Byrne v Ireland

JurisdictionIreland
JudgeMr. Justice Kelly
Judgment Date20 July 2018
Neutral Citation[2018] IEHC 437
CourtHigh Court
Docket Number[2018 No. 60IA]
Date20 July 2018

[2018] IEHC 437

THE HIGH COURT

Kelly P.

[2018 No. 60IA]

IN THE MATTER OF THE REFERENDUM ON THE PROPOSAL TO AMEND THE CONSTITUTION CONTAINED IN THE THIRTY SIXTH AMENDMENT OF THE CONSTITUTION BILL 2018 HELD ON THE 25TH DAY OF MAY 2018 AND IN THE MATTER OF AN INTENDED PETITION

BETWEEN
CHARLES BYRNE
APPLICANT
AND
IRELAND, THE ATTORNEY GENERAL, THE REFERENDUM RETURNING OFFICER

AND

THE REFERENDUM COMMISSION
RESPONDENTS

Petition – Referendum – Onus of proof – Applicant seeking leave to present a petition – Whether the respondents committed electoral irregularities

Facts: The applicant, Mr Byrne, on 4th June, 2018, sought leave to present a petition to the High Court pursuant to the provisions of s. 42 of the Referendum Act 1994. If granted leave, it was his intention to present a petition which would seek inter alia an order directing that the referendum seeking to delete Article 40.3.3 from the Constitution and replace it with a new Article should be taken again in all constituencies. The applicant submitted that the fourth respondent, the Referendum Commission, failed to correctly convey to the electorate the nature and breadth of the proposal on which they were voting. The applicant alleged that the Taoiseach and other Government Ministers made statements encouraging voters to cast their ballot in favour of the proposal, which he contended was impermissible. Mr Byrne alleged that in the course of exhorting the electorate to vote in favour of the proposal incorrect and misleading statements were made by Government ministers. It was alleged that electoral irregularities were committed.

Held by Kelly P that in all of the complaints which Mr Byrne had made either against the Commission or the other respondents he had failed to discharge the onus of proof required under s. 42 of the Act; there was no prima facie evidence of the matter prescribed under s. 42.3(a) or (b). Kelly P held that the court was precluded from granting leave unless Mr. Byrne had adduced such evidence.

Kelly P held that he would refuse leave to present a petition.

Application refused.

JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 20th day of July, 2018
Introduction
1

The applicant (Mr. Byrne) seeks leave to present a petition to this court pursuant to the provisions of s.42 of the Referendum Act 1994 as amended (the Act). If granted leave, it is his intention to present a petition which will seek inter alia an order directing that the referendum to which this application relates should be taken again in all constituencies.

The Referendum
2

The referendum in question sought to delete Article 40.3.3 from the Constitution and to replace it with a new Article.

3

Article 40.3.3 reads:-

'The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.'

If carried, the referendum proposed the deletion of that Article and its replacement by the following:-

'Provision may be made by law for the regulation of termination of pregnancy.'

4

The Bill which resulted in the referendum was passed by both Houses of the National Parliament on 28th March, 2018. The polling day order was made by the Minister for Housing Planning and Local Government on 28th March, 2018. It fixed 25th May, 2018 as polling day. The poll was carried out on that day and the count took place on 26th May, 2018.

5

On 26th May, 2018 the referendum returning officer declared a total poll of 2,159,655. There were 6,042 invalid ballot papers giving a total valid poll of 2,153,613. The number of votes in favour of the proposal was 1,429,981. The number of votes against the proposal was 723,632. This meant that there was a majority of votes in favour of the proposal of 706,349.

6

The provisional referendum certificate was prepared and signed on Monday, 28th May, 2018 and published in Iris Oifigiúil on Tuesday, 29th May, 2018.

These proceedings
7

On Monday, 4th June, 2018, which was a public holiday, Mr. Byrne made application to the duty judge, White J., for an order granting him leave to present a referendum petition to the court in respect of the provisional referendum certificate.

8

White J. granted leave to Mr. Byrne to issue and serve a notice of motion returnable before me on 11th June, 2018 and gave liberty to notify the Attorney General and the Referendum Commission (the Commission) of the making of that order.

9

On 11th June, 2018 I dealt with the matter inter partes, gave directions concerning the exchange of affidavits and written submissions and fixed 26th June, 2018 as the hearing date for the application. This is my judgment on foot of that three-day hearing.

