Was the McKenna judgment correctly decided? We are now into a new Dβil session and there has been speculation as to whether a new referendum on the Nice Treaty will be held before the coming general election. Many people regard the rejection of the treaty in the recent referendum as having had a disastrous effect on Ireland's standing with other European states. It is hoped now that its acceptance in a fresh referendum will remedy this.
Many reasons have been advanced as to why this unfortunate state of affairs came about - that too many assumed a Yes victory was a foregone conclusion; that the political parties, the farmers organisations, and the trade unions did not do enough; and that Government Ministers did not pull their full weight.
While there may be some truth in all or in some of these allegations I believe that the dominant cause was the continuing and pervading effect of the Supreme Court's 1995 decision in McKenna v An Taoiseach & Others (2), which curtailed any effective effort on the part of the Government to put before the people what it and the democratically elected parliament of the State believed to be in the national interest.
The result was a dull and unenthusiastic pre-poll atmosphere with the active campaign being almost exclusively confined to the No lobby, no publicity on the part of the Government, widespread lack of interest and a very low poll. Should such a situation be repeated indefinitely into the future I believe the referendum as a method of consulting with or seeking approval from the people on proposals put under Article 47 of the Constitution would be unreliable and even dangerous.
I propose in this article to examine in a critical manner the McKenna decision and to consider whether it was correctly decided, and if not whether it would be possible to have its reasonings and conclusions reviewed, in whole or in part, in other proceedings, by the Supreme Court.
At the outset, it should be noted that in McKenna the court was concerned with the second divorce amendment, the pros and cons of which were at the time of the decision being hotly debated by contending groups.
Each of these groups, some being for a Yes answer and others for a No answer, were seeking to influence voters to support their point of view in what was at times a very bitter campaign.
I believe that the existence of this campaign led the judges in the wrong direction and that they lost sight of the true question before them which was whether the promotion of a publicity campaign by the Government was an unjustified interference with the rights of voters. The hearing before the court was necessarily rushed because of the currency of the campaign and the judgments, in my view, were given too hastily.
I approach this examination by noting the following points:
(1) Neither Article 46 of the Constitution, which provides for the holding of a Referendum, nor the Referendum Act 1994, which implements its provisions, refer to or consider a pre-poll campaign being held prior to the decision by the people on whether to approve or reject a proposal coming before them in a referendum. Neither is such a campaign prohibited.
Whether or not it takes place depends on whether individuals or groups, acting in a democratic fashion, decide to publicise their point of view on the proposal and seek to influence voters to vote accordingly.
The constitutional provision does no more than to say that the proposal, having being initiated in the Dβil as a Bill and having been passed by both Houses of the Oireachtas, shall be submitted to the decision of the people; and the Government, under the Referendum Act, is required to do so. Accordingly, the designated minister announces the date on which polling is to take place and makes the necessary arrangements for the conduct of the poll and the subsequent counting of the votes.
What is important is the exercise of the people's right to decide, the allowing of sufficient time for the consideration of the proposal on its merits, and the provision of appropriate machinery to enable the decision of the people to be taken and recorded.
(2) Under Article 47.3 of the Constitution, every citizen who has the right to vote at a Dβil election is given the right to vote at a referendum. This is the personal right of each qualified citizen, to be exercised by him or her personally and not by a proxy given to any group or association. It is this right which must be recognised and receive equal treatment in respect of each voter.
Voting rights are not given to groupings of citizens however composed. Such groupings are, of course, entitled to campaign together for the purpose of securing the answer they favour and to seek to influence voters to give that answer on polling day. However as a class or group or however formed, these have no voting rights, nor can they claim an exclusive right to campaign in the manner mentioned.
(3) It is at this point that I take a different view to that taken by the majority of the judges in McKenna as to what were the proper issues to be decided.
