Ireland’s presidential elections rarely generate much interest inside the country and almost never outside. This time, the polls are suggesting that the candidate who is most at odds with the current government may be elected. The alternative candidate would be a president who might not reflect the views of a future government. Ireland has long been a country of strong opinions, so it is useful to look at the history of conflict between a constitutional, or ceremonial, presidency and the government for lessons that might apply to other countries with constitutional heads of state.

The Irish constitution, known as Bunreacht na hÉireann, came into force in 1937. Several of its provisions have been substantially modified since then but none that specifically deal with the presidency. The president had functions similar to the Governor General of Canada. The Republic of Ireland Act in 1948, passed after an insult to the Irish prime minister from Canada’s Governor General Viscount Alexander, made the president the head of state externally, as well as domestically. In Canada’s case, it would be as if the governor general also assumed the role assigned to the monarch.

The Irish constitution seeks a balance between the president’s independence and the government’s control over executive action. One duty of the president is to promulgate bills of the parliament so that they become law (Article 13). The president may opt to refer a bill to the Supreme Court to test its constitutionality (Article 26). President Douglas Hyde referred the Offences Against the State Bill of 1939 to the Supreme Court, which upheld the law. The referral and ruling meant that the law could not be challenged constitutionally again. The 1939 act was the basis for the Emergency Powers Bill of 1976, which President O’Dalaigh also referred to the Supreme Court. Again, the law was upheld and became immune to challenge. Both referrals caused anger in the government because of the urgent nature of the legislation. Eamon DeValera’s wording of the 1937 constitution restrained the president from signing the law until the Supreme Court had ruled. O’Dalaigh privately considered resignation. A calculated insult by the defence minister gave him the occasion to resign a week later. It was clear from both experiences that the Supreme Court failed to resolve the differentiation in the constitution between routine and urgent legislation (Article 24) so that it remains a possible flashpoint in a contentious presidency. On the other hand, 14 other referrals to the Supreme Court by six different presidents were minimally contentious and may be considered, in retrospect at least, to have strengthened the legislative process.

The president may refuse the Taoiseach’s (prime minister’s) request to dissolve the Dáil (parliament) in order to allow someone else to seek its confidence in forming a government (Article 13). This power has never been used in Ireland, though President Patrick Hillery’s obstruction to its consideration and President Mary Robinson’s implied threat to use it may have altered those changes of government. Use of this power in Canada by Governor General Byng is still remembered with rancor, a century later. Governor General Michaëlle Jean considered using the power, causing a flash of righteous anger from Prime Minister Stephen Harper. It does not appear to result in a stable government. On the other hand, a constitution that requires the president to agree to dissolution would open the door to political manipulation of regulations. This power remains an opportunity for a contentious president to exert influence.

The president may not leave the state or make official statements without the approval of the government (Article 12). The constitution implies that the president does not make other statements. Convention has resulted in presidents submitting texts of intended speeches to the office of the Taoiseach. It is believed that recent presidents have complied with the convention but have not always accepted alterations to their speech. Presidents may not hold any other office or position of emolument (Article 12). The constitution clearly looks for compatibility between the president and the executive. While a president may have personal opinions, a strict interpretation of the constitution is that they cannot be uttered when speaking as president. Canadian Governors General have been careful not to criticize the government. Nonetheless, recent presidents have been more outspoken than their predecessors. The new president is expected to try to extend this freedom. A president who persistently shares views contrary to the government may be at risk of contravening the constitution. The remedy remains unclear.

If the president refuses, or indefinitely delays, promulgation of a bill, or any other duty, a constitutional crisis may ensue. A Presidential Commission (comprising the chief justice and the speakers of both houses of parliament) may perform most presidential functions if the office is vacant or the president is incapable (Article 14). However, in the case of a competent president’s refusal, some authorities believe that impeachment may be the only way to resolve the crisis. This requires a motion passed by two thirds of both houses (Article 12), an unlikely outcome if the president is supported by the opposition. The constitution has not considered where impeachment of a president who refuses to sign a bill or perform other essential duties fails. Maybe it presumes that a president in such a position would resign. Article 14 allows the Council of State to perform immediate essential duties but it would have to be invoked for every item that the president refuses to do.

It has been said that DeValera chose a term of seven years for the presidency because that was the term of the president of the Weimar Republic. By 1937, Adolph Hitler had overthrown that constitution and merged the constitutional presidency into his office as Führer. Maybe DeValera knew that future governments would look to his blueprint for how to deal with an adversarial president when he transformed the governor general into president.

History suggests that the Irish constitution was written in the belief that principals would act reasonably. By directly electing the president, rather than the conventional method of parliamentary nomination, DeValera was taking a risk that became apparent in Turkey a few years ago. From 1923 until 2018, Turkey’s system of government was similar to Ireland and Canada. In 2007, Prime Minister Erdoğan spearheaded a constitutional change to directly elect the president, whose role remained ceremonial. In 2014, he won the election to become president of Turkey and immediately ignored the constitutional restrictions on the presidency. In 2017, he led a constitutional amendment that gave the presidency extensive executive powers. Türkiye has been characterized by repression since then. It is a lesson for those whose faith lies in principals acting reasonably. Ireland is facing a period of uncertainty regarding its president. Most likely it will walk back freedoms to align with a strict interpretation of the intended constitution. Canada and other commonwealth constitutional monarchies should watch Ireland for pitfalls and unintended consequences of change.

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