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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Doherty -v- Government of Ireland & Anor [2010] IEHC 369 (03 November 2010)
URL: http://www.bailii.org/ie/cases/IEHC/2010/H369.html
Cite as: [2011] 2 IR 222, [2010] IEHC 369
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Judgment Title: Doherty -v- Government of Ireland & Anor Composition of Court: Judgment by: Kearns P. Status of Judgment: Approved |
Neutral Citation Number: [2010] IEHC 369 THE HIGH COURT JUDICIAL REVIEW 2010 959 JR BETWEEN PEARSE DOHERTY APPLICANT AND
GOVERNMENT OF IRELAND, ATTORNEY GENERAL RESPONDENTS AND
DÁIL ÉIREANN NOTICE PARTY JUDGMENT of Kearns P. delivered the 3rd day of November, 2010
By Order of the High Court (Peart J.) made on the 12th July, 2010 the applicant was given leave to apply by way of an application for judicial review for the following reliefs:-
(ii) An order directing the Government not to oppose any such motion that may be moved. (iii) Further and other relief.
However, a lengthy Statement of Opposition was filed on behalf of the respondents, contending, inter alia:-
(2) Without prejudice to the foregoing:- (i) It is denied that Article 16.2.2 of the Constitution imposes a requirement that, in any constituency, there shall be not less than one member for 30,000 of the population as alleged. Article 16.2.2 of the Constitution provides that "the number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population". (ii) It is denied that the provisions of the Constitution upon which the applicant relies and/or section 39(2) of the Electoral Act 1992 and/or the judgment of the High Court in Dudley v. An Taoiseach [1994] 1 I.L.R.M. 321 provide any basis for the reliefs sought or any relief. (iii) . . . (iv) At the hearing of these proceedings, the respondents will rely upon inter alia, the provisions of the Constitution, (including Articles 5, 6, 15, 16, 28, 29, 34, 37, 46 and 47 thereof and section 39(2) of the Electoral Act 1992. In particular but without prejudice to the generality of the foregoing:-
and (b) the respondents will rely upon section 39(2) of the Electoral Act 1992 which was enacted pursuant to and in accordance with, inter alia, Article 16.7 of the Constitution and provides as follows: "where a vacancy occurs in the membership of the Dáil by a person ceasing to be a member otherwise than in consequence of a dissolution, the Chairman of the Dáil (or, where he is unable through illness absence or other cause to fulfil his duties or where there is a vacancy in the Office of Chairman, the Deputy Chairman of the Dáil) shall, as soon as he is directed by the Dáil so to do, direct the Clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.” (v) The Constitution expressly recognises that there may be casual vacancies in the membership of Dáil Éireann but does not impose any timeframe within which such vacancies must be filled; rather, the Constitution provides that it is a matter for the Oireachtas to regulate the filling of casual vacancies by way of legislation. The power to regulate the filling of casual vacancies which the Constitution confers upon the Oireachtas encompasses, inter alia, the power to regulate the holding of elections to fill such vacancies and the timing of the holding of such elections. (vi) In accordance with the provisions of the Constitution (including, in particular, Article 16.7 thereof), the Oireachtas enacted section 39 (2) of the Electoral Act 1992 to regulate the filling of casual vacancies in the membership of Dáil Éireann by persons ceasing to be members otherwise than in consequence of a dissolution of Dáil Éireann. By virtue of that legislative provision, it is a matter exclusively for Dáil Éireann to determine when to direct the Chairman of the Dáil to direct the Clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ. (vii) The respondents have not failed to fulfil any obligation under the Constitution or otherwise acted in breach of the Constitution; further the respondents have not failed to fulfil any statutory obligations or otherwise acted in breach of such obligations. (viii) The Court should not grant the reliefs claimed or any relief having regard to, inter alia, the provisions of the Constitution (including Articles 15 and 16 of the Constitution and the provisions of the Constitution concerning the separation of powers between the organs of Government established by the Constitution and the mutual respect as between those organs of government) and section 39 (2) of the Electoral Act 1992. Further, the Court should not grant relief the effect of which would be to constrain the Government in the exercise of its functions under the Constitution and/or constrain members of the Government in relation