The Government has denied before the High Court there has been any unreasonable delay in holding a byelection in Donegal South West.
The court today began hearing a judicial review application by Sinn Féin Senator Pearse Doherty, challenging the Government to name a date for a byelection in Donegal.
The Government also reiterated today the statement made last month by John Curran, Government chief whip and minister for state at the Department of the Taoiseach, that it intends moving the writ for the by-election in the first quarter of next year.
The President of the High Court, Mr Justice Nicholas Kearns, today began hearing the challenge by Senator Doherty to the failure of the Government to move the writ for the byelection caused by the election of Pat "the Cope" Gallagher to the European parliament in June last year.
Senator Doherty is seeking a declaration there has been an inordinate delay in moving the writ. The delay in holding a byelection is the longest in the history of the State, the court was told.
In opposing the proceedings, the Government and the Attorney General say Senator Doherty’s claims of delay and Constitutional breaches are fundamentally misconceived and deny any breach of the Electoral Act 1992.
The Government has also urged the court not to grant the declaration sought by Senator Doherty having regard to Articles 15 and 16 of the Constitution concerning the separation of the powers of the executive and the judiciary.
The Constitution does not impose any time frame within which vacancies must be filled and that is a matter exclusively for the Dáil to determine, the Government argues.
Mr Doherty claims there are constitutional requirements affirming a “democratic state” whereby there should not be less than one TD for every 30,000 of population.
On account of existing Dáil arithmetic, the only realistic prospect of getting the Donegal South West vacancy filled is for the Government to “at least” not oppose a motion to move the writ, he contends.
Senator Doherty says members of his party had tried from time to time to to have the writ moved but that these attempts were resisted by the Government. There appeared “no realistic prospect” of the Government ceasing to resist such motions for the foreseeable future, he said.
Richard Humphreys SC, with Dr Michael Forde SC, for Mr Doherty, told the court Mr Curran had sworn an affidavit outlining a statement he made to the Dáil on September 29th last about the Government’s intention to hold three byelections, including Donegal South West, in the first quarter of next year.
This could not happen any sooner because of the financial situation facing the country, he said. Unless that was addressed there would be damage to the economy, he added
In submissions to the court, Mr Humphreys said he was not now asking the court to order the writ be moved but instead to grant a declaration that the delay in holding the bye-election is unreasonable.
Mr Humphreys said the court had to decide whether the issue was moot (pointless) following Mr Curran’s statement to the Dáil. It also had to address whether there was an obligation to fill the vacancy within a reasonable period and if there was any such obligation, was that a matter for the Dáil and the Government and therefore non-justiciable due to the separation of powers.
Counsel submitted, while there was no express obligation on the Government to hold the byelection within a reasonable time, there was an implied obligation.
That obligation arose from Article 5 of the Constitution regarding the democratic nature of the state, from Article 16.2.1 relating to the rights of equality of representation in all constituencies and from the State’s statutory obligations under the Electoral Amendment Act 2005 requiring there to be 166 members of the Dáil, he said.
An analysis of the relevant statistics showed the longest previous delay holding a byelection was just over six months in Galway in 1935, counsel said. The only previous time there was a national crisis during which a byelection was held was following the murder of Justice Minister Kevin O’Higgins in 1927, he said. However, the byelection to fill the vacancy caused by that was held the following month.
The case continues tomorrow.