Dáil Éireann - Volume 67 - 25 May, 1937

Bunreacht na hEireann (Dréacht)—Coiste (ath-thogaint).

Article 10 agreed to.

The President: If it be found that the word “Ireland” changes the effect, it may be necessary later to make some changes in this text.

An Ceann Comhairle: On Report Stage?

The President: Yes. In that case, I take it there will be no objection.

Agreed.

Article 11 agreed to.

ARTICLE 12.

1. There shall be a President of Éire (Uachtarán na hEireann), hereinafter [1004] 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.

2. 1º The President shall be elected by direct vote of the people.

2º Every citizen who has the right to vote at an election for members of Dáil Eireann shall have the right to vote at an election for President.

3º The voting shall be by secret ballot and on the system of proportional representation by means of the single transferable vote.

3. 1º The President shall hold office for seven years from the date upon which he enters upon his office, unless before the expiration of that period he dies, resigns, becomes permanently incapacitated, or is removed from office, and shall be eligible for re-election.

2º An election for the office of President shall be held not more than 60 days before the expiration of the term of office of every President, but in the event of the removal from office of the President or of his death, resignation, or permanent incapacity to discharge the functions of his office established to the satisfaction of the Council of State, an election for the office of President shall be held within 60 days after such event.

4. 1º Every citizen who has reached his 35th year of age and is not placed under disability or incapacity by law, is eligible for election to the office of President.

2º Every candidate for election, not a former or retiring President, must be nominated either by

i. not less than 20 persons, each of whom is at the time a member of one of the Houses of the Oireachtas, or

ii. by the councils of not less than four administrative counties (including county boroughs) as defined by law.

3º No person and no such council shall be entitled to subscribe to the nomination of more than one candidate in respect of the same election.

[1005] 4º Former or retiring Presidents may become candidates on their own nomination.

5º Where only one candidate is nominated for the office of President it shall not be necessary to proceed to a ballot for his election.

5. Subject to the provisions of this Article, elections for the office of President shall be regulated by law.

6. 1º The President shall not be a member of either House of the Oireachtas.

2º If a member of either House of the Oireachtas be elected President, he shall be deemed to have vacated his seat in that House.

3º The President shall not hold any other office or position of emolument.

7. The first President shall enter upon his office as soon as may be after his election, and every subsequent President shall enter upon his office on the day following the expiration of the term of office of his predecessor or as soon as may be thereafter or, where his predecessor was removed, died, resigned, or became permanently incapacitated, as soon as may be after the election.

8. The President shall enter upon his office by taking and subscribing publicly, in the presence of members of both Houses of the Oireachtas, of judges of the Supreme Court and of the High Court, and other public personages, the following declaraation:—

“In the presence of Almighty God I do solemnly and sincerely promise and declare that I will maintain the Constitution of Éire 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 Éire.

“May God direct and sustain me.”

9. The President shall not leave Éire during his term of office save with the consent of the Government.

[1006] 10. 1º The President may be impeached at the instance of not less than two-thirds of the total membership of Seanad Eireann for treason as defined in this Constitution, or other high crimes or misdemeanours.

2º The charge shall be preferred before Dáil Eireann, which shall investigate the charge.

3º The President shall have the right to appear and to be represented at the investigation by Dáil Eireann.

4º If, as a result of the investigation, a resolution be passed supported by not less than two-thirds of the total membership of Dáil Eireann declaring that the charge preferred against the President has been sustained, this resolution shall operate to remove the President from his office.

11. 1º The President shall have an official residence in or near the City of Dublin.

2º The President shall receive such emoluments and allowances as may be determined by law.

3º The emoluments and allowances of the President shall not be diminished during his term of office.

An Ceann Comhairle: Amendment No. 11 is ruled by the decision on amendment No. 1. I take it that amendments Nos. 12 and 51 are complementary?

Mr. McGilligan: Yes. I move amendment No. 12:—

At the end of Section 1, page 12, to delete the words “and by law.”

The extraordinary proposition that is put forward in this matter of dealing with the President and his powers is that the President is given here in the Constitution itself certain powers and functions, but, as I pointed out on the Second Reading, there is no way of coercing the individual who will be selected into the doing of any of the things which it is ordained by the Constitution that he should do, and in a variety of circumstances, where he is given powers, there is nothing to prevent this individual acting contrary even to the [1007] orders and advice that will be given to him by a variety of people. As regards the matters that are precisely laid down in the Constitution, an attempt can be made to meet them by trying to think out some machinery which will leave the President open to the persuasion of the courts, or else will have him overridden if he refuses to exercise the powers which the Constitution says he should exercise in certain circumstances. The most alarming feature of the whole Constitution is that by a section of Article 13 additional powers and functions may be conferred on the President by law, the opening words being “Subject to this Constitution.” As the Constitution is only a binding document in so far as it says that certain people, and no others, may do certain things, it would only be a safeguard if those words were put in as a safeguard in relation to whatever powers are explicitly to belong to people other than the President, and are not capable of being taken away from them.

In so far, however, as a matter is left, say, nominally to somebody, but not nominally to some authority, and not prohibited as to the taking away of it by the Constitution, then the change can be effected by a process of ordinary law in accordance with the Constitution. In that way, a variety of matters could be handed over to the President for him to deal with. The second clause of it sets out that, in so far as any new power was conferred on the President by law, that power was to be exercisable either on the advice of the Government or after consultation with the Council of State. So long as it was capable of being determined by law that whatever new power was given to him was exercisable after consultation with the Council of State, then it was clear that it was under his absolute discretion, because the Council of State was just a collection of Yes-men, and was meant to be such, because the President is given power to nominate a certain number to the Council of State from day to day or from week to week and to dismiss them without reasons given. [1008] Accordingly, the apparent safeguards that are supposed to be in this Constitution, with regard to the new powers that may be given, are illusory. First of all, it is stated that certain powers and functions are conferred on the President by this Constitution and by law. I suggest that that only means that the only things that are prohibited from being handed over to him by law are such as are fixed on other people by the Constitution and declared to be immovable from them. Outside of that, the only other safeguard was to be governed by either the Council of State or the advice of the Government.

In analysing this Constitution, I prefer always to take this test: What could a man, ambitious of power, do, who had succeeded to this office and who, at the end of its term of years, had a subservient Government about to face the people with a certainty of being defeated? In such circumstances, what could they do to block their successors from being allowed to take over the ordinary powers of government in the country? There is no other way of getting this matter properly considered except by thinking entirely in terms of that. If you are to go on the principle that they will be always elevated, high-minded men, and that there is no possibility of their going bad, then I say that no Constitution is necessary. If you are going to direct your Constitution-making entirely to a future in which everybody behaves reasonably, then there is no necessity for a Constitution at all. Constitutions, however, are founded on the principle that men go bad when in power and have got to be coerced and prevented, as much as possible, from going bad.

In so far as the President has certain functions given to him by the Constitution, and in so far as he is not either coerced effectively into doing what he is supposed to do, or prevented effectively from doing what he should not be allowed to do, we propose to put a check on a President, anxious to run amok, so far as the Constitution would allow him to do so, where he has the help of a subservient Government anxious to impede their [1009] successors in office. With a view to that, we have tried to visualise the things that might occur and to see what impediments might be put against a man getting such power. First, as I have said, there are powers conferred on the President by the Constitution, and we want to work out the things that might occur with a view to seeing what impediments might be put in the way of a man getting too much power, but when we are faced with this peculiar view in which the President may have further powers given to him by law, then there should be a stop, and the only stop is to cut out this phrase. That does not prevent any new powers being given to him, but it does ensure that any new powers that will be given to him will be given by means of Constitutional amendment. New powers might be conferred on him inside a period of three years by way of ordinary legislation, subject to whatever checks are in this document, but outside that, they have got to be done by Constitutional amendment, and I suggest that that is a good suggestion in comparison with what is here.

The President: As I said already, I would like to try to see how far we can think alike and get on common ground on this. I should like to start off by deciding whether the intention has been carried out or not. I, myself, believe that it has, but we are prepared to meet the Deputies in any reasonable point. Now, what was the intention? The intention was that the President should get powers which were not inconsistent with the general plan of this Constitution, which puts authority in certain bodies, in the Government and in Parliament. The President is given certain powers under the Constitution, and the idea was to give him by law, if it were necessary and if it were found to be expedient, further powers or functions which would not be inconsistent with the Constitutional system as laid down here. The Constitutional system, as laid down here, can be taken to be like this: The President acts on the advice of the Government of the day. If we are to take the stand that Deputy McGilligan has suggested, and to suppose that the Government goes [1010] bad and that the Parliament goes bad at the end, goodness knows how you can prevent the whole thing from going bad altogether.

Mr. McGilligan: I referred to a Government which is going out of office and which can be coerced.

The President: The difficulty I see is that even your own amendments will not deal with that situation. I do not think they can. I think it would pass the wit of man to deal with a situation where the whole Parliament and the President go rotten and where the people are left in the position that the machinery of Government is running contrary to the popular will. If such a situation should arise, I do not know how long the people would remain patient under it, but it is clearly a situation in which the whole spirit of democratic government would disappear and we would have a revolutionary state of affairs. However, I agree with Deputy McGilligan, and with Deputy Costello also, that, in so far as a Constitution can prevent bad laws from being made and unjust things from being done, we ought to try to get such a Constitution. I fully understand that view, but do not let us set ourselves an impossible task. Let us be reasonable in what we demand of the Constitution. Now to get back to what I was saying — what was the intention? The intention was that the President should act in certain cases — in all important cases — on the advice of the Government and that he would have no will of his own in the matter. He has to act on the advice of the Government. That was the first position. The next position is that in which he would act on the nomination or authority of somebody other than the Government. We had the case where the President shall, on the nomination of Dáil Eireann, appoint the Taoiseach. That means that an authoritative body representing the people would have the right to nominate the Taoiseach and, on that nomination, the President would appoint him. There, again, the President has no will of his own. So that, in the case where he has no will of his own, there are bodies who have a will, [1011] and the President must accept that will, and the bodies in these cases are bodies with which, I think, nobody on either side of the House would find fault.

