Dáil Éireann debate -
Wednesday, 24 Oct 1990

Vol. 402 No. 1

Private Members' Business. - Powers of President.

Mr. Dukes

I move:

That Dáil Éireann calls on the Government to bring forward legislation required to: establish an Overseas Development Aid Commission chaired by the President; give the President a consultative role in judicial appointments; appoint a permanent Judicial Commission chaired by the President; appoint an Environmental Council chaired by the President; appoint a National Sports and Recreation Council chaired by the President, and institute a Presidential Merit Awards Scheme.

The motion before the House tonight proposes an extension of the powers of the President by law within the limits set out in our Constitution. These proposals are important in themselves in that they are designed to make the Presidency much more inspirational and to involve the office more intimately in important areas of national life, but they have been given a dramatically new context by the emergence of new, independent evidence of an attempted abuse of the Presidency and of the Constitution by Fianna Fáil, and by the Tánaiste in particular, in 1982. This new, independent evidence shows clearly that the Tánaiste, now a candidate for the office of President, made an attempt in January 1982 to interfere with the President's absolute discretion in deciding whether to grant a dissolution of the Dáil. I am fully informed as to the nature of the evidence and I am fully satisfied that it is incontrovertible.

What the evidence shows is not new. What is new about it is the source. The subject matter is well known and has been written about and spoken about for quite some time. On 7 February 1982, for example, Miss Geraldine Kennedy wrote about these nefarious activities and, as we all remember, Miss Kennedy's telephone was subsequently bugged at the behest of a Fianna Fáil Government. What she wrote on 7 February 1982 was the following:

The President, Dr. Hillery, expressed annoyance to the Taoiseach, Dr. FitzGerald, about efforts made by Mr. Charles Haughey to contact him before the Dáil was dissolved for the general election.

Three telephone calls were made to Áras an Uachtaráin by Mr. Haughey between the time that the Coalition's Budget was defeated and the Dáil was dissolved. Two other calls, at least, were received in that period from Mr. Brian Lenihan and Mr. Sylvie Barrett. They did not get to speak to Dr. Hillery.

Miss Kennedy went on then to point out what was the reaction to those telephone calls and the reply she got, reported in the same article, was:

It would be improper to say anything at any time about the phone calls received at Áras an Uachtaráin.

In his book, Garret — the Enigma, Raymond Smith wrote at the very beginning of chapter 2 on page 22:

When the Coalition Government, led by Dr. Garret FitzGerald, was defeated on the Budget by 82 votes to 81 at 8.15 p.m. on January 27, 1982, Charles J. Haughey hoped that Fianna Fáil could assume power — without the necessity of a general election.

Phone calls were put through to Áras an Uachtaráin, the Presidential residence in the Phoenix Park, seeking to win President Hillery's consent to this option. My information is that Brian Lenihan rang at least twice while Sylvie Barrett also rang — and there were phone calls too from Charles Haughey.

Members of the Fianna Fáil Front Bench have confirmed to me that "contact" was made with Áras an Uachtaráin and they do not hide the fact that the intention was to avoid a general election so soon after the Summer 81 election.

I have verified too beyond any doubt from Fianna Fáil sources that the number of phone calls to Áras an Uachtaráin was eight at least.

Stephen O'Byrnes in his book Hiding Behind a Face had the following to say on page 134:

President Hillery was not immediately available to grant the dissolution and it was after 11 o'clock before Dr. FitzGerald got back to the Dáil. He said that the election would take place on 18 February, and the 23rd Dáil would convene on 9 March. During the intervening three hour period, Haughey and other Fianna Fáil Front Benchers had sought in vain to speak with the President.

In an article in The Irish Times on 27 September of this year I find the following reference to that three hour period:

In the delay, the Fianna Fáil leader, Mr. Haughey, called an emergency Front Bench meeting. A press release issued in which he indicated that he was "available for consultation" with the President. To hammer home the point, a series of phone calls was made by him, and, at his insistence, by Brian Lenihan and Sylvester Barrett, two close friends of Dr. Hillery. The President angrily rejected all such pressure and, having judged the issue, granted Dr. FitzGerald the dissolution.

On the first of this month my colleague, Deputy Austin Currie, raised the matter in connection with his assessment of the possible independence or otherwise of Deputy Lenihan if ever he were to be elected President. He said:

In 1982, when the then Taoiseach, Dr. Garret FitzGerald, had lost the support of a majority in Dáil Éireann, Mr. Haughey sought to interfere with the constitutional independence of the President by pressurising him into not granting a dissolution of the Dáil. According to an article in The Irish Times last week, Mr. Lenihan made phone calls to the President at the behest of Mr. Haughey.

Indeed, Deputy Currie at the time was at the receiving end of some rather moralistic lectures from some sections of the media for allegedly "politicising" the Presidential election. Personally, I can think of few things more political than an election. Those moralising lectures now look rather hollow.

The extraordinary feature of these and other references to the matter has been the silence up to this week from Fianna Fáil. My belief is that the leadership of the Fianna Fáil Party know these stories are perfectly true, and are trying to kill them by silence. That will not work.

The Taoiseach this morning tried a different ploy. In his own inimitably brazen way, he tried to tell the House that Fianna Fáil's position had been made clear in a statement that issued a short while after the vote on the night of 27 January 1982. I have that statement as reported on the front page of The Irish Times on 28 January of that year. It reads:

It is a matter for the President to consider the situation which has arisen now that the Taoiseach has ceased to retain the support of the majority in Dáil Éireann. I am available for consultation by the President should he so wish.

That is what he said. It is not what he did; what he said at the time is totally irrelevant to the matter that concerns us now.

Fianna Fáil's silence on this issue was broken by Deputy Lenihan on "Questions and Answers" last Monday night and again last night on "Today Tonight". Last Monday night he was asked — according to today's The Irish Times which gives an accurate record of the programme I saw myself — if he made a phone call or phone calls to Áras an Úachtaráin in that period in February 1982 when the Taoiseach, Dr. Garret FitzGerald, was seeking a dissolution of the Dáil. Deputy Lenihan said, “No, I didn't at all. Nothing like that ever happened. I want to assure you that it never happened” and more tailing off into irrelevancies.

On "Today Tonight" on Tuesday night Deputy Lenihan was asked: "Did you ring up the Áras and try to speak to the President?" The reply was: "...I watched the tape of the programme again: I had nothing got to do with that matter, good, bad or indifferent".

Mr. S. Barrett

Two lies from the Tánaiste.

Mr. Dukes

There we have Deputy Lenihan denying any involvement, in the face of all the evidence that now exists and of the clear knowledge in the minds of the leadership of the Fianna Fáil Party. It is bad enough for any Member of this House to try to interfere with the powers of the President. It is worse, of course, if that person is now a candidate for the Presidency himself, but that attempt failed. What is worse is the fact that he persists with a clearly transparent, totally incredible denial in the face of all the facts.

On those two grounds Deputy Lenihan is clearly unsuitable for any public office let alone the office he now seeks. The only course that would retrieve any honour for him would be to withdraw from the Presidential election immediately and I call on him here tonight to do that forthwith.

