Sinn Féin Senator Pearse Doherty has brought a High Court challenge to the Government’s refusal to move the writ for a byelection in the Donegal South West constituency.
The vacancy was created by the election of Pat "the Cope" Gallagher to the European Parliament in June last year.
Mr Justice Michael Peart today gave Michael Forde SC, for Mr Doherty, leave to seek a declaration, by way of judicial review, that the Government is under a duty not to oppose motions to have the writ moved.
The application for leave was made on an ex-parte basis. The proceedings are against the Government and the Attorney General with Dáil Éireann as a notice party and the case will be back before the court later this month.
In the proceedings, it is claimed there are constitutional requirements affirming a "democratic state" under which there should not be less than one TD for every 30,000 of population. In light of those requirements, there had been an "excessive delay" since June 6th last in filling the Donegal South West vacancy, it is claimed.
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 for the byelection, it is also claimed.
From time to time, members of his party had endeavoured to have the writ moved but those efforts were resisted by the Government, he said. As things stood, there was "no realistic prospect" of the Government ceasing to resist such motions "for the foreseeable future", particularly because it was using a whip to "control" many members of the Dáil, he said.
Under Dáil standing orders, a motion to move the writ cannot be tabled for another six months from the previous occasion, except with permission of the Ceann Comhairle, he added.
His solicitor had written to the Attorney General on three occasions since June 18th last, seeking confirmation the writ would be moved expeditiously but in his replies, the AG had "in substance" rejected the request.
With a population of just over 71,000 in Donegal, and only two of the three seats currently filled, the 30,000 population ceiling provided for by Article 16.2 and 3 of the Constitution has been exceeded to a very considerable extent, he said.
From his discussions with various individuals in the constituency, there was great dissatisfaction with the "current exceptional under-representation in the Dáil", Senator Doherty said.
This was exacerbated by the fact one of the two Donegal TDs, Minister for Education and Tánaiste Mary Coughlan, has "extremely onerous responsibilities" which must radically encroach on her time to engage in constituency work, he added.
In comparison to other countries which use byelections to fill vacancies, Ireland would seem to be the only one whereby "inordinate delays" arise, he said.