Dana must accept limits of president's powers

When I was 8 years old, in 1997, my knowledge of the Constitution of Ireland was, for reasons one can well imagine, rather ropey. Fourteen years later, Dana Rosemary Scallon's affection for the supreme law of the state, and professed earnestness to protect it, is belied by an inattention not just to finer detail but any detail at all. Given that she attempted a run for the presidency in 1997, 2004 and now in 2011, what is her excuse?

Here is what I have learned in the course of 14 years: when a state, any state, enters into a solemn treaty it cannot do so by halves. There can be no derogations and no opt-outs unless the treaty itself explicitly accounts for them.

Thus it was that in 1973, in the 3rd Amendment to the Constitution [Accession to the European Communities], that Art. 29.4.3 - since renumerated 29.4.6 and updated (by the 28th amendment to the Constitution following the Lisbon Treaty referendum) - states as follows:


"No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by — (i) the said European Union or the European Atomic Energy Community, or institutions thereof, (ii) the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or institutions thereof, or (iii) bodies competent under the treaties referred to in this section, from having the force of law in the State."

There are two possibilities here: Dana is disingenuous and knows full well that her role would be just so circumscribed and is beating on a Eurosceptic drum to get votes; or Dana genuinely does not even realise the existence of Article 29 – International Relations. In the event, referral under Article 26 (to test for constitutionality) of any bill of the Oireachtas designed to transpose EU Law into Irish law would be nothing more than an extravagant waste of the Supreme Court's time.

Furthermore, referenda, along with money bills, are explicitly exempt from Article 26 referral. Any future EU treaty referendum cannot be cut off at the pass by Áras an Uachtaráin. That goes too for any referendum to delete or modify the pro-life language of Art. 40.3.3. Neither can the President - if they wish to respect protocol - campaign independently of government for a 'No' to any future EU treaty ratification. The sum total of Dana's ability to achieve anything in this regard, then, is zero.

Dana, if she is to be taken at face value, has the potential to generate a constitutional crisis. Presumably, if faced with a bill to hold certain types of referenda, and with Article 26 unavailable to her, she would be conscience bound to not even let the Irish electorate have the possibility of falling into error by approving another EU treaty or legalising abortion. In law, she must sign such bills or resign. But what if Dana, arrogating to herself a hitherto unmentioned competence (as revealed to Pat Kenny on Monday 11 October) assesses that the politicians have “betrayed the will of the Irish people” and refuses to sign and stays put?

An appalling vista then looms of high farce – the state's first impeachment of a President, under the terms of Article 12, for 'stated misbehaviour' (a phrase calculated to permit wide grounds for indicting the head of state). Dana would probably remain in situ for the duration of an Oireachtas impeachment trial, and who knows how long that would take (given the spectacle of the Oireachtas's abortive impeachment of Circuit Court Judge Brian Curtin in 2004), with the inevitable verdict casting a pall over the country's highest ceremonial, office.

It may all seem academic given how Dana languishes in the opinion polls but outlining her constitutional quandary might serve to make sure it stays that way.