Constitution gap could lead to parliamentary deadlock

 

It has proved necessary before for the president to become actively, if informally, engaged in the election of a new taoiseach

THE POLITICAL situation created by the withdrawal of support for the Government by the Green Party and two Independents, at a time when the Taoiseach’s leadership of Fianna Fáil is under challenge and when we are in the midst of a major financial crisis, creates a situation without precedent.

It is one for which our Constitution makes no provision and which was not considered by the All-Party Committee on the Constitution in its April 1997 report dealing with this aspect of our political system.

Our Constitution is very unusual for a parliamentary democracy in that it makes no provision for the head of state to play any role in the selection of a taoiseach.

I think this derives from our first constitution of 1922 which, despite British opposition, successfully excluded the king as head of state, or his governor-general from any role in the actual selection of head of government – leaving this matter entirely to the Oireachtas.

In 1997, the Constitution review committee recommended that the exclusion of the president from this area should be maintained, claiming that this was necessary to preserve the president’s political neutrality.

This was, of course, illusory because, as I had revealed in my autobiography six years before the commission reported on this issue, it had proved necessary in 1987 for the president to become actively, if informally, engaged in the election of a new taoiseach.

This was with a view to avoiding the danger in the potentially hung Dáil that had just been elected that Tony Gregory might (as he had told four Fine Gael backbenchers he would do) vote against both myself and Charles Haughey, thus leaving the State without a government.

I was conscious that, however personally distasteful it might be to assist in Haughey’s election, nevertheless my principal duty at that moment was to ensure that if, as seemed to be the case, Haughey was the only person likely to be able to secure some kind of majority in the Dáil, my duty to the State was to facilitate the formation of a government led by him rather than leave the State without any government.

Discussing this problem with president Patrick Hillery, he proposed that I prepare two speeches for the Dáil, one to be used if Haughey were elected, announcing that I was going to offer my resignation to the president, and the other to be used if, after my defeat, Haughey were also to be defeated, announcing that I was going to the president to discuss the deadlock.

President Hillery proposed that while I would have to resign following my defeat, I should under no circumstance seek a further dissolution of the Dáil but, as caretaker taoiseach, should go back there to endeavour, by knocking heads together, to get a resolution of such a deadlock. If that failed, I was to return to him and he would then publicly instruct me to make a further effort – which we hoped would succeed.

In the event, Gregory decided to abstain rather than vote against Haughey. As I had thought likely, but not certainly, his ploy had been designed to persuade Fine Gael to let Haughey in without opposition, so that he could then safely vote against him.

With all that on the record since 1991, I fail to understand how that Dáil committee managed to convince itself that by failing to address this issue it would be protecting the president from involvement in politics.

The present situation could leave a post- election scenario open to spoiling tactics by Independents or by a small party seeking to blackmail larger parties to meet its wishes. However, it may be said this hardly arises on this occasion, given the scale of the majority that the two main Opposition parties are likely to secure in the impending election.

That is true – but this problem could arise before we ever get to an election. Fianna Fáil seems likely to want to change its leader before the election – and if it decided to do so, and if Brian Cowen were then to resign as Taoiseach in favour of the new Fianna Fáil leader, that new leader would now probably be unable to secure a majority in the Dáil.

This could then lead, as in 1994, to a change of government in advance of an election – but it could also lead to a deadlock if Independents, or a small party, were to seek to use this situation to blackmail the two main Opposition parties into meeting demands they might put forward.

The failure of the Constitution committee to tackle this dangerous lacuna in our Constitution has, I believe, been a serious mistake.

Almost 90 years after the foundation of our State, the understandable wish of our first and second governments to exclude George V, and later George VI, from any effective role in our domestic affairs, still casts a curious shadow over our politics and may now even inhibit Fianna Fáil from changing its leader in advance of the election.


Garret FitzGerald was taoiseach from July 1981 to February 1982 and from December 1982 to July 1987.

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