to voting in the Dáil and/or imposing on such members a requirement to exercise their votes in a particular manner. (ix) The claim of the applicant herein entails a fundamentally misconceived application to the Court to ignore and/or amend legislation enacted by the Oireachtas in accordance with the Constitution, to impose impermissible constraints and/or requirements on the Executive organ of government established by the Constitution, to breach the separation of powers which is mandated by the Constitution and to ignore and/or amend the provisions of the Constitution, including, in particular, Articles 15 and 16 thereof." At the commencement of the hearing, counsel on behalf of the applicant advised the Court that no mandatory order was sought directing the Government either to put down or not to oppose a motion put down by others to have the writ moved for the by-election. Put another way, the applicant confined the relief sought to one of seeking a declaration, by reference to his constitutional rights, that there has been excessive delay in filling the said vacancy since it occurred on the 6th June, 2009. There was no suggestion on behalf of the respondents that the Government was not capable of being enjoined in the proceedings as the relevant organ of the State with power and responsibility to either move or not resist a motion in the Dáil to convene a by-election, although of course, the respondents strongly argued that no justiciable issue arose because of the doctrine of separation of powers. BACKGROUND In the last general election, the following had been elected to fill the three seats in that constituency: Mary Coughlan (now the Tánaiste) Dinny McGinley T.D. and Pat "The Cope" Gallagher, now an M.E.P. On his election to Brussels/Strasbourg on the 6th June, 2009 Mr. Gallagher's seat became vacant. With a population of just over 71,000, the 30,000 ceiling provided for in Article 16.2.2 and Article 16.2.3 of the Constitution has, according to the applicant, been exceeded to a very considerable extent. Endeavours had been made by Sinn Féin members of the Dáil to move the writ with the outcomes already referred to. Under Dáil standing orders, a motion to move the writ could not be tabled again for another six months from the previous occasion except when the Ceann Comhairle otherwise agreed. The applicant asserted that, as a result of discussions he had had with many individuals in the constituency, there was a great level of dissatisfaction with the current exceptional under-representation of the constituency in Dáil Éireann, a dissatisfaction which was exacerbated by the fact that one of its two T.D.'s has extremely onerous responsibilities as Tánaiste and Minister for Education, factors which inevitably must encroach on her time and availability to engage in the normal constituency work of a T.D. He deposed to his belief that in other comparable countries there is no equivalent resistance by Governments to holding by-elections when vacancies occur in their parliaments. In his affidavit sworn on the 12th July, 2010 the applicant avers that:-
In an affidavit sworn by Mr. John Curran, Minister of State at the Department of An Taoiseach, he confirmed that on the 29th September, 2010 he informed Dáil Éireann on behalf of the government that it is the intention of the government to move the writ for the by-election to fill the vacancy for membership of Dáil Éireann in the Donegal South West constituency (and the writs for two other by-elections) in the first quarter of 2011. He stated:-
In his affidavit sworn on the 10th October, 2010, Sinn Fein member Mr. Aengus O' Snodaig, TD replied to the affidavit sworn by Mr. John Curran and emphasised that the statement made by Mr. Curran to Dáil Éireann in no way equated to proffering information to the Court as to the reasons for the delay. He believed that had Mr. Curran made the same statement to the Court it would have exposed him to cross examination which would have allowed the entirely “manufactured nature of the excuses for the non- holding of the by-election” to be exposed. He stated when the first Dáil debate on the writ for the Donegal South West by-election took place in July 2009, Tánaiste Mary Coughlan made no attempt to suggest that a by-election would distract the Government from its important work of dealing with the economic crisis. When the second attempt to move the writ took place in May 2010, Mr. Curran on behalf of the Government did invoke current economic and financial difficulties as a reason for not moving the writ. Mr. O' Snodaig went on to state that the excuses offered for not holding the by-election were “wholly devoid of merit” and flew in the face of the electoral history of the previous two years. Since the economic crisis