Constitutional Law: Undue State Interference - Case Study Example

"Undue Interference" An essay comparing and contrasting the following cases: McKenna v. An Taoiseach (No. 2) (1995), Hanafin v. Minister of the Environment [1996], and Coughlan v. BCC [2000] During the rejection of the Lisbon Treaty by Ireland on June 12, 2008, the Irish Justice Minister, Dermot Ahern, used in his comment the phrase, "a referendum is the essence of democracy" It is the giving to the electors of the chance to agree or disagree on a particular issue that is the very fundamental exercise of democracy. However, in order to be effective, each participating elector in a referendum must not only know the question submitted to the electorate, but must also understand the various issues surrounding the said question. It is thus the duty of the government, in the conduct of referendum, to protect the said rights of each elector: the right to information on matters of public concern, and the right to give an enlightened consent or disagreement to the question thus interposed. This is what this paper is all about. The Cases McKenna v. An Taoiseach (No. 2) followed the earlier unsuccessful McKenna v. An Taoiseach (No. 1) case, which was a challenge brought by the same litigant in respect of Government expenditure during the Maastricht treaty referendum campaign. In this case, the Supreme Court resolved a question on whether or not it was proper for the government to expend certain monies in a publicity campaign designed to influence public opinion in relation to the proposed referendum on divorce. The Supreme Court found that the Government expended public monies in the sum of 500,000 which had been made available by Dail Eireann to the Minister of Equality and Law Reform in the conduct of a campaign to provide information with regard to the issues involved in the Referendum and to advocate a vote in favour of the proposed amendment. The Supreme Court ultimately granted a declaration that the Government was acting in breach of the Constitution in spending public moneys on the promotion of a particular result in a referendum. Hanafin v. Minister for the Environment was an appeal from the High Court dismissing a petition by petitioner Hanafin under Section 42 of the Referendum Act. In this case, the Supreme Court passed over a question on whether or not it was proper for the government to expended public monies in campaigning for amending the Constitution by removing therefrom the absolute prohibition of legislation providing for the grant of dissolution of marriage contained in Article 41.3.2 of the Constitution. The Supreme Court did not find any material interference by the State and as proven by the petitioner. The Supreme Court disallowed the appeal in this case due to the fact that the Petitioner has failed to overcome the presumption of constitutionality of the result of the referendum, ruling that each voter must be taken to have been sufficiently enlightened at that stage on the issue involved to exercise what was a free choice. In Coughlan v. Broadcasting Complaints Commission, the Supreme Court had the opportunity to pass upon a question on whether or not allocation of uncontested broadcasting time by the government to each side of the argument in relation to the Divorce Referendum of 1995 was significantly unequal and thereby constitutionally unfair. This case is an appeal from the decision of the High Court quashing by certiorari the denial of the complaint brought by herein petitioner before herein public respondent. The Supreme Court found that the government, through the Radio Telefs ireann, transmitted ten political party broadcasts aggregating 30 minutes which all favoured a 'Yes' vote; two uncontested broadcasts from ad hoc campaign groups advocating a 'yes' vote aggregating 10 minutes and two uncontested broadcasts from ad hoc campaign groups advocating a 'no' vote aggregating 10 minutes; and in addition, it transmitted in error one repeat broadcast made by an ad hoc campaign group of 2.5 minutes. Furthermore, the Supreme Court found that the uncontested broadcasts in favour of a 'Yes' vote transmitted by the Radio Telefs ireann aggregated forty minutes and the uncontested broadcasts transmitted by the Radio Telefs ireann in favour of a 'No' vote aggregated ten minutes. Also, the total uncontested broadcasts transmitted during the Divorce Referendum campaign comprised somewhat in excess of 2% of the total coverage of the said campaign. The Supreme Court, in this case, dismissed the appeal brought by the Broadcasting Complaints Commission and held that the aforesaid broadcasts made by the government are constitutionally infirm. In doing so, the Court reiterated the cases of McKenna v. An Taoiseach (No. 2) [1995] and Hanafin v. The Minister for the Environment [1996] and upheld the necessity for fairness and equality in referenda. Thus, it ruled that Section 18 of the Broadcasting Act, 1960, requires an approach which is objective, impartial and fair to all the interests concerned. The Manifestation of State Interference The cases find their initial commonplace in Coughlan v. Broadcasting Complaints Commission. In this case, the Supreme Court mentioned the necessity for fairness and equality in referenda. All three cases involve the question of propriety in the conduct of referenda with regard to State interference. In McKenna v. An Taoiseach (No. 2), State interference was shown when the government advocated for a "Yes" vote as a result of the referendum therein held. In Hanafin v. The Minister for the Environment, there was State interference when the government also engaged in positive action during the campaign for the referendum with regard to the amendment of the Constitutional provision disallowing divorce. Lastly, in Coughlan v. Broadcasting Complaints Commission, the State also interfered with regard to the allocation of