THE REFERENDUM COMMISSION is not being remotely effective in educating the public about the implications of the Court of Appeal referendum.

The poll published in The Sunday Times this week showed that only 12 per cent of respondents said they understood the question ‘very well’, or ‘quite well’. A non-scientific poll in TheJournal.ie attracted 2,276 respondents of whom 53 per cent declared (at the time of writing) that ‘No, I haven’t a clue’ about what voters are being asked to vote on in the Court of Appeal referendum.

Is the core purpose of the Referendum Commission to educate the electorate from a neutral, impartial perspective about the underlying issues and the implications of the decision they are being asked to make? Could the success of this endeavour be defined by voter turnout – this being an indication that voters understand and feel secure about what is being asked of them?

Few citizens have had engagement with the Supreme Court

The court system and the detailed procedure for the administration of justice remains an esoteric matter for the vast majority of the population. Most citizens have never had any direct or personal engagement with the Supreme Court, nor have many raised issues of constitutional significance, even indirectly. It is not therefore surprising that so many declare ignorance of the subject.

Apart from that, this referendum has been made more complex because it incorporates two unrelated, but very significant constitutional propositions, but will only provides one opportunity to vote. Unease with one of these propositions obliges voters to reject both. That dilemma is another source of confusion and conflict, but the Referendum Commission and Opposition politicians have not made the public aware of this.

If voters decide to approve the proposition the Referendum Commission advises that ‘the rule that the judgement must be given by one judge in these cases will be removed. Each judge could then give his or her opinion’.

Leaving aside the oblique understanding that the electorate seem to have of court structures and procedures, public perception of the legal system has been greatly influenced by the behaviour of lawyers. The Solicitors Disciplinary Tribunal held 408 sittings between 2008 and 2011, compared to 255 sitting in the four-year period from 2004 to 2007. The Tribunal recorded 291 findings of misconduct by solicitors in the 2008-11 period and 118 referrals to the High Court. The grounds for public disquiet are intensifying and are rooted in robust evidence of human frailty within the legal profession, both on the bench and elsewhere.

The opinion of the court

Article 34.5 affords certain safeguards for the members of the Supreme Court and the citizens of Ireland, by ruling that one Supreme Court justice pronounces the judgement of the court in constitutional cases, which must be decided by a minimum of five justices. One judgement provides unambiguous clarity about the interpretation of the peoples’ Constitution. It preserves the image of independence by declaring the ‘opinion of the court’ and it secures the authority and prestige of the entire court system.

The abandonment of this constitutional clause, not alone enables each justice to offer his, or her opinion but it also introduces the concepts of personalised judgements that can be hijacked and exploited by powerful vested interests.

Does it not also change the dynamics of the relationship between each member of the Supreme Court and the Oireachtas, the Government and the people? Does it not also provide a platform for an interpreter of the Constitution to feather his or her personal ambition in the public domain in a manner that has not been hitherto possible? What public benefit purpose does dissent from ‘the opinion of the court’ serve because it has no legal status?

And, finally, is the Oireachtas and the Fourth Estate not the appropriate venue for dissenting opinions and the nation’s Supreme Court the venue for clear decisions based on legal principles?

Myles Duffy is a manager at IDA Ireland, who has promoted foreign direct investment into Ireland throughout a long career but is writing purely in a personal capacity. He blogs at The Crimson Observer.