Mr. S. Barrett

And to protect the office of President.

Mr. Dukes

I turn to the proposals we have set out in relation to the Presidency itself. The President is elected by a direct vote of all the people. It is a measure of the uniqueness of that office that it is the only directly elected office provided for in the Constitution. For this reason, if for no other, the President can be truly said to be the representative of the Irish people.

Whether the elected President epitomises the aims, aspirations and ideals of his people depends in large measure on the quality of the person elected to the office and in particular on his willingness to serve the people who elect him. My party believe that while the President symbolises the nation, the office of President should not itself be regarded as purely symbolic. The President is elected to serve his people. The attributes required of such a person, if he is to discharge his duties properly, are those of energy, enthusiasm, tact and diplomacy, impartiality, integrity, compassion and experience. I do not believe that the office should be occupied by any person who is not interested in pursuing his duties actively or impartially or who would seek to use the office in a sense as a spokesperson for particular interest groups. We are committed to the principle that the President, precisely because he is the representative of all the people, should not when elected allow himself to be beholden to any political parties or any sectional interests or lobbies.

There has not been a Presidential election since 1973. The Irish people now have an opportunity to vote for a President for the 1990s. Fine Gael believe that the qualities necessary for the holder of the office have changed over the years and that the new President should be a person truly representative of all the Irish people, committed to doing a demanding job of work, a person who is not self-serving but who has the energy, the drive and the enthusiasm that characterise the modern Ireland.

We recognise that the powers and functions of the President are limited by the Constitution. The Constitution provides that the powers and functions of the President are exercised mainly on the advice of the Government. Some powers and functions are exercised after consultation with the Council of State and two powers are exercised by the President in his absolute discretion. In his absolute discretion the President may appoint up to seven members of the Council of State and he can refuse to dissolve the Dáil when the Taoiseach has lost the support of a majority vote in the House.

There are six powers which the President may exercise after consultation wih the Council of State. He is not bound to accept the Council's advice and those powers can, therefore, be viewed as independent powers, that is, powers that are not exercisable on the advice of the Government. The most important of these is the power to return a Bill to the Supreme Court for an assessment of its constitutionality provided for in Article 26. Another such power is the power in certain circumstances to have a Bill referred to a referendum where the President decides that it contains a proposal of such national importance that the will of the people should be ascertained, a power provided for in Article 27. The President has the power, after consultation with the Council of State, to convene a meeting of either or both Houses of the Oireachtas and he may address either or both Houses or the nation but only where such message or address has received the approval of the Government. While the Constitution provides that the President shall not hold any other office or position of emolument, the Constitution does expressly provide that, subject to the Constitution, additional powers and functions may be conferred on the President. That is in Article 13.10. Article 13.11 provides that any such additional power or functions shall be exercisable or performable by him only on the advice of the Government. In fact, the Oireachtas has over the years entrusted additional powers and functions to the President. Under the Institute for Advanced Studies Act, 1940, the President was empowered to appoint Council members and senior professors to the institute. Under the Central Bank Act, 1942, he was empowered to appoint the Governor. Under the Red Cross Act, 1944, he is ex offico President of the Irish Red Cross Society. Under the Ombudsman Act, 1980, he is empowered to appoint an ombudsman. The President's powers under the Institute for Advanced Studies Act, 1940, are exercised on the advice of the Government; his powers under the Central Bank Act are equally exercised on the advice of the Government. However, the exercise of his powers under the Red Cross Act are not so constrained and his appointment of an ombudsman is not made on the advice of the Government but pursuant to a resolution of the Oireachtas.

This summary of the powers and functions of the President shows that, while at first glance, the President's powers appear limited, there is nonetheless great scope for extending his powers by legislation. Fine Gael believe that the role of the President can be widened so as to make the office more meaningful to the Irish people in the 1990s. Fine Gael also believe that giving the President a more extensive role in Irish society can be achieved without the necessity of constitutional change. More substantial powers can be entrusted by law to the President than those currently exercised by him. While Article 13.11 of the Constitution places a restraint on the manner in which the President may exercise such powers as might be entrusted to him, the Constitution does not dictate that his powers must be purely symbolic or nominal. It is Fine Gael's view that powers and functions of substance should be entrusted to the President. The fact that in the exercise of such powers the President is subject to the Constitution does not prevent meaningful executive work from being entrusted to him by law. Fine Gael believe that the decision as to what powers and functions might be given by law to the President should be governed by the following principles: first, any task entrusted to him should be of such a kind as to heighten awareness of his national standing and representative capacity. In other words, he should not be entrusted with functions which are of interest only to a limited section of the people, or particular areas of the country. Executive functions entrusted to him should have national application; secondly, the work entrusted to him should be of such a nature as to exclude the possibility of any party political bias and should ensure that the President will not be permitted to entertain any such political considerations in exercising his powers.

Fine Gael have given detailed consideration to a range of functions which might be exercised by the President bearing the above criteria in mind. We recommend giving to the President by law the following important executive functions.

Under the provisions of the Constitution, the President may convene a meeting of either or both Houses of the Oireachtas and may address the Houses of the Oireachtas, provided the Government approve of the address. The President may also, after consultation with the Council of State, address a message to the nation at any time on any matter.

Fine Gael believe the President should, on an annual basis, convene both Houses of the Oireachtas and address them. While his address must receive Government approval, such an address would be welcomed by the Irish people who get little opportunity to hear their President. An annual television address would ensure that the President could be seen and heard by all and provide for a means whereby he could communicate to all of those who live on this island. In particular, the annual presidential address should include reports on his activities in the areas specified in these proposals and in this motion.

Successive Governments have underused the talents of their Presidents. Some past Presidents have been slow to exercise the powers and functions entrusted to them in an active or enthusiastic way. Fine Gael believe that era is gone and that what we now need is a new style of President. An annual address to the nation would emphasise the dawn of a new Persidency.

For many years Ireland has been committed, along with other developed countries, by a United Nations resolution to increasing its overseas development aid budget each year so that eventually 0.7 per cent of GNP would be earmarked for the purpose. Our record in that regard relative to some other countries is not a bad one but we have never in any year met our commitment in full and in recent years — in the last three years in particular — we have seen a catastrophic reduction in the amounts allocated for Overseas Development Aid.

