Ceremonial role by far most important for the President
Some 60 years have now elapsed since the Dail debates on the Constitution, its approval by plebiscite on July 1st, 1937, and its entry into force on December 27th, 1937.
In the light of contemporary experience, the most striking feature of those Dail debates was that the topic of the Presidency excited so much attention from the opposition benches. Some were concerned - prompted, doubtless, by the rise of Fascism in continental Europe during the previous years - that the office would be used as a Trojan horse by anti-democratic forces.
In modern times, quite different concerns have been expressed. What is the function of the office and what real powers (if any) does the President have?
O Buachalla, a 1916 veteran, to discharge the functions of the office in a perfectly anonymous fashion.
Following the abolition of the office of Governor-General Mr de Valera was determined to create a ceremonial office of a kind appropriate to a Republic to take the place of the Crown and the Governor-General. The President is thus described by Article 12.1 of the Constitution as the person "who shall take over all other persons in the State" and is given the purely ceremonial command of the Defence Forces.
The President also appoints the Taoiseach, Ministers, judges and the Comptroller and Auditor General on the nomination of (as the case may be) the Dail, Taoiseach and the Government and signs Bills into law. Although the Constitution expressly refrained from describing the President as Head of State, this was simply a concession to the British as we then retained membership of the Commonwealth. For all practical purposes, the President can now justly be described as the Head of State. As the Constitution Review Group (of which this writer was a member) observed:
"The President, freed from executive functions - and the divisiveness which political activity would necessarily entail - serves as a personification of the State. From the President the people seek a reflection of their highest values and aspirations. In return, the President takes precedence over all other persons in the State and is honoured in a style concordant with the republican character of the State . . ."
This ceremonial role is clearly the most important function of the modern Presidency.
However, the President is also given some important discretionary powers:
the right to refuse a dissolution of the Dail where the Taoiseach "has ceased to retain the support of a majority in Dail Eireann";
the right to refer Bills to the Supreme Court to test their constitutionality;
the right to refer Bills containing matters of national importance if a majority of the Seanad and one-third of the Dail present a joint petition to this effect;
the right to address the Houses of the Oireachtas and the Nation (the text of any such address must have received the prior approval of the Government);
the right to assist in resolving a conflict between the Dail and the Seanad regarding what constitutes a Money Bill;
and, finally, the President's assent is necessary to the abridgment of time for the consideration of a Bill by the Seanad.
Most of these powers have never been invoked and only the right to refer Bills to the Supreme Court has been exercised with any frequency (12 times in all). In the constitutional scheme of things, however, these powers all had a common theme: they were all instances where the exercise of political judgment and discretion by a neutral arbiter was called for.
In the case of the vital power to refuse a dissolution, it was obviously intended that the President should be empowered to prevent a Taoiseach who has lost the support of a majority of the Dail from forcing an unnecessary election upon the public or otherwise gaining an unfair political advantage. In other words, this power exists as part of the system of checks and balances provided for by the Constitution.
Up to now, the conventional wisdom was that it was inconceivable that the President would ever refuse a dissolution. Yet President Hyde seriously considered refusing a dissolution in 1944 when Mr de Valera had been defeated by a single vote on the Transport Bill and the former President, Mrs Robinson, has let it be known that she would have refused a dissolution in November 1994 had one been sought by the then Taoiseach.
What is interesting is that writing in 1945, Hyde's Secretary, Michael McDunphy, argued that Hyde ought to have refused a dissolution in 1944. In his view, in all probability all that would have happened is that de Valera would have gone back to the Dail and won a vote of confidence. The country would then have been spared an unnecessary election in time of war just 12 months after the earlier election.
Judged by these criteria and with the benefit of hindsight, President Hillery ought to have refused Dr FitzGerald a dissolution following his budget defeat in January 1982 and, more doubtfully, Mr Haughey in May 1989. The 1982 example is, perhaps, the clearest case. The defeat on the "children's shoes" budget had come about more or less through misadventure. Dr FitzGerald's government had been only seven months in office and, had a dissolution been refused, there is every reason to believe that either the Dail would have passed a slightly revised budget or, possibly, that the smaller parties and Independents would have combined to allow Mr Haughey be elected Taoiseach. In either case, the country might have been spared the election it did not need, as the political instability of 1982 severely undermined our capacity to cope with the major political problem of the 1980s, the public spending crisis.
