ANALYSIS:The Constitution provides for the unusual circumstances where the outgoing taoiseach is no longer a TD, writes DEAGLÁN DE BRÉADÚN
THE 31ST Dáil is convened today under political circumstances so unusual that questions have been raised about the constitutional status of the outgoing Government and the validity of any decisions it may have taken.
For one thing, the outgoing taoiseach, Brian Cowen, will not be sitting in the chamber with the newly elected TDs; Minister for Finance Brian Lenihan will sit in his place.
The absence of Cowen is a matter of protocol and he has the right to be there if he so wishes. Article 28.8 of Bunreacht na hÉireann/Constitution of Ireland specifies that: “Every member of the government shall have the right to attend and be heard in each House of the Oireachtas.”
Indeed, when the 27th Dáil was convened on December 14th, 1992, outgoing tánaiste and minister for defence and the Gaeltacht, the late John Wilson, was seated in the distinguished visitors’ gallery although he had announced his retirement from politics when the general election was called.
However, Cowen is clearly not planning to exercise his right to attend; nor is he likely to be in the visitors’ gallery, although he is scheduled to attend this morning’s interdenominational service at St Ann’s Church on nearby Dawson Street along with President Mary McAleese, members of the outgoing government and other politicians and representatives of State organisations.
Article 28.7.1 of the Constitution states that the taoiseach must be a member of Dáil Éireann. Cowen is no longer a TD but when the 30th Dáil was dissolved, it meant that all of its members ceased to be TDs although the title continued to be used as a courtesy.
In the absence of Cowen and three ministers who were defeated in the general election – Mary Coughlan, Mary Hanafin and Pat Carey – only three members of the outgoing government are expected to be in the chamber when the Dáil assembles. Article 28.1 of the Constitution specifies that: “The government shall consist of not less than seven and not more than 15 members who shall be appointed by the president.”
However, Article 28.11 states: “The members of the government in office at the date of dissolution of Dáil Éireann shall continue to hold office until their successors have been appointed.”
The Irish text takes precedence and the literal English translation of this is as follows: “The members of the government who will be in office on the day of a dissolution of Dáil Éireann, they will continue in their office until their successors are appointed.”
Therefore, all of those named above continue to be Ministers until, as expected, the members of the new cabinet receive their seals of office from the President this evening.
Indeed, in the highly unlikely event that the new Dáil fails to elect a taoiseach today, the legal advice to the outgoing Government is that Cowen will remain in office until his successor has been approved by a majority of TDs. The same applies to other members of the outgoing Cabinet.
The danger of having the minimum members in the outgoing Cabinet is that, in the unfortunate event of any of them becoming incapacitated, there would be no government.
What happens if a new taoiseach is not elected? On December 14th, 1992, when the Dáil failed to agree on the position, the outgoing holder of that office, Albert Reynolds, told the House: “I propose to inform the president of my resignation. However, under Article 28.11 of the Constitution, the government will continue in office, and I will continue to carry out all the duties of taoiseach, until a taoiseach is appointed.
“I assure the people that a government is still in place, which will deal with whatever arises and ensure that their essential interests are looked after and do not go by default,” he said.
His decision to submit his resignation was based on the precedent established by Charles Haughey on June 26th, 1989. On that occasion also the Dáil initially failed to elect a taoiseach. As outgoing taoiseach, Haughey at first refused to tender his resignation to the president and this was in line with the legal advice he was given, but he was eventually pressured into doing so by Labour leader Dick Spring and members of the Fianna Fáil cabinet. However, he remained on to carry out the duties of the office and was dubbed “The Phantom Taoiseach” by Fine Gael politician and constitutional expert Prof John Kelly.