THE COLOSSAL debts of Wexford Independent TD Mick Wallace will have serious implications not only for the construction business he has built up over two decades but could also bring his nascent political career, only seven months old, to an abrupt and premature end.
There are certain categories of people who are incapacitated, to use the quaint legal phrase, from being members of either House of the Oireachtas. The Constitution states that the president, all judges and the comptroller and auditor general cannot become TDs or Senators.
The Electoral Acts, particularly the Electoral Act 1992, sets out the categories of persons who are not eligible for election to the Dáil.
They include people who are not Irish citizens; who are under 21; a European commissioner; a member of the Garda Síochána or the Defence Forces; most civil servants; prisoners serving more than six months, and an undischarged bankrupt.
Section 42 sets of the 1992 Act sets what happens when a TD falls into one of those categories, for example is imprisoned for more than six months or is declared a bankrupt.
The language is stark. If a TD has been adjudicated bankrupt by a court, and if within six months, the order has not been annulled or the bankruptcy discharged, the person will automatically cease to be a TD. There is no process: essentially once the bankruptcy is officially confirmed, the seat will be lost.
The major political headache facing Wallace is if ACC initiates bankruptcy proceedings against him. In a series of interviews yesterday, he said he did not challenge the summary judgment against him because he owed the money and had a responsibility as a public representative.
He did not know what the bank would do to enforce the judgment after taking control of his properties and assets. He conceded it was possible that it might issue bankruptcy proceedings.
Wallace indicated, however, that he might consider challenging the application, presumably on constitutional grounds.
In the definitive legal text in this area, The Irish Constitution by John Kelly, the editors of later editions Gerard Hogan (now a High Court judge) and Gerry Whyte suggest that the prohibition on bankrupts sitting on the Dáil might be vulnerable on constitutional grounds. The powers of article 16 were not designed to “protect the electorate from the consequences of its own foolishness” in electing a bankrupt TD.
