The plethora of potential presidential candidates striving to win a nomination on campaigning issues raises a profound constitutional issue: what if someone is elected to the highest office in the land with a popular mandate to oppose Government policy?
It was this eventuality that caused most concern during the Dáil debate on Éamon de Valera’s new Constitution in 1937 with John A Costello, one of the most eminent lawyers in the land and a future taoiseach, expressing anxiety about a potential clash.
He argued that the president “can claim the same authority for his actions, legal or illegal, as the Government of the day can for their actions. The source of both their authorities is the vote of the people”.
Costello went on to say that in the event of a clash, the president would be able “to resort to highfalutin talk about his being the guardian of the constitutional rights and liberties of the people ... and the direct appointee of the plain people”.
To date, Costello’s apprehensions have not come to pass, although there have been a few rocky moments. In 1990, Mary Robinson was elected on a platform advocating a greater role for the president in political life. She said in a Hot Press interview that she would be able to look then taoiseach Charles Haughey in the eye and tell him to “back off”.
Once elected, Robinson did push the boundaries of the office, but never to breaking point. When Haughey refused her permission to travel to London to deliver the prestigious Dimbleby lecture on the BBC in 1991, she was fuming but had to accept the decision. She also had to grin and bear it when then tánaiste Dick Spring denied her permission to attend a special conference on Ireland’s future in Washington in 1995.
Mind you, she did defy Spring and his officials in Iveagh House by shaking hands with Gerry Adams in Belfast in 1994, but she had the tacit approval of the then taoiseach Albert Reynolds for her initiative, which was symbolically important in paving the way for the IRA ceasefire.
President Michael D Higgins has used his office to deliver speeches critical of Government policy on a number of fronts, but he has never engaged in an open clash, and during his 14 years in the office has referred just one bill to the Supreme Court.
The presidency is an extremely important, but largely symbolic institution. Under the Constitution, the president’s power to intervene in political life is limited to two basic powers. Under Article 13 he or she can refuse a request to dissolve the Dáil from a taoiseach who has lost their majority.
This has never happened, although Haughey, as Opposition leader, put pressure on then president Patrick Hillery to refuse a dissolution to Garret FitzGerald in 1982 when the budget was defeated in the Dáil. The president rejected the request.
When de Valera lost a Dáil vote in 1944 and sought a dissolution, the country’s first president Douglas Hyde told his top official Michael McDunphy: “I must refuse, the country does not want a general election.” McDunphy persuaded him to back down at the last moment and Dev called an election.
The issue emerged in more recent times when Albert Reynolds lost a motion of confidence in 1994. The Government changed hands with John Bruton becoming taoiseach without an election. Reynolds was apprehensive that Robinson would invoke her right to refuse a dissolution.
A presidential power that has been used on a regular basis is the right to refer a bill to the Supreme Court. This has happened on 16 occasions, with seven bills being found unconstitutional.
It resulted in a political crisis in 1976 when then president Cearbhall Ó Dálaigh referred an emergency powers bill to the Supreme Court, despite clear advice from the Council of State that the legislation was not unconstitutional.
In the fraught atmosphere, following the assassination of the British Ambassador Christopher Ewart Biggs in south Co Dublin, the Minister for Defence Paddy Donegan called the president “a thundering disgrace” and Ó Dálaigh resigned from his office.
[ Inside Catherine Connolly’s presidential election campaignOpens in new window ]
Still, the question is what might happen if a president is elected on a platform promising to oppose a specific Government policy. For instance, Catherine Connolly has been highly critical of the Government’s decision to remove the triple lock, which gives the UN Security Council a veto over the deployment of Irish Defence Force personnel on peacekeeping missions.
The legislation to remove the triple lock will not come before the Dáil until late autumn or, more likely, next spring. If Connolly was to be elected president in the meantime on a platform of opposition to the legislation, it could make for an interesting standoff.
While she would be perfectly entitled to refer the Bill to the Supreme Court, she would not have the authority to refuse to sign it, as happens in some other democratic states like Poland and the Czech Republic where the head of state does have a veto on legislation.
In Ireland, a president who refused to sign a Bill would be in clear breach of the Constitution and the only course would be impeachment under Article 12. That situation has never arisen in the past, but there is always a first time.
