Embattled Cowen puts the party first and cheapens the Constitution

THE Constitution of any country is crucial, both in its letter and in its spirit.

It’s the foundation on which a country is built, the basic fundamental law of the country.

We guard it jealously and carefully, because without it there is simply no basis for law.

When it’s abused or misquoted, the cornerstones of a country’s democracy are put at risk.

On June 29, 1989, Dáil Eireann faced a difficult situation.

There had just been a general election, and no one had won an overall majority. When the Dáil met, three people were nominated to the office of Taoiseach — Charles Haughey, Alan Dukes, and Dick Spring. All three were beaten.

But Charles Haughey was the outgoing Taoiseach. He announced to the Dáil that since no one had been chosen to replace him, more time would be needed to negotiate a replacement government.

And he solemnly told the Dáil: “Our paramount task now is to provide a government who can meet the challenges and problems facing the country. I propose, therefore, that, for the present at any rate, we in the Dáil should continue our efforts to reach a decision, with any adjournments, as required, for consultations. Under Article 28.11.2 of the Constitution, I and my Cabinet colleagues continue to hold office and the day-to-day business of Government will be carried on uninterrupted.”

This was accepted by the then leader of the opposition, Alan Dukes.

But Dick Spring stood up and pointed out that under a different provision of the Constitution, Article 28.10, Haughey had lost the confidence of the Dáil and had to offer his resignation to the Taoiseach. He (Haughey) could carry on until a new government was formed, but only as a caretaker Taoiseach.

Spring’s proposal caused consternation in the Dáil, with Haughey insisting that he was under no obligation to resign there and then.

After further debate, Spring proposed a two-hour adjournment. At the end of the two hours, a chastened Haughey had clearly changed his mind. Though he still insisted he had legal advice to the contrary, he told the Dáil he would immediately tender his resignation to the president.

Why did he do that? Well, in his own words, he did it because “it is of critical importance that we not just legally uphold the Constitution, but be seen to do so. Our people hold their Constitution to be sacrosanct. I would never wish even to appear to do otherwise than adhere strictly to the precepts of the Constitution.”

For a long time after that incident, experts argued over whether Haughey strictly speaking had an obligation to resign there and then.

Despite disagreement about the letter of the Constitution, however, there was unanimous agreement that had Haughey not been forced to resign, the spirit of our Constitution would have been flouted and damaged.

Twenty-two years later, it appears that the same political party that Haughey disgraced several times over has learned nothing. The carry-on of this past week, and the insane political rollercoaster to which they have subjected us, has undermined and cheapened the Constitution of 1937.

They are using the Constitution to argue, on the one hand, that there is no reason for the Taoiseach to leave office. And on the other hand they keep saying there is a constitutional imperative to pass the Finance Bill.

Both arguments are entirely false and spurious, both in the letter and the spirit. It is absolutely clear that any political leader in the position that the Taoiseach is in, if they had any respect whatever for the spirit of the Constitution, would have sought the agreement of the president to dissolve the Dáil long before now.

Let’s deal with the business of the Finance Bill first. The Constitution says “save in so far as may be provided by specific enactment in each case, the legislation required to give effect to the Financial Resolutions of each year shall be enacted within that year”.

But the key phrase is the first part of that sentence. Because the Budget actually took place in 2010, unless there was enabling legislation the Finance Bill would also have to be passed in 2010. But there is legislation to enable the Finance Bill to be later – in fact there are two separate pieces of legislation to allow that to happen.

So the Finance Bill doesn’t have to be law, under any circumstances, until April 7.

And the only Finance Bill that needs to be law by then is a bill that covers the specific resolutions passed by the Dáil on Budget night — in other words, the resolutions on foot of which extra taxes were imposed. That’s because you can’t collect taxes without legislation, and legislation has to be passed by both the Dáil and Senate. A Dáil resolution isn’t enough.

So it’s entirely possible to have a short Finance Bill that deals only with the things the Dáil has already agreed to, and it’s entirely unnecessary to hold up the election to pass the Finance Bill.

We all know that the Finance Bill is being dragged out only because Fianna Fáil hasn’t decided whose face goes on the election poster. That has to stop.

And especially because we have a Taoiseach who, by any understanding, has lost the confidence of Dáil Eireann. Article 28.10 says “the Taoiseach shall resign from office upon his ceasing to retain the support of a majority in Dáil Éireann …”

ALTHOUGH it’s often argued that confidence can only be expressed in a vote of the Dáil itself, the Constitution doesn’t say so. Surely it must be the case that a Taoiseach who has had to resign the leadership of his own party, and has lost the confidence of his coalition partners, can no longer claim to have the confidence of a majority in Dáil Éireann? And this is a Taoiseach who has only six ministers apart from himself.

Article 28.1 makes it plain: “the Government shall consist of not less than seven and not more than fifteen members”.

The bare minimum are in office. But three of the six are engaged in a full-time campaign to succeed the Taoiseach as party leader. Two of those three are also holding down two full ministerial portfolios, and one of them is now holding down three.

By any stretch of the imagination, this is making a mockery of the spirit of the constitution. Back in 1989, it took two hours to persuade Charlie Haughey that he could not continue to hold on to the full powers of the office of Taoiseach.

And yet our present Taoiseach, who cannot get anything at all through the Dáil, seems to believe there is no obligation on him to do anything to honour the Constitution.

But there is. Ideally, he should have asked the president to dissolve the Dáil when he discovered that he no longer had the authority to recommend ministers for appointment. The least he must do now is to inform the president that he has lost the confidence of Dáil Eireann, enabling the president to call the election at her discretion. That is the only way to demonstrate that Fianna Fáil — for once — truly respects the spirit of the Constitution.