PRESIDENTIAL CANDIDATES who find themselves tempted to waive a copy of the Constitution as a prop might reflect on the fact that it performs an emasculating function on those who aspire to our nation’s highest office. Part of the problem is the lack of internal consistency in the Constitution itself which, having established a role envisaged to be non-political, bestows an effective monopoly over the nominations’ process on political parties through their dominance of the Oireachtas and county councils.
Even when seven candidates successfully struggle through the Byzantine nomination procedure, they are forced to articulate a vision for a position that is deliberately stripped of any meaningful role by a Constitution that mandates that their functions be carried out “on the advice of the government”, a polite form of words that ensures that presidents do precisely what they are told.
Leaving aside the various ceremonial powers, the president only has three discretionary powers of any significance, two of which arguably do more harm than good.
First the president “in his absolute discretion” can refuse a dissolution to a taoiseach who has ceased to have a majority in the Dáil. The power has never been used; hardly surprising in a country where most politicians are so keen to cling to power that they would only seek a dissolution in the most hopeless of circumstances.
Exercising the discretion, perhaps because there is a potentially viable alternative government available, obliges the president to engage in political consultations inappropriate for a head of state. The very existence of such a political power led to improper pressure being placed on the president in 1982 when an unsuccessful attempt was made to persuade then president Patrick Hillery to refuse Garret FitzGerald a dissolution.
The second discretionary power is the article 26 procedure whereby a Bill can be referred to the Supreme Court to determine its constitutionality. Quite why such a power is needed is a mystery. After all, if the Oireachtas is careless enough to pass legislation that is unconstitutional, the relevant sections will be challenged very quickly by eager lawyers who could never be accused of being slow to litigate.
The potentially harmful aspect of article 26 is the permanent immunity from future constitutional challenge that is bestowed on any Bill passed by the Supreme Court, regardless of future difficulties being thrown up when the legislation is applied to real life situations that could never have been envisaged at the time of the original reference.
A prudent president might take a policy decision never to refer any Bill to the court.
The final power is the right to address both Houses of the Oireachtas or the nation. Although this power has never been the subject of controversy, the fact that any such address must receive the prior “approval of the government” robs it of any significant content.
So what can be done? Assuming the presidency remains above politics, then why not allow candidate nomination through the collection of a certain number of signatures ?
While article 13.10 permits the conferring of additional powers and functions on the president, the instinctive desire of politicians to concentrate power in their own hands and the genuine difficulties of finding any useful body of work that does not involve policy or expenditure decisions make any meaningful expansion of the role unlikely.
At a minimum, taxpayers who will fund the office to the tune of over €20 million over seven years are entitled to greater transparency achievable through the removal of the president’s exemption from the Freedom of Information Act. As things stand, our seven candidates might yet see the wisdom in the observation of Douglas Adams that “Anyone who is capable of getting themselves made president should on no account be allowed to do the job.”
James McDermott is a lecturer in the UCD school of law and a practising barrister