The constitutional and statutory framework
10

Article 46 of the Constitution provides the mechanism for the amendment of the Constitution. The amendment may be by way of variation, addition or repeal but it must be done in the manner provided for in this Article. Article 46.2 requires every proposal for an amendment of the Constitution to be initiated in Dáil Éireann as a Bill and then, having been passed or deemed to have been passed by both Houses, to be submitted by referendum to the decision of the people in accordance with the law for the time being in force relating to the referendum.

11

Article 47 provides that an amendment of the Constitution which is submitted by referendum to the decision of the people shall, for the purpose of Article 46 of the Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such referendum shall have been cast in favour of its enactment into law.

12

In the present case this was the procedure which was followed and resulted in a very substantial majority voting in favour of the proposal.

13

The legislature has by means of the Act provided a mechanism whereby a qualified elector may question the validity of a provisional referendum certificate by applying to this court by way of petition. The entitlement to present a petition is, however, a qualified one. A petition may only be presented in accordance with the provisions of Part IV of the Act.

14

Section 42 is the first section contained in Part IV. Section 42(1) makes it clear that the validity of a provisional referendum certificate may only be questioned by a petition to this court. Thus, it is not possible to question such provisional referendum certificate by judicial review or by the institution of plenary proceedings.

15

Subsection (2) of s.42 prohibits the presentation of a referendum petition unless this court grants leave to do so. An application for leave to present such a petition must be made to the court not later than seven days after the publication in Iris Oifigiúil of the provisional referendum certificate. The Act does not confer any jurisdiction on the court to extend that seven day period. It was with a view to observing that time limitation that application was made to White J. on a public holiday.

16

Section 42(3) prohibits this court from granting leave to present a referendum petition unless it is satisfied:-

'(a) that there is prima facie evidence of a matter referred to in section 43 in relation to which the referendum petition questions the provisional referendum certificate concerned, and,

(b) that the said matter is such as to affect materially the result of the referendum as a whole'.

17

Subsection (4) of s.42 provides that an application for leave to present a referendum petition may be made by the Director of Public Prosecutions or by any person who is registered or entitled to be registered as a presidential elector. No question arises as to Mr. Byrne's status in this regard.

18

Section 43 provides that a referendum petition may question a provisional referendum certificate on the grounds that the result of the referendum as a whole was affected materially by:-

'(a) the commission of an offence referred to in Part XXII of the Act of 1992 (as applied by section 6),

(b) obstruction of or interference with or other hindrance to the conduct of the referendum,

(c) failure to complete or otherwise conduct the referendum in accordance with this Act, or

(d) mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate.'

The Act of 1992 means the Electoral Act of that year.

Case Law
19

These statutory provisions and their practical implications have been considered on a number of occasions by the Superior Courts. In Jordan v. Minister for Children and Youth Affairs [2015] 4 I.R. 232 Denham C.J. pointed out the two conditions precedent which must be satisfied before this court can grant leave to present a petition and which are prescribed in section 42(3). She said of them:-

'(vii) Both conditions precedent must be met at the leave stage, and both are in issue at the trial stage of the petition;

(viii) The onus of proof remains on the petitioner at all times;

(ix) The burden of proof on a petitioner reflects the relief sought. The burden of proof is such as to respect the constitutional right of the citizen to vote in a constitutional referendum and have the result respected, unless it is proved that the matter raised affected materially the result of the referendum as a whole. At the application for leave stage the applicant must prove to the satisfaction of the High Court that there is prima facie evidence of a matter referred to in s.43 of the Act of 1994, such as to affect...

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2 cases
  • Jordan v Ireland
    • Ireland
    • Court of Appeal (Ireland)
    • 27 August 2018
    ...in conjunction with and consecutive to an application for leave to issue a petition brought by a Mr. Charles Byrne: see Byrne v. Ireland [2018] IEHC 437. In the High Court, Ms. Jordan raised two issues: the first concerned the involvement of the Minister for Health in the "Yes" campaign an......
  • Jordan v Ireland
    • Ireland
    • High Court
    • 20 July 2018
    ...... . 2 This case was heard consecutive to that of Mr. Byrne [2018 No. 601A] and relates to the same referendum. . 3 Whilst the cases were different, much of what I had to say concerning the referendum in question, the statutory and constitutional background, the onus of proof, and the case law are relevant to this case. ......

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