I look upon these two sections—Sections 4 and 5 of Article 13—as the two most objectionable sections in the Constitution. There was no reason on earth why the President should be given a function so important as the supreme command of the Defence Forces, and that the power of the Dáil to give indefinite power to the President in the exercise of that supreme command should be left undefined. What is the reason for giving the President supreme command? As far as I could follow President de Valera's argument the other night, it was to be a fictional command, not a command in fact or substance. Why bring in a fiction of that nature into the Constitution at all, especially a fiction which certainly causes very great disquietude in the minds of a great number of people in this country? This Constitution does not establish a dictatorship, but it asphalts the road by which an individual could work into a dictatorship. That is one of the most objectionable features of the Constitution. There has been no better bit of asphalting done in this particular Constitution than the asphalting that has been done by Sections 4 and 5 of this Article. The President is to have supreme command of the Defence Forces, and the exercise of the supreme command of the Defence Forces shall be regulated by law. It seems to me to be quite clear that he can be given those powers which he can exercise without any consultation whatever with the Government. President de Valera, giving way to the arguments which were brought from this side of the House on the Second Reading, has dealt or purports to deal later on in amendment No. 53 to Section 10, sub-section (2) of Article 53. He has put down an amendment to delete Section 10, sub-section (2), and for Article 13, Section 10 (2) to substitute a new sub-Article.
Bunreacht na hEireann (Dréacht)—Coiste (d'ath-thógaint).
On a point of order, is Deputy Fitzgerald-Kenney referring to Article 10? I suggest there is an error there.
I am referring to Article 13, Section 10, sub-section (2). I do not think the House, with the exception of Deputy MacDermot, has any difficulty in following this. I am now referring to amendment No. 53 to Article 10, Section 10, sub-section (2). The President contended that this proposed new Section 11 met the objections raised; that the words "no power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government," made it perfectly clear that this exercise of the supreme command would have to be exercised only on the advice of the Government. I do not think that follows at all. Here we have got a definite section and in this definite section there is a definite way laid down, and it does not seem to me to be clear at all that a general provision will overrule the particular provision which is laid down in Article 13, Section 5, which says: "the exercise of the supreme command of the Defence Forces shall be regulated by law." This is not taken or treated as a power at all. A different phrase is used. The exercise of the supreme command is taken by itself. It is treated quite differently from anything else conferred on the President by the Constitution. It is taken as a completely definite thing to be taken and treated by itself. Very carefully there has been left out of it any question of the exercise of the supreme command of the Defence Forces being regulated by law, such a law to contain a provision that such powers shall be only exercised on the advice of the Government. That would be a very simple thing to put in, in order to make matters perfectly clear. It has been carefully kept out. A general proviso will not overrule the particular proviso contained in this Section 5.
We have got a further difficulty here. This will never be interpreted by a court. There is no machinery by which it can go to a court. There is no way that I know of by which that can be done. The Dáil gives these complete powers, after consultation with the Government, to the President. The President can appoint all the Army officers he likes. How is that power to be questioned? How is the validity of that statute to be questioned? How is it to go before any court at all? I do not know. Suppose you have your President and he is looking for a dictatorship. He is invited by this Constitution to look for a dictatorship if he is so inclined. He proceeds to dismiss such Army officers as are not willing to stand by him. He appoints his own creatures to the Army. That is the first step. It is difficult to establish a dictatorship except one has the Army behind him, and it is impossible for the President to have the Army behind him except he has it manned by his own nominees. Let us assume even for a moment that the statute does contain terms which I think it ought to contain if this power is left to the President. as I think it ought not.
Let us assume that a statute has been passed and that it is necessary, before the President acts, that the advice of the Government should be tendered to him. Suppose he acts without it. The document which he issues would be a perfectly valid document; it cannot be questioned. How is it to be proved that he has not received the advice of the Executive Council? Suppose the Chief-of-Staff of the Army received a notice, signed by the President, and stating: "You are removed from your post," and suppose somebody else receives a document stating: "You are appointed Chief-of-Staff of the National Army," how is it to be known whether that action has or has not been decided on the advice of the Executive Council, even if by law it is supposed to be so? It cannot be checked anywhere, nor can the President be removed. There is no power in this Constitution to remove a President who acts in that fashion, unless you might say this antique and impossible method of procedure by way of impeachment could be put in force.
That action would not seem to me to be capable of being regarded as treason and it could not be regarded as high crime or a misdemeanour, and in those circumstances it is not met by this section. In fact, I do not think there would even be the remedy of procedure by way of impeachment. Those are some of the grave difficulties which are inherent in this Article. Why persist with this Article? What is the advantage of it? At the present moment the Army is carrying on very excellently and there is no derogation from its status because its commissions are not and never were received from the Governor-General. They are received from the Executive Council and why should not that procedure continue? It is more democratic. What is the advantage of changing it?
We are told that in Sweden or some other countries the commissions come from the King. In Great Britain also the commissions come from the King, but that is a relic of another time. The history of Great Britain accounts for the position of that country at the present moment. Originally the King had almost absolute power, but that was whittled down until the King's power, although it still remains in the Constitution, is a fiction. Why start fictional powers in this State? I do not care what happens in a country like Sweden, any more than I care whether Mussolini can appoint or dismiss every officer so far as Italy is concerned, but I do care about what the Constitution of this country is going to be and I cannot see any advantages that will be derived by the people from the creation of what, according to the President, is a fiction, but what, in fact, may turn out to be a very grave danger to democratic government in this State.
I am really coming to the stage when I begin to think that speakers on the opposite benches are not at all serious. If a layman argued as Deputy Fitzgerald-Kenney is arguing, I could understand it, because I would say it came from ignorance of constitutional procedure and of law. In such circumstances I would pay no attention to the argument, except to point out that the person concerned presumably had not read or did not understand the Constitution. But when a lawyer talks as Deputy Fitzgerald-Kenney has talked now, I find it very hard to think that he is serious. The section of the Article sets out that the supreme command of the Defence Forces shall be vested in the President. So far as the vesting power in a person or a body is concerned, there is no use in having anything vested in anybody if the person is not able to exercise a certain power or has some right under it. A right is of no use to anybody if he is not able to exercise it. Is it not quite clear from the sections of the Article that if the supreme command of the defence forces is nominally vested in the President under one section, it is definitely set down later that the exercise of that supreme command shall be regulated by law? Is there anything clearer than that?
First of all, you have the vesting, and it can only be nominal, and then you have the section of the Article setting out that the exercise of the supreme command shall be regulated by law. The danger comes in from the point of view of the regulation by law. If it was regulated by a subservient Parliament in this way, that the exercise of the command could be at the complete and absolute discretion of the President, that is the only line in which any danger could lie. Let us look at it from the point of view of the constitutional powers given to him, or the powers that may be given by law. On the constitutional side any powers that the President gets are governed by Section 9. Deputies on the opposite benches have consistently ignored that section and they have refused to see it when it was pointed out to them. I shall have to read it again:
"The powers and functions conferred on the President by this Constitution ...
We are dealing with the powers conferred by law.
I want to deal with the two angles.
... shall be exercisable and performable by him only on the advice of the Government, save where it is provided that he shall act in his absolute discretion or after consultation with or in relation to the Council of State..."
In an earlier section, the Article sets out that the supreme command of the Defence Forces is vested in the President. If he could, by the Constitution, other than by law, make any use whatever of that vesting, he would be caught by the Article in the Constitution which says that he can act only on the advice of the Executive Council. Therefore, from the constitutional point of view, the point of view of exercising some right under the Constitution because of that section, he is caught immediately by this Section 9. Suppose he gets it by law, then we turn over the page to Section 10 and we have the first part of it referring to additional powers and functions. That does not refer to the point I am discussing, though it might be taken in by it. The second part is the part that is immediately applicable and it says, "No such power——"
"Such power" surely refers to the "additional powers" in the preceding paragraph?
We could have a nice long argument about that.
However, this is to be redrafted.
I would not be prepared to take off-hand the Deputy's statement that the additional powers here would refer to such powers as the powers of regulation by law. If the supreme command is vested in the President and the exercise of that command is regulated by law, it is just doubtful whether it would come under the section dealing with additional powers, whether they were not already implied. What I do say is that Section 10 sets out that no such power to function:
"... shall be exercisable or performable by him save only on the advice of the Government, or after consultation with the Council of State, as may be determined by such law."
There was the possibility, as that stood, that you might say that the parallel in the Constitution would not be carried out in the law. In the Constitution it is clearly set out that the powers of an executive character of the President have to be exercised on the advice of the Executive Council and that on the legislative side, in connection with causing Bills to be referred to the Supreme Court and to the people, that he would act in some cases either in his absolute discretion or after consultation with the Council of State. Therefore, there was a possibility in Section 10 as it stood that where, if the plans of the Constitution were clearly carried out, he would have to act on the advice of the Executive Council, the law might possibly let him out and let him act after consultation with the Council of State.
So, to make sure that the loophole would not exist, we have set down here, in a very definite and precise form, in amendment No. 53:
No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government.
Therefore if, in the regulation of the manner in which the supreme command of the Army is to be exercised, we have a law, any functions he gets under that law must be performed by him on the advice of the Government. It is absurd, therefore, to suggest that it was carefully kept out and that the intention was that he should be in a dictatorial position in regard to the supreme command of the Army. Quite the contrary is the fact.
Why not put it in here plainly?
Quite the contrary is the fact, and it was already in, with just the possibility that the plan of the Constitution might be evaded by the law, and to prevent any possible such evasion we have this amendment No. 53, so that the matter is completely and absolutely watertight. Why give them to the President? You might as well ask why give them to the Government of the day. The President is elected by the people as a whole and the nominal vesting is right and proper, because he is, during his period of office, supposed to be non-political in the sense of not being attached to one particular Party rather than another. I simply say once more that it is absolute nonsense to suggest that there is any possibility of making a dictator of the President according to this Constitution. If that is done it will be done against the Constitution. It will be done by revolution and not in accordance with the Constitution.
I think the difficulty is that this helps the revolution. The obstinacy with which the President sticks to this particular matter is extraordinary. He professes at least a willingness to discuss any other thing. He talks about it, but he never meets the Opposition. He has not met them on one point up to the present. Any criticism of theirs is unreasonable. We had exactly the same protestations, and quite as hot, on Second Reading from the President against the charge of dictatorship. Now, according to him, it has been obviated. He admits now that the possibility of the danger was there.
The danger was actually there on his own showing and he does not get out of it by calling it a possibility. Whoever said that there was more than a possibility of danger? Nobody suggested that this Constitution itself set up a dictatorship, but the President was quite as strong in his asservations then as he is now, but the one thing he will not change is any of the powers handed over to the new President. This is a Bill, as he rightly said here a couple of days ago, the real gist of which, the principle of which, is the powers of the new President. It is a Bill for one man and that is what it comes to. He is willing to listen to anything put forward, but he is never convinced, and never has been convinced, and that is asking the Opposition to join with him in bettering this measure. Anything in the way of criticism seriously meant he resents and calls it nonsense. That is his conception of how Parliament can help to better this measure. The measure was and is intended to exalt the power of this man and many clauses in it— this is but one—are aiming in that direction. We notice that it is particularly when discussing this question that the President gets hot. No wonder. It is the real purpose of the Bill—a Bill to exalt one man and to put him in a position which is dangerous to this country. If there is anything in the protestations of the President, why does he not meet the Opposition by deleting that section? That is the obvious thing to do, but he will not do it.
There seems to me, as I said the night before last, some substance in the suggestion——
Notice taken that 20 Deputies were not present; House counted, and 20 Deputies being present,
If it is true that this Constitution is leading us straight to a dictatorship, it is amazing that those who take that view do not attend in greater numbers to prevent that tragedy occurring.