Because of our missionary tradition and because of our sharpened sensitivity to famine arising from our own history, the Irish people have shown again and again their willingness to make sacrifices to help relieve poverty and under-development abroad. I am confident that there would be widespread public support for the commitment to earmark not less the 0.7 per cent of GNP to be made obligatory by law on the Government. We also believe that our commitment would be emphasised both domestically and internationally by the President having a role of substance in this area in a manner that is above party politics. We therefore propose to introduce an overseas development aid Bill which would establish an overseas development commission with the President having the permanent role of chairman of the commission; provide for the commission to be entrusted with the allocation of overseas aid for specific projects out of funds voted by the Oireachtas; provide that the funding of the overseas development commission be increased each year so that over a specified period of years the 0.7 per cent of GNP commitment would be reached and thereafter, become obligatory; and provide that the accounting officer for the commission be the secretary or second secretary of the Department of Foreign Affairs. That is a model of how we would give the President a meaningful executive function without in any way trespassing on the limits set out in the Constitution or on the prerogatives of the Oireachtas in voting funds for specific purposes. It is our view that provision should be made by law to the effect that when a vacancy arises on the bench of any one of our courts, the President will initiate a procedure of consultation with the Bar Council and the Incorporated Law Society leading to the recommendation by them of a specified number of candidates for the vacancy whose names would be submitted to the Government. The Government, having examined the proposals made by the relevant bodies, would then advise the President that the vacancy should be filled by one of these specified persons or in their discretion any other nominee of theirs. The appointment would then be formally made by the President as provided for under the Constitution.

The independence of the courts from the Government is a central pillar upon which all democracies rest. We believe that this independence will be enhanced if the President is given the initial consultative role which I proposed with regard to the making of judicial appointments. We believe that this proposal would re-emphasise the independence of the courts and the Judiciary, and has the prospect of taking the appointments of judges out of party politics.

Apart from appointments, there is another key area in which the courts can be impinged upon by deed or omission on the part of the Government. The courts are entirely dependent upon the Government for accommodation, staff, office facilities and resources. In general, court facilities are dowdy and under-resourced and, from the perspective of those who have to resort to court to protect their rights and interests, are often perceived as being outdated and inefficient. Lack of resources can be one cause of delays in the courts but there can also be other causes of delays, inefficiencies and inconsistencies in the courts which can detract from the cause of justice. Arising from the essential separation of powers between the Government and the courts, this is conspicously an area where the Government do not and cannot have a role. However, the same inhibitions do not apply in like degree to the President.

Accordingly, we propose that there should be established under the chairmanship of the President a judicial commission consisting of the Chief Justice, the President of the High Court, the Presidents of the Circuit Court and the District Court, the Ombudsman, the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor, the chairman of the Legal Aid Board, a representative of the Incorporated Law Society and a representative of the Bar Council, to meet quarterly or more frequently as the President in his discretion deems necessary. The judicial council would have the function of taking an overview of the operation and performance of the courts and to make confidential recommendations to Government as to what action, if any, is required to ensure the efficient workings of our courts system.

The environment is a matter of concern to us all and the manner in which we treat our environment will determine the health and well being not only of this but also of future generations. The need to tackle environmental problems both domestically and internationally is now widely recognised in most countries. We believe that the President should, on all appropriate occasions when representing the State abroad, emphasise the need for international solidarity in taking all the necessary action to provide a healthy and safe global environment.

In the domestic context too we propose that the President should have a specific role in the area of environmental protection. We have previously published extensive proposals for the establishment of an independent Environment Protection Agency. We could now be coming close to having a Bill to set up such an agency passed into law were it not for the obduracy of this Government, and the Minister for the Environment in particular, and their stupidity in not recognising the value of their own words when they said that all the things they wanted to do were covered in our Bill. However, it looks, if we can believe it, as if we will see a Bill fairly soon to provide for an Environment Protection Agency among other things.

Our proposal — we will come back to this when we debate the Government's Bill — envisaged that the agency would be headed by an environmental commissioner who would be appointed by the President pursuant to a resolution of the Oireachtas. It was further envisaged that there would be established an environmental council to act as an advisory body to the environment commissioner and the Environment Protection Agency. We recognised that it was essential to ensure that the members of the council in their work acted independently of Government and represented a cross section of different interests. We propose that the President should be appointed by statute to act as chairman of the environmental council and by so doing be empowered to contribute by his work to the improvement and protection of our environment.

Sport plays an increasingly important role in our national life. Achievements of our sportsmen and women on the international stage in recent years have been a cause of national pride and have stimulated interest in sports throughout our national community. To date, the only function the President has been allowed play in the area of sports has been in his attendance at major national sporting events. We previously published proposals for the establishment by statute of a national sports and recreation council to be funded by national lottery moneys. We now propose that the President be empowered to act as chairman of such a council and play a specific role in promoting sports and encouraging participation in sporting activities.

This State is one of the few countries in the developed world which has no national system to grant recognition to major achievement in any aspect of our national life. From the Soviet Union to the United Kingdom almost every country in Europe has its own distinct national award system.

It should be a major function of the Presidency to promote the pursuit of excellence in all facets of national life. The President should have a central role in granting such awards so as to enable national recognition to be given to men and women who, by their actions, make a substantial contribution to the life of this country.

Article 40.2.1 of the Constitution states: "Titles of nobility shall not be conferred by the State." Article 40.2.2 states: "No title of nobility or of honour may be accepted by any citizen except with the prior approval of the Government." While it is clear that no title of nobility can be conferred by the State, there is no prohibition in the Constitution on the establishment of a national awards scheme. It would not involve the conferring by the State of a title of nobility and it is generally understood that Article 40.2.2 in so far as it refers to titles of nobility or honour, is intended to relate to such titles being conferred by bodies outside the State. Even if this Article were not so interpreted and if an award pursuant to the scheme proposed were to be regarded as an honour within the meaning of this latter Article, it is highly unlikely that the Government would refuse to allow a citizen of this State to accept an award which it is proposed to make to recognise his or her contribution to national life.

We believe it is possible to establish by legislation a meaningful and highly regarded system of national awards to mark conspicuous service and the attainment of excellence in various areas of our national life. Such awards should also extend to non-citizens who have made a substantial contribution to this State or who, in their international work, deserve recognition. It would be appropriate, for example, to give a national award to a person who has made a substantial contribution towards peace and reconciliation in the international arena.

We propose that a commission be established under the Chief Justice to make recommendations within six months in relation to the establishment of such a system, including the different levels of such awards, the manner in which nominations should be made and decided upon, the symbols of such awards, the names by which they would be known, the ceremonial proceedings for the granting of such awards and the civic standing, if any, subsequently granted to the holders of such awards. We envisage that the President would have a central — as distinct from a nominal — role in granting such awards and the commission be asked to propose the legislative form which will give effect to that in keeping with the other provisions of the Constitution.

It seems to be common ground among the three candidates in the Presidential election to want to make the Presidency more active, more relevant and a more vibrant part of our national life. All the evidence so far indicates that a majority of the electorate agree with that view. The question for the electorate, therefore, is which candidate understands most clearly how to go about this. Which of them is most in tune with that aspiration? Which of them has most clearly expressed what people want to see in that regard? That is clearly not Deputy Lenihan. Apart from the fact that he has no proposals, good, bad or indifferent — as he might say himself — he is as I said, and I take no pleasure in saying it, simply not fit, for the reasons I set out, to be a candidate in this election. He should immediately take himself out of this contest, vacate the field and recognise that this country will not have people in public office who try systematically, as he has done, to deceive the public.

