OPINION:It was never intended for the president to act as a more effective opposition leader
In an interview in The Irish Times marking his first anniversary in office, President Michael D Higgins suggested he would like to push out the boundaries of his office.
He made good on his threat this week in Liverpool when he intervened in the row over the inquiry into the death of Savita Halappanavar, saying that it must meet the needs of her family as well as those of the State.
Beyond this question, the contentious issue of abortion is visible.
Put simply, the point is not whether one agrees (as I do) with the President’s view that the inquiry that has been set up is inadequate. Rather, the issue is whether he went beyond his proper authority.
No one expects the elected president to confine himself to smiling regally as he receives ambassadors. There are large areas in which he may take an initiative.
One thinks of Mary Robinson’s visit in 1992 to famine-stricken Somalia and thereafter her visit to report her findings to the United Nations – an attempt to move the conscience of the world.
While the minister for foreign affairs accompanied her, there is no doubt that the initiative for the visit came from the president.
Another example is Mary McAleese taking Holy Communion in an Anglican church.
Refrain from criticism
But it is reasonable to expect, when the government has reached a decision or established a policy, that the president should refrain from criticising it in public.
And this principle would naturally extend beyond the government to a public body like the Health Service Executive.
Incidentally, the principle would apply especially when the president is speaking abroad, where people will usually not be well informed as to who is who in official Ireland.
Contemplating a bolder president, Prof Diarmaid Ferriter wrote in The Irish Times recently:
“The Labour Party, due to its role in Government has been neutered as a left-wing force and the supposedly radical opposition in the Dáil is splintered.
“There is indeed space for President Higgins to push out the boundaries.”
But unlike, for example, the courts, the president does not have a general role of keeping the government or public bodies such as the HSE in check.
Rather, the president is supposed, as head of state, to personify the State and act as a focus of unity for all citizens, not just those who voted against the government.
Certainly, it was never intended for the president to act, as Prof Ferriter seems to imply, as a more effective leader of the opposition.
In short, it is hard to see how a president is fulfilling the purpose of the office if he is courting an open split with the government of the day, or even some members of it.
The major public split between a president and government arose in 1976 from the “thundering disgrace” remark made by the then minister for defence to criticise president Cearbhall Ó Dálaigh for referring the Emergency Powers Bill to the Supreme Court.
The outcome was that the president resigned. This sort of episode is in no one’s interest.
Small number of powers
There is a further point. Apart from the ceremonial role, the president has a small number of powers that are exercised independently of the government.
The two most important of these are the powers to refer a Bill to the Supreme Court for its constitutionality to be tested; and to refuse a dissolution – and the possibility of winning an ensuing election – to a taoiseach who has lost the support of his majority in the Dáil.
In exercising these functions, the president is supported by the confidence of politicians and people that he is “above politics”.
This confidence makes it more likely that his or her decisions will be accepted by politicians and people.
But as a hypothetical example, what if there was a crumbling of support for a government and the taoiseach, having lost his majority, advised a dissolution of the Dáil, with an ensuing election that would give the taoiseach the chance of being returned to office?
If this advice was refused by a president who was perceived as being against the government, maybe for its right-wing policies, might not such a government feel that it had not been treated fairly?
Might an equivalent example occur if legislation dealing with abortion was, or indeed was not, referred to the Supreme Court, by a president who was perceived as having strong views on the issue?
David Gwynn Morgan is emeritus professor of law at University College Cork