The Deputy can only account for one himself.
It seems to me that there is more excuse for those who are apathetic about the Constitution because I do believe the country is apathetic about this Constitution.
You are embarrassing your new friend now.
I suggested the night before last that it would be wise to put something in this Article to make it clear beyond all question that the powers of the President in relation to the Defence Forces are subject to the control of Parliament and Government. I agree with the President in thinking that that is, in fact, covered by the Constitution as at present drafted, but I should like to put it more beyond doubt or question than it is at present. It is true that in almost every country the relations of the King or the President with the defence forces are something special, and that the defence forces are regarded as having a closer relationship with the head of the State than any other institution has. That being so, it seems to me that it would be worth while to put a few additional words in Section 9, Article 13, which would put the matter beyond all possible question. I would suggest that in the second line of Section 9, after the word "Constitution," the words should be inserted: "including those in relation to the Defence Forces." Such words could do no harm and could throw no doubt upon the fact of every sort of power the President has being exercisable only on the advice of the Government, except where specially provided otherwise. I think that these words would do good in dissipating any alarms that may have been created—even unfounded alarms—in regard to the President and the Defence Forces and prevent any possibility of anybody in the future pretending, or affecting to pretend, that the President has supreme command of the Defence Forces for which he is not answerable to Parliament. It is conceivable that somebody in the future, anxious to achieve a coup d'état and maintain he had a special relationship with the Army, might argue, as Deputy Fitzgerald-Kenney argued, that matters relating to the Defence Forces are not covered quite clearly by the general provisions of Section 9.
As regards the general principle that, in theory, the President should hold supreme command, and that, in theory, the officers of the Army should hold their commissions from the President, I agree with what is provided in this Draft Constitution. Some Opposition speakers have said that there are other countries where such duties devolve not upon the President but upon the Minister for Defence or the Prime Minister. That may be so, but they have not given us the benefit of their knowledge by stating what these countries are. I believe that the normal thing is for the defence forces to be taken out of the domain of party by being put under the nominal command of the head of the State.
Italy and Germany.
Deputy Fitzgerald-Kenney refers to Italy. I do not know from whom Italian officers hold their commissions, but I strongly suspect it is from the King of Italy and not from Mussolini. I am sure that in every kingdom—and there are a great many still—the king is the nominal supreme command, but that does not mean, as Deputy Fitzgerald-Kenney has suggested, that an archaic condition of things still exists in these countries, and that the king is authorised to give commissions and dismiss officers any moment he likes. That state of things is, I should think, extremely rare, and it certainly does not exist in Great Britain, where Deputy Fitzgerald-Kenney suggested a very old-fashioned state of things exists.
The King is merely a figurehead, so far as this is concerned.
I want the President here merely as a figurehead.
Why put in figureheads?
Because it establishes a good principle, that the Army should look rather to the non-political head of the State than to a political member of the Government. I think that that is a sound principle, and that it puts the Army on a proper basis. As regards all this talk about asphalting the road to a dictatorship, a Constitution of this kind, which is providing new checks and balances, which is providing a Second Chamber and a President, is, to my mind, asphalting the road away from dictatorship. There is far more opportunity for a dictatorship in this country at present than there will be after this Constitution is passed.
If the President of the Executive Council and the Government had wished to create a dictatorship at any time since the abolition of the Second Chamber, it would have been very much easier for them to do it than it will be for any Party to do anything of the kind after this Constitution is passed. When there is so much talk about the exaltation of this new official, let us be candid. If any one of us here had a taste for power and were asked to choose between the two jobs in the new Constitution—the office of President or the office of Taoiseach —which would we take?
What would the salary be?
I am talking of power. If our taste was for power, there is not one of us who would not prefer to be Prime Minister to being ceremonial head of the State, whose only real power, though a valuable one, is the power of coming to a decision when a dispute between the two Houses suggests that a referendum is desirable. He has, within certain limits, a discretion as to whether a referendum should be taken or not. Consequently, I feel that all this excitement about the relation of the new President to the Defence Forces is unjustified but, to prevent any possible doubt in the future and to smother any alarm in the present, I do suggest that it would be a good thing to make the first two lines of Section 9 of Article 13 read: "The powers and functions conferred on the President by this Constitution, including those in relation to the Defence Forces, shall be exercisable and performable by him only on the advice of the Government."
This Constitution is designed to lay the foundations of this State for a considerable time to come. It is right that the Constitution, as settled, should not be easily disturbed, but that makes it all the more important that there should be no doubt or obscurity in the interpretation of any part of it. There are no facilities provided for getting an interpretation by the court in the event of a dispute as to the meaning of any particular Article. One of the most fruitful sources of litigation in connection with the interpretation of wills or deeds or statutes is the separation of clauses such as is done in this Constitution. A stark statement is made in one part of the document and, in another part of the document, another statement is made which appears to modify it. That system of drafting is one of the most fruitful sources of contention and litigation.
In Article 13 (1) (4) it is stated that "The supreme command of the Defence Forces is hereby vested in the President." The President points out that that is modified by another Article. Why cannot the modification be put in the Article itself? In five minutes any lawyer could draft a provision which would embody the vesting and the modification at the same time. The President has pointed to amendment No. 53 on the Paper, which is to take the place of Article 13 (10) (2) of the Constitution. That amendment is an immense improvement on the provision in the Constitution, but I wish to refer to the provision in the Constitution as it stands because, to my mind, it shows conclusively that it was intended to give far greater powers to the President than, we are told, it is now intended to confer upon him. Article 13 (10) (1) says: "Subject to this Constitution, additional powers and functions may be conferred on the President by law." Then sub-section (2) says:
"No such power or function shall be exercisable or performable by him save only on the advice of the Government, or after consultation with the Council of State, as may be determined by such law."
Surely it was contemplated by that provision that additional powers—we know not to what limit—might be conferred on the President. These powers might have been exercisable by the President after consultation with the Council of State. We have had a good deal of discussion as to what the Council of State meant. Deputy Costello told us ingenuously how the phrase was invented——
Is the Deputy aware that the Committee is dealing with amendments Nos. 40 and 41?
I am dealing with Article 13 (10) (2), and I am proposing to show by that Article that it was proposed to confer on the President additional powers, the extent of which we do not know.
In relation to the Army?
I am referring to Article 13 (10) (2).
The question before the Committee relates to two amendments dealing with the control— nominal or otherwise—of the Army by the President.
The President, in the course of his observations in reply to Deputy Fitzgerald-Kenney, referred to the fact that there was a modification, and a considerable modification, introduced by amendment No. 53. I am dealing now with the President's argument on that, and I say that his argument was that it was never intended to give any extreme or extra powers to the President: that the President was, in fact, only a functionary acting on the advice of the Government of the day. My argument is this, that Article 13, Section 10 (2) shows that it was contemplated to give additional powers to the President, additional powers to an extent that we do not know, and further, that it was contemplated by that Article to give him the right to exercise those powers without any check whatever." I am explaining what I mean by the words "without any check whatever." I referred to the discussions that took place on the position of the Council of State, and to that Article to show that if it had been allowed to stand it clearly contemplated giving to the President far greater powers than we are now told he is to get. If that Article stood, and if the President made up his mind to exercise some of the very extraordinary powers which might have been conferred on him by law, the only check on him was illusory, because he could call the Council of State together, ask them "what do you think about this," and, having heard perhaps their unanimous opinion against it, could tell them that they were very nice people, but that he was not going to pay the slightest attention to their advice.
The President says that there is no intention of doing any of these things, but in interpreting a document of this kind the intention is not what matters: it is what is actually in the document. When a statute goes on the Statute Book we may all know that it was intended really to do something else. The intention, however, is not the important matter. The really important matter is, what is the true interpretation of the statute? I suggest that when the President comes to deal with this he should give an undertaking to the House to have it redrafted in such a way that there can be no doubt whatever about it. That provision about the Defence Forces has undoubtedly caused a considerable amount of uneasiness, and it is not correct to say, as the President has suggested, that we do not believe in the arguments that we are putting forward.
Reference was made here to other countries and to the King of Italy. I do not think that we should discuss the internal politics of other countries. With regard to Deputy MacDermot's references to the King of Italy, I imagine the King of Italy would be greatly surprised if he heard that he has so much power as the Deputy has suggested. I think that this Article could be amended in such a way as to incorporate in the one document, the one paragraph, the complete and absolute modification of the power set out there which the President has informed the House it is his intention should be made. That, I suggest, should be made perfectly clear so as to remove uneasiness from the minds of the people who are disturbed about it at the present time.
When one is considering the question of the disposition of the Defence Forces of the country, one likes to think of what would be the best, having regard to the desire to produce a condition of stability here in relation to the Defence Forces, the management of which is often capable of causing a good deal of political and military uneasiness in a country. I look at this particular provision in Article 13 with a view to seeing what, in all the circumstances which we are facing to-day, is the best, from the national standpoint. We are a relatively young country with a relatively young Army, and the outstanding consideration which ought to occupy our minds is to endeavour to devise a Constitution which would induce that Army to recognise, as it has unquestionably recognised up to now, that it is the servant of all the people and not the servant of a particular political party within the State.
It comes for consideration, therefore, whether the exercise of the supreme command of the Defence Forces is better placed in the hands of an Executive Council or in the hands of a President. It may be argued that to place it in the hands of a President is to emphasise the non-political character of the Army, and to induce obedience and loyalty to what is intended to be a non-political head. On the other hand, I dislike the idea, in the era through which we are now passing, of placing the control of the Defence Forces in the hands of a single person, because we have had many examples in Europe of the manner in which armies, controlled by a single man, have been used for the disruption and destruction of democracy, particularly in recent years. On the other hand, it may be legitimately contended that the control of the Army by an Executive Council is calculated to give the Army the impression from time to time that they are the servants of the Executive Council which, in the last analysis, means the servants of the political party that can secure the most votes at election time. Balancing up these two claims, I think that in all the circumstances there is something to be said for giving the supreme command of the Defence Forces to a President, but I think it is also desirable to ensure that the President in those circumstances ought to be no more than a nominal head of the Defence Forces: that he should not, for instance, be an executive or administrative head, or that it should rest within his power to decide questions as to the disposition of the Defence Forces and the purposes for which the Defence Forces can be used.
Deputy MacDermot has suggested an amendment of Section 9 of Article 13 with a view to ensuring that it is beyond all question that the President's powers and functions in respect to the Army are exercisable and performable by him only on the advice of the Government. I think, however, that it is necessary to do something more than that. I would like if the President would look at this Article again with a view to amending Section 5 (1) of Article 13. At present it reads:
The exercise of the supreme command of the Defence Forces shall be regulated by law.
My suggested addition to that would be that it should provide that the administrative and executive control of the Army be vested in the Government, or in some Minister appointed by the Government. I think that would emphasise, in a very much more definite way than Deputy MacDermot's suggested amendment would, the viewpoint of the farmers of the Constitution: that whatever power is given to the President by law will not give him the right of an executive or administrative jurisdiction over the Army. An amendment of that kind would, I think, considerably restrict the powers of the President in respect to the supreme command of the Defence Forces. The weakness in the Article as it stands is that it is capable of handing over to the President certain powers. In the discussion on the Article, the President has said that it is only a weak Executive that could give the President those additional powers. It could give him powers which could be exercised and performed on the advice of a new Government. Is that challenged?
It could not be done under this.
What does the President suggest could not be done?
