Do we really need a President in 21st century Ireland?

If and when a border poll signals support for a united Ireland, then one of the items close to the top of the political agenda will be the need for a new Constitution.

Speaking at an event in Belfast earlier this year, former Taoiseach Leo Varadkar said a united Ireland “has to be a new Ireland that is better for everyone”.

“Unification is not the annexation of six more counties by the Republic of Ireland. It’s a new state and one that can be better for all of us, an opportunity that only comes around every 100 years – an opportunity to design your state and design your constitution.” 

Even if that day is further away than some of the more vocal advocates for a united Ireland – especially those in the Sinn Féin camp – appear to believe, that doesn’t mean that taking a hard look at some of the provisions of Bunreacht na Eireann needs to be postponed.

We could start with the presidency, which will be very much in the news in the days and weeks ahead as candidates for that office gain the necessary nominations.

In saying that, if the prospect of Irish unity begins to appear imminent, the likelihood is that the main focus will be not on constitutional matters, but on the economic consequences of unity.

That said, we should also face the case for changes to the existing Constitution anyway – bearing in mind the number of amendments that have already been made to Bunreacht na Eireann since its adoption by the people in 1937, albeit by a narrow enough majority.

“The plebiscite on the draft resulted in an unimpressive majority of roughly 4.3%” was the verdict of the noted constitutional scholar John Kelly.

The office of the President was introduced by Éamon de Valera as Taoiseach in the 1937 document to replace Article 60 of the Free State Constitution of 1922 which provided for a Governor-General as the representative of the British crown. That situation had continued up to 1936.

When the report of the Constitution Review Group was published in 1996, it noted that on the question “whether the office of President should exist,” the 1967 Committee on the Constitution was divided on the question.

Those who would abolish it argued that the powers of the President were those of a figure-head, that the President’s formal duties as Head of State could be performed by the Taoiseach, and that abolition would create savings. 

On this latter point, it is worth noting that the present Presidential salary of €330,000 – considerably more than that of the Taoiseach (€248,000) – would pay for quite a few teachers or nurses.

However, the 1996 report went on: “Those who wished to retain the office argued that the Taoiseach could not realistically perform the President’s function of guardian of the Constitution”.

Does that stand up to scrutiny today, given that the President of the United States (try to forget who the present occupant of the Oval Office is for now) fulfils a three-fold function? The US president is (a) Head of State, (b) Chief Executive (or Prime Minister), and (c) Commander-in-Chief of the armed services.

In the end, the 1996 Review Group concluded “there is no public demand or good reason for the abolition of the office. A State requires a Head of State; the President’s function as guardian of the Constitution requires that the office be separate from the executive”.

A changing presidency

Okay – so if not abolition of the office then why not a reconstituted presidency, a move that would see a merging of the office of the President with that of the office of Taoiseach?

But what then of the Review Group’s claim that that the two should be separate? I think I have just provided an answer from the example of the USA to that. 

Whatever our views of President Donald Trump, we could surely agree that the presidency of the United States is a more onerous and burdensome office than that of Taoiseach of the Irish Republic. Trump’s salary, by the way, is $400,000 (about €342,000).

It is also worth noting that (as the Review Group acknowledged) “the Constitution does not describe the President as Head of State”. That should change.

More importantly, though, consideration needs to be given to the point made by John Kelly in the section on the presidency, in his classic work The Irish Constitution, that “the Constitution is extremely sparing in its attribution of any independent functions to the office at all”.

How then to reconcile this with this further observation by him: “The election of Mary Robinson in 1990 appeared to have a discernible effect on the relationship between President and government, with some evidence of an expansion of the role of the former.”

That process of pushing at the boundaries of the powers and functions of the presidency was continued under Mary McAleese (though perhaps in a less challenging way) and much more boldly under the present incumbent Michael D Higgins – a President said by one commentator to have “notions”.

Indeed, it is possible to envisage a scenario where a real clash could arise (testing the Constitution perhaps to breaking point) between the Phoenix Park and Leinster House, given that you might have a President in residence in the former who might seek to use his (or her) mandate to publicly challenge a decision by a future government to, for example, abandon altogether this country’s traditional policy of neutrality and seek membership of a military alliance such as Nato.

The elements for such a putative constitutional crisis could never arise under a reconstituted presidency. And envisaging such a scenario, by the way, is not just the stuff of science fiction or a Tom Clancy novel.

A merging of roles

So then if moves were ever made to merge the role of President with the role of Taoiseach, what would become of one of the few actual powers given to the President under the Constitution – the discretionary power under Article 26 to refer a Bill to the Supreme Court to test its compliance with the Constitution?

That’s a power under a reconstituted presidency which could be just as well exercised by the Ceann Comhairle (assisted by a three-person Council of State). It is a power, of course, that ought to be exercised sparingly since a piece of legislation, once cleared by the Supreme Court, can never again (under Article 34) be challenged. 

This is a provision which, in a new Constitution, ought to be revisited because, as legal scholars have pointed out, even though conditions, including the climate of public and judicial opinion, may have changed, or the workings of the law may have disclosed objectionable consequences not foreseen at the time, that change needs to be made.

This is also the only Article in the Constitution which might be used as a basis for justifying the description of the President as the “guardian of the Constitution” – which he (or she) promises to uphold in the oath of office specified in Article 12.8.

In a new constitutional situation the title of Taoiseach would be abandoned as would that of Tánaiste – to be replaced by President and Vice-President respectively. And Áras an Uachtaráin would not need to be re-christened Áras an Taoiseach.