more broadcasting time to those parties advocating for a "Yes" vote than to those parties advocating for a "No" vote in therein subject referendum. There is no question that there was State interference or that the government took positive action in the conduct of the referendum in all three cases. However, the problem lies with the case of Hanafin v. The Minister of the Environment. This is because, in this case, the Supreme Court upheld the regularity of the interference by the government in the conduct of referendum, and the expenditure of monies for such interference. Now, why is that so The Curious Case of Hanafin v. The Minister of the Environment In McKenna v. An Taoiseach (No. 2) and in Coughlan v. Broadcasting Complaints Commission, it is clear that the State interference was for a specific result. In McKenna, the government spent monies in support of a "Yes" vote in the proposed Referendum on Divorce. As aptly found by Justice O'Flaherty in this case, "The use by the Government of public funds to fund a campaign designed 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". In Coughlan, the government, through the Radio Telefs ireann, allocated 40 minutes of broadcast time for those in favour of a "Yes" vote, which were 30 minutes longer than that allocated as broadcast time for those in favour of a "No" vote. Clearly, in both cases, the government was advocating for a particular result; a "Yes" vote, as a result of the referenda. However, the Supreme Court differentiated the case of McKenna from Hanafin in the following manner: "What was in issue in the McKenna case was whether the Government was entitled to expend State monies on funding a publicity campaign directed to persuading the public to vote in favour of the proposed amendment in the Referendum and the majority of this Court held that it was not on the ground that, as I stated at page 42 of the Report:- "The use by the Government of public funds to fund a campaign designed 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". The constitutional impropriety on the part of the Government lay in the expenditure of public funds on a campaign designed to influence the voters to vote in favour of the proposed amendment and not in advocating or campaigning for the proposed amendment." (Hanafin v. Minister of the Environment [1996]) In Hanafin, the Supreme Court held that the interference of the State, during the campaign for a referendum, must be shown to tip the balance of probabilities and affect the will of the electorate in order for the said interference to be held unconstitutional. The Supreme Court, in citing the case of Banco Ambrosiano [1987], held that the onus or the burden of proof is on the part of petitioner Hanafin to show that the said State interference fails the test of balance of probabilities; and upon failing so, the presumption of constitutionality in the conduct of the referendum must be upheld to avoid disenfranchising the will of the voters. The reason behind this decision is that the Supreme Court differentiated the term "conduct of referendum" from "campaigning for the referendum by political parties", and that the State interference sought to be abrogated must be related in the former and not in the latter. The Supreme Court, in quoting Judge Murphy J, held that the expression "conduct of the referendum" would not {of itself or the context in which it appears in Section 43 of the Referendum Act 1994} justify interpreting those words as including or extending to a campaign carried on by political parties or other interested groups or persons in relation to the Referendum. This conclusion is, in their view, confirmed by the use of the words "interference", "obstruction", "hindrance", and "irregularity". In the course of his judgment, Lynch J stated:- "I regard the evidence adduced in support of the allegation that the Government's unconstitutionally funded campaign had a significantly persuasive influence on the electorate as speculative and unsatisfactory. I do not accept that it has been established by the evidence adduced by the petitioner even as a matter of reasonable probability that the campaign unconstitutionally funded had any ascertainable or measurable influence on the electorate when they cast their votes on the 24 day of November 1995." (Hanafin v. Minister of the Environment [1996]) Lastly, the Supreme Court, in quoting Mr Justice Henchy in the course of his judgment in Crotty v An Taoiseach [1987] (IR 713) at page 788 of the Report:- "There is, of course, nothing in the Constitution to prevent the Government or any person or group or institution, from advocating or campaigning for or otherwise working for a change in the Constitution." In the end, the Supreme Court holds that State interference, in order to be constitutionally infirm, must be manifested during the conduct of the referendum or those aspects of the organisation of and for the referendum: the taking of the poll and the holding of the counts and such other matters as were entrusted to the Referendum Returning Officer and the other statutory officers by the 1994 legislation and any statutory instruments made thereunder. Outside of it, there lies a presumption in the regularity of the referendum in favor of the votes casted by the people. Epilogue In all those cases, the Supreme Court discussed at lengths the importance of the protection of the will of the sovereign. Through them, the Supreme Court teaches us that it is through a referendum that the will of the people is manifested; and that it must be protected from the especially from moment of educating the people about the pros and cons of a proposed legislation. After all, it is the giving to the electors of the chance to agree or disagree on a particular issue that is the very fundamental exercise of democracy. Cases cited: Banco Ambrosiano [1987] Crotty v An Taoiseach [1987] IR 713) Read More