The Gazette 1996

GAZETTE

NOVEMBER 1996

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.

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.

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

campaign was conducted; more

precisely, whether it was fairly

conducted, and

(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.

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.

Peadar O Maoláin,

Solicitor,

7 Cormac Street,

Tullamore,

Co Offaly.

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.

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