Tipperary and the Constitution
Sir, – David Kenny and Conor Casey (“Legal challenge over Tipperary poll now seems inevitable”, Opinion & Analysis, February 6th) suggest that a Government must follow a given statutory provision until its constitutionality is ruled upon by the courts .
This is certainly the norm and all statutes enjoy a presumption of constitutionality.
That is no more than a sensible conventional practice.
The presumption of constitutionality cannot mean that the Government “must” ignore a clear constitutional instruction when it is set out in plain and unambiguous language.
Article 16 of the Constitution is very plain and very clear. “A general election for members of Dáil Éireann shall take place not later than thirty days after the dissolution of Dáil Éireann.”
The provision admits no exceptions or qualifications and none can be created by the Oireachtas.
It is as simple as that.
I think the Attorney General has defended our electoral process from a paroxysm of sophistry. – Yours, etc,
Sir, – The excellent article by David Kenny and Conor Casey addresses an issue of enormous importance in the context of the bizarre decision made by the Government, on the advice of Attorney General, to permit the poll in Tipperary take place on Saturday.
As required by section 62 of the Electoral Act 1992, the poll having initially been cancelled due to the death on Monday last of independent candidate Marese Skehan, the Government has determined it should ignore this express statutory provision contained in our electoral laws for approximately 27 years because the Attorney General has determined section 62 is unconstitutional.
Not only does a presumption of constitutionality attach to section 62, prior to the Electoral Act 1992 being signed into law by the President, if any doubt existed as to the constitutionality of any provision contained in it, the President could in 1992 have called a meeting of the Council of State and, having obtained its advice, determined whether to refer the measure as a Bill to the Supreme Court for a determination as to its constitutionality. In 1992 no such issue arose and no such referral was made.
A foundational principle in our constitutional democracy is the separation of powers. As prescribed by the Constitution, each of the organs of State exercise separate and independent constitutional roles.
The Oireachtas has the exclusive power to enact laws, the government of the day is required to comply with the law, and it falls to the courts to adjudicate on the constitutionality of laws so enacted. It is not open to a government to arbitrarily adjudicate a law enacted by the Oireachtas to be unconstitutional and then entirely ignore its provisions.
Under our constitutional system, no attorney general or government is entitled, in defiance of the Constitution, to assume to itself the powers of the three organs of government.
By doing so in this instance, the Government has entirely undermined the constitutional structure on which our democracy depends, fundamentally undermined the rule of law and opened the door to a future government ignoring laws it deems inconvenient by pronouncing them unconstitutional.
This is a dangerous and slippery slope.
It seems from reports that the decision to proceed with the Tipperary poll was taken to avoid a possible court challenge after the election to its postponement and resultant difficulties that could have arisen in the formation of a new government.
By abrogating the role of the courts and failing to comply with section 62 of the 1992 Act, the Government has simply laid the foundation for a court challenge to the outcome of the Tipperary constituency election which may also create difficulties in the formation of a new government.
In the pressure-pot atmosphere of a general election governments often make hasty and ill thought-through decisions without full insight into the possible future consequences.
Unfortunately, from my own personal experience, this is not the first time that the outgoing Government has failed to properly respect and act in accordance with the rule of law. – Yours, etc,
for justice and defence),