GOVT. REFERENDUM BOOKLET
DECLARED ILLEGAL BY
SUPREME COURT:
FULL TEXT OF JUDGEMENT
PUBLISHED 11/12/2012:
The Irish Supreme Court published it's full judgement on the case brought by Mark McCrystal against the Government's use of public money to produce a booklet giving only the Government's own policy on the issues of the so-called Children's Referendum in November 2012.
The court ruled:
"On the 8th November, 2012, this Court delivered a Ruling on this appeal. The Court concluded that it was clear that there were significant passages in the Children’s Referendum information booklet and on the website, www.childrensreferendum.ie, that did not conform to the principles enunciated in the judgment of this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10, referred to as “the McKenna principles”. Further, that while not all of the website or the booklet were in breach of the McKenna principles, it was not appropriate for the Court to redact either because of the overall structure of the booklet and website.
Accordingly, the Court granted a declaration that the respondents had acted wrongfully in expending or arranging to expend public monies on the website, booklet, and advertisements, for the purpose of promoting a particular result in the Referendum of the Thirty-First Amendment of the Constitution (Children) Bill, 2012. The Court did not consider it either appropriate or necessary to grant an injunction, as it was assumed, correctly, that the respondents would cease distributing the material"
And:
"(i) The Government is entitled to campaign for a yes vote by any methods it
chooses, other than by the expenditure of public funds. Such methods include
writing, speaking, broadcasting, canvassing, leafleting and advertising.
Some of these methods, such as writing, speaking, broadcasting on ordinarily
scheduled current affairs programmes, and canvassing, are cost free. Others,
such as the creation of a dedicated website, leafleting and advertising,
involve expenditure. Partisan advertising, that is advertising in one way or
another urging a particular result, may be carried out by any person or by
an organised group or political party, including parties composing the
Government of the day, but it must be done at their own expense. Any
‘information’ disseminated by the Government at public expense must be
equal, fair, impartial and neutral.
(ii) The Government is entitled to campaign for the change, and the members of the
Government are entitled in their personal, party or Ministerial capacity to
advocate the proposed change. Government Ministers may use their State
transport in relation to the referendum and may avail of the radio, television
and other media to put forward their point of view. However, the Government and
its members must not spend public monies in favour of one side.
The Right to Equality
(iii) The right to equality applies in the referendum process. Spending public monies in favour of one side of a referendum breaches the equality rights of the citizens.
The Right to Equality
(iii) The right to equality applies in the referendum process. Spending public monies in favour of one side of a referendum breaches the equality rights of the citizens.
(iv) Spending public monies in favour of one side of a referendum puts the
voting rights of one class of citizen (those in favour of change) above those
of another class of citizen (those against).
(v) The public purse must not be expended to espouse a point of view which may be anathema to certain citizens, who, of necessity, have contributed to it.
The Right to a Democratic Process
(v) The public purse must not be expended to espouse a point of view which may be anathema to certain citizens, who, of necessity, have contributed to it.
The Right to a Democratic Process
(vi) There is a right to a democratic process in the holding of a referendum.
It is an interference in the democratic process for the Government to spend
public monies in a referendum campaign to benefit one side rather than
another. The democratic process is protected by the McKenna principles.
Right to Fair Procedures
Right to Fair Procedures
(vii) In submitting the proposed amendment to the decision of the people, the
Government should observe fair procedures. The scales must be held equally
between those who support and those who oppose an amendment to the
Constitution.
Right to Freedom of Expression
Right to Freedom of Expression
(viii) The freedom to express opinions incorporates the corollary right that in
the democratic process of free elections, public funds should
not be used to fund one side of an electoral process, whether it be a
referendum or a general election, to the detriment of the other side.
(ix) The Government has a right to give information, to clarify situations, to
give explanations and to deal with unforeseen matters and emergencies, but in
doing so, public funds should not be used to favour one side in a
referendum.
38. The McKenna principles require that a publicly funded publication about a referendum must be fair, equal, impartial and neutral."
38. The McKenna principles require that a publicly funded publication about a referendum must be fair, equal, impartial and neutral."
The judgement of the Supreme Court is a severe criticism of Government disregard of its own Constitutional duties and the rights of the People, who under our Constitution are the creators and masters of the Government and the organs of State.
The full text may be read here:
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