Walshe v Ireland The Attorney General The Referendum Returning Officer and The Referendum Commission

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Denham C.J.,Hardiman J.,O'Donnell Donal J.
• Judgment Date: 16 September 2015
• Neutral Citation: [2015] IESCDET 37
• Date: 16 September 2015

[2015] IESCDET 37

THE SUPREME COURT

DETERMINATION

Denham C.J.

Hardiman J.

O'Donnell Donal J.

BETWEEN

GERRY WALSHE

APPLICANT

AND

IRELAND THE ATTORNEY GENERAL

THE REFERENDUM RETURNING OFFICER

AND

THE REFERENDUM COMMISSION

RESPONDENTS

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1 This determination relates to an application by Gerry Walshe, the applicant, referred to as ‘the applicant’, who seeks leave to appeal to this Court from a judgment of the Court of Appeal delivered on the 30th July, 2015, and from the order which was perfected on the 31st July, 2015. The Court of Appeal dismissed his appeal from the refusal of the High Court to grant leave to present a referendum petition.

1 This Court is given jurisdiction to consider such an application by Article 34.5.3° of the Constitution.

2 Article 34.5.3° provides as follows:-

‘The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the Court of Appeal, if the Supreme Court is satisfied that:

(i) the decision involves a matter of general public importance, or

(ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.’

4 On the 30th July, 2015, the Court of Appeal (Ryan P.) delivered a judgment in which it dismissed the appeal of the applicant from the decision of the High Court (Kearns P.), delivered on the 5th June, 2015, which refused to grant leave to bring a referendum petition in relation to the Referendum on the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015, held on the 22nd May, 2015.

5 The applicant seeks leave to appeal against the entire decision of the Court of Appeal. The applicant stated that the trial Court disregarded the significance of facts presented by the applicant, regarding the misuse of State organs and resources to promote a ‘Yes’ campaign in respect of the marriage referendum of the 22nd May, 2015, and failed to consider the material information and related obstructions and hindrance caused to the said referendum process.

6 The applicant advanced the following reasons as to why this Court should grant leave to appeal:-

(i) That the applicant's case is of national public importance, as it relates to a challenge on the validity of the 22nd of May 2015 marriage referendum and the constitutionality of the referendum process, which may be lawfully challenged under the Referendum Act 1994, 43, as highlighted inter alia, by an obstruction or interference with the referendum process.

(ii) That the respondents use of state organs and recourses ( sic) to promote a particular outcome in relation to the 22nd of May 2015 marriage referendum was unconstitutional, as endorsed in McCrystal and McKenna v. An Taoiseach, wherein it states ‘ The people by virtue of the democratic nature of the state enshrined in the constitution, are entitled to be permited to reach their decision free from unauthorised interference by any of the organs of the state, that the people, have created by the enactment of the constitution.’

(iii) That the trial judges erred by restricting the applicant's submissions to one hour and denied the applicant due process and a fair and proper hearing, which in turn contributed to the misinterpretation of vital information relating to the applicant's submissions.

(iv) That the president erred in law by disregarding the significance of the misuse of state organs and resources, such as the GRA's call for a yes vote in promoting the said marriage referendum, representing a primary non political organ of the state.

(v) That the president erred in law by disregarding the significance of the acknowledgement by council ( sic)for the respondents, in relation to the logo for the charity ‘Marriage Equality Ltd.’ Printed on An Post's stamp and having been a misuse of state organs and resources, endorses the need for a full disclosure of all state resources.

(vi) That the president erred in law by not allowing the applicant discovery and disregarding the significance of the acknowledgement by council ( sic) for the respondents as referred to in transcript page 147 that the respondents may have (unconstitutionally) used state funds, in particular state funds in relation to posters etc., in an effort to sway public opinion in the promotion of a yes campaign.

(vii) That the use of Irish charities and outside influences such as funding by Chuck Feeney, to promote a yes campaign has compromised the impartiality and democratic process of the 22nd of May 2015 marriage referendum and as such, said actions are unconstitutional.

(viii) That due to a lack of an impact study in relation to the 22nd of May 2015 marriage referendum, vital information was withheld from the general public and as such, the said electorate where ( sic) not properly informed regarding the said referendum and as such where ( sic) not in a position to make an informed decision.

(ix) That the wording of the 22nd of May 2015 marriage referendum was misleading and confusing as it suggested inequality in marriage prior to the 22nd of May marriage referendum between a man and a woman and as such the electorate where ( sic) asked to vote, Yes for equality or No for inequality.

(x) That the repeal of the Electorate 2013 Act, requiring the respondents to provide the voting public with a copy of the proposed amendment bill, prior to voting is unconstitutional, as it discriminates against that of the elderly non familiar with the use of modern technology and I say the electorate have a constitutional right to view and inspect any proposed amendment bill, prior to voting in a referendum.

(xi) That due to the apparent bias and/or conflict of interest regarding the applicant's case regarding a member of the trial judge's involvement in the Constitutional Review Group and/or the fact that all three trial judges where ( sic) nominated by council ( sic) for the respondents, while formerly the Minister for Justice and Equality, the applicant was denied a fair and proper hearing.

(xii) That due to the serious risk of retaliation and/or intimidation in relation to the 22nd of May 2015 marriage referendum, identification markings on ballot papers and combined use of technology, has compromised the secrecy of the ballot papers and has caused uncertainty among voters, which has materially affected the referendum process.

(xiii) That the judge erred in law by awarding costs against the applicant, regarding a matter of national public interest, wherein should the applicant be successful in his case, no such costs would be awarded.’

7 If leave is granted, and an appeal is successful, the applicant seeks the following orders:-

‘(i) An order clarifying the constitutionality regarding the law on awarding costs against the applicant should his application fail, in a case taken on behalf of the people and the inequality in law wherein the applicant shall not be awarded equivalent costs, should the applicant's application be successful as a lay litigant.

(ii) An order granting a stay on the signing of the certificate verifying the 22nd of May 2015 Marriage Referendum, pending the completion of the applicant's appeal process.

(iii) An order granting the applicant leave to petition against the 22nd May, 2015 Marriage Referendum.’

8 The applicant claims that the Electoral Act 2013, which repealed the need to provide the public with a copy of the...