The role of the President

By Jane Suiter

The Irish Times today editorialises on the role of the Presidency.  It raises the issues of an expansion of powers of the presidency pointing out that the “President has clear constitutional obligations and duties, few independent functions and can act only on the advice of the government. In 1973, Erskine Childers, in announcing his candidature for the Presidency, made it clear that he wished to expand “the dimension and character” of the office. However his sudden death after two years in office, and the lack of enthusiasm shown by the government for a more independent minded President, meant little progress was made towards that goal”. This is still the case.

There is also the issue of nominations which as we know are limited to 20 Oireachtas members or  four county councils, ought to there also be a plebiscite option or other nomination method?

The current government has also said it wishes to see the term of the Presidency decreased which many would argue is not real reform and has also mooted the idea of allowing the Diaspora to vote in the election, which may be welcome. But is it worth considering reforms which would maintain the status of the Presidency yet allow for increased executive oversight or other function?

16 thoughts on “The role of the President

  1. We need more thorough-going checks and balances on the powerful. This is the context in which we should consider changing the existing limited powers and role, if at all, the directly elected Head of State.

    Given that our political, administrative and financial elite have failed to maintain the independence needed to provide a sustainable standard of living for all who wish to live and work here, the real issue is how to structure the power of the state which we own.

    Talking about the Presidency, on its own, is a diversion from the real issues of political and institutional reform.

    • @Donal of course reforming the role of the Presidency is no panacea, I am simply wondering if people believe there is a case to be made to reform teh role as part of a wider package of reforms.

  2. Reducing the Presidential term is really tokenistic stuff!

    Would be in favour of a modest expansion in the office’s powers, but only if the nomination process first was made a lot less restrictive, with less Oireachtas required for a nomination, and nomination also possible via a petition from a specified number of voters. Should not just be a play-thing of the main political parties, if we’re going to have the office at all.

    There are several parliamentary democracies where, even though the role is broadly above party politics and supposed to act as a guardian of the constitution, the role is nevertheless endowed with some non-trivial powers.

    We saw this in Iceland in recent times. The Icelandic president can actually refuse to sign a bill. It still provisionally comes into law, but must be put to a referendum as soon as is practical, and the referendum can then nullify the law. First time this provision was ever used. The Finnish President has the ability to apply a suspensive veto on legislation. Can refuse to sign a bill. Eventually, after a certain time period, the parliament
    can vote again and override the veto. But gives their president the ability to ask legislation to be reconsidered.

    In theory, article 27 of our own constitution contains something vaguely along these lines, even if a lot more restrictive: a majority of senators and 1/3 of TDs can petition the President to send a bill of upmost national importance to a binding referendum. The current structure of the Seanad means it is something of a non-provision. It will be very interesting to see what any Seanad abolition referendum does with this article 27 legislative referendum provision. Could be an opportunity to turn this mechanism into something meaningful and usable. Particularly, if Seanad abolition succeeds, there’s a strong argument that, at least in the most exceptional of circumstances, a brake or halt could be put on legislation, and perhaps a referendum forced.

    The Finnish and Icelandic Presidents also have a stronger role in terms of appointments to certain non-political roles. Typically, the Finnish President goes along with government recommendations, but doesn’t have to and indeed sometimes doesn’t. I think there’s a certain argument that for appointments in our regulatory/criminal justice system (for positions that are supposed to be above politics like the judiciary, public prosecutor, regulators and police) our President should have a real, not merely rubber-stamping, role. These positions should not only be independent from party politics, but seen to be so! Am not entirely comfortable with government control over mid to upper rank Garda promotions, for example.

    And appointments here to the judiciary used to be made in a fairly partisan party political manner. The establishment of the Judicial Appointments Advisory Board at least gave the veneer of independence to the process. But its advice can be ignored. And for a judicial position it recommends a full seven potential candidate names to the government. And the minister for justice has his own appointees on the board (often party hacks). The structure of the board is not bad: a number of judges, a lawyers’ representative (from the bar council), a solicitors’ representative, plus some ministerial nominees. If, as in the UK, the board itself selected the judge, then there’d be less suspicion of the taint of party politics; there’s currently at least plenty of scope for the ministerial appointees to slip in a party political name or two onto the list of seven if they wished. Perhaps the board could be given a constitutional footing (with some more Presidental nominees on the board also), maybe a shorter list (say three) of candidates drawn up, and the President getting the absolute final say (not having to listen to government) on the selection from this.

    If the Seanad actual survives and is reformed and a less-party political vision opted for, then another role for the President might be to allow him/her to make 11 nominations to the Seanad rather that the Taoiseach.

