Court of Appeal: Anti-abortion campaigner’s appeal ‘a frustration of the democratic process’

About this case:

• Citation:
  [2018] IECA 291
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Upholding the High Court’s refusal to grant the woman leave to present a petition, Mr Justice George Birmingham, President of the Court of Appeal, said that the application was “so entirely devoid of substance” that her assertions “were made with reckless and irresponsible abandon”; and held that the case “amounted to a frustration of the democratic process”.

Background

On 25th May 2018, the referendum proposal to delete Article 40.3.3 of the Constitution, equating the right to life of the unborn as equal to the right to life of the mother, and replace it with provision to regulate the termination of pregnancy, passed with 66.4% of the People voting Yes. Accordingly, the Provisional Referendum Certificate was prepared and signed on 28th May 2018, and published in Iris Oifigiúil on 29th May 2018.

In the High Court, Ms Joanna Jordan applied for leave, pursuant to s.42 of the Referendum Act 1994 to present a petition seeking to have declared null and void the Provisional Referendum Certificate. Ms Jordan contended firstly that the involvement of the Minister for Health in the Yes campaign conflicted with his duties and responsibilities of office, and amounted to unlawful interference materially affecting the result of the referendum; and secondly that there were a number of “issues with the register of electors”.

Mr Justice Peter Kelly, President of the High Court, concluded that the Minister for Health was entitled to campaign for a Yes vote, that there was no conflict or illegality in the Minister continuing to discharge his ministerial function in all its aspects and advocating a Yes vote. President Kelly also dismissed all of Ms Jordan’s assertions regarding to the register of electors.

Refusing her application for leave, President Kelly held that Ms Jordan had not produced prima facie evidence of any of the four matters prescribed in s. 43 of the Referendum Act 1994, nor had she presented prima facie evidence that what she complained of materially affected the result of the referendum as a whole.

Ms Jordan’s application was heard in conjunction with and consecutive to Mr Charles Byrne”s application for leave to issue a petition, which was also refused.

Court of Appeal

In the Court of Appeal, Ms Jordan argued that the Government and individual Ministers had acted unconstitutionally in the course of the campaign by campaigning actively on the Yes side. Ms Jordan stated that members of the government were not entitled to campaign for a Yes vote, because the proposal was to remove a constitutional right which they were obliged to respect.

Delivering the judgment of the three-judge Court of Appeal, President Birmingham explained that this was not canvassed by Ms Jordan in the High Court and therefore it was not an issue which “in strictness”, Ms Jordan could seek to rely upon. Nevertheless, considering that the issue was addressed in Mr Byrne”s parallel application, President Birmingham said the Court would address it for completeness.

Agreeing with President Kelly’s judgment in the High Court in Byrne, President Birmingham reiterated that it would be “truly bizarre” for the Government to have to observe total silence on its own proposal. Furthermore, Ms Jordan”s interpretation would lead to an anomalous situation where Ministers were free to campaign in 1983 to insert the Eighth Amendment, but not free at any stage following its enactment to campaign in favour of its repeal, and at the same time their colleagues would be free to campaign for a No vote.

President Birmingham said it was more fundamental that the supposed restriction was “materially at variance with the underlying principle contained in Article 46.1 to the effect that ‘any provision’ of the Constitution may be amended, ‘whether by way of variation, addition or repeal’”.

In relation to issues with the electoral register, President Birmingham again agreed with the High Court, but added that the assertions were “so entirely devoid of substance that we can only conclude that they were made with reckless and irresponsible abandon”.

Regarding Ms Jordan’s argument under this heading that “thousands of young Irish citizens were paid to return home from abroad in order to vote in the referendum”, Justice Birmingham said: “There is no indication at all where this suggestion comes from. From whence were they paid to return? Who, is it suggested, paid them to do so? These averments disclose a complete absence of detail.”

Emphasising the decisive Yes win, President Birmingham agreed with the State respondents that even if all the complaints made by Ms Jordan were substantiated, the margin by which the referendum passed meant that it could be said “with absolute certainty that these issues did not materially affect the result”.

Criticising the trend of routine challenges to referendum results, and stating that the outcome of the present referendum was a case where there could be “no rational, reasonable observer who could have any reason to doubt or to distrust the result”; President Birmingham said that the Court of Appeal would “go even further” than President Kelly’s judgment and “hold that the presentation of the petition in these circumstances - based as it was on such flimsy and slender grounds - amounted to a frustration of the democratic process in relation to referendums as envisaged by Articles 5, 46 and 47 of the Constitution and, as such, might well in other circumstances amount to an abuse of process”.