‘Inordinate’ by-election delay breached senator’s rights, rules High Court
High Court president Mr Justice Nicholas Kearns yesterday granted Senator Pearse Doherty a declaration there has been an unreasonable delay in moving the writ for the by-election caused by the election of Pat the Cope Gallagher to the European parliament in June of last year.
Sen Doherty claimed this was an infringement of his constitutional rights because the three-seat constituency had been left without one of its three TDs
The judge said the delay was “so inordinate to amount to a breach of (Sen Doherty’s) constitutional rights to such a degree as to warrant the court granting some form of relief”.
Mr Justice Kearns ruled that section 39(2) of the Electoral Act 1992 is to be construed under the Constitution as requiring that the writ for a by-election be moved within a reasonable time of a vacancy arising.
It was noteworthy, he said, that the act was silent as to when the Government must, if ever, move the writ for a by-election, in contrast to other states where this was statutorily defined or where it is settled practice.
The Dáil has a five year term and the “unprecedented delay in this instance, the longest in the history of the state, represents a significant proportion of the term of the current Dáil,” he said.
The court noted that the Constitution Review Group, in 1996, proposed the Constitution be amended so as to require holding a by-election within 90 days of a vacancy occurring.
Mr Doherty originally sought a number of declarations, including that there had been an inordinate delay, but during the hearing of the matter last month, his lawyers said they were not seeking a direction from the court that the Government not oppose any motion in the Dáil to move the writ.
The Government denied there was any breach of his rights and argued the proceedings were moot in light of a statement made to the Dáil on September 29 last by Chief Whip John Curran that the Government will hold the by-election in the first quarter of next year.
Mr Justice Kearns said it was “surprising to say the least” that no application was brought by the Government to set aside the original grant of leave to bring judicial review proceedings, given that they had argued that the entire matter could not be dealt with the court by reason of the doctrine of separation of powers (between the Government, legislature and the judiciary).
When the “hyperbole” associated with many of the submissions made by both sides was dispensed with, particularly those of the Government in suggesting a successful legal challenge would “tear asunder” the division of powers, the judge said a basic question needed to be addressed as to whether the court has a function (justiciability) in determining this matter.
It seemed to the judge there is ample legal precedent for concluding that decisions or omissions which affect or infringe citizens’ rights under the Constitution are “prima facie” justiciable.
This was not a controversy which relates to the internal workings of the Dáil in relation to its own affairs, in relation to external affairs or any issue which might be characterised as socioeconomic, he said. It relates to Mr Doherty’s right to be represented in the Dáil by the number of members laid down by the Dáil and to the right to equality of representation.
On the question of interpreting the law under the Constitution, the judge said a construction which treats section 39(2) of the Electoral Act as devoid of any time requirement in relation to holding a by-election “clearly offends” articles 5 and 16 of the Constitution (relating to democratic nature of the state and composition of the Dáil). By well settled principles of constitutional and statutory construction, the act is to be construed as incorporating a requirement that any discretion in calling a by-election requires that it be exercised “within a reasonable time,” the judge said.
Mr Justice Kearns also found that under the European Convention on Human Rights Act 2003, our own Electoral Act requires should be interpreted as requiring that a by-election be held within a reasonable time of a vacancy arising.
Far from “tearing asunder” the provisions of the Constitution by adjudicating on Mr Doherty’s application, it is the “ongoing failure” to move the writ since June 2009 “which offends the terms and spirit of the Constitution and its framework for democratic representation, he said.
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