Anthony Coughlan (applicant) v Broadcasting Com- plaints Commission and Radio Telefis Eireann (respondents) and the Attorney General (notice party).

Judicial Review - Constitution - Divorce referendum - Equality - Party political broadcasts - Whether RTE acting unfairly in allowing political parties free broadcasts in referendum campaign - Whether RTE obliged to afford equal broadcasting time to both sides of referendum campaign - Whether referendum process different from election process - Constitution of Ireland 1937, Article 46, section 2 - Broadcasting Act 1960 (No 10), section 17.

The High Court (before Mr Justice Carney); judgment delivered 24 April 1998.

A constitutional referendum involves direct legislation by the people of Ireland and is distinct from the normal political process. The approach of RTE to the allocation of broadcast time during the divorce referendum campaign was constitutionally unfair as RTE took political parties as represented in Dail Eireann as its starting point in making that allocation. The High Court so held in granting the applicant an order of certiorari quashing the adjudication of the Broadcasting Complaints Commission.

Michael McDowell SC, Paul Callan SC, Seamus O Tuathail BL and Diarmuid Rossa Phelan BL for the applicant; James O'Reilly SC and Gerard Humphries BL for the first respondent; John Trainor SC, Mary Finlay SC and Jonathon Buttimore BL for the second respondent; Eoghan Fitzsimons SC and Paul Burns BL for the notice party.

Mr Justice Carney said that during the course of the 1995 referendum on divorce RTE had permitted political parties, all of which were committed to a yes vote, to transmit political broadcasts. RTE also permitted programmes, similar to party political broadcasts, to be transmitted by one non-party group in support of the referendum and one non-party group opposed to the referendum. The applicant complained to the Broadcasting Complaints Commission saying that RTE had breached section 18 of the Broadcasting Act 1960 which requires RTE to be objective in its reporting of current affairs and matters of public importance. The commission rejected the applicant's complaint on the basis that RTE was entitled to transmit uncontested party political broadcasts under subsection 2 of section 18. However, the commission upheld that part of the applicant's complaint which related to a mistaken re-showing by RTE of a broadcast by the Right To Remarry group which was not balanced by a broadcast by the opposing side.

The applicant sought to have the decision of the commission quashed on the basis that it had misapplied the law in finding that RTE had not breached its statutory duty. He argued that during the course of the referendum campaign RTE had afforded 42.5 minutes of uncontested broadcasting time to the "yes" campaign and 10 minutes to the "no" campaign. It was submitted that RTE was under an obligation to either refrain from uncontested political broadcasts during a referendum campaign or alternatively afford equal broadcast time to the "yes" and "no" sides. Mr Justice Carney referred to his judgment in Brandon Book Publishers Limited v Radio Telefis Eireann [1993] ILRM 806 and said that a decision of RTE in relation to broadcasting is not to be lightly interfered with. In a constitutional referendum the people of Ireland are legislating directly. The Supreme Court considered the referendum process in the case of McKenna v An Taoiseach (No 2) [1995] 2 IR 10 and stated that the government has no role to play in the submission to the people of a proposal by way of referendum. Similarly, political parties are given no role under law or by the Constitution in the referendum process.

Mr Justice Carney said that the McKenna case established that it was the prerogative of the people of Ireland to amend the Constitution and that any interference with the free exercise of that prerogative by the State would be unconstitutional. RTE, which is charged under the Broadcasting Act 1960 with upholding the democratic values enshrined in the Constitution, would be acting in an unconstitutional fashion if it transmitted uncontested political broadcasts weighted on one side of a referendum argument. The imbalance in time allocated between both sides in the divorce referendum indicated that RTE had thrown its weight behind one side of the argument. Mr Justice Carney was of the view that RTE did not fully appreciate that a constitutional referendum involves direct legislation by the people and that no special role is afforded to political parties in that process. As a consequence RTE went wrong in using political parties as its starting point in the allocation of broadcast time during the referendum campaign.

This amounted to unconstitutional unfairness which would not have arisen if RTE had afforded both sides of the campaign equal broadcasting time and the applicant was entitled to a declaration to that effect. The applicant was also entitled to an order quashing the decision of the Broadcasting Complaints Commission as it had fallen into error in its interpretation of RTE's statutory and constitutional role.

Solicitors: MacGeehin & Toale (Dublin) for the applicant; Roger Greene & Sons (Dublin) for the first respondent; Eugene F. Collins (Dublin) for the second respondent; Chief State Solicitor for the notice party.