the provisional referendum certificate.
The Chief Justice said the only reference to the Supreme Court in the Act was in section 55. It enabled the High Court to state a case for the opinion of the Supreme Court on any question of law arising at the trial. This did not affect in any way the general appellate jurisdiction of the Supreme Court. It did not purport to be a regulation of the general right of appeal.
He could not accept the Attorney General's submission that, section 55, in providing for a cases to be stated to the Supreme Court during the course of a trial on any question of law, implicitly excluded an appeal from the determination by the High Court of the referendum petition, when considered with other provisions of the Act.
It was clear from the terms of section 57(5) that the provisional referendum certificate, in the form in which it was confirmed, by the court, only became final and incapable of being further questioned in any court when it was received by the referendum returning officer from the High Court. Until it was so received, it was neither final nor incapable of being further questioned in any court.
Mr Justice O'Flaherty asked if, it was the intention of those promoting the referendum legislation to exclude any right of appeal to, the Supreme Court, could anything have been more simple than to so provide? Was it seriously to be said that the legislators would not have taken such a simple, direct course if that was what was sought to be achieved?
He said he thought that it was much more likely that the Oireachtas did not intend to except from the appellate jurisdiction of the Supreme Court something as important as an appeal from a finding of the High Court in a referendum petition.
Mr Justice O'Flaherty said that, looked at from the perspective of the Government which almost inevitably would have piloted any proposed amendment to the Constitution through the Houses of the Oireachtas would not any government wish to appeal the loss of a referendum petition in the High Court to the Supreme Court?
He continued "Take this case". If the petitioner had won, one would not have to be a seer to appreciate the consternation that would be caused to legislators, members of the Government and a large section of the people on being told that no appeal lay to the Supreme Court.
Ms Justice Denham said the appellant's right of appeal was a protection of, and enhanced the position of, the people in referenda. It was not an impingement on the role of the people. Rather, it was a fundamental concept which existed to protect freedom.
Mr Justice Blayney and Mr Justice Barrington agreed.