That an Executive would be so subservient that they would say to him in private: "What do you want done and we will do it for you?" That is a thing you cannot prevent being done. The point is that when the Executive Council takes a decision, the Executive Council is responsible to Parliament, and if the Executive Council decides to hand over certain powers to the President, the Executive Council is responsible to the Dáil for handing over those powers. Let us suppose that the President has working with him an Executive Council which is so subservient to him that they would say: "What do you want us to do, Mr. President? Whatever it is, we will do it." No matter how you arrange for putting the nominal head of the Government under the control of the Executive Council, even if the Executive Council is going to be so subservient as to follow everything that the President says, in a spirit of, as I have said, "What do you want done; whatever it is, we will do it"—the point is that the moment that is done, the Executive Council is responsible to the Dáil and will have to answer to the Dáil for their own act. No matter what he may do, it is the Government that is responsible and that will be held responsible by the Dáil for giving that advice.
Let us suppose that you have a Government here which was doing some things to which the Dáil did not object, or that the Government was getting the President to do certain things. The Government—that is, the Executive Council—would have to come to the Dáil, and the members of the Dáil would say, in effect: "Did you advise the President to do that?" They would say: "We did," or "We did not," as the case might be. Supposing that they refused to answer, the Dáil would say in effect: "Well, according to the Constitution, he could not have done that except on your advice." Therefore, I say that it is only a step removed. You have the real power in the Government of the day, and Parliament can deal with that; but if the Parliament is not to deal with it, where can you get? If the Parliament, or the Dáil, cannot deal with it, it is quite clear that everything is gone mad.
I am afraid that what the President has said, instead of tending to allay my fears, has only tended to increase them. He says, in effect, that a Government that was favourable to the President, or even in collusion with him, perhaps, may give the President certain powers, but that that Government is answerable to Parliament. I suggest, however, that the most that can happen, in such an eventuality, is that that Government can be criticised.
It can be put out.
The President says it can be put out, but surely the President does not put that suggestion forward seriously as a remedy for such a situation? If the Taoiseach has a majority of the Party prepared to act at his command, there is not the slightest likelihood of the Taoiseach being unseated.
The Deputy, evidently, is talking against parliamentary institutions altogether, according to his argument.
No. I am talking about the dangers that are inherent in parliamentary government where you have a mute majority capable of being regimented to such a degree that one single vote—given in a spirit of: "Well, we do not care what happens, we must stand in with the Party"— can do enormous damage. I hold that that is capable of doing enormous damage.
The Deputy will do a great service to the institution of parliamentary government if he can devise any system to prevent that.
The President himself knows that the greatest advocates of democracy recognise the weaknesses in parliamentary government and have always sought to curb these weaknesses wherever it was possible to do so; but the President has suggested now that it is possible for a weak and subservient Government to give certain powers to a President. I want to try, as far as possible, to prevent the possibility of a weak or subservient Government giving these powers to a President, and I want to do it in such a way that any attempt by such a Government to give such powers to a President would be deemed to be unconstitutional, having regard to the provisions of the Constitution.
But there is no need to give these powers to the President. Why should they give him such powers when they can do it them selves?
Has Deputy Norton considered the possibility of a weak and subservient Government giving undesirable powers to the Taoiseach? Is he sure that, in his eagerness to avoid giving certain powers to the President, he may not be running into another danger?
When we talk about the exercise of the supreme command of the Defence Forces here, and when we talk about giving the Taoiseach certain powers, the Taoiseach is in a much different position in respect of the President's powers regarding the Defence Forces than he is, for instance when he wants to get rid of an objectionable member of the Government. He acts here as the head of the Government, and nothing that I have said is calculated to transfer any special powers to the Taoiseach. My proposal is to keep the powers in the hands of a Government, whatever that Government may be; but the danger to be guarded against—and that, apparently, is agreed to by all who have discussed this matter in the House—is that a weak and subservient Government may give certain powers to the President. I want to put a provision in this Constitution which will say that the exercise of the supreme command of the Defence Forces shall be regulated by law and that that law, or laws, as the case may be, shall be that the exercise of these powers in connection with the Defence Forces, and the question of the disposition of the Defence Forces, shall remain in the hands of the Government.
Amendment No. 53 has all that, and more.
No. I suggest that it has not. Amendment No. 53 says: "No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government." I suggest that that does not go as far as my proposed amendment does. It is still possible for the Government to pass a law, even if amendment No. 53 is passed by this House, giving powers to the President which shall be exercisable and performable by him.
Save only on the advice of the Government.
On the advice of the Government, yes; but there are also to be powers there which will enable the President to do certain things on his own.
It is only in respect of certain matters that the Government has power to advise.
No. This is absolute. The words are: "No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government." If there is anything more absolute in words than that, I cannot see it.
I suggest that my proposal makes amendment No. 53 more watertight, because it seems to me that, under amendment No. 53, there is still the possibility of giving certain other powers to the President. I submit that a revision in the Constitution to the effect that certain functions in respect of the administration of the Defence Forces should be exercised by the Government is a much more watertight provision than that contained in amendment No. 53—particularly, as, at this stage, we cannot see the law. Where the law is not available, I think it is much better to provide, in the Constitution, that certain functions cannot, under any circumstances, be given to the President. If we could see the law and know what power it was proposed to give the President it might be possible to ascertain if amendment No. 53 fits in with it but in the absence of the law I think the other provision is better.
I should like if we could get close reasoning on this matter. There is no member of the House, no matter what you may think or suggest, who is more anxious that the Army should be a Parliamentary Army in the fullest sense than I am. I believe it is a good principle. If the Parliament fails the people, then no Constitution is going to help them. If Parliament completely fails them and wishes to behave in a way in which the members were not elected to behave, namely to hand over all their powers to somebody else, there is no use in talking about that because you cannot provide for it. Here in this it is explicitly provided that the raising and maintenance of armed forces shall be a privilege altogether in the hands of the Oireachtas. You will have the actual words later when we come to that provision. The raising and maintenance of armed forces lie with the Oireachtas, with Parliament. Now, we must have the supreme command nominally somewhere. Is that not clear? It will either have to lie in a Committee of one House, a Committee of both Houses, in some individual selected by the two Houses or in some other way. We shall have to make some provision for the command of the Army. In this Constitution the effective command lies with the Government and nowhere else. The Government, as elected, is under the control of the Dáil, of the elected representatives of the people. I think it cannot be questioned that that is the fact. It was in the original Draft which I hold and it is here, but I shall deal with the amendment later on.
Deliberately I selected, as being the best, the method which is most customary, namely, that the head of the State—where you have kingdoms, a King, and where you have republics, a President—no matter how he is elected, whether he is elected by the two Houses of Parliament or in whatever other manner he may be elected, should have the command vested in him. I chose that deliberately and stand by it, because the President is supposed to be non-Party. He is supposed to represent the community as a whole. He is the one individual, more than any other, who can be regarded as representing the State, or the community, as a whole. I say that it is quite a sound principle that the supreme command should nominally vest in him. Will somebody show me how he can make use of anything that is vested in him except by exercising it? It is presumed, and we say here in this Constitution, that any function which he exercises must be exercised on the advice of the Government. He will either exercise that power under the Constitution, in which case we have it provided for in Section 9 of Article 13, or he must exercise it because the right of exercise has been given to him by law made under the Constitution. We meet his power of exercising it by law made under the Constitution. We have meet it already in Section 10. I amended that slightly because there is just the possibility, which I think would be most unlikely— almost unthinkable—that Parliament, which is ordinarily so jealous of its control of the forces, and which is the only body which has the right to maintain those forces, would hand over from itself the ultimate determination of the command of the forces.
Lest there be a possibility of such a thing happening we have brought in this amendment set forth in the most explicit terms—and, mind you, this is to be a separate section; you have Section 10, separately, and then Section 11. Section 11 will read in the most general and absolute terms:
"No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government."
Is it not as clear as anything can be, therefore, that the exercise of the command of the Army is to be definitely on the advice of the Government of the day? The Government will be held responsible because it is on its advice action will be taken, no matter what action it is. That Government will be held responsible by the Dáil, and I see no need whatever of adding any strengthening clause anywhere because the thing is as watertight as it can be made. Putting in this clause seems to suggest that there is something left out and there is the danger that elsewhere that supposed omission might lead people to think that there was some special reason for the omission, or some special reason for its inclusion, which might weaken the effect of this clause elsewhere. I therefore cannot see any argument for changing the Constitution, as it will read when amended.
Deputy Norton seems to be getting on to another line when he talks about a weak Government and a weak Parliament doing this, that or the other thing. That has nothing to do with the position of the President, because he is to act on the advice of the Government. If the Government is wrong and if Parliament allows that Government to go wrong, then you should not blame the President or the Presidential office. Let us blame the representative institution and let us try to remedy it. It is the Government, the control of the Government by the Dáil and the control of the Dáil by the people, that you have got to remedy and not the Presidential office here, because the weakness of the Government and the weakness of Parliament are the factors that are operating. That is the thing to be remedied, I suggest, not by interfering with the Presidential office but by giving more effective control to Parliament over the Executive and more effective control to the people over Parliament, if you like. That is why we have provided for referenda in certain circumstances. That is the justification for a referendum. It is a difficult and a rather expensive method of operating the people's control over Parliament but I suggest to Deputy Norton that the weakness which he seems to discover here is to be remedied, not by dealing with the Presidential office but rather by dealing with the control of the Executive by the representatives in Parliament and by the control of these representatives, if necessary, by the people as a whole, if that can be done, but there are limits to that, we know. No ingenuity so far has been able to get over the possibility, but I think it is a very unlikely possibility. I think the case is absolutely watertight, and I see no reason at all for changing the system as it is.
I think this thing can be reduced to a very net point. We are dealing with paragraphs 4 and 5 of Article 13. One says that the supreme command of the Defence Forces shall be vested in the President, and sub-paragraph 2 of paragraph 5 says that all commissioned officers of the Defence Forces shall hold their commissions from the President. I want to ask the President whether he has studied other Constitutions, and can answer the question put to him before: Is there any Constitution in the world which contains, as a matter of constitutional law, the clause that appears here as sub-paragraph 2, paragraph 5, Article 13? I suggest that there is not. I suggest that there is not a single Constitution in the world which contains that phrase. Does the President think that there is?
I think that, whether you have a written Constitution or not, it is a fact.
This is a question which is easy to answer. Is there a Constitution in the world which contains, as a matter of constitutional law, a provision that the officers of the Defence Forces shall hold their commissions from the President? Is there one?
I do not know.
There is not. I suggest that there is not one. That is the first thing we step out on—this is a constitutional novelty, untried anywhere else, and it is a good thing to get that clear. I suggest further that the general run of Constitutions throughout the world are framed in this way, that you have the ceremonial headship of the army vested in the President or in the King, and you generally have, flanking such a statement in the Constitution, a proviso that in time of war he shall not exercise the commandership-in-chief. It is generally, in a particularly direct way, marked out that whatever is the disposition of the forces and all the rest of it is to be regulated by law. First of all, we have a constitutional novelty here. There is not a Constitution in the world which has this phrase about the officers holding their commissions from the President or the King. It is nowhere in any Constitution.
Does the Deputy draw a distinction between its being in the Constitution and its being an existing fact?
