Opinion: there are significant restrictions on what the President can do, but the Constitution places very few restrictions on what the President might say
As summer draws to a close, so too does the window of opportunity for prospective presidential candidates to secure their place on the ballot paper: the deadline for nominations is September 26. But while the campaign proper has not yet begun, the jostling for position has occupied a leading role in the traditionally quiet summer news cycle. It seems that never have more people wanted to be President, with an array of contenders (some familiar, some less so) putting themselves forward.
Campaign promises have been piling up. Prospective candidates have pledged to bring about transparency, tackle homelessness and end corruption. They have indicated their support for major infrastructure projects such as a Luas in Connemara and a Derry to Kerry rail, road and broadband corridor. One contender has changed his name by deed poll and pledged to resign as soon as elected.
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As the manifestos circulate, political commentators have been tearing their hair out. Politicians making rash election promises is nothing new, but at least a Dáil candidate pledging to lower taxes, tackle crime or fix the health system has a theoretical prospect of being able to address these issues. A presidential election is a different matter. A President certainly has the power to resign immediately after taking office but, beyond that, many of the other highly-publicised promises made by prospective candidates simply go beyond the scope of the powers of the office.
The President of Ireland is the Head of State, not the Head of Government. Under the Constitution, the office-holder has a relatively modest range of functions to begin with. Moreover, according to Article 13.9, these powers and functions "shall be exercisable and performable by him only on the advice of the Government". In simple terms, the President must, for the most part, do what he or she is told. Indeed, Article 12.9 provides that the President may not even leave the State without the Government’s permission.
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Many of the President’s functions are automatic in nature. For example, the President appoints the Taoiseach, Government Ministers, and judges to office. But the Constitution compels the President to simply rubber-stamp the nominee put forward. The same applies to accepting the resignation of Ministers, or acceding to requests for the dissolution of the Dáil (provided the Taoiseach requesting the dissolution has the support of a majority - see below).
Bills must be signed by the President before they become law, but the president does not have a veto. Subject to some exceptions, Article 25 provides that Bills must be signed by the President between five and seven days after being passed, while constitutional amendments must be signed "forthwith". If a President were to refuse to sign a Bill as a protest against its contents, the function would be performed by a Presidential Commission under Article 14; and the President would potentially face impeachment proceedings under Article 12.
There are significant restrictions on what the President can do, but the Constitution places very few restrictions on what the President might say
Other functions are purely titular or ceremonial. The President is named the Supreme Commander of the Defence Forces, but enjoys no actual power over defence policy or military affairs (clearly matters for Government to decide on). Similarly, the President has the right of pardon and the power to commute sentences, but only on the advice of the Government; this power has only been exercised on five occasions (1940, 1943, 1992, 2015 and 2018).
Under Article 13.2, the President may, following consultation with Council of State, convene a meeting of either or both Houses of the Oireachtas. However, any message that the President wishes to communicate with the Oireachtas – whether at such a meeting or otherwise – must have received the approval of the Government (Article 13.7.3). The same applies to messages addressed to the Nation on matters of national or public importance.
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There are four functions in which the President has absolute discretion. First, before signing a Bill into law, the President may – following consultation with the Council of State – refer the Bill to the Supreme Court to test its constitutionality. This power has been exercised 15 times in total (most recently in 2005); eight of the referred Bills were found unconstitutional.
Second, where the Taoiseach has ceased to retain the support of a majority in the Dáil, the President has the discretion to refuse to dissolve the Dáil (so as to encourage the parties to try again to form a Government). This power has never been exercised, although there was much speculation that it might be exercised during the drawn-out coalition negotiation following the last General Election. In the event, Enda Kenny never made a request that might be refused. The only other occasion of note was 1987: as revealed in Garret Fitzgerald’s memoirs, President Hillery indicated that he would refuse a dissolution if one was requested. In the event, Fianna Fáil secured support for Charles Haughey and the issue never arose.
The ideal President would be visible in office and represent widely-held values, while remaining aloof from party politics and steering clear of the role of government
The other discretionary matters are the nomination of members to the Council of State, which advises the President on the exercise of certain functions, and a procedure under Article 27 which allows Bills to be referred to a referendum prior to being signed into law. The latter can only arise in highly specific circumstances: i.e. the Seanad fails to pass a Bill, which is then passed by Dáil resolution after 180 days, following which a majority of the members of Seanad Éireann and not less than one-third of the members of Dáil Éireann present a petition to the President. Unsurprisingly, these circumstances have never arisen to date.
Undoubtedly, then, there are significant restrictions on what the President can do. At the same time, and contrary to popular opinion, the Constitution places very few restrictions on what the President might say. It is a common feature of the Irish political scene for Presidents to be criticised for allegedly stepping outside their constitutional domain almost every time they express an opinion that touches on some aspect of economic or social policy. However, the only formal restrictions are in Article 13.7; namely, where the President makes a formal address to either the Oireachtas or the Nation on a matter of national importance, the address must first be approved by the Government.
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The leading text on Irish constitutional law observes that beyond the above, the law does not impose total silence on the President; and, moreover, that the President must be free to respond to criticisms of the manner in which he or she has exercised the powers and functions of the office. A similar point was made in a recent RTÉ Brainstorm article by Robert Elgie. But on the question of what is proper or seemly for the President to say, there is room for reasonable disagreement, and no hard and fast rules to guide us.
Few would dispute that Presidents should avoid coming into direct conflict with the Government or favouring one political party over another. But there is no such thing as complete neutrality: anyone who stands for President will stand for something, and will have expressed this during the campaign. How else can people decide which candidate to vote for? And why should the President abandon these views having been elected on the back of them?
On the question of what is proper for the President to say, there is room for reasonable disagreement, and no hard and fast rules to guide us
Taking all of this together, we can glean the following for the forthcoming presidential election. Whoever is elected President, he or she is not going to have the power to shape how we make our laws or spend our public monies. However, he or she will have some latitude to speak out on issues of importance, provided those speeches avoid conflicting with Government policy.
A President can highlight causes and inspire people, like Mary Robinson, or build bridges and mend fences, like Mary McAleese. The ideal President would be visible in office and represent widely-held values, while remaining aloof from party politics and steering clear of the role of government. This is a tricky balance and the focus of the coming campaign should be to test who is best qualified to strike it.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