occurred in September 2008, there had been nationwide local elections to 34 City and County Councils in June 2009 as well as 5 Borough Councils and 74 Town Councils. There had been a by-election in June 2009 in Dublin South and a nationwide constitutional referendum in October 2009. Mr. O' Snodaig stated that, by applying the same reasoning offered to Dáil Éireann, the Government could well have chosen to postpone the Dublin South by-election on the basis of the economic crisis, but did not do so. He stated that there was therefore no evidence whatsoever that two nationwide electoral processes in June and October 2009 had any measurable effects in terms of “taking the eyes of the Government and [political] parties off the recovery of the economy”. Mr. O’Snodaig further contended that, even accepting Mr. Curran’s logic, it had to be borne in mind that the budget will take place on the 7th December, 2010 and, that being so, there was no identified reason why the by-election could not be called after that date or why it was necessary to wait until the end of the first quarter of 2011. In Mr. O'Snodaig’s view, there was clearly no guarantee that the banking crisis and economic crisis would be any better by then and indeed they might well be worse. Finally, he highlighted that Mr. Curran’s statements were at variance with repeated statements from Government that the economic crisis was under control and being managed competently and that “the worst is over . . . we have turned a corner” as stated by Minister for Finance Brian Lenihan TD in December 2009.
RELEVANT PROVISIONS OF THE CONSTITUTION AND RELEVANT STATUTORY PROVISIONS
(ii) such other persons in the State as may be determined by law, without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dáil Éireann, shall have the right to vote at an election for members of Dáil Éireann. 4° No voter may exercise more than one vote at an election for Dáil Éireann, and the voting shall be by secret ballot."
2° The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population. 3° The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country. 4° The Oireachtas shall revise the constituencies at least once in every twelve years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of Dáil Éireann sitting when such revision is made. 5° The members shall be elected on the system of proportional representation by means of the single transferable vote. 6° No law shall be enacted whereby the number of members to be returned for any constituency shall be less than three."
2° A general election for members of Dáil Éireann shall take place not later than thirty days after a dissolution of Dáil Éireann. 4. 1° Polling at every general election for Dáil Éireann shall as far as practicable take place on the same day throughout the country. 2° Dáil Éireann shall meet within thirty days from that polling day. 5. The same Dáil Éireann shall not continue for a longer period than seven years from the date of its first meeting a shorter period may be fixed by law. 6. Provision shall be made by law to enable the member of Dáil Éireann who is the Chairman immediately before a dissolution of Dáil Éireann to be deemed without any actual election to be elected a member of Dáil Éireann at the ensuing general election. 7. Subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordancewith law." Section 39(2) of the Electoral Act, 1992 provides:-
Reference might also usefully be made at this point to the statutory provisions relating to casual vacancies which arise in Seanad Éireann. Section 56(1) of the Seanad Electoral (Panel Members) Act 1947 provides:-
(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter."
Counsel on behalf of the applicant submitted that the issues in the case could be summarised under the following five headings:-
2. Is the matter non-justiciable by reason of seeking to constrain members of the Government in terms of how they vote in Dáil Éireann? 3. Is there an obligation to fill the vacancy within a reasonable time? 4. If there is such an obligation, is it entirely a matter for Dáil Éireann and/or the Government, and therefore non-justiciable by reason of the doctrine of separation of powers? 5. Is there an obligation to fill the vacancy within a reasonable time, and if that question is justiciable, has there been an excessive delay in filling the vacancy in Donegal South West having regard to constitutional and statutory principles? It seems to me, however, that the matter which the court must first address is whether the issues raised in this case are justiciable. In doing so I appreciate that, as pointed out by counsel for the respondents, this application is not a challenge to the constitutionality of the Electoral Act 1992, or any provision of that Act.