Distinctly. It is a Constitution amendment to dispose of that which has to go to a referendum. Certainly let it be a matter of law which the Government of the day can change. Let it become a practice, but one which can be easily changed if the President tries to work any influence on the Army through whatever association he has with them on this matter of commissions. That is all I am speaking of at the moment, but the bigger point is in the background. This is a constitutional novelty. You get Presidents with certain powers or Kings with certain powers under most Constitutions, but —the President talked about ingenuity —the wit and ingenuity of mankind have adopted certain devices against powers which were meant to be ceremonial becoming real. There are two ways in which it is done. The President and the King—and modern Kings are in much the same position as Presidents—are brought back under the heel, under the control of the Government of the day by a clause which runs through the majority of those Constitutions. Sometimes there is a distinction made between every governmental act and every executive act—that is only in Constitutions which divide the powers into clear cut categories—but in the generality of Constitutions you have both Kings and Presidents tied up in this way, that everything they do must be countersigned by a Minister. The purpose of that is clear. The principle of it is obvious. The purpose of it is that on every occasion where he acts, where he does something positive, some Minister can be challenged for it in the democratic House of the Parliament of that particular country. That is the system. I think there are exceptions to be pointed to, and I only want somebody to bring out the exceptions, because I want to follow the histories of those countries which have exceptions. Almost all of them have gone into some sort of dictatorship or totalitarian State. If we can get the exceptions clearly stated here, and get the histories of those countries since the Presidents in those countries were put in a different position to what they are in elsewhere, we will know exactly where we are.
The only other side which is worth considering is this: Supposing the President or the King in a country has given orders under the Constitution to do something, apart from what he may do which requires the signature of a Minister, where in other words the Minister can stop him by refraining from putting down his signature, and the Minister being emboldened by the fact that he has to take political responsibility for what he signs for. On the other hand supposing there is something which the King ought to do or the President ought to do. Generally speaking, that is met in this way, that you have someone to override the authority of the President. I have a later amendment here which seeks to provide that if a thing is not done inside a certain period somebody else does it for him. We are offered here this phrase; right through you have the phrase, by afterthought brought in, with regard to the law— powers conferred by law. In answer to debate here in the House that matter was brought in—powers conferred by law. Now we are told that we can all be happy because they are operated on the advice of the Government. If there is any conflict what will happen? Again, as an afterthought, we have proffered to us here amendment No. 54, Article 14, and we have a phrase there in regard to the failure of the President to exercise and perform powers and functions. The President himself has told us here that that refers to failure to perform his duties to the satisfaction of the Council of State. That is what we are brought down to. That is the constitutional bulwark for the people against abuse by the President of the powers given to him under the Constitution. Just look at the Council of State, and see what constitutional bulwark it is. That is what the Constitution reduces itself to on this all important point. If I am painting a wrong picture it is a simple matter to show where the explanation is wrong.
On a point of order, would it be in order for me to move that the House sits later than 2 o'clock?
It would be in order, though generally it is a Minister who moves to sit beyond the usual hour.
I should be very glad if we could get agreement on it. I would suggest that we sit until midnight.
It would be a pity to keep this large multitude waiting until midnight.
Forget about the multitude.
Are we interested in this? This is a farcical document, and I would not keep anybody here beyond 2 o'clock.
If it is in order, I should like to move that. After all, the Opposition are opposing dictatorship.
Then this is more than a farce.
Does the Deputy think we ought to sit late on an ordinary day to discuss this?
There is only one minute in which to decide the matter.
I hope the House will decide it.
I do not feel that it would be right to move unless we could get agreement. If we can get agreement, I will be willing to go on until midnight.
I certainly will not raise any objection to the House passing this by guillotine before 2 o'clock.
The Deputy is trying to get out of it. Is he willing to sit on until midnight?
I am willing to sit on, but I will not be here. I am willing to let the House sit on.
Can we get from some responsible member of the Party opposite an answer as to whether they are willing to sit on? Is there anyone on the opposite side who will answer? I understand the Whips were trying to find agreement, but I do not think they succeeded. If we can do better than the Whips we shall be delighted.
When did the Whips start to do that?
If there is no objection we will go ahead.
Some hour must be fixed for adjournment.
Why midnight? We sat until 6 o'clock to enable the President to get part of the funds of the State for the Irish Press.
Do not try to get out of a straight question. The Government is prepared to go on dealing with this Constitution, Article by Article, until any hour.
If we are to do good work, we cannot sit until midnight, but we might sit until a reasonable hour. If I am in order, I suggest 7 o'clock.
I want to enter a strong protest against a motion of this kind being moved on Friday, which, normally, is a short day, and this week follows a holiday when the Dáil did not sit. If a motion of this kind was to be submitted, it should have been done last Wednesday when we should have had an opportunity of discussing it.
According to the Standing Orders, such motion may be made without notice.
If there is any objection from the Leader of a Party about this, I will not press it.
I will not press my proposal if there is any objection.
That means that the House will sit until the ordinary hour, 2 p.m.
On Article 13 I suggest that this whole matter comes for judgment on a single point. Is the House prepared to allow the President to be given powers in this Constitution which might be abused—I put it no further than that—where there is not any recognition in the Constitution that anybody takes responsibility politically for something which he does or attempts to do—in other words, where something which is under the President's control cannot be made effective unless someone else signs over it? On the other hand there is political responsibility. We have not that in this Constitution. There is a question of affixing a signature to laws. There is no way of getting a law passed without a tremendous amount of delay at the least, or a considerable amount of public confusion associated with it, at the worst. Even there might be a complete hold-up of the Legislature on what it wants to pass. In the end we are offered a substitute and the President can be coerced into doing his duty because we have a promise to carry out his duty. If he fails, who is to judge the failure? A Council of State. That reduces it to absurdity.
There is no use continuing the argument. I think I proved as clearly as it could be proved to anyone who wants to see, that the President acts on the advice of the Government. Surely the Deputy does not suggest that where action is taken clearly on advice, the Government cannot be held responsible. Of course it can. There is political responsibility not merely on the matter of the advice but clearly as to the form as well. It is all nonsense to say that the command of the forces is completely outside the control of Parliament. It is not. However, there is very little use pursuing the matter further. I have given the arguments and I think we had better divide.
I want to put one last question. Why have we avoided putting in words that are common in other Constitutions, that acts of the President shall not be valid or capable of enforcement unless countersigned?
Because there is no necessity for them. Will the Deputy say that in the past things were not done without them? There is no necessity for them. The advice will cover that in matter and form.
Nine-tenths of the written Constitutions contain some such words. Why do we avoid putting them in?
Because it is not necessary to do so.
Other countries think it is. Why not here?
We are not going slavishly to put in everything that appears in other Constitutions. We are using our own judgment and on our own responsibility. There is no necessity whatever for these words, inasmuch as it is provided that anything done in regard to the Army will be done on advice. That covers form as well as matter. When the law is made, if the law wishes to put in regulations it wants in a matter of that kind, it can do so.
The common ingenuity that is in nine-tenths of the written Constitutions we are avoiding.
I doubt the truth of that.
Expose the falsity of it.
The Deputy often pontificates and very often he is wrong.
I think I am on strong ground because I am opposing people who do not know anything about Constitutions. Refute me.
This only shows the general attitude. If the Deputy would not be so conceited he might find that he would be less inclined to dogmatise. We have the case of Czecho-Slovakia. One of the first things we got from another Deputy in regard to the giving of commissions was the statement that there was no place where that occurred where there was supreme command of the Army in the President.
I did not say that.
I have particulars where commissions are given by the head of the State.
What is the Article?
In the CzechoSlovakian document, Article 64. Speaking of the functions of the President, Section 8 says:—
"He shall appoint all professors of higher education, judges, and State officials, and officers from the sixth class upwards."
Does the Deputy suggest that that does not refer to officers?
I suggest that it does not mean that commissions are signed by the President. That is not so in practice.
The suggestion was that there was no place where commissions were given. If the appointment of officers does not mean the giving of commissions I would like to know what language means.
It does not mean that. I will give five other examples in which the President appoints and confers rank. This is different. It is a written document and there is the signature.
That document can be in any form that the Government decides. If the Government decides that that document should have on it beforehand a signature either of the Taoiseach or a Minister it can do it. It would be good practice to do it. Any President getting a document like that would like to see it authenticated in advance by such a signature. In the case of Norway, it says:—
"The King with the advice of the Council of State shall choose and appoint all civil, ecclesiastical and military officials."
That is Article 21 of the Constitution of Norway. We have this pontification which I think we ought to be spared from in matters of this kind.
Is that proof that the pontification was wrong?
It is in that particular instance.
I know where I am so, and what I have to meet.
As to the next thing, that because other countries do certain things we should do them, we have our own circumstances, our own experiences, our own knowledge to deal with these things; and if there is anything being put in from any other Constitution good reason ought to be shown for it. We ought to be able to depend on the arguments themselves without saying that because it is done in such-and-such a case we must do it. As I have said, this is watertight so far as the control of the Army is concerned.
Where is the importance of the signature? For example, I held a commission from the King, but I never got anything over the King's signature to show it.
Certainly, it is not the practice even in countries with a constitutional provision—there are about five—where there is some phrase about the President conferring rank or appointing. The President knows, if he only looks at illustrated pictures in the newspapers, what that means. It means that whenever there is a parade of officers to get commissions the President appears. It is done under his auspices, so to speak. That is the beginning and the end of it.
This says nothing about a signature, but that the commission shall be held from him.
Does that mean a signature?
If commissions are not going to be signed by the President, what does the later clause mean, which says that officers, on the coming into being of the President, who are found with commissions given to them by somebody else must exchange them for commissions from the President? Is there not going to be something to associate the President with the Army which is going to wipe out the present system, under which commissions are written and given to people by the Minister for Defence? I submit that there is this democratic point. Officers getting a rank, the giving of a status to certain men in the Defence Forces, is an important matter and should be under the control of the man who stands for it here. If you are going to make it a ceremonial, why not do what all these other Constitutions have done and say this: that every act that the President has anything to do with must be countersigned by a Minister? We then have the President in the same position as a civil servant, and at the moment nobody here thinks of attacking a civil servant for anything done. You get after the responsible head. Similarly, in regard to a military act, when you have a counter-signature you get after the person who signed it. I suggest that even in the two Constitutions read there is a phrase that for an act to be valid there must be a counter-signature.
Will the Deputy refer me to that?
In Czecho Slovakia and Norway they must be signed.
The question about a signature—you were talking about commissions.
I do not know what I am being questioned about. Is it with regard to the point that no Constitution contains a phrase like this? I assert that to be true, if it is in connection with where Presidents or Kings appoint, if there is a point that, if it is called an act, that act in order to have validity must be countersigned by the responsible Minister. Is that what I am questioned about?
No. I doubt very much if it is everywhere. Certainly there is nothing where you have these things done definitely on the advice of the Government.
The only way in which you can clearly associate the Government with anything the President does is to have what nine-tenths of the Constitutions have.
Our system has been that anything done on the advice of the Government the Government has been responsible for it. This country has not it.
Why not accept what other countries by such a majority have accepted?
Because there is no need for it.
Other countries have this same scheme of collective responsibility; other countries have this same scheme that the Government is in power. Some countries wandered from that practice—eight did; five went into dictatorship.
How many of the dictators were ceremonial heads of the State?
Take the three Baltic States. Of these individuals who believe in democratic institutions it has been stated that not one was a man avid of power. They were men who did get into that position and were pushed by Parties.
They were not ceremonial heads of the State.
In the three Baltic States they were intended to be ceremonial heads. In Poland there was a tendency that way. I do not think we want to have the Polish situation reproduced here. We do not want a situation brought about here such as was brought about in Germany. The examples of the countries that have gone off this path are rather illuminating. It is a good thing to have them as an example for people to take their guidance from. That clause is a constitutional novelty. It is a constitutional novelty not merely in form but in substance, when taken away from and divorced from the clause which is in ordinary Constitutions, that acts to be valid must be countersigned. I do not know that there are more than three countries with written Constitutions that have not that clearly stated in most express terms.
I thought there were nine a moment ago.
