The High Court will today hear an application for an injunction to stop Friday's referendum on the Belfast Agreement.
Mr Justice Kelly yesterday granted leave to Mr Denis Riordan, a lecturer at the Limerick Institute of Technology, to challenge, by way of judicial review, the constitutionality of Section 1 of the 19th Amendment to the Constitution Bill, 1998.
He also allowed Mr Riordan to challenge the constitutionality of the proposed new Article 3 of the Constitution and to seek declarations that the parties to the Belfast Agreement acted in excess of their powers in agreeing provisions for the release of prisoners, including those convicted of capital offences.
Mr Riordan, of Ard Na Lee, Clonconane, Redgate, Co Limerick, had argued that the procedure for amending Articles 2 and 3 was in violation of Article 46 of the Constitution, which details how the Constitution may be amended.
He cited a Referendum Commission document which outlined the case for a Yes and No vote on the Belfast Agreement in support of his claim that the Taoiseach and the Government had acted unconstitutionally by inserting a mechanism into the 19th Amendment Bill to allow the Government, at some future time, to amend Articles 2 and 3 by making a declaration "that the State has become obliged, pursuant to the Belfast Agreement, to give effect to the amendment".
The Referendum Commission document, in a section outlining the case against the Belfast Agreement, states: "Because of the form of the proposed amendments it is the Government, by way of a declaration, and not the people, by way of a further referendum, who have the final say in whether or not the amendments take effect. This is inconsistent with the people's role in amending the Constitution."
The judge joined the Taoiseach, Mr Ahern, the Government, the Minister for the Environment, Ireland and the Attorney General as parties to the proceedings. Because of time constraints he directed that Mr Riordan serve notice of the proceedings and all papers on all parties through the Chief State Solicitor. He fixed today for the judicial review application hearing and for hearing an application for an injunction stopping the referendum.
Mr Riordan had sought such an injunction yesterday, but the judge said he was not prepared to grant such an injunction on an ex parte basis yesterday but would hear both sides on it today.
In his decision to allow judicial review proceedings, Mr Justice Kelly said Mr Riordan was seeking a number of reliefs, including a declaration that Section 1 of the 19th Amendment to the Constitution Bill is repugnant to the Constitution, and a declaration that the Taoiseach, Mr Ahern, and the Government were in violation of Article 28.2 of the Constitution from which they derived their powers.
Mr Riordan was also seeking an order to restrain the Minister for the Environment from holding the referendum on the 19th Amendment Bill on Friday. The judge said Mr Riordan was arguing that, in order to bring a valid amendment to the Constitution, the procedures outlined in Article 46 of the Constitution must be strictly complied with.
Mr Riordan had argued that the wording of Section 1 of the 19th Amendment Bill allowed the Government by way of a declaration, and not the people by way of referendum, to amend the Constitution. Mr Riordan further argued the absence of an absolute time limit for the implementation of the amendment made the procedure even more objectionable.
The judge said Mr Riordan had "a measure of support" for his argument from a Referendum Commission document outlining the case against the 19th Amendment Bill. That document stated that, because of the form of the proposed amendments to Articles 2 and 3, "it is the Government, by a declaration, and not the people, who have the final say in whether or not the amendments take effect". The document also stated that this was "inconsistent with the people's role in amending the Constitution".
Mr Justice Kelly said Mr Riordan had advanced a second argument which was not really addressed in the written documents presented to the judge. This concerned the provisions in the Belfast Agreement relating to the release of "qualifying prisoners".
Mr Riordan had argued that it was not within the powers of the parties to the Belfast Agreement to agree to the provision that all "qualifying" prisoners would be released two years after a release scheme was put in place because, in the case of people convicted of capital crimes, the Constitution provided that the right to pardon and the power to commute sentences was vested in the President.
The judge said Mr Riordan had also argued that there was an inconsistency between the new wording of Article 3 and the State's right to exercise extra-territorial jurisdiction. Mr Riordan submitted Article 3 (1) and Article 3 (8) in their proposed forms were inconsistent with the Constitution.
Dealing with the application, Mr Justice Kelly said there was a low threshold of proof in regard to the criteria for leave to apply for judicial review. The applicant had to demonstrate there was an arguable case and he was satisfied Mr Riordan had demonstrated there was an arguable case. He would give leave to seek judicial review and would join the Taoiseach, the Government, the Minister for the Environment, Ireland and the Attorney General as respondents to the proceedings.
He was satisfied Mr Riordan had not made a case against the Dail and would not join it as a respondent.
