NEXT year's general election could well be a major cock up. This may arise from a successful judicial challenge to the constitutionality of party election financing and the conduct of the election debate by RTE. Neither the parties nor RTE seem to have averted to this possibility.
This arises from the judgments delivered by four of the judges of the Supreme Court in the McKenna case before last November's divorce referendum (the fifth judge, Mr Justice Seamus Egan, delivered dissenting judgment he is now retired). That case had to do with the constitutionality of the use of State funds for the promotion of a "yes" vote in the divorce campaign.
The judgments have a clear applicability to the conduct of general election campaigns, their financing and, possibly, RTE's conduct of the election debate.
The significant elements of the four judgments were Mr Justice Liam Hamilton. "The use by the Government of public funds to fund a campaign to influence the voters in favour of a `yes' vote is an interference with the democratic process and the constitutional process for the Amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State."
Mr Justice Hugh O'Flaherty "To spend State money in this way breaches the equality rights of the citizens enshrined in the Constitution as well as having the effect of putting the voting rights of one class of citizens (those in favour of the change) above those of another class of citizens (those against)."
Mrs Justice Susan Denham. "(The constitutional right to be treated equally) includes the concept that in the democratic process, including referenda, neither side of an issue will be favoured, treated unequally by the Government ... for the Government to fund one side of a campaign is to treat unequally those who believe to the contrary, whether they be a majority or a minority.
"Freedom to express opinions incorporates the corollary right that in the democratic process of free elections, public funds should not be used to fund one side of an electoral process, whether it be a referendum or a general election, to the detriment of the other side of the argument. The citizen is entitled to a democracy, free from Government intercession with the process no matter how well intentioned."
Mr Justice John Blaney. "The people are entitled to be treated equally . .. The Government has not held the scales equally between those who support and those who oppose the Amendment."
All four judges invoked the notion of equality and of the necessity of the State to ensure that in the conduct of elections (referenda or otherwise), no one side was treated preferentially.
The initial proposals of the present Government, supported by Fianna Fail, provide funds for the forthcoming election campaigns largely on the basis of how each party fared in the previous election.
The Attorney General, Mr Dermot Gleeson, has advised that such a proposal would not stand constitutional scrutiny under the criteria laid down by the Supreme Court in the McKenna case. However, the full implications of that judgment do not seem to have been fully appreciated by the political parties.
It would seem that the use of any public funds in an election campaign could be constitutionally permissible only on the basis of strict equality. This would seem to require equal funding for each candidate as otherwise citizens supporting what $ might be perceived as minority or fringe candidates would.be treated unequally.
Precisely the same you could be applied campaign debate. If some parties or candidates are given preferential treatment, then, by the logic of the judgments in the McKenna case, RTE would be treating citizens unequally.
RTE's criteria for allocating air time to candidates was challenged in a judicial review by the independent candidate, Paddy Madigan, in the European elections in June, 1994.
IN that case, the Supreme Court found that as RTE had not relied solely on the results of the previous election, the criteria it used (a mix of considerations, including previous elections outcomes) was within its discretion. But it is at least questionable that this High Court judgment could stand up in the light of the subsequent Supreme Court judgment in the McKenna case.
There is actually an argument that the reasoning in the McKenna case might have much broader applicability than merely the use of State funds or resources in election campaigns. It might also have applicability for the deployment of private finance in elections.
Is not the use of private funds in a partisan manner now also (in the words of Mr Justice Liam Hamilton) "an interference with the democratic process?"
Does it not (in the words of Mr Justice Hugh O'Flaherty) "put the voting rights of one class of citizens above the voting rights of another class of citizens?"
Is the citizen not entitled to a democracy free from private vested interest intercession with the process no matter how well intentioned, as Mrs Justice Susan Denham said it should be free from Government intercession?
And is the Government holding the scales equally, as Mr Justice John Blaney requires, if it permits private vested interest finance to fund massively (or at all) one side in a general election campaign.
There was an intriguing exchange between one of the judges and one of the counsel during oral submissions in the Hanafin case in the High Court earlier this year. (This was the challenge to the validity of the outcome of the divorce referendum.)
The judge involved was Mr Justice Dominic Lynch, who has since been elevated to the Supreme Court. He pursued a line of questioning about whether it would be constitutional for a foreign multi national company to expend huge sums of money supporting one side in a referendum campaign to change the constitutional provisions, for instance, on private property. The implication of his reasoning was that the use of even private funds in an election campaign could distort the equality there is between citizens in the electoral process.
Such an exchange, of course, has no judicial authority but it was perhaps a revealing insight into the mind of someone who is now in the Supreme Court and who may wish to expand upon the reasoning in the McKenna case.
The involvement of private finance in election campaigns distorts the equality of citizenship. It gives to those parties that represent the interests of people with wealth an unfair advantage over the parties with the interests of poorer people. This is part of the explanation for the under representation of the interests of the poorer classes within our political system.