Now, the President has discretionary power in certain cases — the second class of cases. He has absolute discretion in certain cases, in the sense that he can do certain things without consulting anybody. Such cases are very rare, and it is open to question whether he should have absolute discretion in such a case or not. We have the case where the President may, in his absolute discretion, refuse to act on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil Eireann. That is a case where the President is not required to consult the Council of State. However, when we come to that point, we can argue it. The third case is where the President still has power to act on his own discretion, but after hearing people who are of a type who should make him aware of the consequences that might follow from whatever line of action he was going to take. Now, I think the intention of it should mean that the Constitution system cannot be interfered with by giving powers to the President which would be repugnant to the Constitution as it stands.

The next thing is that, if he gets these extra powers, he would take these powers and perform these functions only on the advice of the Government or after consultation with the Council of State. I agree that it might be possible — that was not the intention, but it might be possible — for the Parliament to make a law which would give the President power to act on his own discretion, after consultation with the Council of State, in a case where, in accordance with the general plan of the Constitution, he should act only on the advice of the Government. However, my view of that was that Parliament was going to settle the law, and that it was most unlikely that it would give powers away from itself to the President. I think that the passing of such a law is almost unthinkable. However, let us take it that such a law could be passed. I tried to meet that [1012] point and tried to make the position safer by saying that if any further powers are given to the President, they must be exercised by him on the advice of the Executive Council.

That in my opinion prevents anything happening such as Deputies apprehend. I think that that saves that situation. The question is whether we can get agreement on this matter. I think, on the whole, it is wise to make it possible for Parliament, for the sake of uniformity, to give by law to the President powers in addition to those that are here stated, provided it is made clear that he can only exercise these functions on the advice of the Executive Council. The parliamentary system is better carried out in that way. That is the net point between us. I would hold that Parliament should have the right to give certain functions to the President in addition to the functions he has here, but that they must be exercised on the advice of the Executive Council or on the advice of the Government of the day.

Mr. Norton: What type of additional functions?

The President: Here is what I had in mind. There are two functions. The first one occurred to me the other day when I was asked if there were to be visitors to the university. The appointment of visitors, which was formerly one of the nominal powers which the Governor-General possessed, was transferred to the Executive Council. In accordance with the whole scheme of this, it would be better that a purely nominal authority should be given to the President in that matter and that he should act on the advice of the Government. That is one type. Later, somebody pointed out — I think it was Deputy Costello — the question which arose in connection with external relations. If the people wished to change that Act, or to repeal it, and to transfer the powers or functions that are at present, by the Act of last December, being performed by the King in connection with our relationship with the British Commonwealth, they can repeal that Act or change it and provide that these [1013] powers or functions, such for instance as the signing of letters of credence, should be transferred to the President. That is a relatively big function. It is always done on the advice of the Government and it is quite clear, and only right, that that function should only be performed by him on the advice of the Government. The function could not be performed except on the advice of the Executive Council so that to meet a position in which there might be a Parliament that might be willing to hand over powers to the President — and I say that is most unlikely; it is not in the nature of these institutions to hand away powers from themselves——

Mr. McGilligan: Why not think of the instance I have mentioned, a Government anxious to take powers from its successors?

The President: That point has been put to me, and I am quite willing to apply it to a test. The Deputy's own amendments will fail against that test. Let us be clear about the intention. I want, and believe it is right, to have in this Constitution a provision providing for the right of Parliament to give to the President extra functions if necessary, functions in relation to external relations or in relation to matters like the appointment of visitors. I want to make it possible by law to give the President these functions but to prevent the possibility of Parliament — which is, I think, unlikely — giving him these functions and the right to exercise them on his own discretion. To remove that possibility we shall say that if there are any further functions given to the President, these must be exercised by him on the advice of the Government of the day. I should like if we could agree as to what we should do, and we can consider the details of the Draft later, as to whether the Draft does in fact do what we intend. I have indicated my intention.

Mr. MacDermot: Surely the President is over-rating the value of this provision? I do not personally share some of the apprehensions I have heard expressed in regard to it, but I can see that it might give cause for alarm to many people. I cannot see that the [1014] President has said anything really to prove that it is of any great value. I would suggest that the balance of argument is in favour of leaving it out.

The President: I think it is very important for the whole scheme.

Mr. Norton: In endeavouring to justify the giving of additional powers to the President by law, the present President has indicated that Parliament would not be keen on parting with certain powers to which it attaches considerable importance at present. I think the President is using the term “Parliament” to explain something which does not really convey the idea of a comprehensive Parliament acting as a single whole. If it is proposed in this Constitution to give the additional powers by law, it may be true that he can only get these powers through Parliament passing that law, but when we come to look at what a Parliament is, for the purpose of passing a law, we find that it is the Government Party of the day with a majority of perhaps only one. You may say that that is a majority of Parliament, but it is, for all practical purposes, a purely political Party with a majority of one. Perhaps it does not even command that majority by the aid of its own Party. In these circumstances, such a Parliament may confer upon the President powers vastly in excess of the powers which this Constitution was normally intended to give him. The President will say that of course he can only exercise these powers on the advice of the Executive Council or that he can only perform these functions on the advice of the Executive Council. There is no effective safeguard in that.

Let us take a position such as exists to-day to see what is possible in relation to that position under this Constitution. The Government may come in here with a Bill to give additional powers to the President. He may be President by virtue of the support which he is able to get from the Fianna Fáil Party. He has been, perhaps, one of their own active Party men. He has been elected by the use of the Government Party machine. He knows he is indebted to the [1015] machine for being President. The Government machine may feel that Parliament is a handicap and a drag upon many of the things which it would wish to do, that Parliament takes a long time to enact legislation and that there is criticism in Parliament which it is desirable to avoid. What is to prevent a Government Party holding these views, coming to the House and passing a Bill designed to give the President the power to take away from Parliament the right of examination or the right of criticism which up to that it had enjoyed? That is the danger that I see in this provision which purports to confer certain powers upon the President by law. I do not think it is any safeguard to say that these powers are exercisable on the advice of the Executive Council, because the Executive Council may well be acting in collusion with the President to take these powers away from Parliament. As Deputy McGilligan said, it would be quite an easy matter for a Government going out of office, and with a President in power on whom they could rely, to take away from Parliament functions which properly belong to Parliament and give those to a President of their own political complexion, so as subsequently to cause difficulties for an incoming Government. Nothing that the President has said or the terms of his amendment provide any effective safeguard in that particular connection. It is because a safeguard is not provided that I am opposed to giving the President new powers by law, those powers being got by a single majority vote in this House.

Professor O'Sullivan: If I may intervene for a few moments, I should like to say a few words. This is really a residuary clause. It embraces everything which is not ruled out by the Constitution. Unless it is definitely ruled out by the Constitution, powers which we have not even thought of but which may occur to any Government may be given to the President.

The President: What are they? Give us an idea.

[1016] Professor O'Sullivan: They may turn up from time to time.

Mr. McGilligan: The whole field of external relations, as the President himself said.

Professor O'Sullivan: When the President was first asked to give an instance of this kind, all he could think of was visitors to universities, and here to-day he explained that that power being in the hands of the Executive Council, they generally appoint exactly the same class of person that the new President would appoint, namely, a set of judges. For the sake of uniformity we are to give this vague power; we do not know what may be in it. It may be giving to the President extreme powers over the liberty of the individual; it may be giving powers that at present even Parliament may not have. Parliament would not have power to question those powers. The President's actions cannot be questioned. He is exercising powers which are given to him. He cannot be indicted. He cannot be impeached. He is using those powers according to law. He can get any powers which are not absolutely ruled out. This is a kind of residuary clause: all the rest can be given to the President. Every other power which you have not now the foresight to see and provide for can be given into the hands of the President. The powers may have far-reaching effects, as the political situation of the moment dictates. Undoubtedly, at a time when a Parliament is going out of office, there will be a temptation to give such powers. There is no reason why a Parliament, having themselves lost the confidence of the people, may not do that sort of thing. Again, the President cannot be indicted. His exercise of those powers cannot be questioned. He cannot even be impeached for any conduct of that kind. The objection to this is that the extent of the powers is so extremely vague. It is like making a will and giving somebody £10 or £20 and the residue of the estate to somebody else, imagining that you are giving £100 and finding that you are giving more.

The President: First of all, let us [1017] be clear on this: There is always the question, “Who will guard the guardians?” That is always there, and we have to make up our minds that there is a certain place at which we cannot make further provision. Somebody has those powers already, either the Government or the President. The powers are existing. We have come at last to the stage, after a long period of experience of representative institutions, at which we have a fairly rough idea of the powers that may be exercised. The residuary powers are very few. At any rate, we come to this point: First of all, no Constitution can adequately meet the question, “Who will guard the guardians?” Ultimately the people themselves are the guardians of their own liberty. You cannot possibly go behind that, so far as any system you will set up is concerned. No matter what provision you may make, somebody will say: “If he goes wrong, what will happen?” The whole theory of this is that Parliament is going wrong. But the Parliament has the power already. All the powers necessary for the government of this country are contained here in this Constitution and left with the Parliament, which can enact laws to make it possible to use those residuary powers. Therefore, they exist at the moment and will exist in the Parliament. If the Government goes wrong and the Parliament goes wrong, then they do not need to hand it over to a President or anybody else to deprive the people, through it, of their liberties. The only other argument which I can see might possibly be put up from the opposite side is, “The President's period overlaps.”

Mr. McGilligan: And may be made perpetual.

The President: It cannot be made perpetual.

Mr. McGilligan: Why not? I will prove it to you.

The President: I will be very glad if the Deputy can make that clear. I do not see how he can. What is provided for here is this, that in relation [1018] to external affairs we exercise all those functions definitely prescribed and limited, and the manner in which they are to be exercised is limited. It is possible, if the people so desire, in regard to functions that would be in the existing situation performed by the King, to transfer those powers ultimately to the President. If the scheme that is here is to be carried on you must make provision for that. Secondly, you have this question of uniformity in operation, and I for one cannot see what danger there is to be apprehended. Of course, when persons tell us to look out on the vasty deep, with all the monsters and so on that can be conjured up before our minds to be afraid of, we can say nothing to them, but I would ask those people who object to this to tell us what powers they have in mind. Deputy O'Sullivan talks about vast residuary powers, and mentions powers over the liberty of the individual. The liberties of the individual are safeguarded to a certain extent against Parliament itself, and will therefore be safeguarded against the President. I should like some examples from the opposite benches. Let Deputy O'Sullivan use his imagination and give us a single example of a power which might be given to the President, even in the circumstances which Deputy McGilligan has suggested. I think we are talking away from the facts, and the facts are that the powers are at the moment, and will continue to be, in the Parliament itself. If the Parliament is bad it can exercise its powers wrongfully in its own regard as well as by transferring them to the President.