JUSTICIABILITY A useful starting point is to consider the approach taken to this issue in the High Court by Geoghegan J. in Dudley v. An Taoiseach [1994] 2 I.L.R.M. 321. In that case the applicant was a student residing in the Dublin South Central constituency. Some fourteen months after the sitting Dáil Deputy, John O’Connell resigned his Dáil Éireann seat, the vacancy had not been filled by a by-election. Numerous attempts in the Dáil to have the writ moved for a by-election had been successfully resisted by the Government and its supporters. The applicant argued that, as a registered elector in the constituency, his rights to vote at common law, by statute and under the constitution were being infringed. At p. 323, Geoghegan J. stated:-
Geoghegan J. then went on to consider the very grounds of objection which had been raised by the respondents in the instant case. In a later passage on p. 323 he stated:-
Having recited the subsection in full, Geoghegan J. continued:-
That application, unlike the present proceedings, does not appear to have proceeded any further, but, perhaps significantly, and just as in the instant case, there was no application brought on behalf of the respondents to set aside the leave which had been granted on the grounds that the issue sought to be determined was non-justiciable. In considering whether any particular controversy is justiciable, the courts take great care to uphold the principle of the separation of powers and to avoid situations where the court goes beyond its own proper own role in the constitutional framework laid down by the Constitution. In Maguire v Ardagh (2002) 1 IR 385 Keane C.J. noted that the Constitution did not expressly exempt the actions of the Oireachtas or individual members thereof from judicial scrutiny save to the extent specified in Article 15.12 and Article 15.13. Keane C.J. acknowledged that the doctrine of the separation of powers precluded the courts from accepting every invitation to interfere with the conduct by the Oireachtas of its own affairs. Keane C.J. then continued to list specific activities that were non- justiciable, stating as follows at p. 537:
Similarly, in international relations and the conduct of foreign affairs, the courts have invariably taken the view that controversies which may arise are non-justiciable at the behest of individual citizens as the provisions of Articles 29.1 to Article 29.3 relate only to relations between states and confer no rights upon individuals. (See Horgan v An Taoiseach [2003] 2 IR 468). However, even in this context, the courts have seen fit to intervene when an actual or threatened breach of an individual’s constitutional rights may occur, as in Crotty v An Taoiseach [1987] 1 I.R. 713 where Finlay C.J. stated at p. 774:-
2. If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene. 3. The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution".
While clearly, as illustrated by decisions such as O'Malley v An Ceann Comhairle [1997] 1 I.R. 427 (a case in which the applicant contended that certain parliamentary questions had been wrongly disallowed by An Ceann Comhairle), internal matters and the internal workings of Dáil Éireann - not involving citizens outside the House - fall outside the appropriate remit for the court’s intervention, this is not such a case because the applicant is in a position to assert that his constitutional rights are being breached or rendered inoperative because of the manner in which the Government is applying and exercising the provisions of section 39(2) of the Electoral Act, 1992. It seems to me that there is ample precedent for concluding that decisions or omissions which affect or infringe citizens’ rights under the Constitution are prima facie justiciable. Thus in Ahern v Minister for Industry and Commerce (No. 2) [1991] 1 I.R. 492, a decision to put a civil servant on compulsory sick leave was held to be justiciable since it affected his right to work. Similarly, in MacPharthalain v Commissioners of Public Works [1992] 1 I.R. 111, the designation of certain lands as constituting an area of scenic interest was held to give rise to a justiciable controversy as it affected a landowner's right to obtain certain types of grants. It seems to me that a citizen's constitutional rights are trenched upon and significantly diluted when no effect is given to rights for representation clearly delineated in the Constitution. These are rights which might usefully be characterised as forming part of the "constitutional contract" between the citizen and the State. Implicit in Article 5 of the Constitution, which states that Ireland is a sovereign, independent and democratic state, is a recognition of the requirement for democratic representation through the electoral system which the Constitution provides. Article 16.1 of the Constitution provides for a clear right for every citizen to have the right to vote at an election for members of Dáil Éireann. Article 16.2 further provides that the number of members shall from time to time be fixed by law, but in any event the total number shall not be fixed at less than one member for each 30,000 of the population, or