Brian Cowen causes constitutional crisis.

Sponge Bob

It has taken often quite a few weeks after the election to form a government. However Cowen has stuck a gun to the head of the new Dáil.

Unless there is a majority for one party they have 10 days to negotiate a programme for government before the Dail meets. This is probably not long enough to sort matters out properly. The last lot had over 2 weeks in 2007 before the Dáil assembled...but we still had an elected Taoiseach.

Dáil meets on the 9th of March, they must ( at a minimum) elect a Taoiseach on that day or face dissolution.

Maybe the president can show forbearance Thanks for nothing fatso.

qz

Doubt his weight has anything to do with this, ok aggrieved poster?

Eliot Rosewater

This point came up a few days ago, and the conclusion, I believe, was that there is, in fact, no such constitutional crisis. Article 28, section 11, subsection 2 of the constitution reads "2° The members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed." Panic over.

loldog

Eliot Rosewater wrote: »

This point came up a few days ago, and the conclusion, I believe, was that there is, in fact, so such constitutional crisis. Article 28, section 11, subsection 2 of the constitution reads "2° The members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed." Panic over.

So Cowen will still be Taoiseach. See, no problem!

.

the groutch

sounds like he wants to give FG & Labour the minimum possible time to come to an agreement, in the vain hope that one of them will go into coalition with FF instead

sceptre

Sponge Bob wrote: »

Dáil meets on the 9th of March, they must ( at a minimum) elect a Taoiseach on that day or face dissolution.

It's reasonable and expected that they'd follow the 1989 precedent if there isn't a Taoiseach elected on the day the Dáil first sits after the election - in that year the Dáil first met on June 26, though election of a Taoiseach didn't happen until July 12.

Sponge Bob

sceptre wrote: »

It's reasonable and expected that they'd follow the 1989 precedent if there isn't a Taoiseach elected on the day the Dáil first sits after the election - in that year the Dáil first met on June 26, though election of a Taoiseach didn't happen until July 12.

Same as in 2007, the same Taoiseach as before the election ran the show in the interim.

Cowen ceases to be Taoiseach on the 9th of March as he is evidently not elected to the Dáil that assembles on the 9th of March unlike Haughey and Ahern were in 1989 and 2007 respectively.

Mind you it is probably Endas fault because he wanted to be in Washington with the shamrockeens the following week ...even at the cost of a sufficiency time to negotiate a programme for government

Eliot Rosewater

Sponge Bob wrote: »

Cowen ceases to be Taoiseach on the 9th of March as he is evidently not elected to the Dáil that assembles on the 9th of March unlike Haughey and Ahern were in 1989 and 2007 respectively.

That's not correct: Cowen remains Taoiseach as per the constitutional article I quoted.

the groutch

Eliot Rosewater wrote: »

That's not correct: Cowen remains Taoiseach as per the constitutional article I quoted.

would that be allowable under the constitution? having a Taoiseach who isnt even a TD?

oppenheimer1

the groutch wrote: »

would that be allowable under the constitution? having a Taoiseach who isnt even a TD?

Well at the moment we have a Taoiseach who isn't a TD. All members of the Dáil cease to be members once it has been dissolved. The Legislature and Executive are separate branches of Government

loldog

### Self edit: incorrect info - ignore ####

later12

As far as I am aware the above is not entirely correct; there would be a minor constitutional crisis, but in cases where the constitution appears to contradict itself or where two of its provisions are not compatible with one another, the provision whose disregard is likely to have the least detrimental effect is duly overlooked.

I'm not sure what precedent that has and am only recalling it from memory of a conversation on this issue.

loldog

later10 wrote: »

As far as I am aware the above is not entirely correct...

Yeah you are correct, the Taoiseach has to be a TD at all times, not just at appointment.

Article 28

7. 1° The Taoiseach, the Tánaiste and the member of the Government who is in charge of the Department of Finance must be members of Dáil Éireann.

They'll have to fix that to include "or outgoing members" or some such formula.

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sceptre

loldog wrote: »

Yeah you are correct, the Taoiseach has to be a TD at all times, not just at appointment.

He's not a TD at the moment. There are no TDs at the moment.

Sir Oxman

It could be Coughlan according to some people on here.

It will be interesting to see, depending on seat numbers and coalition negotiations, if the March 9th deadline will save the country from Acting Taoiseach Coughlan! (if she gets re-elected)

later12

sceptre wrote: »

He's not a TD at the moment. There are no TDs at the moment.

Arguably there are three acting TDs until such time as the new Dáil arises - The Taoiseach, the Tánaiste and the Minister for Finance as they three must, ipso facto, be members of Dáil Eireann.

Liam Byrne

later10 wrote: »

Arguably there are three acting TDs until such time as the new Dáil arises - The Taoiseach, the Tánaiste and the Minister for Finance as they three must, ipso facto, be members of Dáil Eireann.

Oh my good Jesus......the worst 3 in the Dáil are now the ONLY 3 ? :eek: :eek:

Het-Field

The Constitutional issue is not directly as a result of Mr Cowen's decision not to stand. The matter is based on conflicting constitutional articles. While Mr Cowen remains Taoiseach until the executive is dissolved (upon the appointment of the new executive), it is arguable that his Premiership does not survive the dissolution of the Dail. The constitution stipulates that the Taoiseach, Tanaiste, and Minister for Finance must be members of the Oireachtas. Unless clarity is provided as to when the 31st Oireachtas is formed (i.e. the day of election, the first day of the new Dail etc), it is possible that Brian Cowen may be heading up an executive, while no longer a member of the Oireachtas. This would be constitutionally conflicting, and could lead to an act which is ultra vires. Naturally, if that is the case, then any decision taken by Cowen in the name of the executive could be subject to certiorari if judicially reviewed.

