In reality, the presidency is a very limited office. If councils want to nominate a candidate, they need to verify that the candidate actually does know about the job and its limitations. No candidate should be nominated if they don’t know the basics of the job or has an exaggerated idea of what they could do.
So what sort of questions should councillors ask candidates seeking to become president?
1. First and foremost, they should grill the prospective candidate on the office, and make sure they know what the Constitution says. So question number 1 should be “Have you read the Constitution in detail in preparation for this race?” No candidate who hasn’t should even be considered for it. If they haven’t read it, it should be an automatic disqualifier.
2. The second question a candidate should be asked should explore on what legal basis they are making claims as to the powers and influence they are claiming. “Have you received legal advice on the meaning of the constitutional powers of the president in the Constitution?” If they have received legal advice, they should be required to state who offered them the legal advice, and to show that the person is qualified to offer the advice.
3. The next question, in exploring the candidate’s legal knowledge, should be to test out just what type of knowledge they do have: “Are you aware that the president cannot exercise any legal powers, functions and duties on their own initiative created in law that aren’t explicitly in the Constitution?”
4. They should then be challenged as to whether they would in fact obey that, or whether they propose to ignore the Constitution. “All powers created in law are exercisable on the binding advice of the Government that must in all cases be obeyed. Do you believe you would be able to accept and carry out any such orders from the Government, whatever your private views?”
5. In testing their qualifications for the office, they should further be asked two questions: “What are the major powers the president has explicitly under the Constitution?”
6. and “Please name three cases where those powers were exercised.” If they cannot answer those questions then they are not qualified to be nominated. They haven’t done their basic homework.
7. The candidates should then be questioned in detail on the powers that do exist – for example the critical power to refuse a dissolution – which is constitutionally and legally sensitive, and they need to be demonstrate an awareness of that. “What are the principles you as president would apply in deciding whether to exercise your right to refuse a dissolution or not, under Article 13.2.2?”
Extreme cases
International precedent is that that power to refuse a prime minister a dissolution only ever happens in extreme cases, rarely if at all. (It has never been used in Ireland for that reason.) The rule of thumb is that a prime minister should be granted the right to appeal to the people in a general election except in extraordinary and very rare occasions.
8. Some voters, and it appears some candidates, think a president can veto a Bill. A president of Ireland can never, ever, veto a Bill. They can only refer it to the courts, if there are legal grounds (not because they oppose it). They can also refer it to the people in a referendum but only if petitioned by one-third of the Dáil and half the Seanad, something that they cannot initiate, and there has never been such a petition. Candidates need to be challenged explicitly on this: “Will you commit here to following the constitution to the letter and make clear to your followers that there is no power to veto Bills?
9. The most used power is that of sending Bills to the courts. However, it is a double-edged sword. If a Bill or section is approved as constitutional, it can never ever be challenged again by any citizen – even if it later becomes clear the courts got it wrong and the Bill should have been ruled unconstitutional. Judges strongly advise presidents not to send Bills to the courts as they can in effect be judging it in the dark – without a real case in front of them that may prove unconstitutionality. Judges prefer to deal with real cases that may show a Bill is unconstitutional, rather than try to imagine one themselves and potentially get it wrong. Candidates need to be challenged in detail on this, so they know the ramifications of referring Bills to the courts.
A lot of candidates are suggesting ideas that are entirely impossible constitutionally to do. One suggested the Government would be answerable to her on their policies. They are not. They are only answerable to the Dáil and the people, never the president. Others propose spending money on campaigns which they don’t have, and cannot have, because such spending would need to be scrutinisable by the Dáil, and the president cannot be answerable to the Dáil.
A basic rule of thumb is that governments set national policies. Presidents may be able to comment generically on issues, but not intervene directly in an area of Government policy as again – the president cannot be held accountable to the Dáil, and it is the Dáil that has the duty to scrutinise policy.
The blunt fact is that the role of councils in nominating candidates is to act as gatekeepers – to ensure only competent, qualified, people able to do the job are nominated, and to keep the race free from constitutionally illiterate egotists who are only interested in building their profile for business, financial, or political gain.
Jim Duffy is a political commentator and worked for Fine Gael until 2016