By-election failure 'offends spirit of Constitution'
The Government has offended the spirit of the Constitution by failing to hold the long-awaited Donegal South-West by-election, the High Court ruled today.
Mr Justice Nicholas Kearns supported Sinn Féin’s claim that the writ for the vote should have been moved some time in the 16 months since the seat became empty.
But the judge stopped short of ordering the Government to set a date for the crucial by-election.
“I am satisfied that the delay in this case is so inordinate as to amount to a breach of the applicant’s constitutional rights to such a degree as to warrant the court granting some form of relief,” Mr Justice Kearns, High Court President, said.
“Far from the court ’tearing asunder’ the provisions of the Constitution by adjudicating on this application, it is the ongoing failure to move the writ for this by-election since June 2009 which offends the terms and spirit of the Constitution and its framework for democracy.”
Sinn Féin Senator Pearse Doherty has repeatedly called for the by-election since former TD Pat “the Cope” Gallagher won a seat in Europe.
Despite assurances from the Government that the vote would be arranged in the spring, the battle went to judicial review last month.
The party said it will move a writ in the Dáil tomorrow calling for a date to be set for the poll.
The judge said the delays in Donegal South-West were unreasonable.
And, in a veiled threat, he said the issue was not far short of a case requiring draconian action.
He added: “The court might, in another case following on from this one, feel constrained to take a more serious view if any Government, not just necessarily the present one, was seen by the courts to be acting in clear disregard of an applicant’s constitutional rights in continually refusing over an unreasonable period of time to move the writ for a by-election.”
Speaking following the ruling, Senator Doherty said the "game was up" for the Government and Taoiseach Brian Cowen should call a general election.
“I was forced to bring the Government kicking and screaming before the courts over its denial of democracy," Senator Doherty said.
"Today’s decision is a great victory for the people of Donegal South West who have been politically underrepresented for the past year-and-a-half."
Other constituencies awaiting a new TD include Waterford, after former minister Martin Cullen resigned on health grounds, Dublin South, left empty by journalist George Lee, and Donegal North-East, vacated by Dr Jim McDaid.
Taoiseach Brian Cowen said the Government would consider the judgment.
“Obviously we have to consider the judgment and its implications and I believe that any further comment prior to consideration is premature,” he told the Dáil.
He said the Government argued in court that the Constitution imposed no time limit for holding by-elections but left the matter to the Oireachtas.
But Fine Gael leader Enda Kenny highlighted the High Court’s ruling that the delay was unreasonable.
“The question is are you going to sit over there and hang on and attempt to stay in power when the High Court of the land says it is unreasonable to have a delay of this length in giving the people of this constituency their opportunity to cast verdict on the Government by way of having a by-election?”
Labour leader Eamon Gilmore asked whether the Government intended to appeal over the decision.
“The only reason that these by-elections haven’t been held is that the present Government is using a flaky majority which is based on a reduced number of members in this house in order to stop holding the by-elections so that they can stay in office,” he added.
Government Chief Whip John Curran said state lawyers had argued that there was no time limit under the Constitution for by-elections to be held.
“The court took the view that there should be implied into the legislation a requirement that by-elections be held within a reasonable time,” Mr Curran said.
“The Government will now consider the judgment and its implications.”
Ruairi Quinn, Labour’s education spokesman, said the ruling would deprive the Government of “any shred of moral authority” to refuse to allow the by-election.
“The minister with responsibility for the electoral matters is (Green Party leader and Environment Minister) John Gormley,” Mr Quinn said.
“It is disappointing that he has refused to take a stand on this issue and insist that people of Donegal South-West, Dublin South, Waterford and Donegal North-East are allowed to have the level of representation in the Dáil provided under the Constitution and the law.”