The candidate of The Labour Party and The Workers' Party, Mrs. Robinson, an excellent person with whom I have had the pleasure of working in different capacities going back over many years, has indeed made some proposals in relation to the Presidency. The first proposal she put forward was that the President should chair Seanad Éireann. Like any legislative assembly in the democratic world the Seanad has — and wishes to reserve to itself — the right to elect its own Cathaoirleach. In any case, Mrs. Robinson's proposal would require an amendment to the Constitution and, as far as I can determine, that proposal has now been dropped.

The second proposal was to make a change in relation to the kind of person who may be appointed to the Council of State. As Mrs. Robinson has correctly pointed out, the President has absolute discretion in the appointment of up to seven members of the Council of State and from that point of view it would appear the proposal is not new as it is already provided for in the Constitution. It was further proposed, however, that these Presidential appointees should not necessarily be appointed for the full term of a Presidency. On this point the Constitution is perfectly clear. It provides that, unless a member appointed by the President previously dies, resigns, becomes permanently incapacitated or is removed from office, that member shall hold office until the successor of the President by whom he was appointed shall have entered upon his office. Thus, that proposal would also require an amendment to the Constitution and, as far as I can determine, the proposal has been dropped.

The proposals I put before the House this evening are in marked contrast to the other two. They would involve the President directly in overseas development aid, in the making of judicial appointments, in an ongoing overview of the operation and performance of the courts, in national and international action to protect the environment, in the promotion of sports and of participation in sporting activity and in a national scheme for recognising merit. We have also proposed that the President should make an annual address to both Houses of the Oireachtas and to the nation. All the powers which we propose to confer on the President are in keeping with and would be exercised in accordance with the provisions of the Constitution. The Presidency would become a vibrant and active institution and the President would be involved in important areas of national life in a way which has never before been witnessed in this country. Therefore, I commend these proposals to the House.

The events of the past couple of days are a matter of great sadness to me. I do not think there has been a time when the election of a President has given rise to the kind of controversy we now see. As I said, I take no pleasure in looking at that situation. It is in the interests of the Presidency, the dignity of the office and in maintaining values, which I hope all Members share, that the cause of that controversy be removed. The only way to remove the controversy and its cause is for a Member of this House, Deputy Lenihan, to accept the fact that we all know — and it has been proved incontrovertibly — that things which he denied took place. There is no point in his attempting to present any other picture, neither is there any point in any member of the Government attempting to present any other picture. The evidence is there, has been there ever since January 1982 and has now been independently corroborated by new evidence which has emerged.

In the interests not just of the Presidency but in the picture we have of ourselves, it is time for that candidate to take himself out of that contest and to leave the decision of the Irish people to be a choice between two people who clearly have never tried to deceive the public.

Minister for the Environment (Mr. Flynn)

This is one of the most extraordinary motions I have ever seen and I must call on the House to reject it. It is based on many misconceptions and it is hard to know where to begin. It seems to be based on the idea that the President, independently of the Government, can exercise functions other than those he is given in the Constitution. This is obviously not so; the Constitution says it quite clearly in Article 13.11.: "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".

The mere passage of legislation through this House and by the Oireachtas generally could not, therefore, do what this motion seems to be asking it to do. It could not confer on the President powers to chair an overseas development aid commission, a judicial commission, an environmental council or a national sports council with the powers to the President to operate these functions separately and independently from the Government. That could only be done following a referendum to amend the Constitution. Let us be clear on this point. Article 28.2 of the Constitution says: "The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government". In short, the Government of the day are the executive power in the State subject to the provisions of the Constitution and, in exercise of that power, the Government decide what resources are to be allocated to the different functions for which they are responsible, defence, security, development, health, welfare, housing, education, sport, the environment and all the other functions and purposes of Government.

It is not administratively or politically conceivable that within the State there should be another constitutional authority with equal command of resources and equal or greater powers of application. Imagine for the purposes of the argument that we had an environment council or development aid commission chaired by the President. Both would be worthy institutions and command a very high profile, but who would decide how much they should be allocated and what they should do? Would it be the President or the Government, and what would happen in the event of disagreement? Which would prevail, the President's aspirations or the will of the democratically elected Government whose mandate is to rule and whose fate is determined every few years by the electorate who, in our democracy, are the ultimate arbiters——

Dr. G. FitzGerald

Will the Minister say why this does not arise in the case of the Red Cross of which the President is chairman?

Mr. Flynn

I will deal with that later. The proposals in the motion are a recipe for continued constitutional crisis and they show a fundamental lack of understanding of how the Constitution works. The House need not take my word for it. I quote from Professor James Casey's book "Constitutional Law in Ireland" as quoted in the Sunday Tribune of 21 October:

Some commentators seem to envisage an ill-defined leadership role for the President. Whatever the merits of such an idea it is abundantly clear that no such role is conceived of, or can be exercised under the Constitution as it stands.

The inference from this quotation is as I said earlier; the Constitution does not envisage an executive role for the President, other than the role it specifically confers on him.

Mr. Dukes

Or such other roles as are conferred on him.

Mr. Flynn

Another commentator Professor Ronan Fanning is quoted in The Sunday Independent as saying:

The notion of a populist President, of a new-style President inspired by a sense of purpose separate from the purpose of the elected government is nonsense. And, in so far as it flies in the face of the letter and of the spirit of the Constitution, it is a potentially dangerous nonsense.

The Professor went on further that:

The Presidency should serve as a source of stability, not as a force for change. To suggest otherwise is utterly to misrepresent the nature of the office.

Let us take the proposals in the motion one by one. The first is for an overseas development aid commission chaired by the President. This commission would, according to the document proposing it, allocate overseas aid for specific projects out of funds voted by the Oireachtas and in practice the vote would be on the proposal of the Government. The President can under the Constitution act only on the advice of the Government. Would it be necessary for the Government in full Cabinet to consider each and every allocation for development projects in order to advise the President so that he could seek to steer the commission towards a choice of projects? If he agreed every time what would be the point of the commission? If he did not agree there would be a difference of opinion between the President and the Government and under the Constitution he would be obliged to act on their advice. Therefore this provision would place the President in a position of allocating money which the Government had provided in the way in which the Government advised. I find it difficult to imagine any proposal so demeaning to the office of the President.

The proposal indicating that the accounting officer would be the secretary or second secretary of the Department of Foreign Affairs would appear to assume that the Department of Foreign Affairs would be the implementing agency of the funds to be allocated by the commission. However, it is not clear whose direction it should follow — the presidential commission or its Minister. Would the Minister be responsible to the Dáil under Article 28.4.2 of the Constitution in respect of specific projects to which funds have been allocated by the presidential commission? The legislation, we are told, would also provide that the funding of the commission would be increased each year. This would, if operated, take from this House the power to decide annually on the estimates of receipts and expenditure which under the Constitution the Government are required to present to the Dáil for consideration in each financial year. There would be no point in the Dáil considering an estimate if the amount of that estimate had already been determined by legislation passed by the Dáil and Seanad and signed by the President.

Mr. Dukes

The Dáil is entitled to do that.