at more than one member for each 20,000 of the population. Article 16.2.3 requires that the ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as is practical, be the same throughout the country. These provisions are in no sense aspirational. They do, as already, noted, set out the citizens’ rights in clear and unambiguous terms. Furthermore, Article 16.7 which provides for elections for membership of Dáil Éireann to be regulated in accordance with law, specifically refers to "the filling of casual vacancies" which seems to me to imply something more than the mere regulation, without more, of elections for casual vacancies. (Emphasis added). The applicant in the present case is a person who is entitled in my view to seek judicial review in the limited declaratory form being sought on the issue as to whether or not a lengthy delay in moving the writ for the by-election in question may be said to infringe those rights. As has being emphasised, this is not a case in which the constitutionality of section 39(2) of the Electoral Act, 1992 has per se been called into question. Rather, it is a case in which the applicant invites the court to hold that, by reference to the aforesaid constitutional provisions, the Electoral Act, 1992 and, in particular, section39(2) thereof, must be operated and applied by the Government in a manner which upholds and reflects the constitutional position. Put another way, a constitutional approach necessarily means that section 39(2) of the Act of 1992 must be interpreted as being subject to a temporal requirement that a by-election motion be either moved by the Government or not resisted by it within a reasonable time of the vacancy arising. I am satisfied that this is a justiciable controversy. It is not a controversy which relates to the internal workings of Dáil Éireann in relation to its own affairs; it is not a controversy in relation to external affairs or to any issue which might be characterised as a socio-economic issue. Rather this applicant's case relates to the effects of delay on his right to be represented by the number of members laid down by law, and the right to equality of political representation. THE CONSTITUTIONAL APPROACH TO STATUTORY INTERPRETATION In Minister for Social Community and Family Affairs v Scanlon [2001] 1 IR 64 there had, as in the instant case, been no direct challenge to the constitutionality of the legislation in issue. Nevertheless Fennelly J in the course of his judgment, at p 85, stated that:
In East Donegal Co-operative Ltd v Attorney General [1970] I.R. 317 Walsh J stated that even where the mode of performing official actions envisaged by an Act is not specified in the Act, they must be performed in such a way as to respect the Constitution. At p 341, Walsh J. stated the following:
A construction which treats section 39(2) of the Electoral Act, 1992 as devoid of any temporal requirement clearly offends the Constitutional provisions of Article 5 and Article 16. For example, if an elected representative were to die within a few days of being elected at a general election, could the Government be said to be acting in conformity with the Constitution if it kept putting off a by-election until the last few months of the five year term of a Dáil? To ask the question is, I think, to know the answer: it most certainly would not. To read section 39(2) of the Electoral Act, 1992 as being subject to the requirement that the writ be moved within a reasonable time does no violence to the express wording of the sub-section. Rather it gives effect to the sub-section in a manner which honours the Constitutional provisions in question. Even looking at ordinary principles of statutory construction, it is well settled that a statute should not be given an interpretation which is illogical or absurd. Common sense must be used and the court must strive to implement rather than defeat the object of the legislation. This rule of interpretation is sometimes referred to via the maxim ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void). The absence of a temporal requirement in section 39(2) of the Act of 1992 could produce precisely that result. So construed, an entire Dáil term of 5 years could pass without any obligation falling on the Government to exercise its control of the Dáil to move or not oppose a motion. It must also be remembered that the Act of 1992 is part of a code of Electoral Acts which includes the Electoral (Amendment) Act, 2005 which provides as follows at section 2:
I conclude therefore that, by well settled principles of constitutional and statutory construction, section 39(2) of the Electoral Act, 1992 is to be construed as incorporating a requirement that the discretion reserved thereunder be exercised within a reasonable time. ROLE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS Every “organ of the State” is obliged (under s.3(1)) of the Act of 2003 to perform its “functions” in a manner compatible with the State’s obligations under the Convention provisions. The President and the Oireachtas, or either House thereof, is excluded from this definition. Any other body, other than a court, through which the legislative, executive or judicial powers of the State are exercised, is subject to this requirement. Article 3 of Protocol 1 of the Convention requires that elections be held “at reasonable intervals”. The applicant relies on this provision to argue that s. 39 (2) of the Electoral Act, 1992 be “interpreted” and “applied” in accordance with the requirements of s. 2 of the Act of 2003. Some limited authority was opened to the Court by the parties in this regard, there being an absence of cases decided by the European Court of Human Rights indicating that the “reasonable intervals” requirement applied to anything other than general elections. Counsel for the respondents suggested that, as many European countries filled casual vacancies from a ‘list’ system, it would be wrong to apply any such requirement to a by-election. Reference was made to passages from Clayton & Tomlinson ‘The Law of Human Rights’ (2nd Ed. Oxford, 2009) the first of which, at para. 20.35 states:
The Convention does not lay down any particular interval for holding elections. The question as to whether elections were held at reasonable intervals must be decided by reference to the purpose of parliamentary elections: ensuring that changes in public opinion were reflected in the opinions of the elected representatives. Too short an interval might impede political planning. On the basis of these considerations, an interval of five years between elections was ‘reasonable’” (see Timke v Germany [1996] E.H.L.R. 74). I am of the view therefore that s. 2 of the Act of 2003 does require that s. 39(2) of the Electoral Act, 1992 be “interpreted” and “applied” (the latter requirement being perhaps particularly relevant in this context) by reference to Article 3 of Protocol I to the Convention as requiring that a by-election be held within a reasonable time of the vacancy arsing. MOOTNESS I am of the view however that the Court should not resile from its own constitutional obligations by reference to a particular statement of intent made on a particular occasion by a spokesman on behalf of the Government. Circumstances might quite legitimately dictate a changed statement of intent and the court has no right to conduct any sort of watchdog role over events which call for consideration within the political arena. Just as the Court has no function to assess or evaluate statements made or reasons offered when the Dáil voted as it did on three previous occasions on this issue, it has no adjudicative role on any statement of intent in relation to future events either. Its function is confined purely within the narrow confines already outlined. FORM OF DECLARATION Has there in fact been unreasonable delay in moving the writ for the by-election in the Donegal South West constituency? The Dáil has a 5 year term and the unprecedented delay in this instance – the longest in the history of the State – represents a significant proportion of the term of the current Dáil. The Court notes that The Constitution Review Group in its Report in 1996 proposed (at p 49) that Article 16.7 of the Constitution be amended so as to require the holding of a by-election within 90 days of the vacancy occurring. Whatever else, this recommendation may be seen as affording recognition to the requirement that by-elections take place within a reasonable time of any vacancy arising. Other instances of appropriate time intervals in different countries which provide for by-elections in their electoral systems have been referred to elsewhere in this judgment. None is of the length that has occurred here. Even allowing for the wide margin of appreciation which must be afforded to the Government when moving the writ, not least for reasons which it has offered to the Dáil (and which are not for this Court to evaluate), I am satisfied that the delay in this case is so inordinate as to amount to a breach of the applicant’s constitutional rights to such a degree as to warrant the Court granting some form of relief. Far from the Court ‘tearing asunder’ the provisions of the Constitution by adjudicating upon this application, it is the ongoing failure to move the writ for this by-election since June 2009 which offends the terms and spirit of the Constitution and its framework for democratic representation. However, as this matter has not been the subject matter of detailed court analysis in the past, I do not propose to make a declaration of the wider sort contemplated or implicit - as a possibility at least - in the judgment of Geoghegan J in Dudley v An Taoiseach [1994] 1 I.L.R.M. 321, i.e., that the Government is obliged to set down and support the motion for the issue of a writ or at least not impede or oppose such a motion. I would hope, however, that any clarification provided by this judgment would have that effect. As Hamilton CJ stated in District Judge McMenamin v Ireland [1996] 3 IR 100 at 136:
However, for the reasons outlined above, the Court will simply make the declaration sought by the applicant to the effect that there has been unreasonable delay in moving the writ for the by-election in Donegal South West.
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