The President tried to misrepresent me before about the Supreme Court. Do not let him do it now. He will do it in my presence, anyhow. I said the constitutional method that everywhere operates is that clause about commissions being held. I have said that a clause that governmental acts or executive acts, in order to be valid, must be countersigned, occurs in the vast majority of Constitutions. I repeat that—there is no answer to it. We are only told that the substitute here is "on the advice of the Government." In the end "on the advice of the Government" boils down to this—who judges? The President brings forward this group of "yes-men"—the Council of State.
It amazes me, when Deputy McGilligan speaks so strongly about counter-signatures that he has not introduced an amendment.
I have—amendment No. 44.
Then I withdraw that remark. I personally would not have the slightest objection to counter-signature, although I believe it is a matter of no importance, because that situation is fully covered by the fact that these functions are only exercised on the advice of the Government.
Are you not impressed by the fact that it is done in 19 out of 20 countries?
Not in the least. A thing like that is done because in countries making new Constitutions they follow one another like a flock of sheep, especially where Parliament is not a thing with a long history behind it.
Take the French Government.
The French are always crazy about getting things on paper. They have an absolute passion for it. If you have to do business with the French, you need not think any bargain is concluded until it is absolutely on paper. That is characteristic of them.
They are constantly changing.
I did not say they are constantly changing. I mean that they put no trust in anything that is not actually on paper. They do not attach the same weight to custom or tradition which other people do. They like to get some signature. I believe a signature is quite unimportant. I have no objection to it, but all the fuss made about it seems to me grotesque. In the same way, it seems to me a matter of no importance whether the provision about holding commissions from the President is in the Constitution or is provided by law. Deputy McGilligan admits that, where it is not in the Constitution, it is the normal situation to provide for it otherwise.
Not what I am interpreting that to mean about commissions being signed by the President. That is not a commonplace.
I repeat that the matter of a signature seems to me to be trifling—the question of who in theory you hold your commission from. Take a passport.
Which is not one of the things the President has to do here.
Whoever signs it, there is no doubt that when you travel abroad with a passport, your passport provides you with the protection of the King. Yet it is not signed by the King. The suggestion that the King's powers would be enormously increased if he had signed them is absurd. It would give him a lot of trouble. This signing is a mechanical thing, and it seems to me no importance can be attached to it at all. To get back again to those countries that have in recent years slipped into dictatorships. I say this slipping into dictatorships has not happened in most cases where excessive powers have been given to the ceremonial head of the State. If the King of Italy had been more powerful, he would—whether he wanted to is not the question—have been in a position to prevent Mussolini from establishing a dictatorship. If Hindenburg had more power, or if he had not been a very old man, he might have prevented the dictatorship of Hitler. For many years Hindenburg was regarded by the German nation as the main barrier left in the way of a dictatorship.
I do not think we are to be faced with a dictatorship in this country. The spirit of the people is against it. If we were to have a dictatorship at all it would be more probable under the present Constitution, far more probable. If there was to be an attempt under the proposed Constitution to establish a dictatorship it would be easier to make the Taoiseach a dictator than to make the President a dictator. And as to the suggestion that this Draft Constitution is tending in the direction of a dictatorship by the President, I suggest it would be a tendency more in the direction of a dictatorship by the Taoiseach. But I do not think that it is tending in the direction of a dictatorship at all. If it were I would oppose it strongly.
The Deputy has suggested that the practice and experience of other European States are to be regarded as trifles. The men who regard the practice and experience of European States as trifles have no place in a deliberative assembly.
I never said that.
These are the fruits of the experience of recent years recorded in books and Deputy MacDermot brushes them aside. It is because the people who had the view of taking power had control of the Executive that dictatorships were brought about in all those countries in recent years. That was what led to dictatorships.
I move amendment No. 42:—
In Section 6 to delete all words after the word "may" line 4 to the end of the section and substitute therefore the words "be exercised only on the advice of the Government."
This amendment brings us to another point. It is sought to delete "except in capital cases, also be conferred by law on other authorities" and to insert instead the words "be exercised only on the advice of the Government." There are two reasons for that. It may be said in answer that this is covered by the general authority of Section 9 of Article 13. But it may be possible to make that section clearer. The words "may also be conferred by law on other authorities" are not clear. Does it mean that there are to be two authorities in regard to the commutation of punishment in non-capital cases? What is to happen if there is a conflict?
In regard to Section 6 of Article 13, at the present moment, powers of mitigation or commutation are given to the Revenue Commissioners and the Minister for Justice. The intention is to see that that power is continued. The position here is that this clause leaves the matter as it stands.
I want to ask again whether the words "may... also be conferred by law on other authorities" are to the exclusion or inclusion of the President?
In addition to the President.
So there may be two authorities commuting a punishment?
We have that at present.
What will happen if the President says "I remit that punishment completely" and the other authority says "I reduce it by half"? What happens in such a case?
The position will not arise.
How is it to be prevented?
Because you will never be stupid enough to have it arise. The President will exercise it clearly on behalf of the Government.
But in cases where the Government had decided to hand over the mitigation of the punishment to some other authority. Suppose they hand that over to somebody else?
If the Legislature is stupid enough to do that they will have to settle it between them. The Legislature would not, be stupid enough to leave it in that way.
It is not the Legislature but the Constitution that is leaving it in that way. The way to change it is to put in the words "that the President's view shall over-ride." I suggest you put in something like that.
There is no need of it.
I move amendment No. 43:—
To delete Section 7 of Article 13. I think it would be entirely useless that the President should be given power to communicate with the Houses of the Oireachtas by messages. The matter is certainly not of such importance that it should be put in here. What is the necessity of giving, in any Constitution, such a right as that given to the President? What is the idea of the President issuing national addresses or sending messages to the Oireachtas? What is its purpose?
The purpose is that the President occupies a non-Party position. He is supposed to act in a non-Party way. The occasion may arise in which the Government of the day might think it advisable to have a message to the people from the President on some matter and when such an occasion would arise it would be clear that the President concurred. If the Government wants to issue a message to the people on any particular matter they could do so without the President. But if there happened to be an occasion in which, for instance, it was thought desirable to get all Parties to co-operate and the President was willing to address this message, then it could come as from a non-Party source. But the President is expressly forbidden from giving any message to which the Government would object. The value of this is that it enables a non-Party address, which would appear to come from the President as not belonging to any particular Party, to be sent to the people.
That phrase of the President's:
"a non-Party address which would appear to come from the President",
is interesting. That is what the President said. It is not being done in connection with any Party, we are told. But the Government is a Party organisation. The Government will be regarded as a Party and this section in Article 13 will enable the Government to get its Party mind expressed through a non-Party President.
No, it is quite clear that could not happen there.
What is quite clear is that the President can be forbidden to speak except he speaks in accordance with the Government's views.
He cannot be compelled to speak if he himself does not think it is right.
If he lends himself for the purpose he may issue an address which can be made to appear to come from a non-Party source.
That is not an accurate statement.
It is not my phrase; it was yours.
It may not be the Deputy's phrase, but the fact is that it is clearly set out in the Constitution that the President may, with the concurrence of the Government—it would be unwise to permit such a thing to occur without the concurrence of the Government; it would be unwise to leave it open and make such a thing possible—on an occasion in which he and the Government would think it wise so to do, address a message which, because it came from the President, would be listened to by the people, who might not listen to the Government of the day. For instance, if there was an appeal for co-operation between Parties, it would come very much better from the President, and it would come more easily, than it would come from, say, the head of the Government or the head of the Party. Consequently, there is an advantage in making it possible for the President to issue such an address. The danger would come in if the President were allowed to issue an address which would be contrary to Government policy. In order that such an address could be made you will have to get the concurrence of the Government and the President, and the President would not concur except the situation was such that it was evident it was a matter in which all Parties ought to co-operate.
With regard to Section 7 (3), it appears to me at first sight to have certain dangers attaching to it. Will it not prohibit the President from giving a statement of his reasons to Parliament in the event of a refusal of a dissolution to a Taoiseach?
Oh, yes. I think it would be highly undesirable to leave it open to a President to address either Parliament or the nation in that sense contrary to the views of the Government of the day.
The case where he might refuse a dissolution is a case where a Taoiseach has been defeated in this House?
Is it seriously intended, if that defeated Taoiseach applies for a dissolution and the President refuses, that the President shall not be allowed to make a statement as to why he refuses?
Whatever Government is in power, it should concur. I do not think it right 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.
Take the case that the President decides either to allow or reject an appeal for a referendum. Is it desired that he should not be able to make a statement of the reasons that guided him in allowing or rejecting? I must say I was struck with some surprise that in actions of that sort he should be debarred from making a brief matter-of-fact statement of his reasons for doing it. I suggest that, if the President has not already thought about the subject, he should give it a little attention between this and the Report Stage and consider whether any special provision should be put in to enable a statement to be made on such occasions as that.
I think it would be extremely dangerous. We have heard a great deal about clashes. There is no opportunity here for a clash in the ordinary sense, bringing matters before the people. The danger would lie if the President, over the head of the Government, was to make some appeal to the nation on some matter or address a message to the nation. You would immediately have two authorities, and you cannot have that. On the whole, the best course would be to make it possible for the President, in a case where he concurred and where the Government also wished it done, to issue an address. But I do not think the President ought to be permitted to enter into what might give rise to a public controversy with the Government.
I think this section of the Article is a highly objectionable one. The President this morning, on another section, said that the President referred to in the Constitution is supposed to be non-Party; he is supposed to represent the community as a whole. Here you have a situation in which some question of national or public importance may become a matter of bitter controversy and there may be difference of opinion between the Government and the Opposition. The Government in the circumstances can go to the President and ask him to issue a statement on that matter supporting their point of view. That would be turning the President into a politician at once, if he is not one already. It is perfectly idle for us to hope, at our present stage of political evolution, that we will be able to find for the office of President some person who is not always a politician. Fifty or 60 years ago a lighthearted librettist wrote that every child born to the world was born a little Liberal or a little Conservative, and that was at a time when the whole of Europe was either Liberal of Conservative. Since that time a great many isms other than Liberalism or Conservatism have been developed in Europe and I suggest that no child can be born nowadays without being infected from the date of its birth with some political ism. Therefore, I do not contemplate a position here in the future in which we will have a President who is not a supporter, or Presidents who are not supporters, of one Party or another. The President may endeavour to be non-political, but he will never be able completely to detach his mind from his earlier political affiliations. The President said it would be highly objectionable to have a statement issued by the President not approved by the Government. I quite agree, but I think it is more objectionable still for a statement to be issued by the President which has the support of the Government, because, on a matter of national or public importance that is in controversy between the Government and the Opposition, he will inevitably turn himself in the eyes of the people into a partisan. That is objectionable, and I submit that he ought to reconsider that aspect.
With regard to Deputy MacDermot's point, might I ask is there anything to prevent a President addressing a message to the Gaelic League or the Dublin Chamber of Commerce against the wishes of the Government?
I am not going to answer the Deputy.
Is that facilitating the House?
I have been facilitating the House on all sorts of nonsensical points.
Is there a constitutional prohibition against that?
Anything the President does he will do it in concurrence with the Government.
That is not here.
It is there.
There is no such prohibition. Again, if the President addresses a message and finds he does not correctly address himself, will he be allowed to address an amendment to the address without the approval of the Government?
I move amendment No. 44:—
To delete Section 8, and substitute a new section as follows:—
No act of the President in exercise of the powers and functions conferred on the President by this Constitution shall be valid or capable of enforcement unless countersigned by the Taoiseach either alone or with the competent Minister or Ministers each of whom thereby accepts responsibility for such act of the President.