Mr. Flynn

No other item of expenditure, and I can think of many which deserve at least equal preference, would get the same priority — not welfare, health services, salaries or anything. In short the proposal for a commission is unclear and incoherent and its implications have not been throught out. At best it would provide for the continuation of Government policy by a circuitous route of a commission, adding a layer of bureauracy the country can ill afford, and at worst it would provide a source of conflict between the President, the Government and the Dáil, and a confusing an unnecessary role for the Department of Foreign Affairs.

The next proposal is to give the President a consultative role in judicial appointments. Under the Constitution, judges of the Supreme Court, the High Court and all other courts established pursuant to Article 34, must be appointed by the President. This proposal is, at best, a constitutional non sequitur. It appears to suggest that the President should advise the Government as to whom they — the Government — should advise him to appoint. Since the President can only exercise a new legal power on the advice of the Government it means that the Government would have to advise the President as to whom he should advise the Government to advise him to appoint.

(Interruptions.)

Mr. Flynn

The motion envisages the President initiating a procedure of consultation with the Bar Council and the Incorporated Law Society leading to a recommendation by them of a specified number of candidates to the Government. I am not sure whether it is envisaged that the President would simply have a purely formal, neutral role in initiating this procedure. If so, there does not seem to be any point in involving the President in the process. After all, there is nothing to prevent the Bar Council or the Law Society from recommending candidates to the Government for appointment to judicial office.

On the other hand, if the proposal is that the President is to have a large say in the selection of the nominees, he would clearly be stepping outside the limits imposed by the Constitution. But either way the President could be put in a difficult position if in a particular case none of the nominees was acceptable to the Government of the day and the President was then obliged to act on the advice of the Government and appoint someone else. That could do enormous damage to the Office of President.

What this proposal chooses to ignore is that the Government do not operate in a vacuum when making a selection for appointment. They have available to them the advice of the Attorney General who is well placed to canvass the views not only of the Bar Council and the Law Society, as required, but also the views of the Judiciary who could be expected to be acquainted with the qualities of the candidates. The President could not be expected to be acquainted with the qualities of those available for appointment and so would have to rely almost exclusively on the advice of the Bar Council and the Law Society. While I have the greatest respect for these bodies I am not satisfied that they would have a monopoly of wisdom in the selection of suitable candidates for the bench.

While perhaps no system of appointment could be claimed as perfect the existing constitutional process, that is appointment by the Government, has the advantage that it has been found to work successfully in the public interest. Indeed, since the foundation of the State the Judiciary have exercised their functions independently and in accordance with their oath of office. They are widely respected for that.

Next, there is the judicial commission, or council, for the document does not seem to be too clear on what exactly is intended. As I understand it, the role of this commission would be to oversee the adequacy of staff, accommodation and other resources, causes of delays, inefficiencies and inconsistencies. I should like to focus, first, on the last of these, that is, inconsistencies in sentencing.

The clear implication is that the exercise by judges of their judicial function is so defective as to require oversight not only by a judicial commission but one chaired by the President of Ireland. I am not suggesting that particular judicial decisions in individual cases may not, from time to time, give rise to public concern, they sometimes do. I suggest, however, that there are means of dealing with any such problems without involving the President. If there are fundamental issues raised by individual decisions the first responsibility for addressing them rests with the Judiciary itself. There may be a role for the Oireachtas but only after careful deliberation. There is no reason to think that the President's involvement is necessary or desirable even if there were not constitutional objections to such a development.

Under the Constitution, there is a separation of powers between the Government as Executive and the courts as the judicial authority. The powers of the President are also separate from the judicial powers of the courts. It is my strong view that this separation should be maintained.

The commission would also apparently concern themselves with the level of resources they thought necessary for the proper provision of court services. There is clearly room for differences of opinion as to what that provision should be and how it should be treated by the Government which, as I have said, must also have regard to all the other deserving claims made on the Exchequer. As a practical matter, it would be impossible to avoid a confrontation between the President and the Government if such a difference emerged or if the financial situation became such that not all of the commission's recommendations could be accepted. In short, the proposal would bring the office of President fully into the Executive area with disastrous results.

Finally, on this point, I should add that it would also be wrong for the Dáil to assume that the Chief Justice, the President of the High Court or other members of the Judiciary would wish to become involved in such a consultative body in this way for such a purpose.

I come now to the environment council and sports council to be chaired, under these proposals, by the President. Nowhere among the proposals is anything so much designed as this to bring a President and Government into conflict. The Government of the day must decide on their priorities when it comes to the allocation of resources. Maybe they would give sports or the environment a high priority. Maybe they would not, but in deciding on the course they are to follow they would have to look to demands for more and better health services, for higher welfare payments, for more money for education and housing and for all the other pressing demands made on governments in addition, of course, to the demand for lower taxation. The President chairing these commissions could, constitutionally, act only on the advice of the Government: it is not hard to see, however, the seeds of conflict in a proposal to have him chair two high profile councils or commissions, when he himself, as the holder of high constitutional office, cannot determine the resources he can commit or how they are to allocated.

It is clear, in particular, that an environment council chaired by the President could not be apolitical and it would inevitably become involved in controversy. It is likely that in some matters it could be in dispute with existing Government institutions, whether at local or at national level. Any disputes would be most damaging to the office of President which, because of the nature of the duties assigned to it by the Constitution, must be above politics and should not be in open conflict with Government policy or institutions.

Apart, therefore, from the presidential merit awards scheme — which exists at present in the form of Gaisce — these proposals are a recipe for constitutional conflict of a type and intensity from which we in this country have been largely spared.

What I have said should not in any way be seen as taking from or diminishing the role of the President. Indeed, as one of the main institutions of this State, the President has many important duties under the Constitution. For many purposes, he represents the State, as distinct from the Government of the day. He takes precedence over all other persons in the State and, subject to the advice of the Government, the supreme command of the Defence Forces is vested in him. He appoints Taoisigh and Ministers and, on the advice of the Government, members of the Judiciary, the Comptroller and Auditor General and the Attorney General.

The summoning and dissolution of the Dáil is done on the advice of the Taoiseach, though the President may, in his absolute discretion, refuse a dissolution to a Taoiseach who had ceased to retain the support of a majority. The President has also the power, after consultation with the Council of State, to convene a meeting of either or both of the Houses of the Oireachtas, or again after consultation with the Council of State, to communicate with the Houses of the Oireachtas by message or address on any matter of national or public importance, subject to the approval of the Government to such communications.

The attempt being made by the Fine Gael Party to insinuate that some improper, covert attempt was made to influence the President to exercise his discretion to refuse a dissolution of the Dáil to the then Taoiseach on 27 January 1982 is reprehensible. In fact, the position of the Fianna Fáil front bench was made clear in a public statement issued by the Fianna Fáil Leader that very night and there was nothing secret about the position at all.

Mr. Dukes

That is totally irrelevant.

Mr. Flynn

Since Opposition Deputies of the present day are claiming that the President has absolute discretion to refuse a dissolution——

Mr. Dukes

What were the phone calls about?