  3. > “another role for the President might be to allow him/her to make 11 nominations to the Seanad rather that the Taoiseach”

    A position midway between that, and the status quo of letting the Taoiseach make all 11 appointments, would be for the President to be umpire of an (otherwise non-judiciable) Constitutional requirement that Senate appointments be rotated proportionately among the parties. This would be especially important if the appointed upper house members have overlapping terms (unlike the 11 appointed Seanad seats at present).

    In other words, a Constitutional clause could direct the President to fill each Senate vacancy, whenever one arises, on the advice of the party leader whose party is currently the least-represented among the Senators (or at least among the appointed ones) according to its popular vote at the previous lower house election. You could apply the D’Hondt formula (“This party polled 39% of the votes, and only 3 of the remaining 10 appointed Senators are identified with it, so its ‘average’ is 13%…”) and perhaps a 5 to 8 percent threshold.

    Because parties merge and split, and Senators may cross the floor, you couldn’t really make this sort of constitutional requirement enforceable by a proper court; but there could still be value in writing it into the text as an aspirational goal, and relying on an elected official like the President to uphold it.

    • @Tom
      That’s definitely a reasonable and useful suggestion! I suppose a lot depends on what particular vision one has for a reformed Seanad, and there’s as probably as many different visions as people advocating Seanad reform! 🙂 Another means (not involving the President at all) to share out the 11 seats would be to use a simple closed list system at general election time; a voter as well as casting his usual PR-STV also places a tick next to his preferred list. One then simply proportionately allocates seats to the various lists in their given order via perhaps the D’Hondt method. Not much of a diffence to the current nomination setup, just shares it around more. But putting various non-judicable guidelines for Presidential nomination into constitution also has its attractions, e.g. one could require representatives from the two Northern traditions or other minority groups.

  4. Why not get rid of the President along with the Seanad.

    Let’s be serious, how exactly has any President made any difference – the country was run into the ground and Mrs McAleese didn’t do anything to stop it – where was her address to the Oireachtas about those at the top leading by example and her announcement of cutting her own salary to about €60k and capping her pension at €50k, less any income she then goes onto make on the back of her having been President ie why should money that could pay for special needs teacher or home help be used to pay her pension when she is also earning huge money from books/board appointments and speech making.

    A country the size of Ireland, with the massive amount of debt Ireland has could well find better things to spend it money on. The Presidency is a nonsense we can ill afford and reforming its powers is academic when the entire legislation process in Ireland is not fit for purpose.

    Where are the reforms to make the Dáil capable of legislating properly in the first place and of responding to the needs of people rather than the old boys network and of it being held to account in between elections.

    Why not remove the party whip on all issues except confidence and financial bills and let TDs make their own minds up on all manner of issues and put it to the government to make the case for whatever bill it proposes – the government being those at cabinet.

    None of the declared candidates for the Presidency so far will do anything to reform it and so far none of them have offered any vision of what sort of Presidency they propose or how they would be any different to those who went before them.

    I judge Mrs McAleese on her record and it isn’t all that – the peace process was up and running when she became President – granted she didn’t drop the ball but I’m quite sure the Queen of England would have got on with whomever was President – it’s her job to get on with people and not have an opinion about them if her government decides it is in the UK’s interest for her to do so. I’d also be keen to know the details of Senator McAleese’s ‘dealings’ with all manner of people and what he promised them and on whose authority he was meeting them or making promises and who footed the bill for his adventures.

  5. Looks like the ‘wethecitizens’ initiative is absorbing any energy and resource that might be available to fuel this board. It’s a shame as this board had potential. Ho hum. Perhaps we shouldn’t be surprised. It’s Ireland after all.

  6. @Paul
    yes wethecitizens is absorbing a lot of time and attention, we all have full time jobs and do both in our spare time pro bono. It is also a very busy time of year with exam scripts and boards and upcoming conferences, papers to be written etc. I am sure that the situation will improve within the next couple of weeks, but I am not sure by what you mean by “It’s Ireland after all”?
    If you come across an area/issue you think it would be interesting to dicsuss do please email me and I will post relevenat links.

  7. @Jane,

    No intent to be churlish. I very much appreciate the effort you and your colleagues have put in to maintain this blog – as I’m sure many others do. I expect we all underestimate the ‘opportunity costs’ that are incurred.

    I’m sure you have more than enough of my focus on getting TDs to exercise the powers citizens have delegated to them. Since there seems to be no means of engaging collectively with TDs – and particularly, backbench TDs – this is probably a dead end. They have no incentive among themselves to force the pace – and government has every incentive to prevent backbench TDs taking any initiative. But it is a sad reflection on TDs – individually and collectively. They do great dishonour to those who have elected them.