This is the amendment to which Deputy MacDermot referred a few moments ago as the one in which, if I had views about a particular matter, I should have set them down. I ask the Dáil to delete Section 8 in the Draft Constitution in its entirety and substitute my amendment for it. The wording of the amendment is the best I could do in order to boil down into one phrase the phrases that I extracted for myself from 17 Constitutions. It is noteworthy that that phrase does run through the majority of the Constitutions. I simply took two books that came to my hand; I did not pick or choose. I have Constitutions that range from 1875, in the case of France, up to as late as 1925, and I find that as a common element in regard to all these, and as an element, peculiarly enough, in modern Europe, where there is a kingdom or sort of republican form of government, where the head of the State is a President or a King, you get mainly that acts of the President must bear the counter-signature of the Minister, and you get also, in the great majority of cases, the phrase I have added which imputes responsibility to the Minister who signs for everything for which he does so sign.,
I suggest that it is a wise principle. We have got to this point in democratic institutions right through the world, except where dictatorships have supervened, that you have a democratic House and in it you have members of Government and these members of Government bear responsibility individually for acts of their Departments, and where you have Cabinet Government, the group as a whole bears responsibility for the several acts of the Ministers who compose it. In that way, you get tied up all responsibility in the Executive or Cabinet of the day, and it is a very wise provision. It has two effects. First of all, it puts a check on the King or the President and, in the second place, it puts a further check upon the Government and upon the individual Ministers in that they assume political responsibility for anything done in their name.
The Yugo-Slavian Constitution contains the provision:
"No act in exercise of the royal power shall be valid or capable of enforcement unless countersigned by the competent Minister."
How much of a protection was it in Yugo-Slavia?
It is not a compiete protection.
They got a dictatorship there.
You have to go to the other point of getting some way of enforcing something presented to the King. You must look at this thing in two ways. You want to get somebody to bear responsibility by countersigning, and you want, where the Government wants to do something and the President tries to refuse, to get a way of enforcing the Government's point of view through against the President. I have tried to deal with both of these. I must do it in two sections because of the rules of order and of the way the Constitution is drafted. This is only the first part. The Yugo-Slavian Constitution further says:
"The competent Minister shall be responsible for all acts of the King, oral or written, whether countersigned or not and for all his actions which are of a political character."
Incidentally, it was not by reason of that Constitution, or any weakness in it, that the Yugo-Slavian situation took on another complexion. In Poland, you have an Article which opens with the signing of laws. It is a longish Article, but towards the end you have the phrase:
"To be valid, every governmental act of the President of the Republic must be signed by the President of the Council and by the Minister within whose Department the matter lies who thereby takes responsibility."
You have clauses similar to that in the Constitutions of Austria, Esthonia, Czecho-Slovakia, Denmark and even Mexico. In the case of France, it is very simply stated in a single sentence:
"Every act of the Government must be signed by the responsible Minister."
With regard to Belgium, it is very difficult to find a way through the particular clauses of the Constitution there, but I find in one clause something which at any rate does impose somewhat the same restriction. I do not say that it is as complete as the others and I do not put it forward as one of my examples. The other examples are Norway and Sweden which are kingdoms, Finland, Greece, one Constitution of Roumania, Turkey, Latvia and Lithuania. That is the only survey I was able to make, and those are the Constitutions contained in the two books open to me, one giving Constitutions some of which are out-of-date and the other certain amendments of them.
And in several of those countries there have been dictatorships since.
I want to bring it to a particular point in regard to some of these countries. Esthonia, Latvia and Lithuania are notable examples. Changes were made in the Constitutions and the changes were marked out in the book I quoted here the other evening as being notable for one thing—an attempt to limit the authority of the Executive. How that limitation was done varied. Sometimes it was by giving a President certain powers and sometimes by giving a Parliament extra powers. In the main, however, it was by giving a President extra powers. The eight Constitutions that were referred to as being marked by that particular feature of a weakening of the power of the Executive, the taking away of power from the Executive, on very much the same lines as has been suggested here, are Germany, CzechoSlovakia, Poland, Finland, Yugo-Slavia and the three Baltic States. The three Baltic States have since suppressed Parliamentary institutions off and on. It has not been continuous and I think that last year all three made an attempt to reinstate Parliamentary government. Germany, of course, we know about. I do not think anybody would regard Poland as other than a totalitarian State at the moment and I do not know that Yugo-Slavia can be regarded as having Parliamentary government of a free and unforced type. That leaves CzechoSlovakia and Finland alone. I threw in Yugo-Slavia the other night because the situation there was somewhat mixed. There is somewhat in and out situation there, too, but of those eight countries in whose Constitutions an attempt was made to limit the authority of the Executive, six have walked out on the path of suppression of democratic institutions.
With that warning from recent history ahead of us, why should we weaken the power of the Executive? Why should we avoid, even although they may not have been capable themselves of stopping a particular rush towards dictatorship, the clauses which the Constitutions in the world generally contain, and can contain, I suggest, for no other reason than to bring home responsibility into the democratic House of the Parliament for anything the Government or the President does? Let us have these safeguards whatever value they are. Why should we break down one barrier, which may be capable of being overthrown, but which does seem to be some sort of barrier? It brings the President down in every act he does, and it brings down the Government in every act for which they have to advise the President, to the facing of the reality of their political situation, and they have to answer in whatever is the democratic House of the Parliament. I suggest it is a valuable clause to have in the Constitution. It is one sanctified by use in a great many countries and one the abandonment of the use of which has led, or has helped to lead, to very disastrous results. I suggest it for consideration.
There is no evidence that I can see in what Deputy McGilligan has said that this clause has proved of value anywhere. What is clear is that it has proved of no value in some places. Deputy McGilligan says that, where a dictatorship has been set up, a clause of this kind has had to go. Of course, it had to go, and a great many other clauses had to go. When a dictatorship is introduced, obviously everything inconsistent with that dictatorship has to go first. That is a truism. It proves nothing as to the efficacy of any particular clause in preventing a dictatorship. The amendment proposed is, in any case, too wide because it applies to all the powers and functions of the President, including those which it is intended he should exercise at his personal discretion— namely, the power to refuse a dissolution to a defeated Taoiseach and the power to exercise a certain discretion with regard to a referendum. Obviously, there would be no sense in requiring his exercise of these powers to be countersigned by the Taoiseach, either alone or with another Minister. As regards the actions of the President which are dependent upon Government advice and approval, I, personally, see no objection to a proviso of the kind suggested here but, equally, I see no advantage in it. I have listened with an open mind to what Deputy McGilligan said and I cannot see that he has offered a fragment of evidence that such a proviso has proved of any value elsewhere. When people are making new Constitutions, they are vey apt to turn to precedents and, if a clause of this kind happens to be embodied in one Constitution, it is very likely to be embodied in a dozen others. That does not prove that it is something which experience has found to be of substantial value.
I suggest that the fundamentals of Parliamentary government are sufficiently settled and sufficiently understood in this country, and that they have a sufficiently long history and experience here and in the British Empire for it to be needless to put in a clause of this kind. The advice of the Government is all-powerful in the exercise of functions by the President except in a very limited range of matters where he is given a personal discretion and the putting in of a clause of this kind seems to me to add nothing to the security of the situation, though it might be put in without harm, so far as I can see.
I have already indicated my views on the matter, and I do not propose to speak again.
Notice taken that 20 members were not present. House counted and 20 members being present,
On a point of order, may I ask why the first declaration of the Chair was not put into effect?
The Chair was of opinion that the question was not understood by the House.
As a point of order, I submit that the Chair declared the motion lost. Having made that declaration, has the Chair the right, of its own initiative, to reconsider that declaration?
The Chair has a discretion in matters of this kind. In the circumstances existing, when the question was about to be put, the Chair was of the opinion that the question was not understood by the House, and that these circumstances warranted reconsideration of the declaration.
Did you not make the question beautifully clear?
May I again submit that the Chair put the motion quite clearly on the first occasion, and gave the House adequate time to mark its approval or disapproval? The Chair, having waited, declared the motion lost. May I respectfully submit that that was the decision of the House?
The circumstances of the situation, in the opinion of the Chair, warranted the putting of the question a second time. There was not a House present. Then, additional Deputies came in. They had not full knowledge of what had taken place previously. The question put was not in the form of the amendment as it appears on the paper. In the question, as put, an attempt was made under the rules of order, to save a subsequent amendment, so that it might be considered by the House. In these circumstances, the Chair was of opinion that the House had not a proper opportunity of understanding the question, as originally put.
May I submit, again, with all possible respect, that there is absolutely no precedent for this proceeding.
Precedents must be created.
The motion was not put in any unusual form. The form in which you put the motion was the ordinary form in which such a motion is put to the House. There was no particular strain on the intelligence of Deputies who wished to vote in favour of it. Having put the question, and have declared the motion lost, I submit that your ruling stands.
The Deputies were only in process of coming in.
They were in the House before the question was put.
With regard to amendments Nos. 45 and 46, which refer to the question of impeachment, that matter is being reconsidered for Report Stage, and I do not propose to move the amendments.
I move amendment No. 47:
In Section 8, to delete sub-section 3º.
There seems to be agreement on this matter. The whole matter will be covered by the impeachment provision.
I am prepared to accept this amendment.
If the amendment has not been moved it cannot be discussed.
I move it myself.
Has the President the consent of Deputy Norton to move the amendment?
If the President has not the authority of Deputy Norton to move the amendment, he cannot do so.
We had better leave it over then for the next stage.
On behalf of Deputy O'Neill, I move amendment No. 50:—
In Section 9, line 4, to delete the words "in his absolute discretion or" and to delete all the words after the words "Council of State" to the end of the section.
Would the President explain to me what is meant by the words "on the advice or nomination of, or on receipt of any other communication from, any other person or body."
In the Constitution it is provided, in a number of places where the President will act either on his own discretion as, for instance, in the case of granting a dissolution to a Government that failed to retain the support of a majority, or on the advice of the Taoiseach in the case, say, of a nomination by him or, on a nomination by the Dáil. The President would be acting on the advice of a person when he accepted the nomination by the Taoiseach of members of the Government. There will be nomination by a body when he acts on a nomination by the Dáil.
That is not a power or function conferred on the President.
No, but it says, "save where it is provided that he shall act in his absolute discretion or after consultation" with, say, the Council of State, or where he acts on the nomination of some other body.
What are the other bodies?
I have mentioned them if the Deputy would listen. In the case of a person, on the nomination of the Taoiseach, and of a body where the Dáil makes a nomination. The President appoints the Taoiseach on the nomination of the Dáil, or he may act on the receipt of a communication, say, of a petition from the Seanad. The Deputy will find that in one place or another in the Constitution the use of every one of these words is justified.
On behalf of Deputy Costello, I move amendment No. 51:—
To delete Section 10.
I do not propose to take up the time of the House on this amendment. Most of the ground has already been travelled over. Personally, I dislike this Article very much. I do not see why this Constitution cannot in itself contain the powers which the President shall have and shall exercise, or why this vague and indefinite general power should be vested in the Government. It is a perfectly invalid argument to say that this is meant only to deal with small matters. What we mean does not matter one button. What we mean here is of no importance. The important thing is, what we say. It is not what is hidden in the recesses of our minds, but what is expressed in the words we use that matters, because that is what the world at large sees, and that is what is handed down by us to succeeding Dáils and Seanads. Here we are laying it down in this Constitution that any power and any function of any sort or description can be conferred upon the President by law. I submit to the House that a clause of that nature should not be in the Constitution.
I still object—
I do not want to interrupt, but I think a decision was taken to the effect that amendment No. 12 would govern this.