Mr. Flynn

——they can hardly complain that the Opposition at the time signalled publicly their belief in the possibility that there might be an alternative to a second election only seven months after the first. What exactly would be wrong in any case in making sure that the President was made aware of this publicly stated position? Deputy Brian Lenihan, the Fianna Fáil Presidential candidate, made no phone calls to President Hillery on that night and no evidence has been produced to show otherwise.

Mr. Dukes

He made three phone calls to Áras An Uachtaráin and he has been trying to deny it since.

Mr. Flynn

It is straining all credibility——

Mr. Dukes

He made the phone calls and he is now trying to deny it.

An Ceann Comhairle

Let us hear the Minister in possession without interruption.

Mr. Flynn

——for Deputy Garret FitzGerald to imply, as he did on a television programme this week, that he overheard such phone calls and could recognise the voices of the people talking to President Hillery in his presence——

Mr. Dukes

No such implication was made.

Mr. Flynn

As if the President would take phone calls from outside when the Taoiseach was seeking a dissolution of the Dáil in the same room.

Mr. Dukes

Why were those phone calls made to Áras an Uachtaráin by three different——

An Ceann Comhairle

Deputy Dukes should cease interrupting.

Mr. Cowen

How many phone calls were made when your party insulted Cearbhall Ó Dálaigh?

An Ceann Comhairle

Deputy Dukes has had his say, and Deputies from the other side of the House should not interrupt either.

Mr. Dukes

Why are they trying to deny——

(Interruptions.)

An Ceann Comhairle

Please allow the Minister to proceed without interruption.

Mr. Flynn

This unfortunate uttering by Deputy Garret FitzGerald, which is being reiterated by some of the front bench members of his party now, is a complete red herring.

Mr. Dukes

The proof is incontrovertible.

Mr. Flynn

This is Fine Gael black propaganda which was so typical of Deputy Garret FitzGerald when he was the Leader of the Fine Gael Party. When their positive case failed they invariably resorted to trying to blacken Fianna Fáil's reputation. There was nothing new in that but nobody was codded by it.

Mr. Dukes

You blackened it yourselves.

Mr. Flynn

The essential point here is that Deputy Brian Lenihan has been making it clear that he would always grant a dissolution save in the most exceptional circumstances. Mary Robinson has made it clear that she would rarely exercise the power to refer legislation to the Supreme Court. I ask, what is the difference, except that Fine Gael are trying to do a hatchet job and character assassination inside this House and they are failing to achieve it.

Mr. Dukes

Why were eight phone calls made?

(Interruptions.)

An Ceann Comhairle

Let the Minister proceed without interruption.

Mr. Flynn

The Constitution clearly states that any additonal powers or functions conferred on the President by law can only be discharged by him on the basis of the advice of the Government of the day. That advice is not optional. Additional powers and functions have occasionally been conferred on the President by law or under Article 13.10 but these have been purely formal, such as the appointment of the Council members and senior professors of the Dublin Institute for Advanced Studies, the appointment of the Governor of the Central Bank, the appointment of commissioned officers in the Defence Forces, etc.

Mr. Dukes

The Ombudsman.

Mr. Flynn

It is essential because of the important constitutional functions already vested in him that the office of the President should at all times be removed from the sphere of political conflict and controversy. The opposite is being attempted by Fine Gael in this motion. The President cannot become involved in political issues, act as a focus of opposition or as an alternative to the elected Government. Any attempt to cast the holder of the office in that role is both unrealistic and irresponsible and if put into effect could gravely undermine the stability of our democratic institutions.

I believe that the office can play a very positive role without the need for new powers and functions. At the same time, to suggest that the President should take on some new kind of executive role and exercise additional powers indicates, in my view, a profound and dangerous lack of understanding of the fundamentals of Bunreacht na hEireann.

The balance of power in the Constitution is very delicately weighed: it lies between the Presidency, the Government and the courts in ways that are clearly stated. This balance has served the country well for more than 50 years now. It has given us stability; it enables the people democratically and peacefully to change the Government of the day if that is their wish and it brings fairness and equity, through the courts, in the interpretation and operation of the law.

To attempt to bring this balance into question, through ill-conceived and badly thought out proposals of the kind suggested in this motion is to do neither the country nor the office of President any service. To proceed as the main Opposition party are now advocating would totally disrupt the constitutional balance and result in legal and political chaos. That essentially is the reason I would ask the House emphatically to reject this motion.

In so far as the amendment to the motion is concerned, a lot of what I have already said applies. Article 6 of the Constitution states that all powers of government, legislative, executive and judicial:

are exercisable only by or on the authority of the organs of State established by this Constitution.

The Presidency is one of these organs along with the courts and the Government. The powers of the Presidency cannot be changed without also changing either the powers of the Government or the courts, or both. There is, therefore, not much point in contemplating a commission whose remit is simply to review the role and functions of the Presidency alone. Any commission if it were to have a real purpose and a real remit would have to review the balance of functions as between the constitutional authorities in this State. While obviously we must always keep the fundamental institutions of this State and their functioning under continuing review, I do not think that the present is the time to start, within the framework contemplated by this motion, looking at them by way of a committee or commission however wisely founded or constituted.

As has been stated across the Chamber, we have major economic problems to face. We must reduce unemployment and we must also get order into our public finances. The level of public debt here is still among the highest in the developed world, and debt service still absorbs more than the total yield of VAT and corporation tax, leaving us vulnerable to economic changes over which we as a State can exercise very little control. The problems can be tackled only in an atmosphere of institutional stability.

In the European Community, we are facing the prospect of major changes which will affect the governance of this country, and of each member state of the Community, in ways nobody at present can foretell. I refer, of course, to the proposals within the Community for political, economic and monetary union. We will be debating this subject in the House next week.

In relation to Northern Ireland, discussions are underway with the British Government which may or may not lead to fundamental changes affecting internal affairs in this island, relationships between North and South and our relationship with the British Government.

To add yet one further strand of possibilities and doubts to this already tangled weave of uncertainty, by calling in question the function and role of the fundamental institutions of our State would, at the very least, be most unwise. A commission of the sort envisaged in this amendment could not, as I have said, be confined to the Presidency. It would add just that note of corrosive uncertainty to our institutions which we can well do without at this time.

As the House is aware under the Constitution a candidate for election as President can be nominated either by:

...not less than twenty persons, each of whom is at the time a member of one of the Houses of the Oireachtas, or

by the Councils of not less than four administrative Counties (including County Boroughs) as defined by law.

I need, I hope, only mention that each one of 20 persons, if he or she is a Deputy of this House, has been elected with a very substantial number of votes from the electorate to represent between 20,000 and 30,000 people, approximately, in his or her constituency. In deciding to nominate a candidate for the Presidency, as in his other official decisions, the Deputy is acting on behalf of this number of people. In other words, 20 Deputies, in the full democratic interpretation of their role, represent between 400,000 and 600,000 people. Even if within these figures, a Deputy is taken to represent only those who voted for him, the number of people he represents still remains very substantial.

