RTE's scheme for political party broadcasts during the divorce referendum and referendums generally breaches the citizen's constitutional right to equality and fairness in a referendum, the High Court was told yesterday.
The court has been asked to declare that RTE, if allocating uncontested broadcasts and uncontested broadcasting time in referendums, must provide equal broadcasting time to the Yes and No sides.
RTE has acted unfairly and in breach of its statutory duties under the Broadcasting Acts in its allocation of time for uncontested party political and other broadcasts in various referendums, the court was told.
In the 1995 divorce referendum, political parties and other groups advocating a Yes vote were given 42.5 minutes' uncontested broadcast time, while those advocating a No vote got 10 minutes, the court heard.
The court is being asked to declare that the use of "an ad hoc and variable" allocation of broadcasting time in referendums, rather than a transparent and open scheme for allocating political party and interest group broadcasts, places RTE in breach of its statutory and constitutional duties.
It is also asked to declare that the requirement that a party must have three TDs before it secures a party political broadcast during referendums is irrational and inconsistent with RTE's own policy.
These and other declarations were sought by Mr Michael McDowell SC, for Mr Anthony Coughlan, at the opening of judicial review proceedings which could have major implications for RTE's coverage of future referendums.
Mr Coughlan, a senior lecturer in social policy at Trinity College Dublin and former secretary of the now disbanded Campaign for Fair Referenda, was last year given leave to take judicial review proceedings against RTE, the Broadcasting Complaints Commission and the Attorney General.
The proceedings relate to RTE's use of uncontested party political and other broadcasts during the 1995 divorce referendum and the decision by the Broadcasting Complaints Commission to dismiss a formal complaint from Mr Coughlan concerning that coverage.
Mr Coughlan, of Crawford Avenue, Drumcondra, Dublin, is seeking several orders and declarations against RTE and the commission. He wants an order quashing the decision of the commission, delivered on March 19th, 1997, in which it dismissed the complaints by Mr Coughlan about RTE's coverage of the divorce referendum.
He is also seeking declarations that the commission misinterpreted and/or misconstrued Sections 18 (1) and 18 (2) of the Broadcasting Authority Act in reaching its decision.
Against RTE, Mr Coughlan is seeking declarations that the station's decision to limit party political broadcasts in the 1995 divorce referendum to certain established political parties and not to consider other political parties or groups participating in the referendum was in excess of the station's powers under the Broadcasting Acts and, in particular, in excess of Section 18 of those Acts.
He also claims RTE breached its duties under the Broadcasting Acts by failing to be impartial and fair to both sides in the divorce campaign and to citizens generally.
Mr Coughlan wants a declaration that RTE, in determining to have party political broadcasts on referendums, and in allocating the number of such broadcasts and the time allocated to them, must consider the fair and impartial representation of the issues in the referendum and fairly represent the Yes and No sides.
In an affidavit, Mr Coughlan said that, arising out of his concern over RTE's coverage of the 1995 divorce referendum and other referendums, he had written a formal letter of complaint alleging imbalance and unfairness in the coverage to RTE's directorgeneral, Mr Joe Barry, on December 6th, 1995.
He said Mr Bob Collins had replied to him, on behalf of Mr Barry, on January 5th, 1996, and rejected the complaint. Mr Coughlan then complained on January 30th, 1996, to the Broadcasting Complaints Commission, which finally dismissed the complaint in March 1997.
RTE is denying the claims and says the decision of the commission on Mr Coughlan's complaint does not contain any misconstruction of the statutory or constitutional duties of RTE.
The station claims that Section 18.2 of the Broadcasting Act provides that RTE is not prevented from transmitting party political broadcasts. It also claims that the assessment in any particular referendum campaign of "all interests concerned", and the decision as to the broadcast treatment for a particular referendum campaign, are matters for RTE.
The hearing, before Mr Justice Carney, is expected to last several days.