In their judgments, it seems to me, these judges overlooked the fact that the right to vote which they had to consider was the personal right of each qualified voter, as laid down in the Constitution. Instead, they confused or equated this personal right, exercisable only on polling day, with the right of voters and all citizens to join in a pre-poll campaign, if such were taking place, in which all aspects of the question to be decided on polling-day could be discussed and argued.
Thus Mr Justice O'Flaherty, at page 43 of the report, spoke of "the voting rights of one class of citizen (those in favour of the change)" being put above "those of another class of citizen (those against)". And Mr Justice Blayney, at page 50, spoke of the government not holding "the scales equally between those who support and those who oppose" the amendment and throwing "its weight behind those who support it".
Ms Justice Denham declared: "It is a breach of the concept and spirit of the constitutional right to equality for the Government to spend public monies in funding a campaign to advocate a specific result in a referendum" and this was "to fund one side of an electoral process to the detriment of the other side of the argument".
Taking this view of the exercise of the right to vote as in some way exercisable by contending groups as a class vote, the court concluded that the government, in entering into the campaign to publicise with public funds its own point of view and that of both Houses of the Oireachtas, necessarily breached a supposed right of equality of the group with which it did not agree.
As already indicated, in my view no such exclusive right to campaign exists for contending groups and no right to equality of treatment would, in such circumstances, be broken by the Government.
(4) The court also considered whether the Government's action in spending public funds to publicise its appeal for a Yes vote was a lawful exercise of the executive powers of the State and as such not reviewable in the courts.
I am not clear as to why, having taken the view that in this the Government's action breached a constitutional right, such an inquiry was necessary. The executive power of the State cannot be exercised in breach of the Constitution or the law.
Apparently, however, the reason was that two of the judges took the view that in a referendum, a publicity campaign by the Government, even if not in breach of any constitutional right, required positive endorsement either in the Constitution or in the Referendum Act.
I do not share that view. Merely because some action which facilitates or is found necessary for the completion of a constitutional provision is not mentioned in the relevant Article does not mean that it cannot be taken. If such a step appears necessary and is consistent with the objective of the Article, it must be taken.
A proposal to amend the Constitution represents the wishes of at least a majority of the people and accords with Government policy as being in the interests of the common good. The Government is required to put this "to the decision of the people".
This must mean a decision by voters understanding and being fully informed as to the meaning of the proposal and as to why the Government and the Oireachtas want approval.
If it appears to the Government that the proposed amendment is not fully understood by the generality of voters, or that its effect is being misrepresented, I believe it to be the duty of the Government to step into the campaign to correct the position and, to do so in the manner considered in McKenna.
Such action is the lawful exercise of the executive power of the State and requires no positive constitutional or statutory endorsement. I may add that where, as in the publicity campaign so considered in McKenna, the Dβil had expressly appropriated £500,000 for its conduct, it is virtually impossible to regard the conduct of such a campaign as being other than a political act of the Government in exercise of the executive power of the State.
As long as such an act is not in breach of the Constitution or the law, it is not reviewable in the courts.
I am fortified in the views I have expressed on the nature of the Government's action by the judgments of Mr Justice Costello in the High Court, in McKenna no.1, of Mr Justice Keane (now Chief Justice Keane) in the High Court and of Mr Justice Egan in the Supreme Court in the McKenna under review.
The next question is whether the reasoning in McKenna can be reconsidered by the Supreme Court. Otherwise the case cannot be retried and in accordance with precedent must be followed by all courts other than the Supreme Court.
The Supreme Court, however, is not bound by its own previous decision or decisions and in order to avoid perpetuating error can, and has in the past, changed its views.
How then can the matter come again before the Supreme Court? Apart from the accident of litigation, I can suggest only one way. I think the Government should consider initiating a Bill in the Dβil to amend the Referendum Act 1994 by expressly authorising the kind of publicity considered in McKenna. It is probable that such a Bill, if passed, would be referred by the President to the Supreme Court.
If not, it can be acted upon unless and until a review is sought in the courts by some litigious citizen.
Thomas F. O'Higgins was chief justice from 1974 to 1985