I need not go into the position here of Senators as nominators of Presidential candidates, except to say that the method by which they are chosen makes them also representative of important vocational interests and groups here. To assume that they ignore their interest or lightly exercise their role in a Presidential nomination would, I think, be a totally unwarranted assumption.

Again, I do not wish to detain the House with an analysis of the representative nature of our local authorities, except to say that a county council or county borough corporation, which has nominating powers would have on average, about 30 elected members. Some authorities would have more, others less. I am using this figure simply in illustration of the point that the nomination of a Presidential candidate, under present procedures, by four county or county borough councils will have behind it the authority of at least a majority of about 120 people, each of whom, in turn, is elected by a large number of electors exercising his choice under the ordinary democratic processes of our country.

Against this background, the suggestion in this amendment to this motion that there should be wider democratic procedures for nominating candidates for the Presidency runs against commonsense. There is a great deal of democracy in the method of nominating candidates. What there is also is order and a method of ensuring that an election is administratively possible. There is an even greater element of democracy in the election of the President who is selected by direct vote of the people.

I should like to refer to the perception that the political parties have Presidential elections somehow all sewn up, that it is impossible for a non-party candidate to succeed in being nominated as candidate or elected as President. This, of course, is not true and does not stand up to scrutiny. The history of Presidential elections since 1937 shows that of a total of 12 candidates for the Office, four have claimed not to be members of a political party at the time of their nomination, including one candidate in the current election. Two of these non-party candidates, the distinguished scholar, Dubhglas de hÍde, the first President, and the late Cearbhall Ó Daláigh actually succeeded in being elected to the Office. This puts paid to the myth that the office of President is the preserve of party political candidates.

The functions conferred on the Presidency under the Constitution, as I have said, are substantial and, in present times, require a high degree of knowledge and experience of administration, politics and public life. Deputy Brian Lenihan alone of the candidates seeking office on this occasion has all these qualities.

Mr. Dukes

Why is he afraid to tell the truth?

Mr. Flynn

It is, therefore, important that a person elected to this post should know, preferably at first hand, just how Government works and be fully conscious of the sensitivity of the role which the Constitution enjoins on the President. The best way to get the best candidates with these attributes is to have a system of nomination in which the selection is made by persons who have themselves a wide and varied range of experience, who are democratically elected and who are democratically accountable. That is our present system. We suggest this evening that this motion be rejected. The Fine Gael document loses sight of the fundamentals of the doctrine of the separation of powers as between the different organs established by the Constitution, the Legislature, the Executive and the Judiciary.

An Ceann Comhairle

I hesitate to interrupt the Minister but I would now like him to bring his speech to a close. The time available to him is well nigh exhausted.

Mr. Flynn

In effect, they are seeking to override the constitutional framework on which our democratic society depends. The Fine Gael document seeks to sweep aside in one three hour debate the basic principles on which our understanding of democracy exists and has been understood to exist for years. For these reasons I submit that the motion and amendment should be discarded.

Mr. Howlin

I propose, a Cheann Comhairle, with your permission and that of the House, to share my time with Deputies M. Higgins and Quinn.

An Ceann Comhairle

Is that proposal satisfactory? Agreed.

Mr. Howlin

I am glad that this debate on the highest office in the land is taking place tonight as it is long overdue. How long is it since the role and functions of the President were last debated in this House? If we search the records we will find that the answer is, not since the Constitution itself was debated. The role of President is defined in the Constitution under Article 12.1 which states:

There shall be a President of Ireland (Uachtarán na hÉireann), hereinafter called the President, who shall take precedence over all other persons in the State and who shall exercise and perform the powers and functions conferred on the President by this Constitution and by law.

The role of the President is defined under the Constitution and is embodied largely in the oath that the Constitution, under Article 12.8., requires the successful candidate to take on being inaugurated as first citizen of our State. That oath consists of this promise:

"In the presence of Almighty God I do solemnly and sincerely promise and declare that I will maintain the Constitution of Ireland and uphold its laws, that I will fulfil my duties faithfully and conscientiously in accordance with the Constitution and the law, and that I will dedicate my abilities to the service and welfare of the people of Ireland. May God direct and sustain me."

The role of President is defined in the Constitution and the limitations on that role have not only been subscribed by the Articles of the Constitution but more emphatically by convention. In reality, the traditional role as carried out has been on the minimalist side. The fact that many Presidents choose not to act in the full meaning of the oath to dedicate their abilities fully to the service and welfare of the people of Ireland and that political parties — and all the political parties in this House share culpability for it — have denied the people of this country the right to select their own President for 17 years, has contrived to demean and diminish the office and status of the first citizen of Ireland.

It was with these facts in mind that Deputy Spring, the Leader of the Labour Party, initiated a debate late last year. At that stage nobody was talking about the Presidency. He said two things: that we would have a debate on the status, the role and the function of the President and that we would have an election — the first in 17 years — and that, if necessary, he would stand as a candidate. Earlier this year the Labour Party invited Mary Robinson to be the official Labour Party nominee for the office of President of Ireland.

We invited Mary Robinson to take on this important task because she is a woman of substance, the first woman to be a candidate for this high office when women constitute 51 per cent of the electorate. Her own background includes a brilliant academic record. At the age of 25 she was the youngest ever professor of law at Trinity College. Her career includes a brilliant record as a public representative, including 20 years in Seanad Éireann. She was the youngest university Senator in the Seanad. She has outstanding commitment to voluntary organisations. She has served as president of Cherish — the representative body for single parents — and she was a patron of the Liam Maguire Trust. She was the first president of the Women's Political Association and a host of other international achievements are accredited to her. Perhaps her greatest achievements have been as a distinguished lawyer. It is in that area her work has most benefited the ordinary individual. The list of constitutional cases she took to vindicate the individual rights of citizens is long. The one hallmark of each case has been that she was invariably on the side of the downtrodden, the underdog, and sought vigorously to vindicate rights for people.

The Labour Party asked Mary Robinson to take on this huge responsibility and she accepted not because she was underworked or because she did not have a rewarding career of her own but because she grasped the vision of the Labour Party proposal, that vision that began the debate and which is continuing in this discussion tonight. In those few months she has captured the nation. She has confounded the political pundits and analysts and she has rallied to her cause young and old, especially women who see her as their first voice. People who have been disillusioned with politics have rallied to her cause in the last number of months.

The Labour Party and Mary Robinson initiated a new vision, a vision that was at first attacked by the major party in this House but which now has been embraced by the three major parties and by the three candidates for the high office of President of Ireland. There is a consensus now that did not exist a few short months ago, a consensus created by Mary Robinson, that we need a working President. There is an advertisement on television which says that the original of the species is best, and I think the people of Ireland will show that they have faith in the person who initiated the discussion and who first laid out a vision rather than those who belatedly tried to catch up with the mood and vision of the people.

Fine Gael have taken up the Labour Party's challenge to blow away the cobwebs and look afresh at the office and the person of President. They put forward a motion tonight which contains many innovative and positive suggestions. The role of the President can be enhanced. It is important that we look and at least have the courage to address the issues and not dismiss them out of hand as Fianna Fáil so readily dismiss any innovative suggestion.

