Future historians of the presidency will see this week as a significant one in the history of the office. In 2012, after a year in office, President Michael D Higgins gave an interview to this newspaper in which he said he wanted to extend the powers of his office without constitutional change. As with his predecessors, he said he was keen to push its possibilities, “and I think I can go a little bit further”.
He has certainly done that, in a manner unprecedented and as some see it, unwarranted and inappropriate. But for all the talk of lines being crossed, the definition of those lines remains elusive when it comes to interviews or day-to-day speeches for the person who is, according to the Constitution, to “take precedence over all other persons in the state”.
Presidents are required to declare they will dedicate their “abilities to the service and welfare of the people of Ireland”. What that means in practice is subjective. Speaking out about sensitive and controversial themes could be regarded as a president using their abilities to serve the people. True, the Constitution permits the president “after consultation with the Council of State” to address the Oireachtas or “the Nation” on a “matter of national or public importance”, provided such messages or addresses have “received the approval of the Government.”
When debating the proposed new Constitution in the Dáil in 1937, Éamon de Valera insisted it would be inappropriate “that the president should be allowed to make any statement or give any address which would be contrary to the policy or the views of the Government of the day”. He presumably believed the potential for conflict could be avoided through the provision about formal addresses needing prior approval.
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But there is no constitutional reference to policing the president in all other comments, and de Valera acknowledged in relation to the presidency: “you cannot take away from human beings their political views”. The president, he suggested, would offer to the Taoiseach “the view that the hurler on the ditch can get of the game, looking at it from the point of view of the national interest”.
Defence policy
Given the position they occupy, is it unreasonable for a president to make a call about what constitutes the national interest? And given that “the supreme command of the Defence Forces is hereby vested in the President”, should the commander be precluded from speaking about defence policy and denied a right afforded to guests at the government’s consultative forum on security policy?
The history of an assertive presidency did not begin in 1990. The role of civil servant Michael McDunphy, secretary to the first Irish president Douglas Hyde, was crucial in giving shape and meaning to the office and he was adept in protecting the interests of Hyde, and by extension, generating a respect for the status and independence of the office.
Hyde’s biographer Brian Murphy argues, “The unfair comparison that extols modern presidents for expanding the role of the office while implicitly criticising early presidents for taking a more restrained approach... lacks historical context... a more expansionist role for the presidency could not have come about without the diligent and often unglamorous work of early presidents in establishing initial credibility and respect for the office”.
During Hyde’s term there were rows about presidential access to the Taoiseach and disrespectful references to the president. De Valera defended the office vigorously. But he also had to deal with a President Hyde, who occasionally asserted his independence and referred controversial legislation to the Supreme Court for rulings on constitutionality.
Mary Robinson campaigned in 1990 for “a mandate for a changed approach within the Constitution”. The idea of a more active, vocal president was far removed from Robinson’s predecessor Patrick Hillery’s stated aim to fulfil his duties with “the minimum of self-projection”. That was an assertion that could also be regarded as Hillery using his abilities to serve the people well, given that his predecessor Cearbhall Ó Dálaigh resigned after he was insulted by the Minister for Defence in 1976 for referring the Emergency Powers Bill to the Supreme Court.
While the constitutional provisions relating to the presidency have not changed, the style and practice of it have evolved. Robinson referred to her presidency as having involved “peeking over the line”. That the current president has chosen to go further, as promised, raises tricky questions about the price to be paid for an assertive presidency, and that price is occasional tension and controversy.
A forceful case can be made for that not being a price worth paying, or in the national interest. There is also an onus on all involved to act with dignity. But if there was a proposal to amend the Constitution to add more explicit restrictions on the president’s freedom of speech, would we not decry the idea of enshrining a tighter presidential muzzle?