Mr. MacDermot: Would the President consider as a compromise limiting the section to a case where there was a two-thirds majority of both Houses desirous of giving extra powers to the President? Does he not think, for example, to take the instance he mentioned, that the duties at present performed by a certain organ might be transferred to the President in connection with external affairs—does he not think that that is something that ought to require more than a majority of one?

[1019] The President: I think no Government would do it without consultation with the people.

Mr. MacDermot: There is nothing to prevent them from doing it. As a matter of fact I understood the President to be arguing against its being compulsory to consult the people. After all, if there were no special provision such as this, powers of this kind could not be given to the President except as an amendment to the Constitution. He does not want that. He wants Parliament, by a transitory majority, to be able to give such powers. I wonder whether there is any real case for that. The only case that is mentioned, apart from this matter of the King, is the very trifling one of the visitors to universities. It seems to me that the section as it stands is creating great alarm. It surprised me. I would have thought that it would be bad electioneering. Bad electioneering or not, it is not surprising that the section does create alarm, and it is difficult to see that its value is such as to be worth while maintaining at the present time. I really suggest to the President that, if he cannot go further, at any rate he might compromise so that the additional powers could only be given to the President when there is a two-thirds majority in favour of it in the Dáil and the Seanad.

Mr. McGilligan: I object entirely to the compromise suggested. The two suggestions to bear in mind are these, that the President might have certain functions and powers given him in the Constitution, and have it clearly understood—which would not be the case if this amendment were carried— that nothing else could be given except by way of constitutional amendment. To meet that suggestion I said that after three years that could be done by amendment of the Constitution. If new powers are going to be given, and if three years is regarded as a reasonable time, it must be done in a constitutional way. That could apply to the new President. Three years, or whatever period is allowed—I suggest it should be longer—for the altering of the Constitution by way of amending legislation should apply to the President's powers the same as anything else.

[1020] The President is very keen to have this done by law. I suggest that the President can be perpetual in this country and I sought to limit his chances by way of a series of amendments. A President gets elected and thereafter can nominate himself. The only thing in the Constitution about anyone else is that he must obtain nomination by a certain group of county councils or members of the Dáil. By law that can be made 100 per cent. of the Dáil or of the county councils, and that being the case, no one else can get nomination. The retiring President may be nominated for ever. That may be a fantastic suggestion but it is quite possible under the Constitution. If it is not possible, I want to see the weakness in my argument. You may have a President, who, because the nominating body is raised very high by the Government which is going out, will be in office during the whole period of their successors' lifetime. Two presidential elections might raise the nominating numbers to such a point that nobody would be able to get nomination.

Leaving that aside, supposing you had a Government in office that had reached its last year, that there is a presidential election and that Government stock is sufficiently high still to carry the President of its choice. He is in for seven years. The Government is about to go out or is going out the next year. The President is in for six years, thus overlapping the Government's successors. It is certainly open to them to hand over any powers to him. The only impediment is that they cannot do anything which would constitute a constitutional amendment and which would have to go through the ordinary referendum process. In the first three years, changes in the Constitution might be made by ordinary legislation and all sorts of powers given. The method of passing legislation can be achieved without constitutional amendment so as to give far more powers to the President than is outlined now. I say, regarding the Constitution as a whole, where there is no prohibition, this is passing over powers of the Legislature to the President. We have an Article which says that no legislation shall be passed [1021] except by the Oireachtas, but the next one says that provision can be made by law for separating the powers and functions, these to be determined by law. Supposing you have as a Council of State, a group of “Yes-men,” behind the Prime Minister of that time, these legislative powers can be handed over to the President. Let us take the example the President gave. When this question was discussed before, whether deliberately or not, the President misled the House. He talked of rather informal matters such as appointments to universities. Speaking afterwards, when the point was made by Deputy Lavery as to whether it would be lawful for him to deal with foreign states at his own discretion, the President seemed to think that impossible but to-day he seems to think it all right. It is possible still to have all external relations of this country operated through a dying Government.

The President: That is always possible.

Mr. McGilligan: How could it be done? A Government has to face the country and they leave behind them a President for six years. There is a time lag. Make it five years or four years. The presidential elections are coming on and cannot coincide with the Dáil elections. There is going to be overlapping. The President suggests as a safeguard this phrase: “Powers to be exercised on the advice of the Government.” If we knew what that meant in the Constitution and that the Government was going to impose authority, we might take that phrase to mean something. The President spoke about the principles of government. A popular election throws up a Party which, like this Government, is in for a certain number of years and when finished faces the people again. When the new people come in, they may be the same Government or a group from different parties, but, whatever they are, they are untrammelled. If this Constitution sets out to make a complete division, and if the people elect an Executive for a number of years outside the legislature, then they know what is in front [1022] of them. But there is the pretence in this Constitution that the Government is elected by the people. You have it shot in here for the first time after all the fights against Kings and their great powers. Let the President put into the President's powers some way in which a Government once elected will have that President entirely under their control. Then I do not care what powers he gives.

The President: What about a rotten Government that is going to go mad?

Mr. McGilligan: They will walk the plank. What I am concerned about is that a Government that is going to face the people will have a President in power for five or six years and they can give him powers which they would not think of operating against themselves, but would leave free against their successors. Let us know where we are. It may be, as indicated at the Árd Fheis by the President, that he is going to have as President a man who would have considerable powers which he would operate at his own discretion. That was his promise. I know the President's difficulty. The presidential paragraph in this Constitution would give a lot of powers and a good lot of ceremonial powers. The President cannot have them because they are in the External Relations Bill.

The gap has to be filled up somewhere, and hence we have this business of commander-in-chief and officers holding commissions from him, partly vanity and partly to hide the gap in the paragraph that would appear by comparison with the same person in other Constitutions. In any event, let us stick to one or other principle of government. Let us have the clear position in which people are going to elect an Executive who will boss the Legislature, or let us have the idea that the Government is elected by popular election through the Party, and that the Government rules. Give us the position through the Constitution in which the Government—I do not care how bad it is, because it will have to face the populace within a limited period—puts its thumb on the President at any time he tries to move, and let them take [1023] responsibility for every act of government.

Mr. MacDermot: I am a little surprised at some of the arguments. I thought that Deputy McGilligan in particular and the Opposition in general were strongly in favour of a system of checks and balances.

Mr. McGilligan: So we are.

The President: I am sorry that we could not have continued the discussion on the level on which it was commenced. It might be helpful. But we have gone into another atmosphere altogether, and there is no use trying to follow it. Is it not obvious to any thinking person that if a Government gives to a person certain powers, a new Parliament when it comes back can take these powers away?

Mr. McGilligan: No.

The President: Of course it is. Why can they not? What is there that a Parliament want to-day that they cannot enact if the people are willing? Has it not to be referred to them? The President has no veto over the two Houses.

Mr. McGilligan: He has.

The President: He has not—none whatever. It was hard at times not to intervene when the Deputy was speaking. I tried to restrain myself, because I believe that in the long run we will make some progress by each one of us saying what we have to say. My view is that powers of government exist at the present time. They are fairly well defined here. The things in the way of government—the powers and functions—are fairly clearly laid down here. I ask people to show what is this residue. It is not as if we were starting for the first time in an unknown field. The powers and functions of representative government are pretty well known after a very long period of time in different parts of the world. I ask them in challenge, instead of talking about vague things, [1024] to mention a single power that could be given to the President of a dangerous character. If the President, particularly, was to have external relations functions, they would have to be exercised on the advice of the Executive Council. If there is a wrong Government that wishes to hand over to him powers so that he might possibly interfere with a new Government, the new Government has got the whip-hand, because it can pass any laws it wants to and he cannot veto them. He has no power whatever to stand in the way of a measure to which Parliament agrees—none whatever. If he tried to do anything, there is the ultimate way of appealing to the people and you can get a constitutional amendment without the President's consent. The constitutional amendment can be put to the people over the President's head.

Therefore, it is all nonsense to say that the President is given all sorts of power—that Parliament can give to the President all sorts of controlling power. It cannot. The same system that we have been accustomed to operate in all its main essentials is preserved. There is only one place where the President comes in effectively and that is for these checks and balances for which the Opposition have always been asking. Time after time we have been told that there was a dangerous position because there was no Seanad. Now we have given a limited power of check to the President, who is to be elected by the people, to say, if there is a difference of opinion between the two Houses, but only in that case: “This matter has to be resolved by the people themselves.” So that, so far as I can see, this question of extraordinary powers being given to the President by this clause is all moonshine. If there are any further functions given to the President, to make sure of Parliamentary democracy these powers will have to be exercised on the advice of the Executive Council. I think that that meets any reasonable case. I say we cannot possibly meet the other: “They may do this, and this, and this; representative government is impossible, because in the period of years [1025] between one election and the next the Government can do as it pleases.”

Dr. O'Higgins: I personally consider that the President is rather unwise in standing over a document such as this and taking up the attitude he has just taken up—that every suggestion made with regard to abnormal powers that are sought to be given to the President is all moonshine. I would prefer to think that the President was sincere earlier in the discussion this evening. I should like to think that he was sincere when he said it was his desire to have this organ in its final form go to the people as an agreed document which had been fairly, squarely, and sympathetically examined by all Parties in this House. I should like to think that that was a sincere expression of his desires. On that assumption, I should like to meet that; and I ask the President at least to accept it that I am meaning that when I utter this warning. If there is one clause or one portion of this draft Constitution that is viewed with suspicion, uneasiness, anxiety and distrust by the ordinary people of this country, it is unquestionably that Article which suggests giving extra powers by law to the President. My experience is that that uneasiness and anxiety does not take a political line; that you will find just as much of it on that side of the political line as on the other; that it is perfectly sincere and genuine; that there is a kind of historical and traditional explanation of the fear in the hearts of the Irish people of giving powers, real or implied, to an individual over the Parliament of the people.

