A High Court decision yesterday is expected to have significant implications for RTE's coverage of all future referendums, including next month's polls on the Belfast Agreement and the Amsterdam Treaty.
Mr Justice Carney found that the failure by RTE to allocate equal time for uncontested broadcasts by the Yes and No sides in the 1995 divorce referendum had resulted in inequality amounting to "unconstitutional unfairness".
He noted that RTE had allocated 42.5 minutes' uncontested broadcasting time to the Yes side and just 10 minutes to the No argument in the 1995 poll.
RTE, as the national broadcasting service, is subject to the Constitution and the Broadcasting Authority Act 1960, which requires it to uphold the democratic values enshrined in the Constitution, the judge said.
"In my view a package of uncontested or partisan broadcasts by the national broadcasting service weighted on one side of the argument is an interference with the referendum process of a kind contemplated by the Chief Justice, Mr Justice Hamilton, as undemocratic and is a constitutionally unfair procedure."
The imbalance in time allocated to each side of the argument in the divorce referendum "must lead to the conclusion that the scales were not held equally and that RTE's weight was thrown behind one side of the argument".
He said RTE did not appreciate sufficiently that constitutional referendums involved direct legislation by the people outside the normal representative political process and, from the standpoint of the Constitution and the laws, that political parties were not de jure involved in the referendum process.
Notwithstanding that position regarding referendums, RTE's guidelines in relation to uncontested partisan referendum broadcasts referred to them as "party political broadcasts" and its standpoint was, and always had been, the political parties, the judge said.
Mr Justice Carney was delivering judgment on an application by Mr Anthony Coughlan, a senior lecturer in social policy at Trinity College Dublin and former secretary of the now disbanded Campaign for Fair Referenda, for several orders and declarations relating to RTE's treatment of the divorce referendum and to a decision by the Broadcasting Complaints Commission dismissing his complaints regarding aspects of its coverage of that referendum.
Mr Coughlan, of Crawford Avenue, Drumcondra, Dublin, had taken the judicial review proceedings against RTE, the Broadcasting Complaints Commission and the Attorney General. The case was heard last January and judgment was reserved.
The action related to RTE's use of uncontested party political and other broadcasts during the 1995 divorce referendum and the substantive decision by the Broadcasting Complaints Commission of March 19th, 1997, dismissing a complaint by Mr Coughlan concerning that coverage.
Mr Coughlan sought declarations that the commission had misinterpreted and/or misconstrued Sections 18 (1) and 18 (2) of the Broadcasting Authority Act in reaching its decision.
He also sought declarations that RTE's decision to limit party political broadcasts in the 1995 divorce referendum to certain established parties and not to consider other political parties or groups involved in the referendum campaign was in excess of its powers under the Broadcasting Acts.
The court was further asked to declare that RTE, if allocating party political broadcasts in future referendums, must allocate such broadcasts in a fair and impartial manner.
Mr Coughlan argued that, in a constitutional referendum, there should either be no free broadcasts at all or that such broadcasts should be allocated on a 50-50 basis between the Yes and No sides.
In its defence, RTE submitted that Section 18.2 of the Act provided that its obligations under Section 18.1 - to be fair to all interests concerned in the broadcast treatment of referendums - did not prevent it from transmitting uncontested party political broadcasts.
The station said it did not consider itself bound to transmit party political broadcasts during a referendum campaign but could do so. It also contended that Section 18.1 did not compel RTE to provide equal broadcasting time to the proponents of the Yes and No positions.
In his judgment yesterday, Mr Justice Carney said referendums always had a Yes and No side. It was accepted by the parties that RTE was free in relation to any referendum not to broadcast any party political broadcasts or uncontested referendum broadcasts.
It was also prepared to be accepted that similar uncontested partisan broadcast facilities might be afforded to non-party groups, and Mr Coughlan further appeared to accept that, providing there was equality as between the Yes and No sides, broadcasts by political parties might form part of the equation.
He said Mr Coughlan was not contending for absolute equality, but in the case of the divorce poll there was a clear disparity, with 42.5 minutes for the Yes side and 10 minutes for the No side.
In the divorce poll, the political parties were in the same position as the Government in that they were not assigned, by either the Constitution or the law, any role in the submission of the proposal for the people's decision.
The judge said he was satisfied RTE's approach had resulted in inequality amounting to unconstitutional unfairness which would not have arisen had its starting point been to afford equality to each side of the argument, to which there could only be a Yes or No answer.
He granted Mr Coughlan a declaration that, in relation to the divorce referendum of 1995, the allocation of uncontested broadcasting time to each side of the argument was "significantly unequal and thereby constitutionally unfair".
The judge stressed he wanted his judgment to be "as narrowly based as possible" in the light of a previous decision of his, the tenor of which was that, in relation to broadcasting decisions, RTE had greater expertise than the High Court and should not be lightly interfered with. He said he would not grant any further orders against RTE.
On Mr Coughlan's complaint about the commission's decision finding no imbalance in RTE's allocation of uncontested broadcasting time in the divorce referendum, he said the commission had accepted RTE's submissions regarding the matter "and thereby fell into legal error which went beyond error within jurisdiction".
In basing its decision on a fundamental misapplication of the Constitution and the laws, the commission had exceeded its jurisdiction, he held. Mr Coughlan was therefore entitled to an order quashing the commission's decision on his complaint.
The judge refused to grant a stay on his orders and awarded costs, including all reserved costs, to Mr Coughlan. The costs are to be divided equally between RTE and the State.
