Court declares byelection delay unconstitutional

Thu, Nov 4, 2010, 00:00

THE HIGH Court has ruled that the 16-month delay in holding the Donegal South West byelection is unconstitutional. The vacancy arose from the election of Pat “the Cope” Gallagher to the European Parliament.

Sinn Féin’s Senator Pearse Doherty challenged the Government’s refusal to move the writ on the grounds that this left the constituents of Donegal South West without one of its three TDs, contrary to the provisions of the Constitution. He sought a declaration that there had been excessive delay in moving the writ.

President of the High Court, Mr Justice Nicholas Kearns, declared that Section 30 (2) of the Electoral Act 1992 should be construed as requiring that a writ for a byelection be moved within a reasonable time of the vacancy arising. He found that the 16 months’ delay, the longest in the history of the State, was excessive.

The Government had argued that the action contravened the doctrine of the separation of powers by seeking the intervention of the court in the matter. It also claimed that, as its Chief Whip John Curran had said the writ would be moved in the first quarter of 2011, the proceedings were now unnecessary.

Referring to the Government’s contention that it would “tear asunder” the tripartite division of powers between the executive, the legislature and the judiciary if the court were to express any view on the matter, Mr Justice Kearns said: “It is the ongoing failure to move the writ for this byelection since June 2009 which offends the terms and spirit of the Constitution and its framework for democratic representation.”

He acknowledged that the Electoral Act was silent as to when the Government must, if ever, move the writ for a byelection, in contrast to other countries.

However, a construction of this Act which treated it “as devoid of any temporal requirement clearly offends the constitutional provisions of Article 5 and Article 16” (relating to the democratic nature of the State and composition of the Dáil), he said, posing the question as to whether it would be in conformity with the Constitution, if a TD died within days of his election, to put off the byelection until the last few months of the five-year Dáil term. “It most certainly would not,” he said.

Referring to the issue of whether the court could intervene on the matter at all, he said this was not a case which concerned internal matters and the internal workings of Dáil Éireann.

The applicant was in a position to assert that his constitutional rights were being breached because of the manner in which the Government was applying the provisions of Section 39 (2) of the Electoral Act 1992. There was ample precedent for concluding that decisions or omissions which affect or infringe citizens’ rights under the Constitution are judiciable, he said. He rejected the Government’s argument that the proceedings were unnecessary in the light of the statement from Mr Curran, that the writ would be moved in the first quarter of 2011.