Head over to our T
Cowen’s Constitutional
Read more about: Uncategorized 
Via Maman Poulet, a very interesting piece on the constitutional aspect of Brian Cowen’s resignation as leader of Fianna Fail this weekend. Dr Paul Daly’s guest post on the HRI blog has a very intersting take on the constitutional implications of Cowen’s resignation.
Catching the eye of myself and of very illustrious commenters is the claim that
This is all quite messy so far, but it gets worse. Mr. Cowen has suggested that he will consult with members of his party before deciding to run himself in the General Election, but the Constitution actually suggests that neither he nor even his constituents have any choice in the matter. As I demonstrated above, Mr. Cowen must remain as Taoiseach until a successor is elected by a majority of the Dáil. But Article 28.7.1° provides that the Taoiseach, as well as the Tánaiste and Minister for Finance “must be members of Dáil Éireann”.
If Mr. Cowen were to decide not to run, or if he were not re-elected by his constituents, this would surely lead to a constitutional crisis: the Constitution would on the one hand suggest that he has to remain as Taoiseach, but would on the other hand suggest that he cannot hold the office as Taoiseach. The same difficulty does not arise with respect to the Tánaiste and Minister for Finance, because members of the Dáil can be appointed to those positions.
But how about this:
28.11.2° 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.
Doesn’t this mean Cowen will still be Taoiseach even if he isn’t re-elected or doesn’t run, until such time as a successor is elected?
Sorry – in other words, 28.7.1° refers to the appointment/election of a Taoiseach (he/she cannot be a member of the Seanad), 28.11.2° refers to the protocol governing the interregnum between the dissolution of a Dáil and the appointment of the new cabinet.
Ruairi,
Spot on. There have been several examples in the past of Ministers and Tanaiste remaining in office until a new government is formed – such as McDowell as Minister for Justice in the post 2007 GE interregnum period – even where they didn’t contest the GE or lost their respective seats. The Cowen’s constitutionality thesis is entirely bogus.