Unquestionably, so far as most people can read and study this document, there is a definite reluctance, at all events, to limit the powers of this new functionary. There is a very determined legislative attempt being made to limit and define the powers of Parliament. That is sticking out in this document. There is an equally determined attempt to be indefinite with regard to the powers of this new functionary. I think that is unwise, and that a general acceptance of this document cannot be got along these lines; that just as there are certain [1026] responsibilities on the Government, there are also responsibilities on the members of the Opposition. One of those responsibilities is to consider and to voice the uneasiness of the people with regard to proposed legislation. Whether a Constitution containing those powers may, or may not, be machined through the people by the vigour of an up-to-date political machine, it will never be acceptable to the people in the ordinary popular sense as long as there is a suggestion of any individual being in a position to throttle the Parliament and to strangle it in any set of circumstances.

The President makes great play with “Who will guard the guardians?” I would rather have nobody to guard the guardians but the plain people down below, than have any individual presuming to be a sort of super Irish guardian angel. Who will guard the guardians? Where are you going to find a man who would be more trusted by the people than the majority Party—than the ten or 12 members of the Executive thrown up by a majority of the people, elected by the people or a majority of the people? The suggestion who will guard the guardians is that the whole 12 may be wrong, but the individual higher up, it is to be presumed, will be always right. The President does not agree with that interpretation of the Draft Constitution. It is mine and it is the interpretation of a number of others. This Draft Constitution was introduced and got a special introduction as a simple document in the simplest language. We have come up against no section or sub-section yet about which honest men did not differ as to its meaning. Certainly, I cannot congratulate anybody on the clarity or simplicity of the language.

I would ask those opposite to accept this much—that when we are expressing uneasiness and distrust of the proposals contained here, we are speaking on behalf of well-intentioned people of all shades of political opinion. There is a dislike for giving an individual the powers it is suggested to give to him here. The more we explore how extensive those powers [1027] may be, or to what extent they may be abused, the more the feeling of alarm will spread. We will have either one of two situations, because we must presume that nobody is going to occupy the position of President who has not been a very prominent political leader. Nobody else could get the services of the great political machine, and without the services of a great political machine nobody could ever hope to fill that position. So we will have a political leader of one of the great political Parties elected as President. Then we will have arising after that one of two situations, or probably both, during the seven years of office of any President. We will have, first of all, a Government politically the same as the President, the members of which, perhaps, owe their seats on the Front Bench to his successful leadership in the past—a Government anxious to pay a tribute to the man that led them successfully, and made that Government. The only way they can give expression to their appreciation of his services is by legislating to give more and more power to him. Ordinary human gratitude will direct that they should give expression to their gratitude by increasing by law the powers of that individual. Then before his term of office is up there is elected a new Government, and then we have a Premier and a Government who had spent years campaigning against the man who is over them as President. Human nature being all it is, and giving everybody credit for trying to make the best of a difficult situation, does anybody think there can be either trust, understanding, co-operation or harmony? All these qualities are definitely essential in the direction of the State. Now, every one of these factors will be absent and there will be distrust and suspicion, and the guardian of the guardians will be watching that new Executive as a cat watches a mouse; that new Executive will be viewing the President with suspicion and distrust. Even if in a perfectly genuine way he regards a Bill as being a violation of the Constitution and he proposes to hold up [1028] that Bill, there will be controversy, bitterness and an outcry throughout the country.

Now in all seriousness why go out of our way to bring about such a situation? Let us cease to regard him functioning as either a Fine Gael or a Fianna Fáil President, and the others as either a Fine Gael or a Fianna Fáil Government. Let us think of a time when political divisions are along other lines—the towns versus the country, tariffs versus free trade, when very big political issues divide Parties, when you have close distinctions between Parties and you have a President representing one political Party, because he will represent a political Party, with the Government representing another political Party. Do you think that is a sound or healthy headline?

Apparently, it has not been really decided whether it is a ceremonial head we are throwing up in this Constitution or an Executive head. The Executive head of the Government should be the Taoiseach, whoever he may be, or whatever type of Government it may be. If that individual is required to act with power and authority, that individual should be the head of the Government, the mouthpiece and spokesman of the Government and nobody else. In addition to him, unquestionably, a ceremonial head is required, and that ceremonial head, no matter what Party he comes from, should get the respect, support, and, as far as possible, the friendship of all political Parties. If he is to get that from all political Parties in his own interest and in the interests of the high office we are creating, give him no powers whatsoever. Give him no powers by law, and no powers by the Constitution. Create him a really high ceremonial head, but as far as powers go, make him as powerless as the Governors-General were in this country or as the King is across the way. It would not be possible to have elevated kingship to the very high position it occupies over there in the eyes of the people of England if that King had power to interfere with Parliament. It is because he is powerless that he can get the respect and support of all. We are starting out on a new venture in this country. [1029] It is unwise to start on the line of giving excessive powers or even appearing to give excessive powers to any individual no matter where he comes from or what Party he comes from. Giving these excessive powers, or appearing to give them, will make for trouble in the future. We are thereby making for friction in the future, and we are making certain that this document cannot be an agreed document. I agree with the President that I would rather see this document go forth in some agreed form. But if there is insistence on giving powers by law to the ceremonial head, then you will definitely make certain that this document cannot leave the Dáil as an agreed document.

Mr. Costello: At an earlier stage of the proceedings here to-day the President expressed his very earnest desire that, so far as possible, there should be the greatest measure of agreement to the provisions of this Bill. The powers and functions and duties of the new functionary, who is to be called the President, are the most important and vital points of this Draft Constitution. To the extent to which our views in connection with the President and his functions and duties and the functions and duties of the Government are met with, can there be any hope of any measure of agreement? I gathered from the President's statement after Deputy McGilligan's speech on this amendment that he was prepared to concede that any of these new powers that would be imposed by law upon the President should only be exercisable by him on the advice of the Executive Council. I think I understood the President correctly. That would involve, of course, an amendment of Article 13, paragraph 10, sub-section (2), which provides that no power or function that would be given by law to the President should be exercisable except on the advice of the Executive Council or after consultation with the Council of State. It would mean, of course, that the words in the sub-section, “or after consultation with the Council of State”, would have to be deleted.

The President: That is provided for in amendment 53.

[1030] Mr. Costello: If I am correct in my interpretation of what the President's statements were earlier, it would go to some extent to meet my objections on this Article. When first I heard the President making the offer that he would be prepared to provide that these additional powers to be imposed by law upon the President would be only exercisable on the advice of the Executive Council, I thought that that almost, if not quite, met the situation. It appeared to me to put the President in somewhat the same position as the Governor-General was in, acting on the advice of the Executive Council. On reflection, I think that that position is not at all analogous to the position when the Governor-General was here, acting on the advice of the Executive Council, and I think the President, if he will give the matter impartial consideration, will see that.

Before I develop that very shortly, I would like to deal with a point that the President threw out rather casually, because the words were put into his mouth by Deputy MacDermot. Deputy MacDermot said he thought that the Fine, Gael Party were in favour of a system of checks and balances. It shows how little Deputy MacDermot knew about the Fine Gael Party, or, indeed, about constitutional matters at all, when he said that our policy, which has been well known from 1922 right up to the present moment, was one in favour of unlimited checks and balances in a constitutional system. We have made our position perfectly clear here, and beyond all possible dispute. We stand for responsible government; that is to say, a Government elected from the Deputies who are elected by the people, a Government responsible to the Parliament of the people. That is the fundamental basis of our system of government in accordance with our policy. The Parliament of the people will be the paramount authority in this State if we are to have our way and if we ever have our way. We do not want anybody to be in any way superior to the Government of the people. We do not want any President, any king, any Governor-General, or anybody else to be superior to the Government elected by the people's [1031] representatives in Parliament. That is our policy.

We have made our position clear again and again on the question of the Seanad and other matters. We have pointed out that we are in favour of certain constitutional checks on the unlimited exercise by the people in their Parliament of their supreme power as the sovereign authority. The check for which we have always stood is the Second Chamber, and the next check that we have insisted upon— and that we will always insist upon so far as we can—is the safeguard of an independent judiciary to whom is entrusted the safeguarding of the constitutional rights enshrined in the Constitution of the people. That is our system of government, and checks, and nothing else.

The fundamental objection we have to this Draft Constitution is that there is a new functionary introduced over and above the system of responsible government that I have outlined, and to which we have been accustomed here for the last 15 years. There is a new functionary called the President, with new powers. Some of those powers are of no particular importance, because they must be exercised on the advice of the Executive Council. Some of them are of very grave concern indeed, because they are, in essence, absolute powers, powers exercisable in his complete discretion. The powers that are exercisable by him after consultation with the Council of State are, in essence, absolute discretionary powers. The Council of State is a body of no consequence whatever and with no power, and the expression “after consultation with the Council of State” means, in effect, nothing. I do not know whether the President is aware of the history of that particular phrase, “after consultation” with a certain body. The President, if he looks into the history of that phrase, will find that, in effect, it was devised by the late Kevin O'Higgins, in consultation with me, for the purpose of meaning nothing. It is in this Draft Constitution now and if the President will look it up in the Courts Officers' Act of 1926, where it appears for the first time——

[1032] The President: It is clearly set forth here that the consultation with the Council of State does not compel him to take their advice.

Mr. Costello: That is just what I am objecting to, and therefore the use of the expression “after consultation” is merely a pure piece of humbug and hypocrisy.

The President:Oh, no.

Mr. Costello: We have here a body that has no powers. It has the right to be heard, the right to talk with this great high functionary, the President, who need not listen to them and, as the President himself now says, is not under any obligation good, bad or indifferent, to take their advice or to do as they tell him. Therefore, where you find in this draft the donation of powers to the President after consultation with the Council of State, in effect it means that the President may do it in his absolute and uncontrolled discretion. Every member here has the greatest objection in principle to the giving to this new functionary, the President, of any such absolute powers, and this Constitution will not leave the Dáil and will not be passed by the people of this country with our benediction or approval as long as these powers remain.

I have explained in outline the system of government for which we stand. We stand for responsible government, with the check of a Seanad and an independent judiciary and, if you want it, a ceremonial head of the State, who will have no real powers under the Constitution. That is the system of checks and balances which we believe would work for this country. We see in the provisions of this Draft Constitution in reference to the President, particularly in reference to this very wide power of giving him authority by law, a very serious menace in the future. The President smiles. The President asked for examples, and I will give them to him, but, before I do that, I want to develop the point I mentioned at the outset of my remarks, that, when I heard the President's offer made first, that these powers would be exercisable only on the advice of the Government, I thought that, in [1033] effect, that was the same position as that with respect to the Governor-General. Unfortunately, there is a difference, and, if it were not for that difference, I would unhesitatingly accept the President's offer.

