The State was seeking to reverse the Supreme Court decision in the McKenna case which prevents the Government from using public monies to advance one side in a referendum campaign, the five-judge court was told yesterday.
If the Supreme Court rowed back on its decision in the 1995 action by Dublin Green Party MEP Ms Patricia McKenna it would undermine "a vital constitutional value", said Mr Donal O'Donnell SC, for Trinity College Dublin law lecturer Mr Anthony Coughlan.
Mr O'Donnell said it was very important that the court should not make a judgment that political parties were more likely than others to be right about a referendum. Because all political parties were in favour of a particular referendum proposal did not mean it was a good idea and there was no need to bother with the fairness of the referendum.
He said equal treatment of referendum issues by RTE and State organs was a basic constitutional requirement. All ideas must be given the same opportunity so people could judge.
Mr O'Donnell was opposing an appeal by the Broadcasting Complaints Commission (BCC) and RTE, supported by the Attorney General, against the High Court's upholding of a challenge by Mr Coughlan, of Crawford Avenue, Drumcondra, Dublin, to RTE's allocation of uncontested broadcast time to both sides in the 1995 divorce referendum campaign.
RTE had allocated 42.5 minutes uncontested broadcast time to the Yes side and 10 minutes to the No side. The High Court declared the failure to allocate equal time resulted in "inequality amounting to unconstitutional unfairness".
In court yesterday, Mr O'Donnell said he was surprised the appellants had raised such enormous constitutional issues when those issues did not arise from the High Court decision.
His case was that the High Court was correct in finding the BCC had applied the wrong law to Mr Coughlan's complaint alleging unfair allocation by RTE of uncontested broadcast time in the divorce referendum. The BCC wrongly took the view it had no jurisdiction to review the complaint because of Section 18.2 of the Broadcasting Acts which provided for transmission of party political broadcasts.
He said the State was stressing political parties should not be excluded from the airwaves in referendum campaigns. There was no question of them being excluded - they featured prominently in the 98 per cent of contested broadcast time devoted to referendum issues.
He found it amazing that RTE claimed to have major problems in ensuring equality in relation to uncontested broadcasts in referendums, where the issue was only the allocation of time, when it had no such problem with contested broadcasts in general elections.
His side was not arguing there should be mathematical equality in the allocation of uncontested broadcasts. But RTE's starting point must be to afford equality to both sides in a referendum.
Earlier, Mr Eoghan Fitzsimons SC, for the Attorney General, said the application of the McKenna judgment to the High Court decision in this case had given rise to a very confused situation and an impossible position for RTE, the Referendum Commission and the Government.
He suggested the McKenna decision did not exclude a law-making provision for party political broadcasts and for the funding of referendum campaigns.
The appeal continues.