The case for refusing a dissolution in May 1989 is less clear cut, but it is clearly arguable that as Mr Haughey sought the election shortly after a minor Dail defeat, the discretion to refuse arose, i.e. President Hillery could have concluded that Mr Haughey had lost the support of a majority in the Dail. If the President were to have taken that view, the case for refusing a dissolution was again quite strong. Mr Haughey's Government had performed extremely well in its two years of office and the country's interests would arguably have been better served by that Government seeking to complete its full term, rather than seeking an early and, in the eyes of many, an opportunistic election.
The power to refer Bills to the Supreme Court is one which is being exercised with increasing frequency, with seven of the 12 references having taken place within the last 16 years. Ideally, the power should only be exercised where there is either a real doubt about the constitutionality of a Bill where certainty is vital or, more exceptionally, where a radical measure with grave implications for civil liberties has been passed by both Houses.
A 1983 Bill to give votes to British citizens is the best example of the former type of case. This Bill was found to be unconstitutional by the Supreme Court and the 9th Amendment to the Constitution subsequently allows the Oireachtas to extend the franchise to foreigners in Dail elections. However, had the Bill been signed into law and was later found to be unconstitutional, the possibility of electoral chaos would have been a real one, so that it was desirable that the matter was authoritatively clarified before it ever passed into law.
President O Dalaigh's reference of the Emergency Powers Bill in 1976 is the best and perhaps only real example of the more exceptional case. Although the constitutionality of the Bill was upheld by the Supreme Court, it did so by reading important safeguards into its terms. In effect, both President and the court were saying to the Government "thus far, but no further!"
An interesting feature of the Article 26 procedure is that it gives the Supreme Court a sort of roving commission to examine all features of the entire Bill by reference to potentially hypothetical examples in circumstances where no evidence is before the court. This is in marked contrast to ordinary constitutional cases where the court confines itself narrowly to the facts of a given case and, generally speaking, to a single section of the Act under challenge. This important difference means that the chances of a Bill being found unconstitutional in an Article 26 reference are far higher than if it is challenged in the ordinary way.
Another important consideration is that this procedure is really only suited for legal argument, so that it is really inapposite whose validity could only be measured having heard technical, economic or scientific evidence.
Judged by these criteria, it is debatable whether President Robinson should have referred any of the four Bills which she did refer. It is true that the "legal certainty" argument weighed heavily in the case of the Matrimonial Homes Bill with its proposal for the mandatory joint ownership of the family home. The counter argument is that a socially desirable item of legislation was found to be unconstitutional by reference to an unlikely set of hypothetical facts. Indeed, had it passed into law, it is unlikely that the particular hypothetical couple envisaged by the Supreme Court would have stepped forward to argue that particular point.
The legal certainty argument was also strong in the case of the Abortion Information Bill. The Supreme Court's decision greatly clarified the law, but, again, it is arguable that it might have been better had the Act been tested in the ordinary way by reference to a given set of facts with the added advantage of such medical and scientific evidence as was necessary. The case for a reference in the case of the Employment Equality Bill and the Equal Status Bill was, perhaps, the less clear cut of all, although both Bills were found to be unconstitutional by the Supreme Court. Both measures contained highly complex and diverse types of regulations of the kind for which the procedure is not best suited.
We may thus conclude that the ceremonial role of the President is by far the most important one in practice. However, some of the independent powers conferred by the Constitution are of potential importance, so that the choice of candidate is of significance. While the suggestion that the candidate should have prior political or even legal experience is quite unsound, what is essential is that the President should have the capacity to listen to advice and then to exercise independent judgment in the manner envisaged by the Constitution.
Dr Gerard Hogan is a lecturer in law at Trinity College, Dublin.