THE High Court decided yesterday that the Minister for the Environment was wrong when he claimed he had no power to alter regulations to permit anti-divorce campaigners to monitor the counting of votes in the 1995 divorce referendum.
The President of the Court, Mr Justice Costello, said Ms Fionula Sherwin, of Beech Park Avenue, Castleknock, Dublin, had ascertained that by Section 26 of the 1994 Referendum Act only members of the Oireachtas could appoint personation agents and agents to monitor the counting of votes.
As she had no access to members of the Oireachtas and as all political parties were supporting the amendment, which Ms Sherwin opposed, she felt aggrieved. She asked the Minister to exercise his statutory powers to rectify the defects. The Minister replied that he had no power to adopt the requested measures.
Mr Justice Costello upheld Ms Sherwin's claim that the Minister had misconstrued his statutory powers but rejected the claim that Section 26 infringed the Constitution.
The judge said that central to the case was the power of the Minister to make adaptations or modifications by ministerial order of any statute or regulations in relation to elections or referendums where there was an emergency or "special difficulty".
The most important fact relevant to Ms Sherwin's case was that all the parties in the Oireachtas supported the proposed constitutional amendment. This meant those opposing were dependent on a small number of independent members to obtain nomination as agents.
