The Irish Constitution places a premium on honest and fearless debate and trusts in the power of argument and debate and reasoned discussion

Referendum Commission logo, via their websiteThe words in the rather long title to this post are taken from today’s decision of Hogan J in Doherty v The Referendum Commission [2012] IEHC 211 (06 June 2012). It is nothing less than a tour de force in which he considered hugely complex and daunting questions with courtesy and erudition, notwithstanding enormous time pressures. The case concerned an application by Pearse Doherty TD for judicial review of certain statements by the Referendum Commission in the course of the campaign for the referendum which was held on 31 May 2012 in respect of the Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Bill, 2012. Hogan J quite rightly dismissed the application, in a cogent and compelling judgment which will no doubt be pored over by constitutional lawyers for a long time to come. He covered many important issues of constitutional and EU law in relatively brief but entirely compelling compass. I will leave to other commentators to parse the substantive decision. I want in this brief post simply to quote (with links and emphasis added) a very important section of his judgment. They are four paragraphs of clarity, style and power which to my mind will have a hugely significant impact on the development of political speech rights at Irish constitutional law:

The nature of the referendum process and the judicial role
21. It is next necessary to examine the nature of the referendum process and the judicial role. This is central to a resolution of many remaining issues, not least the question of whether decisions of the Commission are amenable to judicial review at all. The Constitution envisaged a plebiscitary as well as a parliamentary democracy and, in doing so, it has created a State which can demonstrate – in both word and deed – that it is a true democracy worthy of the name. By providing in Article 6(1) for popular sovereignty in which the People would “in final appeal…decide all questions of national policy”, it envisaged a society in which all citizens would be called upon from time to time to make critical decisions regarding their future, the future of their neighbourhood and, ultimately, the future of their country.

22. It is necessary implicit in this Constitution thus places a premium on honest and fearless debate. The drafters of the Constitution must have understood than an inert, supine and indifferent public posed the greatest threat to the public welfare, since a plebiscitary democracy will simply not function under such circumstances. The Constitution, therefore, calls, especially at a time of referendum, for robust political debate from an informed public. This is, in many respects, also reflected in Article 9.3 of the Constitution, which speaks of the duty which all of us as citizens owe, namely, fidelity to the Nation and loyalty to the State. It calls upon each of us to perform that duty for ourselves, for our neighbours and for our country, to inform ourselves and to make our own decision, informed as best as we can be, on difficult issues to which there is often no easy answer. It is not easy, but we must all try. Article 9.3 of the Constitution accordingly places considerable emphasis on individual civic responsibility of each citizen: see, e.g., by analogy the comments of Finnegan J. in the context of tax and social welfare fraud in The People (Director of Public Prosecutions) v Murray [2012] IECCA 60 (27 February 2012).

23. The referendum process reflects this by urging the citizenry to engage in robust political debate so that the forces of deliberation will prevail over the arbitrary and irrational so that, in this civic democracy, reasoned argument would prevail in this triumph of discourse. At the heart, therefore, of the Constitution, there are three core principles which are relevant to the issues raised by this application. The first of these is the concept of popular sovereignty (to which we have just alluded) which is reflected in Article 5, Article 6, Article 46 and Article 47 of the Constitution. It may thus be said, adapting freely the words of Holmes, that the theory of popular sovereignty for which Griffith argued and Pearse fought and Collins died and de Valera spoke and Hearne drafted and Henchy wrote and Walsh decided has become our own constitutional cornerstone. It is that very cornerstone on which the entire referendum edifice is constructed.

24. The second core principle is that of freedom of speech which is, of course, protected by Article 40.6.1 of the Constitution. As we have already observed both now and in the past, the People have been asked difficult and troubling questions via the referendum process on which there is, of course, rule for legitimate political dispute and argument. The Constitution trusts in the power of argument and debate and reasoned discussion and, again, the informed citizenry of which I spoke, who will discharge their civic responsibility to inform themselves in their own interests, that of their neighbours and that of their country.

25. The third principle is that of equality. This ensures that during the referendum period, the arguments are fairly balanced so far as the public institutions of the State are concerned. As Denham C.J. stressed delivering the judgment of the Supreme Court in MD v Ireland [2012] IESC 10 (23 February 2012), Article 40.1 reflects a commitment to equality as a core constitutional value. It is reflected in well known Supreme Court judgments such as McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1, [2000] IESC 44 (26 January 2000), Kelly v Minister for the Environment [2002] 4 IR 191, [2002] IESC 73 (29 November 2002) which all stress the principle of equality during the election and referendum process. Article 40.1 thus reflects a deeply moral premise of strict equality of citizens. In the referendum context, the value of all votes and each vote and the opinion of all citizens from the most humble to the most exalted are valued equally. It is in that context that, to aid political debate, the Commission was established by the Referendum Act, 1998 (“the Act of 1998”).

Update (7 June 2012): Mary Carolan in the Irish Times reports that, as Hogan J handed down this judgment, counsel for the applicant contended that a declaration that the Referendum Commission is obliged to draw attention to clearly contestable issues of law that arise in a referendum arose naturally from the terms of the judgment. Hogan J said he believed any such declaration would have to be applied for via a formal notice of motion. It seems, therefore, that there is still more to be said on the substantive issues in the case. Perhaps more may also be said about political speech rights at Irish constitutional law.