The Supreme Court
Broadcasting Complaints Commission, RTÉ
and the Attorney General
Extract from JUDGMENT of
Chief Justice Mr Liam Hamilton,
26 January 2000:1. In the case of a Referendum which has as its objective the amendment of the Constitution, fair procedures require that the scales should be held
equally between those who support and those who oppose the amendment.
2. The party political broadcast with which we are concerned in these appeals cannot be regarded as normal party political broadcasts but were devoted specifically to the issue to be put to the electorate in the referendum.
3. Political parties have no right, whether under the statute or under the Constitution, to be afforded the opportunity by RTE to make political party broadcasts. It is purely a matter for the discretion of RTE as to whether or not they will transmit such broadcasts.
4. In reaching the decision to transmit such broadcasts, RTE is obliged to, in the context of a referendum, to hold the scales equally between those who support and those who oppose the amendment.
5. The allocation of ten party political broadcasts, to be shared between five political parties, did not hold the balance equally between those who supported the Referendum and those who opposed it.
6. By no stretch of the imagination can that be regarded as maintaining a proper balance and such failure to maintain a proper balance was not in any way compensated for by the allocation of two ncontested broadcasts to ad hoc campaigners advocating a "No" vote in the Referendum.
7. Consequently, I am satisfied that the transmission of ten party political broadcasts, all of which advocated a "Yes" vote was unconstitutional and in
breach of fair procedures.
8. Political Parties undoubtedly have and are entitled to play an important role in the conduct of a Referendum. There are many ways in which they can fulfil that role without recourse to a political party broadcast which can only be transmitted by RTE in the course of a Referendum Campaign if they hold the balance equally between those who supported the referendum and those who opposed it.
9. I would dismiss the appeals herein.
Extract from JUDGMENT of
Justice Mrs Susan Denham,
26 January 2000:
Machinery of referendum
5. There are only a few occasions when direct democracy is invoked. The Constitution of Ireland, 1937 provides for referendum by the people. There is no provision for a popular initiative. Even in the instrument of direct democracy, the referendum, the procedure for a referendum under the Constitution of Ireland, 1937, envisages that the Houses of the Oireachtas play a key role. Every proposal for an amendment of the Constitution must be, initiated in Dail Eiream. It must be passed or deemed passed by both houses and then submitted to the people to decide. Thus, the institutions of representative politics in the State have a critical part to play in the referendum process in its introduction and commencement.
6. The referendum process is an important device in a democracy. It is a tool for direct democracy. It is an alternative to the representative government process. It gives people a method of direct democracy on important issues. It is a contrasting system to that of party political representative democracy. It is the people who legislate.
7. The referendum process is a different process to that of an election. In a general election or a local election political parties are key players. They are running for power, for
government. The institutions of representative democracy are driven by the party political system. Thus, party politics are at the core of an election or a general election. The party political broadcast is an important part of that process. In contrast, in a referendum the process is one of direct legislation. It is an alternative approach to legislation by elected representatives. Consequently, the role of elected representatives is different.
8. In a general election or a local election there are usually many issues. In a referendum there is a single issue - whether or not to change the Constitution.
9. On the issue raised in a referendum a political party may have a view that is shared by the vast majority of its members. Or the political party may be internally divided on the issue. A political party may use the process of a referendum to allow a decision be made ultimately on a non-party basis. In addition, there may be many non-political party groups or groups established solely to campaign on the issue active in the public debate.
10. The presentation of the issue to the public is different to the presentation in an election. The referendum procedure established under the Constitution is an exercise in direct democracy. However, the process commences in the legislature. There the political parties have a key role. There is initial control of the process by the legislature. Thus, the
referendum machinery is not a threat to the system of representative democracy. However, once the process leaves the Dail and Seanad, the institutions of representative democracy, it is a tool of direct democracy and the system should be fair, equal and impartial.
10. There are two sides in a referendum, those who favour the change and those who do not. Even if all the political parties favour changing the status quo the current Constitution is the alternative. It is unlikely that all the political parties will favour the status quo as the implementation process rests with the Houses of the Oireachtas and thus effectively with the political parties. In such circumstance a Bill for a referendum is unlikely to be passed.
