The presidency: Damn all done, more to do

In terms of the only two independent powers the president has, one is a mess, and should probably never be used; as to the other, it is not entirely clear what that power is. By Vincent Browne.

Over the next two months, we will be told by those who like to think of themselves as our leaders about how important the role of the presidency is and how vital it is to fill that office with somebody of outstanding talents and capabilities.

These same leaders have done nothing at all over almost 30 years during which constitutional provisions to do with the presidency have been identified as problematic. But who cares?

As everyone now knows, the president has only two powers under the Constitution.

And there are problems with both these powers, problems we have known about for decades, problems that have been ignored for decades.

The first has to do with the power the president has to refer Bills to the Supreme Court before signing them into law, to test the constitutionality of those Bills (article 26).

In February 1982 the Supreme Court clearly identified problems with this, when a Bill to do with private rented dwelling was referred to it by the then president, Patrick Hillery. Coincidentally the chief justice at the time had been a presidential candidate twice, Tom O’Higgins, and it was he who delivered the judgment of the court, which identified serious problems with this article 26 reference business.

One problem was that even when the Supreme Court found one section of a Bill unconstitutional, there could be no presumption that the rest of the Bill was okay. He said: “The authors of a Bill may therefore find the court’s decision less illuminating than they would wish it to be.”

Another problem was that in deciding on the constitutionality of a Bill the Supreme Court had to deal with the Bill in the abstract, not knowing in concrete terms what social, economic, fiscal or other consequences the Bill might have. And the problem with this is that once the Supreme Court finds a Bill to be constitutional under article 26, it can never again be challenged constitutionally, no matter how bizarre the consequences turn out to be. There is a further difficulty that when a lengthy, complex Bill is referred to the court under article 26, the court is expected to go through every section and subsection of the Bill, to determine whether any section or subsection is unconstitutional, which is a mammoth and, in practice, unmanageable task.

Given all this, there is a strong case for arguing that the president should never refer a Bill to the Supreme Court.

The other independent power a president has is to refuse to dissolve the Dáil on the advice of a taoiseach who has lost the confidence of a majority of the Dáil. The problem with this is: how is a president to know when a taoiseach has lost the confidence of the Dáil, unless there is a clear vote of no confidence passed by the Dáil on the taoiseach, an event that has rarely happened? In January 1982, Garret FitzGerald’s government was defeated in a vote on a budgetary provision, which is interpreted as a vote of no confidence in the government. But is it?

If politically it is obvious that a taoiseach has lost the confidence of a majority of the Dáil, as happened with Albert Reynolds in November 1994, but no vote of no confidence has been passed by the Dáil, what then? Had Albert Reynolds gone to the president and advised her to dissolve the Dáil before a vote of no confidence was passed, would the president have been obliged to heed that advice?

We all know in 1994 there was a problem constitutionally about this but, again, nothing was done to sort it out.

So, in relation to the only two independent powers a president has, one of them is such a mess that almost certainly it should never be exercised and with regard to the other it is not clear what the power is.

There are other absurdities also. For instance, it is not entirely unlikely that this time around or sometime soon a president-elect might be an atheist. And yet the Constitution requires a president-elect to swear by Almighty God to maintain the Constitution. What if the president-elect does not want to swear by Almighty God?

There is the issue of the president’s freedom of speech. Arguably, unlike everyone else in the country, the president, who the Constitution says “shall take precedence over all other persons in the State”, does not enjoy freedom of speech because the president has to act (and speak) on all matters, except on the two issues referred to above, only on the advice of the government.

Also, alone of all citizens, the president must obtain the permission of the government to leave the State (this was refused in 1991 when Charlie Haughey’s government refused Mary Robinson permission to go to London, where she was to deliver a lecture on the BBC).

We have known for decades that the mechanism for people becoming presidential candidates is absurd. Over 10 years ago an Oireachtas committee proposed that the mechanism be changed to include a provision whereby 10,000 electors could nominate a candidate. Again, nothing done.

As with so much else, with the presidency: damn all done, a lot to do.

Image top: René Slaats.