By Michael Gallagher

The question of a presidential attempt to refer, delay, or even veto bills that he or she does not like has surfaced a couple of times during the campaign so far. First, Mary Davis seemed to suggest that she would not rule out referring a budget to the Supreme Court for a decision on its constitutionality, and then, in the Late Late debate on 30 September, Dana Rosemary Scallon declared that she would refuse to sign a bill that she felt threatened the constitution.

The constitution does not, of course, use any such term as veto. It states that the president, by his or her signature, ‘shall promulgate every law made by the Oireachtas’ (Article 13.3.2). The president may refer a bill to the Supreme Court for a decision on its constitutionality (Article 26), but two categories of bill are excluded from the scope of Article 26: money bills (the budget) and bills containing a proposal to amend the constitution. Hence the quick response to Mary Davis’s remark: commentators were as one in stating that this question cannot arise as the president is expressly precluded from referring a budget to the Supreme Court.

Nonetheless, this raises the intriguing question: suppose, notwithstanding the words of Article 26, a president did decide to refer a money bill to the Supreme Court, or simply refused to sign a bill to which he or she strongly objected? No such situation has ever arisen, but the breadth of the range of candidates in the 2011 election means that it cannot be ruled out. Only two of the 7 candidates, Michael D Higgins and Gay Mitchell, are thoroughly experienced in the way the major political institutions work and, presumably, socialised into acceptance of the conventions that now apply to the office; the others may not be so ready to accept the constraints that the political and legal establishment believe attach to the office. The forthcoming budget, which we already know will entail large spending cuts and tax increases, will be opposed by some or all of the opposition parties and by many voters. What would happen if President McGuinness or President Norris, for example, declared that he would not sign the Finance Bill into law, or President Scallon refused to sign a bill that clashed with her values?

Any attempt to refer a budget to the Supreme Court would create a complicated situation. Is the Supreme Court obliged to consider the constitutionality of every bill referred to it by the president, or is it entitled, perhaps at the prompting of the government, to ‘look behind’ a referral and decline jurisdiction on the ground that the referral itself was invalid? Only the Supreme Court can provide the answer to this.

If that were sorted out, there would still be the difficulty of a president who simply refused to sign a bill into law. According to both the letter of the constitution and established practice, this simply couldn’t happen, and both the government and constitutional commentators would immediately point this out. The hypothetical president might say, though, that he or she believes that they are answerable to the Irish people of 2011, who elected them directly, and not to the letter of a constitution written in 1937 by the proverbial dead white males who could not have envisaged the economic crisis of 2011. They might justify their stance by claiming to be guided by the ‘directive principles’ listed in Article 45 of the constitution, such as Article 45.4.1°:

“The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged.”

The preamble to Article 45 says that these principles ‘are intended for the general guidance of the Oireachtas’, and, after all, the president is part of the Oireachtas (Article 15.1.2). The president, then, might defend his or her behaviour by denying that he or she is in any way disrespecting the constitution but might claim, rather, to be acting in accordance with its spirit in refusing to sign into law a budget imposing severe spending cuts and in demanding that parliament produce what he or she regards as a less harsh or simply a fairer budget.

The constitution has three means of dealing with a president who ‘goes rogue’. These are securing a declaration from the Supreme Court that the president is ‘incapacitated’ (Article 12.3.1), appointing a presidential commission to fill the void created by the president’s ‘failure to exercise and perform the powers and functions of the office or any of them’ (Article 14.1), or impeachment (Article 12.10).

None of these would be a straightforward process. The first would hardly be applicable, as we are hypothesising a president in full control of his or her capacities. The second would be a fraught process as the president would obviously resist his or her attempted displacement. It is unclear who could resolve this, and indeed the constitution seems to contain something approaching a contradiction, conferring on the Supreme Court the decision as to whether a president is ‘incapacitated’ (12.3.1) while at the same time asserting that the president is not answerable to any court for any of his or her actions (13.8.1). Matters are complicated by the fact that the Chief Justice would be a member of the presidential commission that sought to take over the president’s powers.

The impeachment process is at least more clear cut and has the advantage that the matter is resolved entirely at the political level without involvement by the courts. The bar to securing an impeachment is very high. Essentially, it entails two-thirds of the members of one House preferring a charge of ‘misbehaviour’ against the president, and two-thirds of the members of the other House declaring that the charge has been sustained (article 12.10). Note that this is not a requirement just for a two-thirds majority among those voting but that two-thirds of the total membership must vote for the motions: that is, 111 TDs and 40 senators. As it happens, the current government, uniquely in the history of the state, has two-thirds of TDs in the ranks of his supporters, but the large number of independents among the Taoiseach’s 11 nominees to the Seanad means that the support of 40 senators could certainly not be taken for granted.

The Constitution Review Group, discussing the question of being more precise and detailed in specifying the powers of and constraints upon the president, declared in its 1996 report that this was unnecessary and undesirable, as ‘Matters of this kind are best left to the wisdom and sense of propriety of those entrusted with high public office’ (p. 27). What happens when a president’s conception of wisdom and propriety comes into conflict with that of the government may yet, depending on the result of the forthcoming election, be tested.