The president of the High Court will deliver judgment next month on the challenge by Sinn Féin senator Pearse Doherty to the Government’s 16-month delay in moving the writ for the Donegal South-West byelection.
Senator Doherty is seeking a court declaration there has been inordinate delay in moving the writ. His two-day case concluded today and Mr Justice Nicholas Kearns reserved judgment to Friday November 5th next.
In opposing the proceedings, the Government and the Attorney General have argued Senator Doherty’s claims of delay and breaches of various provisions of the Constitution are fundamentally misconceived.
In closing submissions for the State, Maurice Collins SC argued, if the court granted the declaration sought, this would amount to “a violent infringement of the principles of the separation of powers and the fundamental architecture of the State”.
Senator Doherty claims the three -eater constituency of Donegal South-West has been left without one of its three TDs following the election of Pat the Cope Gallagher to the European parliament in June last year. He also claims the constituency is affected by the frequent absences on government business of another of its TDs, Minister Mary Coughlan.
He argues the delay in holding the byelection is the longest in the history of the State and breaches the Constitutional affirmation of a “democratic state” based on there being no less than one TD for every 30,000 members 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 also claims.
Senator Doherty said moves to have the writ moved were resisted by the Government and, as things stand, there was “no realistic prospect” the government would cease resisting such motions for the foreseeable future.
Richard Humphreys SC, with Dr Michael Forde SC, for Mr Doherty, said the people of Donegal South-West have been under represented by the delay in having the writ moved. The constituency could be underrepresented for a significant portion of the current Dáil, counsel said.
Mr Collins, for the State, said the court does not have the power to intervene in a decision made by the members of the Dáil.
The Dáil considered the matter three times with a majority of members voting not to move the writ for the by election, he said.
While certain parties were not happy with that, the members of the Dáil were entitled to make that decision and the courts were not entitled to review that. The government had also undertaken that the byelection will take place in the first quarter of 2011.
The Constitution does not impose any time frame within which vacancies must be filled and it is a matter exclusively for the Dáil to determine, counsel also argued.
PA