I do not think so. Is the Leas-Cheann Comhairle referring to the question of the Army?
No. I am referring to the powers conferred on the President by law. Deputy McGilligan did say that there was a connection between the two amendments. I am referring to amendment No. 12.
The two amendments are closely connected.
I do not think so.
Well, Deputy McGilligan held that there was a connection between the two.
Well, apart from that, I presume that I can speak on the section itself?
I also object to the section itself. I object to it for the reason that I think the President could not justify his position in this matter. I regard this country, at the present moment, as being suspended between membership and non-membership of the British Commonwealth of Nations. The object of the section, so far as I can gather it from what the President said in the House, is to secure that, if Parliament so wishes, it, at any moment, can go out of the Commonwealth without consulting the people. If that is the case, I hold that Parliament ought to be equally entitled to go into the Commonwealth without consulting the people. If Parliament is to be debarred from doing the one thing, it ought to be debarred from doing the other; and if it is to be free to do one thing, it ought to be equally free to do the other.
I think that I have argued the matter with regard to the advisability of giving powers by law sufficiently, Sir, and I do not think there is any further use in going into that matter.
Is amendment No. 51 withdrawn?
I will put the amendment, if the Deputy desires.
It is certainly not withdrawn.
I move amendment No. 52:—
In Section 10, sub-section 1º, after the word "law" line 2 to add the words "No additional powers or functions may be conferred on the President unless the legislation purporting to confer such powers or functions is approved (a) by not less than two-thirds of the members of Dáil Eireann or (b) by a referendum."
A good deal of attention has been directed already to the proposal contained in this Constitution to confer additional powers on the President by law, and practically all Parties in the House, with the exception of the Government Party, have directed particular attention to the danger that the President may be endowed by a Government with powers of a kind which, in the opinion of the people of the country or in the opinion of a substantial minority in the Dáil, it is not desirable to confer upon the President. It may be urged by the Government, as a reason for retaining this particular Article, that such powers or functions as the President may be possessed of, or may be given by law, are exercisable or performable by him only on the advice of the Government; but that does not get over the very real danger that the Executive Council might give powers to a President which would seriously invade the right of Parliament to exercise jurisdiction or to exercise its powers in the particular matters dealt with. The President may tell us, of course, in the course of this discussion, that no such powers or functions, conferred on the President by law, shall be exercisable or performable by the new President save on the advice of the Government; but it has been pointed out already, in a discussion on an earlier section of this Article, that there is always a grave danger that a Government, weak or subservient, or anxious to run a conspiracy with the President, may hand over to him all kinds of powers which, although they may be exercisable or performable only on the advice of the Government, nevertheless may constitute a serious infringement on the rights of Parliament.
If we were able, at this stage, to know what powers it was proposed to confer on the President by law, it might not be necessary to put down an amendment of this kind; but since we do not know what powers are proposed to be conferred upon him, I think it is necessary that the Legislature should make sure that whatever powers the new President is to get by law are of a kind that, in the first place, an overwhelming majority of the Legislature may agree should be given to him, or that, in the absence of that overwhelming majority, the Government of the day should go to the country and submit the matter to a referendum of the people and get the people's authority to give the President these additional powers. It has been submitted already that a Government which was losing caste with the people, knowing that it was going to walk the plank at a forthcoming election, might desire to give powers to the President which would be an invasion of the Parliamentary rights of the people and of the rights of the Legislature. This amendment is designed to ensure that the President cannot get such additional powers unless, in the first place, there is an agreement by an overwhelming majority of Parliament to give him such powers or, failing that, that the matter should be submitted to a referendum of the people.
Nobody desires to withhold from the new President certain formal or ceremonial functions which it might be desirable, from certain standpoints, to confer upon him; but what the House must guard against is the giving of wide powers to him without the agreement of a majority of the people to have these powers conferred on him. It may be, of course, that we will be told in the course of this debate that such powers as are given to the new President will be exercisable only on the advice of the Government; but it might be the desire of a majority of the people in the country, as it might be the desire of a very substantial minority in the Dáil, that no such powers should be given to the President, even though he exercises them only on the advice of the Government. I want, therefore, to ensure that the President will not get these additional powers or functions unless the legislation purporting to confer these powers is approved by not less than two-thirds of the members of Dáil Eireann —which would ensure that an overwhelming majority of Dáil Eireann would have to agree that these powers should be given—or that, if the Government of the day were not able to get its legislation passed by that majority, then they had the alternative of going to the people on a referendum and asking the people to agree to give these additional powers. If the Government are willing to be bound by the first restriction here, it means that we can ensure that no Government, with a majority of one in the House, can give away powers which properly belong to Parliament; and if they accept the second restriction, then, at least, we can be assured that those who are not in favour of giving away such powers can carry on a campaign in the country urging the people in favour of voting whether or not to give these additional powers.
If there is any question of giving certain additional powers to the new President, it is necessary for the Legislature to be careful that the powers and functions to be conferred on the new President are not an invasion of the rights of Parliament. If we knew what these additional functions were, we might not regard the matter in so serious a light but under this Constitution as it stands, it is possible for the Government of the day acting through an automatic majority in this House, to confer upon the President powers which, in the opinion of the people of the country, expressed through a majority vote, the President should not be given. I want therefore to ensure that the Government of the day cannot confer any new powers on the President to be exercisable by him, no matter on whose advice, unless the Act conferring such powers is approved by at least two-thirds of the members of the Dáil or unless authority is obtained from the people for doing so by means of a referendum.
Would the Deputy indicate to the House why a Government should hand over to somebody else powers which they could exercise themselves?
We saw what happened in Germany.
Why a Government should hand over powers which they can exercise themselves to anybody I do not see. Presumably, they can exercise these powers as members of the Executive. They could advise the President as to the exercise of these powers, or presumably they could exercise them themselves. There must be some authority for doing it. I have argued this several times over, and I do not wish to detain the House any further on it. I see no reason for the amendment. Amendment No.53 closes any gap there might be.
I should like to raise a point cognate to that raised by Deputy Norton on his amendment. Perhaps the President would give the House his views on it. I suggest that, whether Deputy Norton's amendment is carried or not, it would be wise to have a provision in this Constitution that the legislation purporting to confer such powers on the President should not be legislation enacted under Article 24 of the Draft Constitution, that is, emergency legislation. I hope the President will indicate his view on that point. A good deal of anxiety as to the possible extent of these powers would be relieved if it were recognised that such legislation would be put through the Oireachtas by the ordinary procedure, and not be put through as emergency legislation.
We can deal with that matter when it comes to the question of emergency legislation.
I merely wish to indicate that our Party will support Deputy Norton's amendment.
- Beckett, James Walter.
- Bennett, George Cecil.
- Bourke, Séamus.
- Cosgrave, William T.
- Costello, John Aloysius.
- Desmond, William.
- Dolan, James Nicholas.
- Doyle, Peadar S.
- Everett, James.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Haslett, Alexander.
- Hogan, Patrick (Clare).
- Lynch, Finian.
- MacDermot, Frank.
- McGilligan, Patrick.
- Morrissey, Daniel.
- Mulcahy, Richard.
- Norton, William.
- O'Leary, Daniel.
- O'Mahony, The.
- O'Sullivan, John Marcus.
- Redmond, Bridget Mary.
- Reidy, James.
- Rice, Vincent.
- Rowlette, Robert James.
- Aiken, Frank.
- Boland, Gerald.
- Boland, Patrick.
- Brady, Seán.
- Concannon, Helena
- Crowley, Timothy.
- Derrig, Thomas.
- De Valera, Eamon.
- Flynn, Stephen.
- Gibbons, Seán.
- Goulding, John.
- Hayes, Seán.
- Jordan, Stephen.
- Keely, Séamus P.
- Kehoe, Patrick.
- Kelly, James Patrick.
- Kelly, Thomas.
- Kilroy, Michael.
- Lemass, Seán F.
- Little, Patrick John.
- Moane, Edward.
- Moore, Séamus.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Reilly, Matthew.
- Pearse, Margaret Mary.
- Ryan, James.
- Ryan, Martin.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Ward, Francis C.
I move amendment No. 53:—
In Section 10 to delete sub-section 2º and to insert a new section as follows:—
11. No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government.
It is not necessary to argue it, I have spoken on this subject so often.
I move amendment No. 54:—
To delete the Article and insert in lieu thereof the following new Article:—
1.—In the event of the absence of the President, or his temporary or permanent incapacity established to the satisfaction of a majority of the members of the Council of State, or in the event of his death, resignation, removal from office, or failure to exercise and perform the powers and functions of his office or any of them, or at any time at which the office of President may be vacant, the powers and functions of the President under this Constitution shall be exercised and performed by a Commission constituted as provided in Section 2 of this Article.
2.—1º. The Commission shall consist of the following persons, namely, the Chief Justice, the Chairman of Dáil Eireann (An Ceann Comhairle), and the Chairman of Seanad Eireann.
2º. The President of the High Court shall act as a member of the Commission in the place of the Chief Justice on any occasion on which the office of Chief Justice is vacant or on which the Chief Justice is unable to act.
3º. The Deputy Chairman of Dáil Eireann shall act as a member of the Commission in the place of the Chairman of Dáil Eireann on any occasion on which the office of Chairman of Dáil Eireann is vacant or on which the said Chairman is unable to act.
4º. The Deputy Chairman of Seanad Eireann shall act as a member of the Commission in the place of the Chairman of Seanad Eireann on any occasion on which the office of Chairman of Seanad Eireann is vacant or on which the said Chairman is unable to act.
3.—The Commission may act by any two of their number.
4.—The Council of State may by a majority of its members make such provision as to them may seem meet for the exercise and performance of the powers and functions of the President under this Constitution in any contingency which is not provided for by the foregoing provisions of this Article.
5.—The provisions of this Constitution which relate to the exercise and performance by the President of the powers and functions conferred on him by this Constitution shall apply to the exercise and performance of the said powers and functions under this Article.
There are two purposes served by the change. One is——
If the President will allow me to intervene, it would be better first to delete the Article so as to meet amendments Nos. 55 and 56. We will take that as agreed?
The point of the amendment is, first of all, that those short sentences run more generally on the lines of the Constitution. The intention is to provide for the exercise and performance of the powers and functions of the President in nearly any contingency; to provide for the exercise and performance of his powers and functions by means of a Commission, the Commission, as the House will see, to consist in the first instance of the Chief Justice, the Chairman of Dáil Eireann (An Ceann Comhairle) and the Chairman of Seanad Eireann. The President of the High Court shall act as a member of the Commission in case the Chief Justice is not able to act. The Leas-Cheann Comhairle shall act as a member of the Commission in the place of the Ceann Comhairle in case the latter is not able to act, and the Deputy Chairman of the Seanad shall act for the Chairman of the Seanad in case the Chairman is not able to act. Then, in case there is any contingency not covered by the preceding provisions, the Council of State can, by a majority of its members, make provision to perform the functions in such a way as seems meet. Then there is the final provision that the provisions of the Constitution relating to the exercise and performance of the powers and functions of the President shall apply in the case of the Commission as well—whatever Commission is acting.
The President has not dealt with one point in regard to failure to exercise and perform powers and functions. The President indicated that that was to be enacted in this form: "established to the satisfaction of the Council of State." Is that so? The President did say that the other night. I pointed out that the Council of State has authority to stop there at the incapacity point. I understood the President to say he was going to make it that failure to perform duties was also to be regulated by failure established to the satisfaction of the Council of State.
There is, first of all, the Commission that comes in——
The Commission does not come in until after the failure.
