A Supreme Court decision E's unequal and constitutionally unfair allocation of uncontested broadcast time to the Yes and No sides in the 1995 divorce referendum has cast doubt on whether RTE will be able legally to transmit any party political or other uncontested broadcasts in future referendums.
By a majority of four to one, the court upheld a decision by the High Court that RTE had acted unlawfully in its allocation of uncontested broadcasting time to the Yes and No sides in the 1995 divorce referendum.
The incoming Chief Justice, Mr Justice Keane, said it was "beyond argument" that the unequal allocation of 40 minutes of uncontested time to the Yes side and just 10 minutes to the No campaign gave an advantage to the Yes side in the divorce poll. He added that party political broadcasts were "at least capable" of influencing the outcome of a referendum.
The judge said he did not overlook the difficulties now facing RTE. In the present state of the law, RTE might be in a position where it "cannot safely transmit party political broadcasts during the course of referendum campaigns, as distinct from other campaigns.
"Whether the difficulties confronting RTE in this area can or should be dealt with by legislation and, if so, how, are not matters for this court," Mr Justice Keane said.
Mr Justice Barron said RTE might have difficulty in justifying uncontested broadcasts by referendum campaigners. "I agree this may well be an area which requires consideration by the Oireachtas."
In the divorce referendum campaign, RTE transmitted 10 uncontested broadcasts by the five main political parties advocating a Yes vote, two further broadcasts by the pro-divorce groups, and two urging people to vote No.
Mr Anthony Coughlan, of Crawford Avenue, Drumcondra, Dublin, complained about this to the Broadcasting Complaints Commission. When it ruled against him, he pursued the matter to the High Court, which granted a declaration that RTE's allocation of time had resulted in "inequality amounting to constitutional unfairness".
RTE and the complaints commission, supported by the Attorney General, appealed that finding to the Supreme Court, complaining that it created an impossible position for RTE, the Referendum Commission and the Government.
Yesterday, four of the five Supreme Court judges dismissed the appeal in separate reserved judgments and awarded costs to Mr Coughlan. Mr Justice Barrington dissented, arguing it was right and proper that the "special position" of political leaders be recognised in referendums.
The Chief Justice, Mr Justice Hamilton, noted that uncontested broadcast time accounted for just over 2 per cent of RTE's entire coverage of the divorce referendum. Mr Coughlan had not complained about the station's general coverage of the campaign.
The Chief Justice repeated his assertion in the McKenna judgment that it was solely the prerogative of the people to amend the Constitution. Any constitutional amendment must be in accordance with the constitutional process and no interference with that process could be permitted.
RTE was obliged to ensure that news and current affairs were reported and presented in an objective manner. It was under no obligation to transmit party political broadcasts, but was entitled to do so. If it did, it must have regard to fair procedures and the Constitution.
In referendums, fair procedures required "that the scales should be held equally between those for and against the amendment," he said. E was obliged to ensure both sides got equal time. RTE's allocation did not hold the balance equally between those for and against the amendment, was unconstitutional and in breach of fair procedures, he held.
In dismissing the appeal, Mr Justice Barron also stressed the difference between elections and referendums. The unequal allocation of time was neither impartial nor fair to all interests concerned, and RTE had not improved matters by allowing non-political parties to make uncontested broad casts.
RTE had no power to allow this and it did not redress the imbalance.
In his dissenting judgment, Mr Justice Barrington said the fact that all political parties agreed on a particular aspect of national policy might be a political fact of the utmost importance.
A referendum was the ultimate act of sovereignty. The people were making a political decision and the most that could be hoped for was that they would be well informed and well advised.
In that context, to play down or neutralise the role of political leaders "in favour of committed amateurs" would be, "to say the least, unwise."