Madam, – As a result of Brian Cowen’s decision not to contest the next general election, there will come a point between now and the election of the next taoiseach when, for a while, perhaps only a few hours, the country will not have a government.
Article 16.2.1 of the Constitution provides that Dáil Éireann shall be composed of members who represent constituencies determined by law.
It seems to me that, even if we accept that the current members continue to be members of Dáil Éireann for a time after its dissolution by the President, there is no interpretation of Article 16.2.1 that permits Brian Cowen to still be a member of Dáil Éireann between the election of new members in the constituency that he represents and the summoning of the new Dáil. Once that election takes place, he will no longer represent that constituency.
Then, by reason of Article 16.2.1 above and Articles 28.7.1 and 28.7.2, he will no longer be constitutionally eligible either to be taoiseach or to be a member of government. Those articles require that the taoiseach be a member of the Dáil and that all members of Cabinet be members of the Oireachtas.
That will cause a contravention of Article 28.1 which provides that the Government shall consist of not less than seven and not more than 15 members who shall be appointed by the President in accordance with the provisions of the Constitution.
The number of members of the current Government will fall to six and there will be no way to appoint any additional members until the next Dáil is summoned and elects a new taoiseach.
In the meantime, it will not be possible to exercise the executive power of the State, which, according to Article 28.2 is to be exercised by or on the authority of the Government.
I am not sure, in view of the use of the word “must” in Articles 28.7.1 and 28.7.2, that Article 28.11.2, providing that the members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed, could be taken to apply so as to override the clear meaning of those two earlier provisions.
If there is effectively no government, I am not sure that the words “. . .or on the authority of . . .” in Article 28.2 would assist either. Can the current government authorise the President, for example, to exercise the executive power of the State from the date of the general election until such time as a new government is formed, or would that authority fail once the Government that delegates it ceases to be constitutionally valid? I do not think a government can prospectively delegate an authority to exercise a power for a period when it will simply not be possessed of the right to exercise that power itself.
It seems to me that the Dáil should have allowed the Taoiseach to appoint an extra member of Government before he went to the Park (maybe Enda Kenny would have liked a trial run). At least then the Government could have continued to function after the election (assuming all other members are re-elected) albeit without a taoiseach. – Yours, etc,