This new functionary is to be elected by the people. He is, therefore, in this position, that he can claim the same authority for his actions, legal or illegal, as the Government of the day can for their actions. The source of both their authorities is the vote of the people. Now, I will give an example to the President. Suppose a law were passed providing that the President should sign all inter-Governmental agreements, and should do so on the advice of the Executive Council. Assume that this present Government was in power when that law was passed, and that the President was in existence. We can call him the mythical A B. This Government, which is at the moment or which pretends to be, in conflict with the Government of Great Britain in the so-called economic war, passes that law providing that all inter-Governmental agreements shall be signed by the President, on the advice of the Executive Council, and suppose the Government, whose majority in this House passed that law, go for a general election and are defeated at that general election. A Government from this side of the House, which has declared its intentions of ending that so-called economic war takes up office, and an inter-Governmental agreement is made between this country and Great Britain, and that inter-Governmental agreement is perhaps given the force of law and presented for signature to the President. Suppose he refuses to sign it? What is to compel him? How is that agreement to be carried out? How is the money to be lawfully voted, if there is money to be paid under that agreement or expenses to be incurred under that agreement, if he refuses, during a period of six and a half years, to sign it, or to sign a Bill giving effect to it? He is above the law. He cannot be brought to court, by mandamus or otherwise. It is not a high crime or a misdemeanour, and he cannot be impeached. The President has asked [1034] for a concrete example, and I have given him one.

The President: It does not hold.

Mr. Costello: I could give numerous other examples. I admit that, on the President's new offer, they would not be as serious as they would be on the existing draft. I said, in my Second Reading speech, that the President could be authorised by law to raise taxation. So he could, and without coming to the Dáil. He could be authorised to issue lettres de cachet, and so he could.

The President: No.

Mr. Costello: And without contravening the provisions of the Constitution.

The President: I should like to see him try.

Mr. Costello: The President asked me whether I could give him examples of laws that could be passed and I am giving them. It is not a question of liking to see him try or not. I challenge the President to say if that law could be passed and, if passed, whether it would in any way contravene any single word, line or article of this existing Constitution. Of course, it would not.

The President: I do not agree with the Deputy at all.

Mr. Costello: If the President does not agree with me, perhaps he will bring up one of Deputy Aiken's chapelgate men to show me where I am wrong. I have not found any lawyer to tell me. One of Deputy Aiken's chapel-gate men may tell me. I do not think the President will tell me I am wrong, because I think he will get better advice than that. I want the President to tell me if a law were passed by the Oireachtas enabling the President by letter under his hand to order my detention at his will and pleasure, in what respect would that in any way contravene one article, one line or one word of this Draft Constitution.

The President: Parliament could do it, so it is only a question of whether you are going to do it through the [1035] Government, or through the President on the advice of the Government.

Mr. McGilligan: The President is there for seven years.

Professor O'Sullivan: And responsible to no one.

The President: One at a time.

Mr. Costello: The President will have ample opportunity to answer these points. He has asked for examples and I have given them. I particularly rely on the example I have given with reference to a settlement of the economic war and I want him, if he can, to give me an answer to that. I can see no answer to it. The real fundamental objection to this proposal is the fact that both the Government and the President will try to justify their respective actions from the authority they derive from the people. That is the real trouble in connection with all this scheme in this Draft Constitution—that you have the seeds of conflict sown, if this Constitution is passed in its present form, by reason of the possibility of conflict between the President, claiming a direct mandate from the people, and the Executive Council, or the Government, as it is now to be called, also claiming a direct mandate from the people. If the President happens to be a particular type of man, he will refuse to do these things or will thwart the Government in certain things. He cannot be touched by law. He will resort to highfalutin' talk about his being the guardian of the Constitutional rights and liberties of the people, the direct representative of the people and the direct appointee of the plain people, and the seeds of conflict will be sown. The President, of course, was right when he said that you cannot in a Constitution legislate for every impossible contingency and provide the guardians for those who are supposed to be the custodians, but at least you can do this: you can say that so far as it is reasonably and humanly possible, no new institution of the State will be set up which may be used, under the cloak of democracy, to undermine the people's rights.

[1036] Mr. MacDermot: It is perfectly possible to support this amendment and yet be in favour of a system of checks and balances, and it is perfectly possible to oppose the creation of this functionary, the President, and yet be in favour of a system of checks and balances. I suggest that the speech we heard half an hour ago from Deputy McGilligan did not sound like the speech of a person who was in favour of a system of checks and balances.

Mr. McGilligan: Did it go against the judiciary or the Second Chamber?

Mr. MacDermot: There was no specification of the judiciary or Second Chamber, but there was a clear implication that the Government of the day should be unchecked by any authority whatever.

Mr. McGilligan: I never said it and never meant it.

Mr. MacDermot: I said it was implied, and it is within the recollection of the House whether I am right in that or not. In my opinion, that was the whole tenor of the speech. The speech of Deputy O'Higgins and the speech of Deputy Costello travelled a long way from this amendment. They have attacked the whole principle of creating such a functionary as is proposed in this Constitution, and, from what they have said, one would imagine that nothing of the sort had ever been tried elsewhere. A great deal has been said about the seeds of conflict that are sown by the concurrent existence of two authorities deriving their sanction from the people, but there is exactly that objection, whatever force it has, to having two Chambers. If you have two Chambers, each purporting to have some authority from the people, directly or indirectly, you may say that you have the seeds of conflict. Similarly, if you have a President elected by the people or elected by Parliament, you may say that you have sown the seeds of conflict. Of course, there is something in such a statement, but I do suggest that the objection is by no means a fatal one. It is an objection which has been overcome elsewhere. The President [1037] of the French Republic is more than the ceremonial head of a State. He owes his position to election by the Parliament—not by the people— and he is often of a different political Party from the Government which happens to be in office. Nevertheless, it has not been found in practice that he is so lacking in sense and so lacking in patriotism as to be constantly obstructing the Government of the day.

Mr. McGilligan: Give us an example of anything the French President can do.

Mr. MacDermot: In the first place, he has the power to decide whom he should invite to form a Government. That is often a very considerable power.

Mr. McGilligan: Every act of the President must be countersigned by a Minister.

Mr. MacDermot: Suppose it has to be countersigned by a Minister?

Mr. McGilligan: Is not that Ministerial responsibility?

Mr. Costello: That is what we want. He is under the thumb of the Government.

Mr. MacDermot: Of the whole Government?

Mr. McGilligan: You are thinking of one man acting against the wishes of the rest of the Government.

Mr. MacDermot: When a Government goes out, is Deputy McGilligan suggesting that the President of the French Republic has to get the permission of some member of that Government before he decides whom to invite to form a new Government?

Mr. McGilligan: I shall read you the Articles dealing with that, but I tell you that every act of the President must be countersigned by a Minister. The only thing he can do is dissolve the Chamber of Deputies, if he gets the assent of the Senate.

Mr. MacDermot: I repeat that in French Ministerial crisis after French Ministerial crisis—there have been [1038] plenty of them, not arising out of any conflict with the President but arising out of the peculiar system of French politics—the French Presidents have played a most important part, and it has never been suggested that the functions of the French President are purely ceremonial. As a matter of fact, the choice of President is taken very seriously, and Parties in France take a very great interest in the selection of the particular individual who is to be put into that post—an interest that goes far beyond the mere question of who is going to be the ceremonial head of the State. Then you have the Republic of Finland, where the President is elected by direct popular vote of the whole country. The Government of Finland has an excellent reputation and has worked along very well ever since its creation. I have argued with the President in favour of his——

Mr. McGilligan: Every act of the Finnish President has to be counter signed by a Minister.

Mr. MacDermot: I confess I am not prepared to take Deputy McGilligan's word as to the position of the Finnish President, for this reason: I was informed about two years ago, when I inquired apropos of Second Chambers into the position in Finland, by somebody high up in the British Foreign Office that the person who counted for more than either chamber in Finland was the President.

Mr. V. Rice: Better read the Constitution.

Mr. MacDermot: I am referring to the personal influence of the man who held that post.

Mr. McGilligan: Article 34 of their Constitution is pretty explicit on that matter.

Mr. MacDermot: I admit I have not come armed with the Articles of their Constitution.

Mr. Costello: Deputy McGilligan has.

Mr. MacDermot: As regards the actual working of both the French and Finnish Constitutions, I state confidently [1039] that the Presidents of both countries are more than ceremonial heads of the State. In the present case, we have launched out into a discussion of whether or not it is desirable to create such a functionary in this country. Deputy Costello has given us hair-raising suggestions as to the powers that might be conferred upon him. Is it quite clear that this Parliament at the present moment could not confer hair-raising powers on somebody if it chose so to do? If we chose to pass a law authorising somebody to issue lettres de cachet, is there anything more in our present Constitution to prevent us doing so than there is in this proposed Constitution? I suggest that there is not. When you come down to an examination of what really is in the Constitution and look at what are the really substantial powers it is proposed to give this President—the powers which will be exercisable at his own discretion—what do they amount to? Is not the one power given him that really matters, the power in connection with reference of Bills to the people? Is not that the one power given him that really matters? Under what circumstances is that power to be exercised? The majority of the members of the Seanad and not less than one-third of the members of the Dáil must, in the first place, have addressed a joint petition to the President in order to secure a referendum. That having been done, the President has to consult the Council of State. Having consulted the Council of State, he is free to take a decision as to whether the matter is one that, in his opinion, warrants a referendum or not. I am not, of course, referring to constitutional matters in which there has to be a referendum but to matters other than constitutional matters.

I speak as one who is keenly in favour of a referendum. I should like the referendum to be a permanent part of our political machinery here and, while I do not think it ought to be used every second day or that there is any danger of its being so used, I think it is a very valuable thing to have. If you are putting something there that is new—I know there was a referendum [1040] in the present Constitution at an earlier date, but what we are doing now is, nevertheless, something new—and making the referendum specially available as a means of settling possible differences between the Dáil and Seanad, it is not unreasonable that some discretion should be allowed to the head of the State in deciding whether a matter is sufficiently important to warrant a referendum or not. I do not say I cling desperately to his having that power, but if he does not have that power, some other machinery must be devised for deciding the question whether a referendum should be held or not. That machinery might be found by the Opposition to be, at least, as unsatisfactory as the machinery suggested in the Draft Constitution—namely, the discretion of the President.