    The parallel to this – which I haven’t previously raised here, but have pursued in other fora – is the empowerment of statutory consumer advocacy bodies to apply collective action on behalf of consumers in public policy consultation processes and in competition policy and economic regulation proceedings, to contest, in a robust, adversarial manner the woolly thinking and special pleading used by varuous firms and to highlight the extent to which the interests of consumers are being damaged.

    The lack of empowerrment of the Competition Authority and the extent to which economic regulators have been captured by regulated businesses (and to pursue implicit policy objectives) has caused and is causing huge damage to consumers and the economy. The terms of the EU/IMF MOU require actions to be completed in these areas by specific deadlines, but the actions are not sufficiently specific and the government has considerable discretion which, inevitably, it will use to drag its feet, apply half-baked refroms and kick things into the long grass.

    When I said it’s Ireland it’s that everyone in a position of power and influence knows everyone else in a similar position. The country is too darned small. Individuals and groups will have interests that conflict; that’s why we have systems of governance to resolve these conflicts. But nobody will take a stand because it could discomfort or disadvantage a friend, a neighbour, a relative – even a family member. It’s all “Tóg bog é an saol; and tógfaidh an saol bog duit”. This is the kind of environment where soft corruption flourishes and it suits those who exercise power and influence perfectly. “You scratch my back, and I’ll scratch yours”. Anyone who has the temerity to raise a head over the parapet will get it knocked off pretty promptly – and this discouarges all the others. Any conflicts are dealt with behind the scenes and the lack of transparency always and everywhere is to the detriment of consumers and ordinary citizens. But don’t make a fuss. What would people think. You’ll get a name for being awkward and cranky and it won’t do you any good. Not, in general, hugely different from many other societies, but, in some respects, yes, very different – and too darned incestuous – so, yes, it is Ireland after all.

  8. I think the term of the Presidency probably should be looked at. It is a long term from the point of view of the holder of the officed as much as from the point of view of the need for an electoral mandate for this office within a reasonable period of time. IT is a reform in the sence that electoral mandates without too many years elapsing are more democratic.

    As regards the role. The most important part of it is in relation to oversight, in particular making sure that unconstitutional legislation is not signed into law.There is a tendency to think the Presidency should be about something else, as if being a protector of our constitution is not enough. But in my view if a President does nothing more than this, with vigilance, the President has fulfilled a vital role in our system of parliamentary democracy, (which I personally think the Seanad does too, by its mere existence, meaning that draft laws must remain longer in the public domain than they would have to with a unicameral system, having to go through all stages in both houses of the Oireachtas, so that flaws and draconian aspects of proposed legislation have more time to emerge before they are made the law of the land).

    • @Deputy Tuffy,

      Welcome back and congratulations on your re-election. It would be wonderful if you could encourage more of your Dáil colleagues to engage on this board. Citizens have no opportunity to engage collectively with their TDs even though it is only via the collective action of TDs, in particular, backbench TDs, that any effective reform of parliamentary procedures may be effected that might restrain the excessive executive dominance of government.

      You make a valid point about the key role of the Presidency (presumably in collaboration with the Council of State) to refer possibly unconstitutional legislation to the Supreme Court, but the fact that legislation may pass the constitutionality test does not imply that it is good legislation in the public interest. Indeed, legislation that could cause serious damage might pass this test.

      More effective scrutiny and adversarial disputation drawing on external expertise at the Cttee stage is likely to prove far more effective to prevent the enactment of damaging policies than enhanced ‘airing’ of draft legislation in the two lower houses that only allows for grand-standing and posturing by public representatives who frequently lack the expertise to inform the necessary scrutiny or ability to contest flawed proposals by government purely on their merits – rather than mouthing the ‘party-line’ laid down by the backroom boys’n’gals’.

      And, in this context, as Jane Suitor has noted on another thread, it appears it’s Business-as-Usual in the appointment of Cttee Chairs. So nothing changes. It is, indeed, Ireland after all.

      The only up-side, perhaps, is that the Troika is firmly in charge of key elements of public policy and should be able to prevent any possible repetition of the folly and delusion that got us into this mess.

      • Paul,

        Much bad decisions by Government were ideological as opposed to being constitutionally unsound, some not even involving legislation, but voters elect politicians with ideology and very often they do so knowingly. For e.g. the people were happy with the good times they associated with FF until it all went belly up. But that is the voters preogative. That is why, while I have no problem with ideas of political reform (especially ones I agree with and less so with ones I don’t agree with!) it is not a panacea for problems that were not the fault of our political system, but rather the problem of a chosen and voted for political ideology about how to organise our economy and society.

