IT IS rare to find myself completely at ease with a decision of an Irish court of law, but the unanimous decision of the Supreme Court to uphold the earlier High Court rejection of Des Hanafin's challenge to the divorce referendum result seems to me like a rare outburst of common sense from an Irish bench. Our judges have served us well.
And so, incidentally, has Des Hanafin. He was as justified in taking his action as the judges in rejecting it. The fact that I did not want him to win does not detract from my admiration of his courage and tenacity. I do not lay claim to being a liberal, but I know that even imperfect liberalism has something to do with seeing both sides of an argument, and rejoicing in the complex justice and wisdom of the right kind of resolution.
It should be remembered that, although the court rejected the idea that the referendum result had been materially affected by the spending of public money in a partisan campaign, it reiterated that the Government's action was illegal and wrong. Reading last week's judgments and the earlier findings in the McKenna case, it struck me that they contained much the same kind of logic that was dismissed as the meanderings of cranks when first voiced by opponents of European Union several years ago.
The courts have, on this occasion, shown themselves to be much greater allies of democracy than the politicians we pay to operate our democratic system. There were, it must be said, exceptions. I try whenever possible not to have a good word to say about the Progressive Democrats, but it is fact that their leader, Mary Harney, was the first leading politician to make the running on this issue. Another PD TD, Michael McDowell, was also very impressive, as was Mary O'Rourke of Fianna Fail. And yet, right across the party spectrum, politicians were prepared to turn a blind eye to the potential dangers to democracy implicit in the funding issue because this blindfold approach suited their designs in the referendum campaign.
We, as citizens of this democracy, should be eternally thankful that we have people like Des Hanafin and Patricia McKenna, who are prepared to risk so much to vindicate and defend the democratic principles which most of us so complacently enjoy.
Patricia McKenna, who pursued and won the case concerning the unconstitutionality of State funding for a partisan referendum campaign, was much maligned by some of the heavy-gang liberals for betraying the liberal cause. Because she herself was in favour of divorce, the "logic" went, she should have kept quiet. It goes to show how little many Irish liberals know about either democracy or liberalism, if they are unable to see that the issue of the funding of referendums was quite separate from that of divorce.
IT is funny, but out of this entire episode we now have something written on tablets of stone which, however clumsily, approximates to the complexity of public opinion. Divorce has been introduced, by a majority of the votes of the people. And yet the legal process has shouted Stop to an escalating abuse of public funding by politicians disposed to furthering their own agendas regardless of the cost to democracy or the public purse.
The resonance between last week's decision and the preceding verdict in the McKenna case, seems almost joyously to fly in the face of liberal and conservative absolutism, and in a strange kind of way to represent in microcosm the often contradictory needs and desires of real people. If one was succinctly to define the democratic ethic, I don't think one could get closer than saying that the function of democracy is to subvert the tyranny of consistency.
In the wake of the divorce referendum, I remember being taken to task by a radio presenter for saying that, while I believed the Government's spending of public money on the pro-divorce campaign was wrong, I did not believe the referendum itself was unfair or that the outcome should be overturned. To his much-vaunted rational mind, this did not make sense. It was inconsistent. Had I been opposed to divorce, he said, I would have been screaming blue murder.
He was right. But inconsistency and screaming are all part of participating in a healthy democracy. Had last week's decision related to the Maastricht Treaty or somesuch, I would indeed be crying "Foul!" I would have a fine distinction to hand to justify this apparent irrationality.
It would go something like this: in the divorce referendum, despite the unfairness of the Government's behaviour, the No side still succeeded in getting its argument across; but the same could not be said of either the Maastricht referendum or the 1987 poll on the Single European Act. In other words, I would have argued, fairness was well served in a variety of ways in the divorce referendum, but not in the polls relating to the EU.
Regrettably, it is not now feasible to challenge the results of the Maastricht and SEA referendums. But in all seriousness, it would be interesting to see the Supreme Court deliberate on the fairness, or otherwise, of those votes in the light of both the McKenna and Hanafin actions. For while the margin in those earlier polls was admittedly wider than on divorce, it is ungainsayable that the whole thrust of both campaigns was governed by the fact that the pro-EU side had universal State backing and generous access to public, funds.
Unlike the divorce referendum, there was no alternative centre of opposition with the means to compete. The result was an unassailable leaning towards the Yes sides.
IT follows from this that, in both of the most recent referendums on Europe, the Government was guilty of unconstitutional wrongdoing, which arguably did have a material effect. Unlike the divorce referendum, these wrongs were not discovered before polling day.
Therefore, it could not be said that the people voted with full knowledge either of the issues involved or of the wrongdoing of the Government. Fairness was not served. It seems a pity that the Supreme Court will not have an opportunity to get its teeth into that.
But not even I would be prepared to go through another referendum on Europe. I would like to be vindicated, but not that much. I liked the way Mr Justice O'Flaherty said that setting aside the referendum result would be an "awesome undertaking", as though to suggest that this would very definitely be a last resort. In doing so, he seemed to echo the common-sense tedium of the person in the street, who, almost regardless of personal attitudes to the divorce issue, would have found the idea of another referendum on the dark side of unthinkable.
It was as though the Court had begun from the perspective of basic cop-on, and then constructed its argument to harmonise with this. I believe Mr Justice O'Flaherty effectively condensed the wisdom of the Supreme Court's decision in observing that, free of interference in the final week of the campaign, each citizen voted in accordance with his or her own free will.