The Commission has to act in case a failure is reported by anybody. If, for instance, there was a failure, and the Government were to report that failure, it is obvious that the Commission would have to perform the functions. It would be its duty to do it in case a failure of the President was reported. That would be a matter of fact, which would have to be determined by the people who would be called upon to perform the functions. I would say that if the Commission could be brought into existence, that is unless you had certain circumstances in which those three persons were not available, you would have the Council of State as a reserve body, which would itself again have to determine whether there was a failure, and I take it that the complainant, so to speak, in the case would be the Government. The Government would complain that a certain Bill had not been signed, or that some other act which should have been done on advice was not being done, and it would establish it to the satisfaction of the Commission in the first instance.
The President did not say that the other night. However, we will discuss that on the other stage.
If that Commission did not act, the question of the Council of State would come up, and the Council of State would be bound by this Constitution to make such provision as seemed meet for the carrying out of the functions which were neglected or were not performed by the President.
I understood Deputy McGilligan's point to be this: Is there any need to provide special machinery by which it can be told whether or not there has been failure to exercise these functions?
Is not that a question of fact?
Who is to determine that?
Supposing the whole Constitution was working, I take it that the Government would immediately go to the Chief Justice and inform him, as a member of the Commission, that a certain Bill had been sent to the President, that he had not signed it, and that, therefore, there was failure on his part. I take it that that would only happen where the President said he would not do so. Then the matter would be brought to the attention of the Commission, whose duty it would be to perform these functions on the President's behalf, or perform these functions whether he was willing or not.
I take it that there would have to be agreement between the Government and the Commission that there had been failure to exercise these functions.
That is not in the Article, but we will discuss it on the Report Stage.
Is there power on the part of the Commission to decide whether the President is doing his job or not? Can the Commission act by bringing that to the notice of the Government and set up an inquiry to see if the President is performing his job satisfactorily?
I take it that it is mandatory. The amendment includes these words "the powers and functions of the President under this Constitution shall be exercised and performed by a Commission constituted as provided in Section 2 of this Article." Therefore, I take it that the Commission, if it is brought to its notice in any way whatever that the President has failed to exercise functions which should be performed by him would take it to be their duty to take cognisance of that. Ordinarily I take it that the initiative would be taken by the Government of the day.
Is it the President's view now that there is any mandatory obligation on the Commission to concern itself as to how the President performs his duty from time to time, so that it might exercise, in the event of negligence by the President, the functions which are set out in this Article for the Commission to discharge? Is it possible for the Government, by collusion, to slur over the omission or failure of the President to perform his functions, or is it possible for the Commission to say that they thought he was not doing his duty?
It is not expressly set out, but I cannot see how the question of the Government being in collusion with the President, or whatever is in the Deputy's mind in that regard, could arise. It is laid down that the Commission has a duty to perform if the President does not perform his functions. These functions are mainly performed on the advice of the Government. I take it, it would be failure to do something which the Government had a right to advise the President to do. If you had such a case, I take it that the Government would go to the Commission and ask them to perform the necessary functions.
My point is that there should be some machinery inserted by which the Commission would function. The President says that in the event of it happening something could be done. Why not put in a definite provision?
The Government must take action.
We ought to have some way of starting.
It is self-starting.
I suggest to Deputy Norton that if he reads the Article he will find there is nothing to start.
I want to ascertain from the President whether it is possible for him to say to the Commission, on behalf of 49 per cent. of the members of this House and of the Second Chamber, "the President is not doing this job in a satisfactory manner and is not carrying out his duties."
This Article has nothing to do with the manner but only with non-performance.
Supposing there is a certain obligation on the President to do certain things under the Constitution and that he declines and that the Government of the day thinks he is doing them, when quite a considerable volume in the country take the view that he is not, is it possible for the Commission to hold a watching brief for the people to ensure that the President exercises his functions, or is it necessary, in the first instance, that a complaint should be made by the Government of the day to the Commission? Is it possible for 49 per cent. of the members of this House and of the Second Chamber to say to the Commission: "We think you ought to see about this matter because, in our opinion, the President is not carrying out his duties?" Who is to start the inquiry?
The functions of the President are definitely set out. We all know what they are. We can take it that a Bill has to be signed within a certain time and that certain things have to be done in reference to it. If the President fails to do any of these things, then those responsible for putting the Bill through Parliament, or the Government, will immediately say that they want the Bill signed. The Constitution says that certain things can be done. Take a case where the two Houses agree, and that everything is all right, the Bill is sent to the President for signature, which is necessary for it to become law. After four days or within whatever time they expected it, the Government of the day would naturally come along and say they wanted the Bill with the President's signature to it. If the President refused to sign it, and if the time was up, then the Government would immediately inform the Commission that the President had failed in his functions, that he had a Bill which he had not signed, and that it was the duty of the Commission by the Constitution to perform his functions in that case. Unless we are going to take it that this body will not carry out its constitutional functions the Bill will be signed. Going a further step, suppose they fail, then you have the further reserve in the Council of State, which can make any provision that seems to be necessary. They will be appealed to in the same way. The duties will be carried on for him by proxy.
Can anyone complain to the members of the Commission that the President is not exercising his functions?
They can complain and get no result.
That is nonsense.
Can they complain?
Why not put a provision into the Article?
It is not necessary. The Government need never meet. Why do we not make provision that the Executive Council is to meet? We have to allow a certain amount of common sense. A Government is there to meet and to perform its work. This Commission is to meet, and if a complaint is made to it, it has to be made by those who are going to be affected by the failure of the President to perform his duties. If you take any particular function that the President has to perform and you ask us what is going to happen in that case, the ordinary routine will be pointed out. If you say that the Commission will not meet and nobody can complain to them and that the Council of State will not meet, you will get nowhere. Suppose Parliament does not meet when the President summons it, what is going to happen?
Is it not necessary to put in some provision in this Article which would provide that, on receiving a complaint from a category of persons entitled to make complaints, the Commission shall exercise its functions?
It is not necessary. That is narrowing it. If a case comes under the notice of the Commission the Commission itself can say: "Here is a thing which the President has not done; it is our constitutional duty to do it."
It is not clear to me from this that the Commission will operate in that way.
The word "shall" in practice, I will almost say in every instance through this Constitution, is of a mandatory character. The President shall perform the powers and functions imposed by this Constitution and the Commission shall similarly do these things.
That involves an inquiry by the Commission. Is it empowered to make that inquiry?
It is, if it wants it. Is it not the commonsense thing that these functions are necessary to let the machinery of State work? There will be a stoppage somewhere, and people affected by that stoppage will bring the complaint that the President failed to perform his duty. It is clear that the operating body will be the Government.
It will be all right in the Irish text.
Amendments Nos. 55 and 56 were put down merely to carry through the idea that we have been advocating throughout for the paramount power of the Government under this Constitution. That matter has been already discussed, and I do not think any useful purpose would be served by further discussion. Therefore, I do not propose to move the amendments.
Amendment No. 57 is governed by amendment No.1.
I move amendment No. 58:
"In Section 1, sub-section 1º, after the word "citizen" to insert the words, "without distinction of sex."
As I indicated on the Second Reading, my own feeling is that this is unnecessary, but as there seems to be the view that people will be happier if they have it, I am proposing to insert it.
I move amendment No. 59:
In Section 1, sub-section 1º. line 1, after the word "citizen" to insert the words "without distinction of sex," and at the end of the sub-section to add the words, "No citizen shall be placed by law under any such disability or incapacity by reason of sex, class or religion."
The principle of my amendment has been met by the President's amendment to insert "without distinction of sex." I am anxious that the other part should also be accepted—"No citizen shall be placed by law under any such disability or incapacity by reason of sex, class or religion"—so that there would not be any discrimination by reason of class or religion. As I say, the principle of my amendment has been met by the President and I appreciate it. I thought it well to put down the amendment because certain fears were aroused amongst women's associations and amongst women generally throughout the country. Certainly, if nothing was meant by leaving it out, there is no reason why it should not be put in. I am glad the President has seen his way to accept it.
I am not satisfied that the mere insertion of the words, "without distinction of sex," covers the point. "Every citizen, without distinction of sex, who has reached the age of 21 years, shall be eligible for membership of Dáil Eireann"— that would be perfect. But I think the part that is interpolated in the Article, "who is not placed under disability or incapacity by this Constitution or by law," still leaves it open to the passage of a law creating disability. I think the real object of Deputy Mrs. Redmond's amendment is that, while the insertion of the words, "without distinction of sex," puts each sex on an equality, equally both sexes should be placed on an equality as regards the imposition of disability by a law made with that object. The disabilities by law must be made under the electoral law, and should be equally applicable to both classes, and there should not be any discrimination of class or religion. Perhaps the President will examine the matter.
There is possibly a point there, but I am not quite satisfied that it is exactly as the Deputy has indicated. If you take it that every citizen, without distinction of sex, is entitled to a vote, I do not think you can suggest that you would have a law then disqualifying women as women.
Surely as long as the Constitution contains what amounts to a proviso that the law may make a change, there is this difficulty.
The law may make a change under general rules. If the first part indicates that they are qualified without distinction of sex, I think it would hardly be held to be in accordance with that.
The first test under sub-section (2) will be "every citizen without distinction of sex," so that the two sexes jump that hurdle together. Then you come to the next one, "who complies with the provisions of the law." Under that constitutional clause the law could make a distinction founded upon sex.
There is a certain difficulty, namely, that in making disqualifications such as those suggested to be inserted in the Constitution, when you open the door to make it possible to disqualify bankrupts, and so on, in the opening you have the possibility of doing very much more than that. That is a difficulty undoubtedly. It is the difficulty I referred to previously when I said— to put it the opposite way—that in order to keep out a draught you are sometimes tempted to nail down the windows. But if you do you will also be prevented from opening them to let in fresh air. If you leave them open for one purpose, the danger is that they may be used for another. It is difficult to manage that situation without a long and unsightly list, such as was suggested by the Deputy in an amendment to the Constitution elsewhere which we dealt with the other day. I will have this examined, as Deputy Costello suggested, to see whether we can make certain that in any disqualifications, if such are made by law, there will be no question of women being discriminated against in comparison with others.
One has to make provision for disability by law taking away from the privilege here given. But it is not an easy thing to say that any disqualifying law shall not be based upon sex—to make no distinction according to sex?
It is a question of how to do it.
I do not see why nailing down windows or any metaphors like that come in. You will simply say that, if there is going to be any disqualification about bankrupts, imbeciles, etc., it will be male and female imbeciles and bankrupts equally.
That is so. There is no difference of opinion so far as what should be put in is concerned. I promise to go into it and see what would be the best form of words to cover any possibility. The old Constitution had the same difficulty—the same thing was open under it—but that does not matter.
Is the President keeping the other points mentioned in Deputy Mrs. Redmond's amendment in mind?
I think we disposed of that. Religion is covered elsewhere.
I think so.
There are certain doubts about that.
Article 44, Section 2, sub-section (2) states:
The State guarantees not to endow any religion, and shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
Is that in respect of the practice of religion?
Is it not in respect of the endowment of religion?
I would not say that.
There is a fear that the specific words which open the paragraph may run right through.
I will have that looked into. The intention is clear that there will be no disability on the ground of religion. I will have the matter examined, if Deputies wish, to see whether that, in fact, can be possible by restriction.
Surely if it were broken up and the first phrase was about endowing and the second was that no disability should be imposed, the thing would be free.
I have no doubt of the President's intention, but I want to guard against future dangers.
I shall look into that, although I do not think there is any danger.
Of the three points in the amendment, sex is covered, religion lies over to a later clause, and class cannot be defined.
That is the trouble with class.
I move to report progress.
The Dáil adjourned at 2 p.m. until Tuesday, June 1st.