  9. @Deputy Tuffy,

    It is, perhaps, convenient for those who espouse a particular ideology – even if popular support for that ideology is in terminal decline throughout the EU – to attribute a particular ideology to those whom they oppose politically. But I think the record of history shows that FF is probably the most unideological political party of the modern era (even more so than the original Stupid Party – the UK Tories). They demonstrated an unparalleled ability to do or say anything that would secure and retain political power. That, any nothing else, became its raison d’etre. It adopted some of the PDs’ Neoconnery when support from that quarter was required, but rapidly dispensed with that when the voters started to desert the PDs and, sniffing a slight change in the political wind, developed a taste for a bit of social populism and woolly-brained Greenery. It is simply a matter of fact that a plurality of voters were seduced on numerous occasions to swallow the spin they were sold. But a plurality of voters delivered a devastating jusgement on 25 Feb.

    It is not possible to discern from the votes and prefences cast whether voters simply opted, decisively, for governance by a different faction (or combination of factions) or opted for both this and a desire to see governance formulated and delivered in a different way. The main parties, to cover their bases on the latter, decided to make a lot of noise and devote considerable space in their election manifestos to political reform. But anything that is now being contemplated is simply displacement activity to distract attention from the fundamental problem – the excessive executive dominance of government. In that respect it is business as usual. The process of ‘behind-the-scenes’ policy formulation, presentation in almost final legislative form, totally ineffectual scrutiny and ‘debate’ in the Dail, furious spinning to deflect any external critique and whipping through enactment has remained intact and there is no intent or incentive to change it any substantive way. The government has morphed effortlessly into the same mode of governance applied by the FF/PD and FF/Green coalitions that preceded them.

    It may be that a majority of voters consider a change of personnel in government is sufficient. Perhaps they are not aware that the existing system for the formulation and delivery of governance permitted a blind lust for the acquisition and rettention of political power to generate the current economic, financial and social catastrophe. Perhaps, having inherited so much of the institutions and procedures of democratic governance from the British – and painted them green – we do not fully understand how they could be made to work in the public interest.

    One can only speculate, but there seems to be a vague, broad-based but inarticulate, desire for some sort of ‘political reform’. However, it should prove possible for the political classes to deflect and distract this desire should it ever appear to threaten the current system of the formulation and dleivery of governance. Some things will never change.

    • Paul, Beware of apparent non ideology. It was the ideology behind tax breaks, light touch regulation, privatisation, the market is the solution to our problems etc. that Fianna Fail espoused and implemented.

      • @Deputy Tuffy,

        I understand the point you’re making, but I’m inclined to disagree. One should also beware the optical illusion perpetuated by the creation of a plethora of so-called ‘independent’ regulatory bodies supported and forstered by the constant mouthing of the mantra “More competition and better regulation”. The apparent ideological posture was borrowed and adapted to provide a veneer to conceal the underlying – eternal – agenda: acquiring, retaining and exercising political and economic power.

  10. When most Irish people tal kabout ‘reform’, don’t they actually mean reform for other people – we know there is enough money in the country to provide the fairest most equal society, yet those who do have the money have fought tooth and nail to keep as much of it as possible – we only have to see how much money has gone into the banks to maintain the value of upper middle class balance sheets at the expense of those ‘below’ that financial level.

    Then we see the fact there has been absolutely zero reaction from the Irish public in response to the cuts made to the services accessible to those who don’t count as upper middle class.

    We have short memories as we have forgotten it was middle class Irish people who inflicted the most suffering on other Irish people during the worst of the famine and it was the same middle class Irish people who benefitted the most from the misery of the poor at that time.

    Now we see it again, the anger because the government dared to take some of the pensions, pension it should be added have been greatly enhanced by tax relief paid for by people who don’t have pensions, and use it to try maintain some level of welfare support.

    For a people who give so much front to being a ‘nation’ it’s remarkable how many are really ‘me feiners’ when it comes to the crunch and there’s precious little sense of national solidarity that you find in other country’s facing the problems we face.

    Just compare how we have behaved over the last few years and how people in Iceland behaved and in Iceland their former PM is up in court as the people there don’t think he did enough – no wonder they are left speechless when they hear what happens in Ireland and even in the US, where we are told the rich can get away with anything, we have seen people sent to jail for corporate fraud, for running companies into the ground and it is only in the US that the head of the IMF would be in the position he is – if he has allegedly done that in an EU country he would have walked away and no one would have done a thing to stop him or hold him to account.

    So should we be seeking a President who will be one of the elite and protect the elite as all PResidents so far have or one who will cause outrage by making us face up to our flaws and to address them – would Norris be the one who could do that or is he part of the elite too – is there any candidate so far who might be the sort of President we need – one we need whether we like it or not.

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