President is free to express more than platitudes

 

OPINION:Higgins’s remarks on the Halappanavar inquiry were not inappropriate

The Irish presidency is an eccentric and ambiguous institution.

Paradoxically, while it is the only public office directly elected by the people – thus endowing it with some legitimacy and prestige – it is a non-executive, largely ceremonial role with few formal powers. Despite their electoral endorsement, it is thought presidents must rise “above politics” and remain “neutral” in public affairs.

This contradiction surfaced most notably during Mary Robinson’s presidency, as her avowed ambition of expanding the conventional boundaries of the office led to tensions with the Haughey government.

Once again we have a distinctively activist president, aiming to project a particular set of political values. This has provoked resistance. David Gwynn Morgan (Opinion Analysis, November 23rd) criticises President Higgins’s comments on the Savita Halappanavar inquiry as an inappropriate intervention in the realm of policy and “politics”. However, he overstates not only the significance of what the President said, but also the broader constitutional requirement of presidential “neutrality”. To paraphrase, the President told reporters that any inquiry on Savita Halappanavar’s death would have to meet the “needs of her family as well as those of the State”. He did not express any preference as to the composition of the inquiry, nor did this rather general statement contradict any Government policy or decision as such.

To suggest an inquiry into a tragic death should meet the needs of the deceased’s family is precisely the sort of consensual, almost banal intervention we expect of our presidents: the sort of statement that appeals to a broad moral consensus yet still gives policy specifics a wide berth. It is not all that different from a president suggesting that “the scourge of suicide must be tackled”, or that “national recovery requires a great communal effort”.

Yet beyond this example, it simply isn’t true that the Constitution confines the president to discursive platitudes – to saying nothing that might be interpreted as inconsistent with the policies of the government.

There is some constitutional basis for the view that the president is bound to “neutrality” in public affairs, but it is vastly overstated. Under the Constitution, any “message” the president addresses to the nation must be approved by government, but since the Council of State must also be convened for consultation on any such message, this indicates the government’s veto on presidential speech is limited to formal addresses – such as those via radio or television.

Arguably, there is no such restriction on the president’s public utterances generally – it would be impracticable for the government to review every item of presidential speech.

Thus our presidents enjoy some constitutional freedom in the values and principles they project. It is well within the presidential ambit to formulate a sense of national values and to articulate broad matters of national concern. While the president’s formal powers must be exercised on the Government’s advice unless otherwise stated in the Constitution, this stricture does not apply to mere presidential speech – to the “soft power” the president deploys through public narrative. Certainly, the presidency is envisaged as transcending party politics, but it is unrealistic to suggest the president’s speech can ever be truly apolitical in the sense of being somehow bereft of political value or distinctiveness. “Neutrality” is so often an illusory concept. It is no more “neutral” for a president to parrot the received wisdom of the day – or the agenda of the sitting government – than it is for Michael D Higgins to interrogate neoliberal economic theories and their corrosive effect on the common good. Even an inane president could never be meaningfully neutral.

“Neutrality”, in any case, is typically the handmaiden of an insidious ideological status quo. Some would prefer the presidency to represent an uncritical mouthpiece of conservative doctrines. Whatever the merits of this stance, it should not be clothed in “constitutional” authority.

Arguably, Gwynn Morgan is wrong even to suggest that the Constitution seeks to avoid any potential conflict between government and president.

For example, it envisages that the president might refuse the request of a taoiseach who has lost the support of the Dáil to call a general election. This clearly contemplates a president standing firm against a sitting government in the national interest. More pertinently, the idea that the presidential narrative must not, constitutionally, even tacitly depart from the values of the sitting Government is simply a received wisdom.

Mary Robinson, an astute lawyer, was correct in asserting that the constitutional text could facilitate a more activist interpretation of the role. We are bound by the Constitution, but not by the constitutional truisms – the political conventions – that were built up around the presidential role.


Eoin Daly lectures in constitutional law at UCD

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