I put forward these considerations because I honestly believe they are relevant to the case, and I am sorry that there should be any heat aroused by this sort of discussion. I see no reason for it. I intervened with perfect calm and politeness with regard to the subject of checks and balances, and an outburst of rage immediately proceeded from the Front Bench of the Opposition when I dared to remind them that they had been in favour of such a thing, and suggested that what Deputy McGilligan was saying rather implied that checks and balances ought not to exist. Having gone through this Constitution very jealously—none of us is in a position to get up and dogmatise and claim to be infallible; we do the best we can with such brains as we have—to see if anything approaching a dictatorial position was being accorded to the President, I came to the conclusion that there was not, and I am only sorry that, by the section we are now discussing, the President seems to me to have given an opening to the creation of all sorts of fears which, I think, are not justified. I would repeat to him the suggestion that anything he gains by having this section in is more than counterbalanced by the misunderstanding and alarm that it will create.

Parliamentary Secretary to the Minister for Finance (Mr. Flinn): I, [1041] for one, have felt a very considerable anxiety in relation to this particular matter in Article 12 which speaks of the powers given to the President by law, and more specifically in relation to Article 13, Section 10 (2) where it is said that:—

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.

I think the objection which has been taken, in so far as it is taken to the Constitution as it is written here, is an objection which may properly be taken. Now, I do not think that it adds anything to the merits of the case to use any such expression as Yes-men, or any of the wild suggestions that have been made, but there does seem to me, or there did seem to me, to be a residual difficulty here, and that that residual difficulty should be met.

The President has defined the powers of the new President as being powers which he would exercise within the conventions of this Constitution: that he was not to receive powers outside the conventions of this Constitution, and to the extent to which that is so, then, personally, I am not disturbed. The question which has arisen, however, is, whether or not in the written word of the Constitution power to extend those powers is limited to powers within the convention of this Constitution. The only powers that can be given to the President are to be given either by the Constitution—by a change in the Constitution which, of course, will go through all the ordinary checks and have to be considered in exactly the same way as any other constitutional method—or they are to be given by law. Now, no stream can rise higher than its source, and no authority can go higher than its source. The power that makes a law is precisely the power which can repeal a law, and, in theory—leaving out the question of time elements and time lags and, they are important matters—it is perfectly clear that any power that is given to the President, whether to be exercised on the advice of the Executive Council or, under what I regard as the illusory [1042] check of “after consultation with the Council of State,” is a power which is given by law, which is regulated by law, which can be withdrawn by law; which is given by an authority, which is maintained by that authority and which is withdrawn by the same authority. Up to that point, and apart from the question of time lags and so on, there does not seem to be any question in theory, but where the difficulty arose was that, in relation to powers which the President exercises on the advice of his Ministers, he exercises those powers under the continuous check and control and authority of this Dáil: the continuous day to day and hourly check of the authority of this Dáil through its Executive Council and its President. The power which is given to him to be exercised “after consultation with the Council of State,” or the power which he could exercise, independent of this Dáil, during the interval of time in which it would be necessary to withdraw the authority under which he exercised it—in my opinion that power should go, and that difficulty has been met in amendment No. 53 which the President is moving to Article 13. That amendment reads:—

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.

When that amendment is incorporated in the Constitution it means that any power whatever which is given to the President will be exercised by the continuous authority, and under the continuous control, of this Dáil. The Dáil has no power to give an authority that it has not got itself. It cannot do more through the President than it can do itself directly. Any power which it delegates under the clause as it now is it delegates under its continuous control. That, in my opinion, is a safeguard which is introduced in this particular amendment of the President's. That is one of the points that was raised. I want to say definitely that that was a gap which [1043] required to be filled and which, I think, has been filled.

Another rather extraneous point has been raised which I think could probably be better discussed on another portion of the Bill. I will only allude to it because I want to recognise the extent to which there is some validity left in it. It is suggested that you may have a conflict of authority under the operation of a clause of this kind between the Taoiseach and the President. To the extent to which there is any conflict of authority founded in any power he receives, it can be dealt with under the law, and if the President is not prepared to bow to the decision of the Executive Council, then, under amendment 54 which is put forward by the President, the authority is definitely placed in an effective commission to see that it does carry out this power. Now, that again is technically perfectly sound and clear. As far as mere technical law is concerned, there is no gap. There is, however, just this residual difficulty.

Assume for a moment that there was a conflict between the President and the Taoiseach in some matter in which the President thought, or claimed to think, that his was a better and more adequate expression of the people's will than that of the existing Dáil and the existing Executive Council. That is where the real risk comes in. Say, for instance, that the President were to go to a general election himself, and assume that he were to say: “I disagree with the Executive Council and I am prepared to resign my position as President; I am prepared to go and be re-elected by a direct ad hoc vote of the people.” If you had such a position as that, you would certainly be creating a position of difficulty. That, in my opinion, is the only residual difficulty which remains, and it is one which certainly requires to be considered.

Mr. V. Rice: I do not know if the President has derived any encouragement to persist against this amendment by the benediction given to his point of view by Deputy MacDermot. Perhaps, however, if the President [1044] reflects that that benediction was based on a discussion of other Constitutions, and that it was based entirely on hearsay, he may not derive much encouragement or comfort from it. Deputy MacDermot tried to draw a parallel between the case of the French Constitution and the one before the House—or rather, he used that against Deputy Costello's argument.

Mr. MacDermot: I urged the President to accept the amendment.

Mr. Rice: He referred also to the Finnish Constitution, and Deputy McGilligan pointed out to him that those two Constitutions contain a provision which the Opposition here would be perfectly satisfied to accept if it were introduced by the President in regard to this section. Now, the Deputy referred also to the system of Dáil and Seanad—the two-House system—as being parallel in some respects to the position created here as regards the powers of the Government and the powers of the President, and he said that some such conflict could arise there as was suggested by Deputy McGilligan could arise here: a conflict, that is to say, between a popularly elected Dáil and a Seanad, who could say that they also, in some form or another, had derived their authority from the people. Now, we have had a Seanad in fairly recent times in this State, and surely Deputy MacDermot realises that there were very effective checks on the Seanad, even in its first days in this State, and that there were very effective means of dealing with any unreasonable or unduly prolonged opposition to the will of the Dáil.

The President, on this question, himself said, as an argument against Deputy Costello's point, that you might have this conflict between the Government and the President, and that you might have the President refusing to sign a Bill that was passed by the Oireachtas, that he would like to see him try. Now, is not the implication of that simply this: that it is highly improbable that a President would act unreasonably or in such a way as might conflict with the popular will? We are standing here, however, for a Constitution [1045] in which that position cannot arise. Without having in view any particular living individual in the office of President, we must contemplate that some time, perhaps, a President will be elected in this State who will run counter to the wishes of the people. It has happened in other States, and what we wish is that a safeguard should be put in the Constitution which will make it impossible for that situation to arise. Do not let us be left to depend on the principle “We would like to see any President try to do that.” We might get a President who might try to do that, and we wish to safeguard against that by means of this amendment.

The President: It seems to be inevitable, Sir, that on this section we should have another series of Second Reading speeches, and I suppose that, in order to reply effectively to the speeches that have been made, I would have to repeat a Second Reading speech also. However, I do not think we should do that. We have decided on a principle by a majority. It is true that we did not get agreement—I forget the numbers, but I think the Opposition went in opposition—but we decided by a majority that this was a principle that was going to stand. Clearly, we have to have some method of resolving the differences of opinion, and no matter how far I should like to go to meet the views that have been expressed on the opposite benches and to meet any points of detail in so far as they can be met, I clearly cannot be asked to meet the Opposition to the point of completely surrendering the fundamental principles that are here. If the speeches were confined, as I think they ought to be confined, to this particular amendment, in this particular case, we should make some progress, but now the debate has ranged around the whole circle that we had on the Second Reading Stage. We have a lot of phrases such as “an individual being enabled to throttle Parliament.” Now, in the name of goodness, where is there anything in this Constitution to justify the use of such a phrase as “an individual being enabled to throttle Parliament”? Certainly we can make no progress if phrases of that [1046] sort are to be used. I ask anybody to read that Constitution and see if phrases of that sort are justified in any way by the Constitution.

At a matter of fact, the President is limited and confined, and the powers that he can exercise are very definitely set out in every case except this one case, and it was suggested in this one case that, because these extra functions might be given by law, extraordinary functions, such as those mentioned by Deputy Costello, could be given. Now, they could not be. These powers could not be given, because they would conflict directly and immediately with the Constitution, and they could only be given to the President by amendment of the Constitution. In relation to these external functions, even if these powers, which are nominal powers, were given, it is clearly set forth that they are exercisable only on the advice of the Government. Now, this particular thing, in itself, as far as I can see, cannot cover a wide field. It only covers one thing of importance, and that is the possibility of having a situation in which the people decided that it was advisable to transfer these particular functions in regard to external relations—the signing of letters—to the President. That is the only thing that it is essential to provide for, and we think that you have to provide for it in the Constitution as, otherwise, the Constitution is left in a position in which it cannot meet all the things that might possibly occur. I am anxious to provide for it in case Parliament should come to that decision. I do not think that any Parliament would do it, but when we come to that particular point we can examine it in detail. I do not think a Parliament would make that transfer unless they had definitely the authority of the people to do it, because it would be one of the biggest political acts that could be taken by Parliament. It would be immediately a question in which the people would have to be consulted.

If we leave that aside, there are these minor matters which were only put in for the sake of catching in the [1047] net any small things that might arise. That, however, is the only purpose for which that section was put in, and it seems to me that, if Deputy Costello had followed out the line on which he began, we would have arrived at an agreement. He seemed to think very definitely that the amendment I have down would meet the case. Undoubtedly, as it stood, I was thinking, in putting it down, of this: that there would be certain functions which might be transferred which, in accordance with the whole scheme of this Constitution, should be exercised by the President on the advice of the Executive Council.

