The manner in which the amendment to give constitutional recognition to local government was put before the people recently highlights, once again, a major democratic deficit in the referendum process in this State. The conduct of the campaign contributed to the unusually high number of 109,066 spoiled ballot papers. But, it did more than that. It served to devalue the primacy of the Constitution, the basic law of the State, and to deprive voters of their right to make an informed choice about a proposal for constitutional change promoted by their political leaders.
To reach such a verdict on the conduct of the referendum is not intended to take away from the soundness of the McKenna judgment but rather to challenge and criticise the political interpretation now put on it. Neither is it intended to question the validity of the case being pursued against RTE by Mr Anthony Coghlan, the tenacious anti-EU and pro-neutrality campaigner. It is an earnest plea to political leaders to find a better way to run the next referendum.
In the case taken by Green MEP, Ms Patricia McKenna, in the final days of the divorce referendum in 1995, the Supreme Court ruled that the Government's use of taxpayers' money to promote a Yes vote was "an interference with the democratic process" and "an infringement of the concept of equality which is fundamental to the democratic nature of the State". That was a good decision. The judgment did not preclude political leaders from advocating a Yes vote nor political parties from spending their money seeking it. It did not rule out the very stuff of politics - good old-fashioned advocacy from real people.
The Government response was to set up the Referendum Commission, chaired by former Chief Justice, Mr Justice Thomas Finlay, as an independent statutory body to regulate referendum campaigns in a fair and impartial manner. It was allocated a budget of £750,000 for the local government campaign. So late was it notified of the holding the referendum that it could not give An Post the required month's notice for a door-to-door mail shot.
The referendum process has been further restricted by the Coghlan case. He sought to have the McKenna judgment applied to RTE's coverage of referendums. He won in the High Court thereby compelling RTE to divide its party political broadcasting 50:50 between the Yes and No sides of a campaign. RTE, then joined by the Attorney General, appealed the decision to the Supreme Court. The whole case will be reheard next month since it was part of former Mr Justice Hugh O'Flaherty's caseload.
The Attorney General should present a strong case to the Supreme Court next month that the combination of these developments has emasculated the referendum process. The Referendum Commission cannot compel voters to read leaflets nor view advertisements as normal politics. If public money is to be spent on referendums, it makes sense that it should be channelled through civic organisations. It would be preposterous for a referendum on Partnership for Peace, which is supported by this newspaper, to be conducted in the same manner as the local government campaign. Political correctness has gone mad.