MR Hanafin had failed to establish that the constitutional wrongdoing by the Government materially affected the result of divorce referendum as a whole, the Chief Justice, Mr Justice Hamilton, ruled.
In a 61 page judgment the Chief Justice said Mr Hanafin had claimed that the result of last November's referendum was materially affected by obstruction and/or interference with and irregularity in its conduct.
Mr Hanafin claimed the Government wrongfully sought to influence the outcome of the referendum by a deliberate and calculated expenditure of public monies for the purpose of mounting an advertising campaign to advocate support for the proposals.
The Chief Justice said the basis of this claim was the Supreme Court decision in the McKenna case. The court decided the Government had acted in breach of the Constitution. The impropriety lay in the expenditure of public funds and not in advocating or campaigning for the referendum.
The divisional court of the High Court heard Mr Hanafin's petition and dismissed it on February 7th. It confirmed the provisional referendum certificate. The endorsement was stayed. Mr Hanafin appealed to the Supreme Court.
The divisional court had decided not to hear the State's evidence but to rule on the application on the basis of the evidence before it on behalf of Mr Hanafin. The Chief Justice said he was satisfied that this was a matter completely within its discretion and it was entitled to adopt that course.
The judge said that the people, in the Constitution which they gave to themselves, did not reserve to themselves any role in initiating proposals to amend the Constitution but entrusted that role to the Oireachtas. The people, however, provided that proposals should be submitted for their decision and that no proposal should be enacted into law unless approved by a majority of the votes cast as a referendum.
The words "conduct of the referendum" contained in Section 43 (1) (b) of the Referendum Act should be interpreted sufficiently widely to include unlawful and unconstitutional conduct in the campaign which materially affected the result.
The Chief Justice said he could not "accept that the logic of the Act demands or requires that the concept of material effect be understood as equivalent to showing, or establishing, that the interference or wrongdoing was not trivial or inconsequential or that the Act does not require the petitioner to establish that the wrongdoing complained of materially affected the result of the referendum as a whole."
In the McKenna case the court dealt with the spending of public funds on the advertising campaign. The Chief Justice was satisfied that in so doing the Government was acting in breach of its constitutional obligations. Its action was deliberate and conscious in the sense that it knew exactly what it was doing; its campaign was designed to influence the electorate to vote in favour of the proposal.
He said the Attorney General submitted that because the advertisements were not misleading and would not have been objectionable if financing them with public funds had not been unconstitutional, they should not be treated as being tainted by the unconstitutional funding. This he could not accept.
"Having regard to the admitted purpose of the campaign and its unconstitutional funding, I am satisfied that it constituted an interference with the conduct of the referendum," the Chief Justice said.
The petitioner, as a citizen of the State, had the right to expect that the Government would act in accordance with the provisions of the Constitution and the concept of fair procedures inherent in it and had established a breach of that right.
The remedy sought by Mr Hanafin was not a remedy against the Government which committed the breach of the Constitution but a remedy which sought to override and reverse the sovereign will of the people as expressed in the provisional referendum certificate containing the record of votes cast at the referendum.
It was not sufficient to establish an interference with the conduct of the referendum by way of constitutional wrongdoing; it must be further established that the result of the referendum as a whole was affected materially by the constitutional wrongdoing.
Because of the secrecy of the ballot, it was not possible to ascertain, by direct evidence, the factors which influenced the people in casting their votes, what their motives were in casting their votes, or the reasons why they cast their votes in a particular way.
"The people are presumed to know what they want, to have understood the proposed amendment submitted to them and all of its implications," he said.
Mr Hanafin sought to rebut this presumption by producing evidence of the opinions of various experts with re ard to opinion polls and the actors which affected the voting pattern and intentions of the electorate.
The question of the assessment and its probative effect was a matter for consideration of the members of the divisional court and it was rejected. On the basis of the nature of the evidence given by Mr Hanafin at the petition hearing and the court's assessment of it, it was open to the members of the divisional court to reach such conclusions.
Then it was not open to the Supreme Court to interfere with such conclusions and findings.
The petitioner had failed to establish that the Government's constitutional wrongdoing materially affected the referendum result as a whole and his appeal against the divisional court decision on the referendum petition must be dismissed.