There was another set of things, such as the simple case I mentioned, which need not necessarily be exercised by the President on the advice of the Executive Council, but which he should exercise after consultation with the Council of State. Now, let nobody on the opposite side of the House put it into my mouth that I regarded consultation with the Council of State as binding on the President. I made it quite clear that consultation with the Council of State was for one purpose only. That was to hear views before he took action. He would be hearing views expressed by people of diverse political parties, men who would be of a type likely to foresee the consequences of any line of action which he proposed to take. Therefore one of the purposes of the Council of State was that when he took action on his own discretion, he did so after having been fully informed of the position and of all the possible consequences of that action by people who would be in a position to inform him properly. He need not take that advice, but, at least, he would be getting the benefit of an advice which should have a very great influence on him in making his decision.

It was just possible, as it stood in its original form, that in performing his functions in accordance with the general scheme of the Constitution, the law might give him power to do these things without consultation with the Council of State. That was not intended, and the moment I saw the [1048] possibility of that I immediately agreed that it should be amended. That is the value of a discussion such as this, that an interpretation of a draft springs up to a person who has not been dealing very much with the draft more quickly than to the person who has been dealing with it. If a person is dealing with a draft and tries to express an intention, it is possible that he might express it in a form different from that which other people could consider proper, and it is well from that point of view to have people considering a draft who had nothing whatever to do with the preparation of it. I welcome every criticism of that kind. In so far as it seems to be at all founded on logic or commonsense, or to have a good foundation, I am willing to meet it, but I cannot meet suggestions from the opposite side which go to the foundation of the whole principle of the draft. There are things upon which we could get an amalgam of all sorts of views, but they would not be worth the paper upon which they were written.

I believe myself that the majority of the people and the majority of the Dáil will support the general principle of this Constitution. If I am wrong, the vote of the people will show that. To repeat what I have said, I think it would be very well for us to get the widest measure of agreement on this matter. I am anxious to get that but there is a line beyond which I cannot go. I have to make up my mind and I should like to consider whether the residuary powers are, under any circumstances, other than the one which I have in mind, worth having a difference of opinion about. Deputy MacDermot suggests that they are not. If it were not for one definite circumstance, which this Constitution should be able to meet even in its present form, I would agree with Deputy MacDermot that there is nothing that I can see coming up under it which would make it worth while having a difference of opinion. Bogeys have been raised about this matter but there is no justification for them. At the moment I am meeting these bogeys to the point of saying that if by law, by full legislation passing the two Houses, [1049] there are to be any powers given to the President, these powers must be exercised on the advice of the Executive Council, that is, that the Government will have the same responsibility for them as they will have for any other action of the President which he will take, according to this Constitution, on the advice of the Government.

There were a few points raised in some other speeches to which I might refer. One of these was that we had no power to coerce the President. Everybody seems to have passed over an important little word on page 24 of the Draft, Article 14, Section 5, which states: “The Council of State may 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 in which the President or a commission appointed under this Article fails”— that word “fails” has some significance surely—“or is unable to exercise and perform the said powers and functions or any of them and which is not provided for by the foregoing provisions of this Article”. In other words, we have here in this Constitution as it stands, a way for performing these functions. If the President should fail to perform them, they will be performed without him.

It seems to me that you want no coercive powers to compel the President to perform certain functions which it should be his concern and his obvious duty to perform, if you have a provision by which, if he fails, you can get these things done. You can get a law signed; you can get a number of other things done. You have a provision in this Draft by which if the President were to take up the position of saying “I will not sign that law,” you can say to him: “Very well; there is a certain time within which it must be done and a certain procedure laid down for having it done if you do not do it.” You have got a body of people who will perform the act on his behalf. If there is anything else that anybody wants inserted to make sure that the President will perform his constitutional functions, I have an open mind with regard to it, but it seems to me [1050] that that provision was designed to meet a situation of that kind and that it will work.

There was another matter raised by Deputy McGilligan—the question of a counter-signature. We have ourselves since we came into office been counter-signing certain documents. My view is that it is a matter of procedure and that the Executive of the Government of the day should give advice to that effect. This advice should refer not merely to the matter but to the form. Consequently, this question of a counter-signature is a matter which may be provided for under the Constitution by simple advice. The Government of the day has only to send up to the President a document and say: “This is the form in which we think it should be done.” The document can appear with the signature already of the responsible Minister. The President will, in fact, be very anxious to get documents that are sent to him authorised and verified in advance, bearing the signature of a responsible Minister, so that there is no need to remove this provision in the Constitution. It is a matter that is provided for already and I am myself in favour of such a procedure.

Before I sit down, I want to repeat that I cannot, obviously, meet the Opposition on matters of principle which we shall have to settle by division. On matters of detail, to get the widest possible acceptance of this Constitution, I am anxious to go as far as I can. In regard to this particular word, I will not agree to the elimination of it, now at any rate, because I want to consider how it would leave us in regard to a situation for which I think this Constitution should provide. I hope this Constitution will be able to meet any possible contingencies that may arise in regard to policy—any policy that may appear good to any particular Party in the country.

I think it is right to allow for these things. It may be suggested, at a later stage, that certain safeguards should be put in. When we come to deal with any of those, I am prepared again to consider any suggestions on [1051] that line. The basis of this Constitution is that the people as a whole are to have a deciding voice in big matters of national policy. You can have that done either by election or referendum.

The further thing I want to say before I sit down is this: I think that from our side we have at no time suggested anything that would lead anybody to believe we were anxious to see a dictatorship of any kind set up. We stood firmly on democracy. Many speeches have been made by me against the Opposition because it seemed to me, from their policy at a certain period, that they were abandoning that principle. I may have been wrong; I may have misinterpreted them. At any rate nobody can show on this side of the House any tendency whatever to get away from the fundamental basis of democracy and representative government. This Constitution, I maintain, is based on the principle that the people are the ultimate authority for deciding questions; that during the period between elections Parliament is supreme. The only question where the President comes in is that in a certain set of circumstances where there is a division between the two Houses of Parliament he has the discretionary power to say: “Very well; this is a matter which the people themselves must decide.” When you give a person no further power than simply to state: “This seems to me a matter on which the people will have to be consulted,” you are not making him a dictator. You are simply putting him into a position in which, having been elected by the people, he says: “Very well; there is a difference of viewpoint between the two Houses of the Legislature. This is a matter of fundamental importance for the people, and the people themselves should decide.” In other words, it is a safeguard for democracy.

All the arguments of Deputies on the opposite benches, since we came into office anyway, have been directed in the contrary direction to that in which they are now going. Now it is that Parliament must be supreme, and there must not be any check. Formerly it was that here we were here with enormous powers, and therefore [1052] we had to be restrained; now it is going the opposite direction. In regard to this, I will give further consideration if the Dáil wishes to take it at that, to see whether it is necessary for the whole scheme here to make this Constitution sufficient to meet all the circumstances—whether we will take out the words “and by law.” My own belief is that they are not very many. There is only one thing which really matters that can be provided for. If that can be provided for otherwise——

Mr. MacDermot: I should like to ask the President why he wants to provide only one way. Apparently he wants this House or Parliament, as a whole, to be able to go outside the Commonwealth, if they want to, to give up using the King and use the President instead as our organ for external affairs. Supposing Parliament wanted to do the opposite? Supposing they wanted to turn the President into a representative of the King? Supposing they wanted to adopt the King as an integral part of our Constitution? If they are to be allowed to do one thing without going to the people, why should they not be allowed to do the other? I suggest that there should be an appeal to the people about both.

The President: There is a lot to be said for that, perhaps. I will consider the whole question about “and by law,” if you wish to leave it at that. At the moment I believe I am meeting the thing fairly fully in amendment No. 53.

Mr. Norton: The President says that his intention is to confer on the President just one other function.

The President: That is the one that leaps up.

Mr. Norton: Or that possibly is the only other function which it may be necessary to confer on the President. Unfortunately, the President's assurances in this respect are of no value whatever, and convey no safeguards to any other body administering this Constitution.

The President: Would the Deputy suggest what are the powers?

[1053] Mr. Norton: The President says that, so far, he can only discover that he wants to confer one other function on the President. As I said, the President's present assurances are of no value and provide no safeguard in that respect. The President may not be President for ever. He may change his mind and say, “A new set of circumstances has induced me to do so.” Consequently, the people are thrown back into the position set out in this Constitution, namely that it is possible for the President to exercise powers and functions conferred on him by this Constitution and by law.

The President: Subject to this Constitution.

Mr. Norton: Subject now to the condition that those powers and functions are exercisable and performable by him only on the advice of the Government. But it has already been pointed out in the course of this debate that the Government may well, as part of a purely political manoeuvre, give power to a President to do things, because through the President, through the Government, and through the Party caucus they can manage to get things done much more smoothly and with less publicity than by bringing a proposal through a legislative assembly. At one time it used to be thought that the very name of President of a country automatically carried the badge and hall-mark of democracy. But we have seen, in the past 15 years, Presidents in European and South American countries arrogate to themselves powers much more tyrannical than were ever exercised by a king. We have seen Presidents in European countries, in collusion with a political machine in their respective countries, manage to manipulate affars in such a way that the President, with the aid of the political machine which was behind him, was able to legislate by decree, was able to abolish Parliament, was able to perform all the functions which were formerly performed by the legislative assembly. I, for one, want to endeavour to ensure that, so far as this country is concerned, we are not going to create a President who, through a [1054] political party machine, may be given power and ultimately reach a dictatorial position akin to that occupied by many Presidents in Europe to-day. If the President thinks that it is likely to be necessary to give the new President this other function, what is the difficulty in the President agreeing to accept this amendment now, and coming back at a later stage and getting the Constitution amended in order to provide that the President might get additional powers of this kind? What is the difficulty about the President accepting amendment No 52 which I have submitted, which would ensure that no additional powers or functions might be conferred on the President unless legislation purporting to confer them was passed, (a) by not less than two-thirds of the members of Dáil Eireann, or (b) by a referendum. If the President is suggesting to give the President in this Constitution formal and ceremonial functions, a law can be passed enabling the President under the Constitution to exercise these formal or ceremonial functions.

The President: You could not by law, if you do not provide for it here.