Another arguable point is based on the constitutional stipulation that the Cabinet must contain seven members at any given time. As things stand we are at 7. However, once Mr Cowen steps aside, that number could be reduced to six (this is subject to my foregoing qualifications). This would create a state of unconstitutionality. The same would apply if Mary Hanifin was to lose her seat in Dun Laoghaire/Rathdown. Again, this would all be predicated on the point at which the Dail is dissolved.

In the past, former Ministers like Mervyn Taylor, and Michael McDowell have lost their respective seats without any constitutional ramifications. McDowell is especially relevant as he was Tanaiste at the time. This time, the difference is the constitutionally precarious nature of the Cabinet's numbers.

imme

Crisis

Why are people given over to hysteria?
There is no constitutional crisis. Brian Cowen is Taoiseach until the next Dail votes for a new one. Even if the possible coalition of FG/Lab or even FG min. or maj. only has a certain number of days there won't likely be another combination or alternative. The programme for govt doesn't have to rushed to have the vote on Taoiseach in the Dail imo.

later12

Het-Field wrote: »

While Mr Cowen remains Taoiseach until the executive is dissolved (upon the appointment of the new executive), it is arguable that his Premiership does not survive the dissolution of the Dail. The constitution stipulates that the Taoiseach, Tanaiste, and Minister for Finance must be members of the Oireachtas.

The thing is, however, that the constitution is not totally specific in relation to whether or not The Taoiseach is concurrently a member of Dáil Eireann while he is acting Taoiseach. Although concurrent membership of the Dáil would appear improbable initially, the constitution also states that a Taoiseach simply must, by definition, be a member of that house. Since he can be Taoiseach after its dissolution, it seems to make sense to me that he can then, also, be a TD.

It would be helpful to know if he is paid a TD's salary during the election campaign. But like I said, I would imagine that this is not really unconstitutional.

I

n the past, former Ministers like Mervyn Taylor, and Michael McDowell have lost their respective seats without any constitutional ramifications. McDowell is especially relevant as he was Tanaiste at the time.

Well since he would not be returning to the 30th Dáil, yet was acting Tánaiste of the 29th Dáil while the Dáil chamber was in session immediately prior to the formation of the 30th Dáil, the implicit suggestion seems to be that one may constitutionally be a non returning Taoiseach, Tánaiste or Minister for Finance without any problem right up until the establishment of the new Dáil.

Het-Field

later10 wrote: »

The thing is, however, that the constitution is not totally specific in relation to whether or not The Taoiseach is concurrently a member of Dáil Eireann while he is acting Taoiseach. Although concurrent membership of the Dáil would appear improbable initially, the constitution also states that a Taoiseach simply must, by definition, be a member of that house. Since he can be Taoiseach after its dissolution, it seems to make sense to me that he can then, also, be a TD.

It would be helpful to know if he is paid a TD's salary during the election campaign. But like I said, I would imagine that this is not really unconstitutional.

I Well since he would not be returning to the 30th Dáil, yet was acting Tánaiste of the 29th Dáil while the Dáil chamber was in session immediately prior to the formation of the 30th Dáil, the implicit suggestion seems to be that one may constitutionally be a non returning Taoiseach, Tánaiste or Minister for Finance without any problem right up until the establishment of the new Dáil.

I think it is the fact that the Constitution is not explicit on membership of Dail Eireann after dissolution that the matter gives rise to this problem. All it would take is for a Denis Riordan type to enter the fray and attempt to challenge it. Given the absence of explicit constitutional and judicial discourse on the matter, it is possible that such an action would be successful. Personally, I dont believe there would be any possibility of success, but as there is no real precedence on this matter, it would be incorrect to pre-empt any potential findings. It is tenuious, but it is arguable. I would certainly agree with you that issues like payment, and the ability to claim expenses in the period between the dissolution and the commencement of the new Dail would probably be major issues when considering this matter.

Further, I would also believe that the word "incapacitated" may be interperted to allow for the Tanaiste to adopt the role of Taoiseach, and cure any constitutional difficulties which may arise.

According to www.electionsireland.org Michael McDowell resigned from all his offices directly after his concession of electoral defeat in 2007. Thus, no constitutional issues arose. However, if I recall correctly, it was for constitutional (Irish and Progressive Democrats) reasons that he resigned in one fell swoop.

Kosseegan

This happened before when John Wilson was tanaiste. The dail was dissolved and he did not run for re-election. There was no new tanaiste appointed after the dail met for several weeks. He still turned up and carried on.
There was a lenghty debate in the Dail in 1989 about this. The constitution appears to abhor a vacuum. This is for sound legal reasons. The requirement that the taoiseach, Tanaiste and minister for Finance must be members of the house must be construed to mean members on their appointment to office only and does mean that they automatically cease to hold those offices on the dissolution of the dail. They hold their appointments legally until a new taoiseach is elected whteher they are members of the dail or not.