An attempt to halt tomorrow's referendum on the Belfast Agreement has been rejected by the High Court.
Mr Justice Kelly refused an application by Mr Denis Riordan for an injunction preventing the referendum from proceeding tomorrow and also refused declarations that the Government and Taoiseach had acted unconstitutionally in approving the 19th Amendment to the Constitution Bill.
The 19th Amendment Bill provides for the amendment of Article 29 of the Constitution and also includes a mechanism for amendments to Articles 2 and 3. It is being voted on tomorrow pursuant to the provisions of the Belfast Agreement.
In the High Court yesterday, Mr Riordan, of Ard na Lee, Clonconane, Redgate, Co Limerick, argued the procedure for amending Articles 2 and 3, as outlined in the 19th Amendment Bill, was in breach of Article 46 of the Constitution.
The State rejected that argument and submitted that the people have been informed of the nature of the proposed amendments to Articles 2 and 3 and of the procedure proposed for their amendment. Mr Donal O'Donnell SC, for the State, said the procedures set out in Article 46 had been fully complied with.
Counsel said Mr Riordan was seeking reliefs of "a momentous nature" and the consequences of the court being asked to intervene in the referendum were "of enormous significance".
If the reliefs were granted, it potentially placed the State in a position inconsistent with its international obligations assumed under the Belfast Agreement.
It would also put the State "out of kilter" with the referendum in Northern Ireland.
He said the people have the right to say Yes or No to the proposals in the 19th Amendment Bill. It was their rights which would be set at naught if the referendum was delayed.
Responding, Mr Riordan said the Belfast Agreement was not binding on anyone, was not relevant and "does not set aside the Constitution of my country nor should the provisions of my Constitution be set aside on its behalf".
The fact that the referendum was taking place tomorrow was of less importance than the Constitution. It was not in the common good to put into the Constitution something which corrupted it. "I won't let the Constitution be destroyed."
He said the procedure proposed for amending Articles 2 and 3 was totally unconstitutional and showed the respect which the Government and Oireachtas have for the Constitution of our country. "They think they're Hitler."
After hearing submissions for more than two hours, Mr Justice
Kelly refused all the reliefs sought by Mr Riordan. He also awarded costs, estimated at close to £10,000, against Mr Riordan.
Afterwards, Mr Riordan indicated he would not appeal to the Supreme Court.
In his ruling, the judge said Mr Riordan conceded the 19th Amendment Bill was introduced into the Dail on April 21st and approved by the Oireachtas on April 22nd. It was being submitted for the decision of the people in accordance with the terms of Article 46 of the Constitution and the Referendum Act 1998. That concession was of importance and Mr Riordan had also conceded that the court had no jurisdiction to review or construe the constitutionality of the Bill.
The judge then outlined the provisions of Article 46 which details the procedures involved in amending the Constitution. He also outlined the provisions outlined in the 19th Amendment Bill whereby Articles 2 and 3 may be amended.
He said Mr Riordan was complaining the procedure proposed for the amendment of Articles 2 and 3 did not comply with the provisions of Article 46. At least two points were fatal to that argument.
The first involved the court engaging in considering the merits and substance of the proposal and that was the very thing the court could not, as the Supreme Court had directed, do.
The second point was that the appropriate procedure under Article 46 had been complied with in respect of the 19th Amendment Bill. There was no procedural lacuna or departure from the provisions of Article 46 insofar as the Bill was concerned.
There was also nothing in the Bill which ran counter to the letter or spirit of the Constitution. It was the people who would decide this matter, the judge said.
He said that before Articles 2 and 3 may be amended, two conditions must be met. The Belfast Agreement must come into force and there must be a declaration by the Government that the State is obliged under that agreement to give effect to the constitutional amendments.
There was nothing objectionable to the amendments taking such a form if the people so desired, it having been conceded the correct procedure under Article 46 was complied with.
On Mr Riordan's argument that the Taoiseach and Government acted ultra vires in agreeing to provisions in the Belfast Agreement for the release of "qualifying" prisoners, including persons convicted of capital offences, Mr Justice Kelly said that argument was without merit.
He said he was also refusing Mr Riordan's application on grounds of delay. The court rules required that applications for judicial review should be made promptly and within three months. There was nothing before him suggesting the present application was made in a prompt fashion.
The solemnity and importance of the process of amending the Constitution required that anyone seeking to review, challenge or intervene in that procedure should move speedily to allow the necessary time to deal with such interventions.
His judgement was being delivered on an ex temporare basis in circumstances where he would have preferred to have delivered a reserved judgment. He would refuse the application on grounds of delay alone but was also refusing it on its merits. He said Mr Riordan failed in his application.
The State then sought costs and Mr Riordan asked for no such order on the grounds that the matter involved important constitutional issues.
Mr Justice Kelly said he saw no reason to depart from the norm and awarded costs against Mr Riordan.