11. The conduct of a referendum has been the subject of recent decisions by the Supreme Court: McKenna v. An Taoiseach (No. 2)  2 I.R. 10 and Hanafin v. The Minister for the Environment  2 I.R. 321. In McKenna v. An Taoiseach a majority of the court held that the Government's use of taxpayers money to promote a yes vote was an interference with the democratic process and an infringement of the concept of equality which is fundamental to the democratic nature of the State.
12. The Government has a duty to inform the people of its views. This will have been done initially through the debates in the Dail and Seanad leading to the Bill grounding the referendum. There should be a public debate on the issues prior to the referendum. It is entirely correct in a democracy that political parties inform people of their views and campaign on the issue. State funding may be allocated to enable a full debate and expended in a fair and constitutional fashion.
13. McKenna v. An Taoiseach and Hanafin v. Minister for the Environment illustrate the necessity for fairness and equality in referenda. These concepts are to be found in the legislation in issue. Section 18 of the Broadcasting Act, 1960, requires an approach which is objective, impartial and fair to all the interests concerned. Section 17 specifically requires the upholding of the democratic values enshrined in the Constitution.
14. Party political broadcasts must be analysed in accordance with the overall requirements of the Broadcasting Act, especially as established in s.18(1). Whereas s.18(2) permits the broadcasting of party political broadcasts the second named respondent (Ed note: ie RTE) must exercise the overall - broad picture - of impartiality and fairness. Thus, if the political parties take different stances on a referendum issue the broadcasting of party political broadcasts would present a divided view which would prima facie be fair even if not mathematically equal. Mathematical equality is not a requirement of constitutional fairness and equality.
15. However, if all the parties are either in favour of or opposed to a referendum then party political broadcasts become prima facie, unfair and unequal and the issue must be approached from the standpoint of the overall obligations imposed by the legislation and the Constitution.
16. The very nature of a party political broadcast is that the second named respondent gives free air time to a political party and does not edit the content. The content will be partial to the political party. The specific party political broadcast will not be edited. However, the responsibility of impartiality for the overall coverage remains with the second named respondent.
17. In general elections the political parties have a key role. They are striving for political power in a democracy. Each party presents its case for power. However, that is not the situation in a referendum to amend the Constitution.
18. Party political broadcasts may be only a very small proportion of broadcasting prior to a referendum. In planning coverage in a run up to a referendum the general news and current events coverage may constitute greater air time. However, that could change. Also, because of their nature party political broadcasts may be powerful tools, being air time when only one point of view is presented and at peak viewing times. The constitutional principles of equality and fairness applicable to broadcasting by the second named respondent will continue to be important as narrow casting is developed, as methods of communication which can be retrieved and viewed individually and repeatedly through electronic communication such as the Internet, is developed.
19. The decision as to whether or not there should be party political broadcasts is for the second named respondent. The decision must be arrived at in the context of equality and fairness. It will depend on the circumstances. It might be necessary to decide to hold no party political broadcasts in a referendum campaign.
The facts of this case have been fully set out by Keane J. I am in agreement with his judgment. For the reasons stated herein also I would uphold the declaration made by the High Court that in relation to the Divorce Referendum of 1995 the allocation of uncontested broadcasting time to each side of the argument was significantly unequal and thereby constitutionally unfair.
I would dismiss the appeal.
Extract from JUDGMENT of
Justice Mr Barrington,
26 January 2000:
1. The Constitution contemplates a community of citizens living together in a democratic society. It lays down that all citizens are, as human persons, to
be held equal before the law. But at the same time it recognises that citizens may have differences of capacity physical and moral and that they may, by virtue of their office or otherwise have different social functions to fulfil. It is against this concept of equality that the legislation in question is to be understood.
2. When the people are performing the ultimate act of sovereignty it is clearly right and proper that the views of all citizens should, so far as practicable, be heard. But it is also right and proper that the special position of political leaders should be recognised. In my view there is, in principle, no constitutional inequality or unfairness and no breach of democratic values in allowing political leaders access to the airwaves at referendum time on
conditions dissimilar to those granted to private citizens but related to their
social function as political leaders of the people.
3. I would allow the appeal by RTE and discharge the Order of the learned
High Court Judge.