The Gazette 1996

GAZETTE

NOVEMBER 1996

For as long as I can remember, it was evident that referendum campaigns, conducted in a partisan fashion through political party organisations, were not usually in the best interest of the citizens of the State. In the absence of some campaign mediating agency, such as a monitoring commission for each referendum, the only safeguard lay in the Superior Courts. Reference of complaints about referendums to courts was rare and its expense obviously prohibitive. However, there was ground for hope since a principle had been established by the courts that fair procedures, though not specified, could be invoked. Thus, it was doubly welcome that two separate constitutional cases, the McKenna case and the Hanafin case, touching on the fair conduct of referenda, were taking place within six months of each other. I consider the decision of the courts in the second case to be a bad one, for some of the following reasons: 1. The central issues of the divorce referendum case were: (1) The manner in which the

3. The McKenna case showed that the Government's conduct exceeded fair procedures. 4. The result of the referendum was so narrow that it cast reasonable doubt on the validity of the result. 5. Common sense alone compelled the conclusion that the narrow margin of the result was surely affected by the propaganda campaign of the Government. 6. There was only one correct judgment in all the circumstances but it was not reached in the case under consideration. The only satisfactory decision was one which need not have prejudiced either side. That would have been to grant the petition so that another opportunity be afforded of holding the referendum again, conducted in a fair manner, to ascertain without undue interference the wishes of the electorate on the issues. Scam let ters Scam letters and faxes from Nigeria are still arriving on the desks of Irish lawyers. The letters usually tell a variety of implausible stories of enormous sums of money that can be released from Nigeria with a little help from the solicitor in question. The promised 'cut' for the solicitor can sometimes run into millions of pounds. The letters generally request information about the solicitor's bank account numbers on the pretext of wanting to use those accounts to launder stolen government funds. Members are strongly advised not to respond to any of these 'get rich quick' offers. Peadar O Maoláin, Solicitor, 7 Cormac Street, Tullamore, Co Offaly.

you saw the choice of our great leaders - of course, where else b u t. . . Barcelona! I held off writing until I could figure out how Council managed to become so upwardly mobile and ready for take-off. Now I've got it: it's because we've got rid of the excess baggage. I mean the past presidents of course.

Robert Ashe, 5/6 Lower Pollerton Road, Carlow

Reflections on the Divorce Referendum Petition

Dear Editor, I would like to comment on the recent constitutional case of the Divorce Referendum Petition, since it must appear to many to have been a water- shed in Irish history deserving serious appraisal. The issue of divorce related to the basic structure of human society. It was relatively simple and straight- forward. While it was capable of being understood by the average person, the manner of presentation of its implications to the general public was capable of being distorted. Indeed, political campaigns have an inevitable tendency to a greater or lesser extent to distort the issues. That advertising is generally effective seems to be evident from the amount of time, talent and money devoted to it daily. I have never been engaged in political party politics, but have been involved in most of the referendum campaigns since the early 1970s in a non-party way, as a citizen. The experience of such campaigning led me to think, from the beginning, that in order to have a genuine consulting of the wishes of the people in the spirit of the Constitution, there was need for some mediating agency which would ensure a fair presentation of all the issues involved.

campaign was conducted; more precisely, whether it was fairly conducted, and

a

(2) Whether there was undue interference in the campaign by the Government and its agencies. 2. Some relevant facts about the

manner were presented to court. It is hard to adduce evidence in a court environment that captures fully the effect of the actual conduct of the campaign on the ground, so to speak, such as the massive advertising campaign on billboards, newspapers, radio and television. That fact was uniquely a matter of public knowledge. It could only be appreciated fully by people actually living in the country during the campaign. It was thus a matter of public knowledge that the campaign was grossly and unfairly weighted in favour of the Government policy.

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