The President, Michael D Higgins, raised some eyebrows by making comments recently on the issue of soldiers’ pay and in relation to the beef dispute. It wasn’t the first time he has done so.
He had in the past made political comments, including comments on the values and ethics of neo-liberal economics in 2013 and comments on the wisdom of promising tax cuts in the run up to the 2016 general election. More recently, in 2017, he offered the view that the State must face up to the issue of homelessness.
His two predecessors, Mary McAleese and Mary Robinson had, on occasion but to a lesser degree caused a flutter in the political dove-cotes with remarks and actions that some commentators thought transgressed an unwritten line relating to the presidency.
Given that the President is not answerable to either House of the Oireachtas or to any court “for the exercise and performance of the powers and functions of his office”, there is a parliamentary convention that there is no criticism or debate on the President in either House. Whether that convention is necessary or overly generous is a matter on which more than one opinion exists.
But there are a few constitutional points which should be borne in mind before adopting an overly restrictive view of the capacity of the President to comment on matters in the public sphere without prior government approval.
Firstly the Constitution provides that the President is actually part of the national parliament – the Oireachtas. He is elected by the people. The people, in the Irish constitutional order, are the sovereign power.
In the United Kingdom, the “Queen in parliament” is sovereign in legislative matters. The people, even when consulted by referendum, are not the UK’s sovereign power.
Secondly, the President makes a solemn declaration on entering office promising three things:
(1) To maintain the Constitution of Ireland and to uphold its laws, and,
(2) To fulfil his duties faithfully and conscientiously in accordance with the Constitution and the law, and
(3) To dedicate his abilities to the service and welfare of the people of Ireland.
This last solemn commitment seems to ask of the President something more than the simple fulfilment of constitutional functions and duties in a quiet and passive way. It suggests that a President is not condemned to Trappist silence and inaction unless the Government authorises the making of every public utterance, statement or action. It demands an energetic and active service to the people.
Nothing in the constitution actually obliges the President to speak in accordance with the Government’s wishes on a topic of the Government’s choosing.
The President must, however, receive the prior approval of the Government for any formal address or message to the Houses of the Oireachtas on any matter of national or public importance or to address a message to the nation on any such matter.
It follows that the President should not attempt to communicate messages to the nation on matters of national or public importance without the express or implied approval of the Government. He has solemnly undertaken not to do so.
Does that mean that he is sworn to silence on all matters of public interest unless he has Government approval for the expression of his personal opinion or belief? I don’t think so.
Indeed, I welcome the major contribution made by the President to the recent centenary celebrations and commemorations of the 1916 Rising, the Great War and the establishment of Dáil Éireann.
I look forward to his similarly thoughtful expression of his own take on the War of Independence, the Treaty negotiations and the Civil War in due course.
He was elected by the people partly, if not mainly, on the basis of his personal talents to play a leading role in the national discussion of such issues and events.
To take an example, it would be very strange indeed if a speech by President Higgins on the Civil War depended for its content on whether it reflected the views of a government led by Fine Gael or Fianna Fail in 2022. Frankly, there would be plenty of opportunity for the Taoiseach and the leader of the opposition in two years time to express their own views on matters such as, say, the Civil War.
While I am sure that the President would take pains to speak on issues with care and consideration, I would be disappointed if I felt that every word he spoke on the subject had been handed to him from government for recitation to the people.
In matters of history and culture, I enjoy hearing the perspective of President Higgins, even where his opinion might not be shared by myself or some others. As long as they are considered and worthwhile opinions, there is no point in demanding that everyone who hears them must agree with them.
Article 45 of the Constitution sets out Directive Principles of Social Policy but states that the application of those principles in the making of laws shall be the “care of the Oireachtas exclusively” and not justiciable in court.
As a part of the Oireachtas, the President is by his inaugural declaration, bound to uphold those principles because he has committed to upholding the Constitution.
While some may say that the Article 45 directive principles are reflective of early 20th century Catholic social theory (and they are), their validity is not, by that alone, undermined.
So, for instance, it remains a matter of constitutional obligation on the State and on the Oireachtas to favour “private initiative in industry and commerce”.
By the same token, the State is obliged under Article 45 to ensure that private enterprise is conducted so as to ensure reasonable efficiency in the production and distribution of goods and so as to protect the public against unjust exploitation.
Article 45 also obliges the State to “safeguard with especial care the economic interests of the weaker sections of the community” and to direct its policy towards ensuring that all citizens have the right to an adequate means of livelihood to make reasonable provision through their employment for their needs.
The article, in its Irish version, also obliges the State to pursue a policy which favours the establishment of family farms to the greatest extent practicable. Recent indications that the wealthy are buying up thousands of acres of farmland as trophy hedge investments seem to fly in the face of the State’s constitutional policy, and we should not lose sight of that value simply because the Land Commission has been abolished. The family farm is a constitutional value
So commenting informally on the State’s need to address homelessness and the State’s need to ensure that members of the Defence Forces are paid sufficiently to meet their domestic needs or that the State must be conscious of the need to uphold the interests of farm families is merely the expression of constitutional values which the Oireachtas - including its President -is bound to uphold,
Admittedly, when the President eulogised the deceased former President of Cuba, Fidel Castro, his choice of words would not have been mine. Castro’s repressive regime may have been more just than his corrupt predecessor, Batista’s, but that did not make it any the less repressive.
But I am not such a snowflake as to take umbrage or offence at his expression of what I would always have believed Michael D’s opinion to be when I voted for him to be President seven years ago.
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