The areas suggested in the motion include the establishment of a commission to oversee Overseas Development Aid — an area in which this country has a shameful record consistently falling well below the United Nations' targets, and an area in which the President could bring moral authority; giving the President a consultative role in judicial appointments. This is something that could be looked at and debated and not dismissed out of hand; the appointment of a permanent judicial commission, again a worthy and thought provoking suggestion, and — I am very attracted to this one — the appointment of an environmental council. No issue has captured the minds and imagination of people more than the environment. People are concerned about the implications of our careless attitude to the environment and what it will mean for future generations. It is right and proper that we should explore a role for the President in crystallising public concern and pointing to ways that the nation could move towards improving the environment; it could be by way of tidy towns or involvement in afforestation, in planting flowers, as well as the major issues of deforestation, global warming and ozone depletion.

The Minister tonight said that no such commission could be apolitical. That is typical of the thinking of Fianna Fáil. They think in a political vein about everything and they cannot believe that anybody could think in any other way. The initiation of a national sports recreation council is long overdue and it is probably, and properly, a role for the President. The last suggestion is the institution of a presidential merit awards scheme. Most countries have such a scheme; we have a limited version of the presidential Gaisce scheme. This is an area that should be examined.

As I said, the typical approach of Fianna Fáil is to reject this out of hand because that party have no vision, no foresight. In short their view is no change. It is a vision, a view and a short sightedness that is out of step with the thinking of Irish people. Fianna Fáil in this regard are stale and tired and are slowly getting the message on the doorstep in the course of this campaign.

The thrust of the Labour Party proposals from the beginning of this campaign, not last week or last month but from the end of last year, has been to enhance and enrich the office of President. The President is directly elected — the only officer who is directly elected by all citizens, of this country. She, therefore, will have a moral authority which need not be in conflict with the Executive or the Judiciary. That moral authority can be used to focus on the rights of the individual, to be the personal champion and vindicator of the rights of each citizen, to promote and preserve the best in Ireland and to recognise excellence.

This debate has witnessed some unseemly squabbling between the Fianna Fáil and Fine Gael camps. It is not my intention or that of my party to become involved in that row. The office we are debating is far too important and the debate itself is far too fundamental for us to descend into name calling as if we were on the hustings at some crossroads.

The amendment in the name of The Workers' Party Deputies is also worthy of consideration. It provides a methodology to do the things listed in the motion and to broaden the scope, since it is not an exhaustive list. More fundamentally, it incorporates an important additional issue, the democratisation of the nominating procedure. God knows, we need a fairly severe dose of democracy. There are many offices which need to be reformed. The nominating procedure for the Seanad is dominated by the political parties or by the elitist group who are graduates of certain universities. We need to look afresh at the institutions of State and we must not be afraid to do so. There is a new Ireland out there which has woken up and is sick, sore and tired of stale "has beenism". That is why the campaign, the vision, the sparkle and the enthusiasm of Mary Robinson and all she has put before the Irish people has captured such broad support. I believe that on 7 November the old stale thinkers are in for a rude awakening.

Mr. M. Higgins

Listening to the two speeches before that of my colleague, I noted that in one the word "she" occurred scarcely at all and in the other the word "she" occurred once. This inability to speak about "her" role or to refer to when "she" occupies the position or a decision "she" might make is a indicator of what we are about in debating the occupancy of the Presidency and the nature of the role. The manner in which people have been socialised in such a way as to make it difficult to recognise that we may be on the verge of seeing a woman occupy the principal position in the country reflects the choice that is before the people.

I am not intending to contribute any acrimony or conflict to our debate. In many ways we have a straightforward choice. Listening to the debates in recent days and weeks there is a choice between what I would call an administrative experience of the old kind where one endorses, gives the golden seal of approval to the person who has been loyal to a certain kind of experience, or where one gives the seal of approval to another kind of experience, the experience of somebody who has been ahead of the received possibilities of the day. I believe it is this latter which is appropriate for us to choose as we end this century and begin another one. To say that one wants to vote to reward what has been is to reward what has been dragged out of the administrative process and out of a slow and tortuous legislative process. To say on the other hand that one wants to respect and give one's support to the person who has been pushing the boat out in so many areas is to say that one is voting for the ethical impulse rather than voting for what is administratively barely possible. It is this choice of voting for the ethical impulse which is really invigorating the Irish public. The fact that for a start they are voting for inclusion of all people, voting for inclusion of the aspiration ethically of so many groups, has led them to vote for a person who represents this choice and who happens to be a woman.

On the other side of that argument, the people who do not want to support such a view do not address the issue of so many people being excluded in our society; if they do not address the idea of exclusion neither do they address the greatest exclusion in this society since 1937 — the exclusion of women from full participation in our society. I am not impressed by those who say that none of this is real. They say we really should be running this according to the way it was decided in 1937. Whether we like it or not, we are bound by the 1937 Constitution. I do not think any of us in our senses sitting here this evening could say that it was some kind of holy writ handed down in tablets never to be changed. It was complimented by Mussolini; Salazar liked it and it was discussed with some favour in very authoritarian circles in Germany. The 1937 Constitution in the fullness of time will change. It provides us with a set of articles which limit functions and describe them, as Professor Casey, Professor Kelly and Professor Ronan Fanning note them.

If the Articles of the Constitution specify functions, there is also the oath of the Presidency. These taken together provide us with an interesting choice. One is to say that the person who fills the Presidency is the victim of the Constitution; the other is to say that the person who fills the office is a human being drawing energy from their own personality, their own experience, their own history, responding to the human possibilities of the oath of office as well as the rigours of the Constitution.

There is a third dimension which the Minister decided to ignore. Around both the Articles of the Constitution and the fact that the oath of office has been buried as a source of energy there are the numerous conventions which have grown around the office. Some of these conventions go back to a situation in which a party dominated the choice of who should fill the office. This led them to the rather extraordinary statement that if people other than themselves were somehow to be allowed the opportunity to rule it could constitute anarchy. I suppose it is part of the mentality of the divine right to rule. Louis XIV had such a complex and so had many others. The truth of the matter is that conventions can be changed and they are neither provisions of the Constitution nor are they inhibiting laws.

We have been invited by this motion to consider whether there are other areas into which the accepted principles of the exercise of presidential duties might be reasonably extended. We are also invited in the amendment to discuss the possibility that there might be others as well. There is a suggestion that the form of nomination might be extended. This is all perfectly reasonable provided one is in favour of living in the modern world, opening the windows and so on. If one is to say that this is a little casket which is closed and written forever, the way we have always had it, and that our man — not our woman — has come through the process in the ordinary way, it is more of the same. People are entitled to hold this view. This is a democracy. I do not want to denigrate anybody standing for this office. The candidates are people with a contribution and an excellent record.

I am saying simply that, at the end of the day, there is a choice in this election and our candidate is the person who has taken every marginal issue, every significant civil liberties issue, both in politics and in the courts, who has set her face against exclusion, and who is arguing for inclusion.

Debate adjourned.