By Eoin O’Malley, 3rd November, 2010
The decision today to criticise the government for offending the spirit of the constitution is likely to accelerate the holding of the Donegal by-election. But the High Court may be mistaken in reading the procedures for holding a by-election, and so the logic of the decision may be questionable.
When a motion is put to issue the writ for the bye-election, it is the Dáil takes the decision, and the Ceann Comhairle then informs the Clerk to issue the writ, contacting the returning office etc. The order and decision in the Court case today is not against the Dáil but the Government which should either move by-election motion or not resist it. This should be done within a reasonable time of the vacancy arising, it argues. This means, of course, that the Government would have to direct its members to support such a motion.
The Judge, Nicholas Kearns, avoided actually making an order and just scolded the government, but clearly implied that he would were the case to come before him again in some unspecified time period. It is not clear how such an order could be constitutional. It would in effect be telling TDs how they should vote in a motion, and worse telling the government of the day that it should force TDs to do so, even though the government has no legal (as opposed to political) control over those TDs. Nor is the government in fact a legal party in the decision to move the writ. It may as well have told the leader of the Green Party to do this.
A solution maybe to order to the Ceann Comhairle or the Clerk of the Dáil to issue the writ, but even this might be challengable, on the grounds that it is ordering him to overturn/ ignore a vote in the Dáil. Another solution could be to find the Standing Orders of the Dáil or the Electoral Act to be unconstitutional or constitutionally deficient, and order the Oireachtas to deal with casual vacancies within some specified time period. But it is surely unconstitutional for the High Court to threaten the government to force TDs to vote is some way that the court deems appropriate? TDs might be well advised to resist this encroachment on their independence.
Another oddity in this judgement is the idea that by-elections as opposed to any other means of filling vacancies are a democratic right. Kearns argues,
“by-elections have been seen to provide a very clear barometer of public opinion and to serve an important function in the working of a democratic representative system. Thus the same principles which underpin … the requirement to hold general elections at reasonable intervals seem to me to apply with equal – if not greater – force where by-elections are concerned. It would strike me as absurd to apply a requirement of reasonable time to the holding of a general election and then to flout or altogether ignore the same principle at the micro level of a by-election. The issue of representation is the same; the requirement to provide an opportunity to the electorate to have their views expressed by elected representatives is also the same.”
Of course there is a constitutional requirement that the Dáil last no longer than seven years (reduced to five by statute). But there is no such legal requirement that by-elections be held in any specified time, nor is there a constitutional requirement that they be held at all. It might also come as a surprise to the citizens of virtually every other democracy that their democratic rights are denied in the way parliamentary vacancies are filled. It’s therefore odd that one citizen should have a right to a by-election, unless it is on the basis that his rights of representation are reduced. In that case Senator Doherty only having two TDs might be seen as a disadvantage, except that would suggest that those in three seat constituencies are at a disadvantage compared to those in four seat constituencies, in that they are less represented. Or it could be that the requirement that there is one TD for every 20,000 to 30,000 people is violated. This does not seem to be what the case was decided upon, but if it were, I’d hazard a guess, given emigration from Donegal, and that the constituency was close to the lower limit, it’s still within the 30,000 upper limit.