THE PRESIDENT of the High Court left the Government in no doubt that he considered it in breach of the constitutional rights of the citizens of Donegal South West in repeatedly refusing to allow the writ for the byelection there be moved.
Mr Justice Nicholas Kearns said he was not going to make a declaration that the Government was obliged to move the writ soon, following his interpreting the Electoral Act to mean that byelections should take place within a reasonable time. But he added the hope that his judgment would have this effect.
He said the court could intervene “in a more draconian way in extreme cases to protect constitutional obligations”. Such draconian action might be necessitated if any government was seen to be acting in clear disregard of an applicant’s constitutional rights in continually refusing to move a byelection writ within a reasonable time, he said.
“This is not yet such a case, but in my opinion it is not far short of it,” he said ominously.
His judgment was a clear rebuttal of the Government’s claim that the issue was non-justiciable due to the separation of powers.
Mr Justice Kearns made a distinction between the business of the Oireachtas and Government decisions or omissions which impinge on citizens’ constitutional rights. The right to representation in parliament was such a right.
He pointed to two previous judgments. One was an attempt to force the moving of a byelection writ in 1994, when a constituent in Dublin South Central took judicial review proceedings against Dáil Éireann and the taoiseach. While the High Court refused leave for judicial review against the Dáil, pointing out that the courts could not order its members to vote in a particular way, Mr Justice Hugh Geoghegan said quite different considerations applied to proceedings against the government: “There must be an arguable case at least that the government of Ireland has a constitutional obligation to set down and support the motions for the issue of a writ for the holding of a byelection after a reasonable time.” It followed that the government could be judicially reviewed if it failed to do so.
Similar issues arose in Murphy-v-Minister for the Environment in 2008, where Mr Justice Frank Clarke considered the delay in implementing census returns, which had implications for constituency boundaries.
While not granting immediate relief, the judge said the court might take further action if the Oireachtas did not take appropriate steps to ensure the minimum delay in enacting a law for new constituencies.
Following these judgments, Mr Justice Kearns concluded that “decisions or omissions which affect or infringe citizens’ rights under the Constitution are prima facie justiciable”.
Citizens’ rights are affected when no effect is given to rights for representation clearly delineated in the Constitution. Thus, the applicant, a citizen in the affected constituency, was entitled to a declaration that his rights had been infringed.