Mr. Norton: I am offering amendment No. 52 as an alternative, leaving in the words “and by law”. By the adoption of that amendment we could ensure, under proportional representation, that a Government cannot arm a President with unreasonable and dictatorial powers, and that no collusion with the President would enable a Government or a President to exercise functions which properly ought to belong to a legislative assembly. As it is, it may be possible for any Government within the next three years by law to confer upon the President very definite powers, and these powers may be an invasion of the rights of Parliament, and even of the rights of the people. Under this Constitution as drafted it is possible for the Government of the day, by a majority of one vote, to confer on the new President to be elected under the Constitution, powers which will enable him to exercise very wide authority within the country. I have seen nothing during the past 15 years, particularly in eastern European countries, which [1055] justifies me in assuming that the President we are going to elect here is going to be a paragon of virtue, seeing that with prototypes the experience of many other countries has been the opposite. We may, in this Constitution, drawn in this way, find that particular powers are given the President, and new functions created, which, in the course of time might mean tyranny and dictatorship. I want to be assured that there is no possibility of that happening.

The President: There is not that possibility.

Mr. Norton: There is not that possibility if one is prepared to say the President is speaking from the book of truth and revelation; that he is infallible, and that nothing is likely to happen when the President says it will not happen.

The President: It could not happen under the Constitution.

Mr. Norton: If this Article is passed as it stands there is nothing to prevent him coming along at the end of 12 months and passing a Bill in this House giving to the President powers to prolong Parliament for 20 years, if the President likes.

The President: There is.

Mr. Norton: Is there anything to prevent a Government coming along next year and amending portion of this Constitution and saying that the maximum life of a Parliament shall be seven years?

The President: There is.

Mr. Norton: It might provide that while the maximum life of Parliament was to be seven years the President on the advice of the Executive Council might prolong Parliament for 14 years.

The President: He could not do it.

Mr. Norton: Will the President explain?

The President: Because it is contrary to the Constitution.

Mr. Norton: It could be amended.

Professor O'Sullivan: Next year.

[1056] The President: That will be dealt with when we come to that particular Article.

Mr. Norton: You are putting on the shackles here. Our hands are out for the handcuffs here.

The President: How will you have a difficulty with regard to this Article for three years?

Mr. Norton: The President will admit that it is possible for a Party— it might be his own Party—after the forthcoming general election to say: “We have got a new mandate. We have a handsome majority. In fact it is really unnecessary to trouble the people every four years with elections. What we will really do is: we will look up Article 12 of the new Constitution and pass a new Bill giving the President under that Article powers to prolong Parliament beyond the normal seven years provided for under the Constitution and give him powers so that, on the advice of the Executive Council, Parliament can function for 14 years instead of the normal seven years.

General MacEoin: And 27 months after.

Mr. Norton: When the three years is almost up the President might discover that after all Parliament was a nuisance.

The President: Why can we not do it at present?

Mr. Norton: Does the President want me to make a case and present it to him? He asks why the Government does not do that at present. We have a Government here that at all events we can still criticise, but we are creating a precedent in a position to be occupied by one man who, incidentally is commander-in-chief of the Army, and that is the person we have to deal with in the future. He is the one we have to tell that he ought to walk the chalk line provided by Parliament. I have seen that kind of thing tried on by other political parties in Europe, and by other presidents, and it did not work out in the nice, easy, democratic way that the President wants us to believe it will work out here. It is because I am afraid of [1057] the additional powers that may be conferred on the President that I am opposed to these powers being conferred by law, or if given by law, that they should only be given by an overwhelming majority of the House or by a referendum to the people. If the President is prepared to accept the position in which a President gets these powers by an overwhelming majority of the Oireachtas, I am satisfied. If he does not accept that proposal there is a way out, namely, the President can go to the people and get a referendum for the additional functions which he is to discharge. Those of us who are prepared to oppose the giving of these functions and powers to the President can then take to the hustings and ask the country to reject such a proposal. If the President is only thinking of giving the new President formal functions there ought to be no difficulty about accepting amendment No. 52, which would satisfy my point of view. In the absence of an assurance that he will accept amendment No. 52, I am in favour of taking out the words, “and by law,” because I think there is a potential danger which might ultimately expand, and that we will have the same difficulty here as was experienced by the people with other political parties in European countries.

Professor O'Sullivan: I presume Deputy Norton is quite clear that even if the President accepts these words that only deals with the particular powers we are discussing. This does not at all deal with the general powers of the President, but only removes one obstacle in the way of dictatorship, as far as we are concerned. We had the usual tribute to democracy from the President. He said that he stood firmly on democracy. It is not the first time he stood firmly on democracy— stood very firmly on democracy; trampled on it very firmly. We learn now that the purpose of this Constitution—the principle of this Constitution on which the President cannot give way, because it goes to the principle— is these powers of the President. These are the President's own words. He said he was quite willing to meet the Opposition. The real purpose of [1058] the Constitution as now revealed by the President is the powers of the future President. The idea that it is to protect the liberties of the people or anything else must apparently go, but anything that proposes to limit the future powers of the President goes to the principle, and on the Second Reading he got a mandate for these powers, as far as Parliament is concerned. Therefore, I think the Opposition was quite right, in regard to this Constitution, in concentrating on the powers of the President. In that we are justified by the President's own speech. His speech, as far as I could follow it, would seem to be an argument to remove any objections he might have in accepting our amendment.

On the Second Reading, in dealing with this particular matter, he spoke of nominal powers. To use his own phrase, the only thing that leaped up at that time was visitors to universities. In the course of the Second Reading he adumbrated, in answer to Deputy Lavery, the possibility that other powers are concerned—grave powers, as the President will admit.

The President: Not at all.

Professor O'Sullivan: If the President will follow me for once. Grave powers, so far as the status of this country is concerned, can be given by a mere Act of Parliament. He admits that that should not be done without the people pronouncing on it. I presume he means that it should not be done without appealing to the people, without the people being consulted. Why, then, does he take this particular power? Why does he want to give that particular power now to ordinary legislation, seeing that he can carry it through by appealing to the people by an ordinary amendment to the Constitution? What is the difficulty? Surely from that particular portion of the President's argument we should expect him to accept this amendment, if that is the only case he can think of. The other cases mentioned to him were pooh-poohed. Lawyers were asked to give him their help. What use are lawyers anyhow? If they agree with the President they are not necessary; if they disagree with him [1059] they are wrong. They are like Second Chambers. Deputy Norton said the President was like the Book of Holy Writ. He is much more like the Koran, if I may say so. He will remember what the Caliph Omar said about the books in the Alexandrian Library: if they agree with the Koran, they are not necessary; if they are in contradiction with it, they are wrong. When lawyers tell the President that the law means so-and-so, they are wrong!

The President: There are other lawyers, as I said before.

Professor O'Sullivan: There are, but the thing cannot be so clear if there is such a division between lawyers. This is the matter that the people are to decide upon, the plain, simple language that the people are to decide upon, things are so clear! Here in this House the President asked for instances, and when they were put up by a lawyer he said that the lawyer was wrong! I did not notice that the President went out to consult the Attorney-General when the case was put up to him. He knows what the Attorney-General is going to tell him, because that Attorney-General is a good lawyer—he will agree with the President. That is his function.

It is the same way with Parliament. As Deputy Norton pointed out, he was taking bouquets because he had not abolished Parliament. What is his conception of Parliament? To agree with the President. What is the function of the Opposition? To agree with the President. If they discuss a measure they are going beyond their function; that is not the way in which he wants them to discuss it. He wants to tell them the method in which they ought to discuss it. If they agree with the President, they are superfluous; if they disagree with him, they are wrong. Is not that plain logic, as the President would say, even commonsense? That is what it amounts to. This is a great principle of the Constitution, namely, the powers of the President—he himself has said it. Even he himself had not thought of important things like external relations, [1060] apparently, on the Second Reading, because it was strange that he only gave us formal things, such as visitors to universities. But so jealous is he of the powers of the future President that the smallest diminution of them will not be tolerated. The Opposition is not discussing the amendment in the way he wants them to discuss it! They are unreasonable because they criticise!

This is one more of the many powers in this Constitution that will enable one of two things to happen—a serious clash or else, in a certain crisis, a step towards dictatorship. There is no good in the President overlooking it; he cannot do so. It has occurred again and again in different countries in Europe; it has occurred in history. When you have two popularly elected authorities, one a House of Representatives representing different bits of the country, a constituency here and a constituency there; when there is a conflict between this House and a man elected by the whole people, the man elected by the whole people will do what he has often done; he will say: “You are mere representatives, not of the people, but of bits of the people, fractions of the people; I am the representative of the whole people; it is my will counts.” Remember, he takes an oath not merely to obey the Constitution but also to guard the interests of the Irish people. He may take that oath seriously. He may not regard that oath as a mere formula. His duty may compel him to run counter to the wishes of the Executive Government, because he is the representative of the whole people. The President says that in the Draft there is the word “fail”—“if he fails to do so-and-so”. I am sorry that these much despised lawyers are not present to tell him whether “fail” could really have the interpretation the President pretends, namely, at his discretion refusing to do a certain thing. Deputy Costello put forward a very definite case as regards the question of the annuities, that an outgoing Parliament could legislate so as to say: “This agreement must be signed by the President.” Supposing he refuses to sign.

The President: He is failing to do his duty.

[1061] Professor O'Sullivan: That is not failing to do his duty in the legal sense. I do not believe a word of that.

The President: Of course, it is.

Professor O'Sullivan: There is no good in getting vexed because people disagree with you. That is not democracy. Democracy is calmly and patiently listening to what the other side has to say, even though you happen to disagree with it. They are rash to disagree with the President. But that is democracy. That is what the President ought to get into his head. That is what he has never got into his head. He is giving an example of it at present. There is no good getting vexed on this particular point.

The President: I could not get vexed with the Deputy if I tried.

Professor O'Sullivan: You were making a very good attempt until you recovered yourself. As Deputy Norton pointed out, there are various other provisions right through this giving what we want to set out, what the President ought to set out if he believes in Parliamentary democracy. I do not know if he does. But, if he believes in Parliamentary democracy, he ought to set out to limit the powers of the President and be glad to limit them. There is nothing in the next three years, so far as I can see, to prevent a Parliament, by a mere majority, giving, as Deputy Norton pointed out, absolute powers to the President in nearly everything. And that is the Constitution, that is guarding the rights of the people! The main purpose is the power of the President, not the liberty of the people. Let the President remember that dictators, wherever we find them, usually base their power on a plebiscite. I wonder will he tell me one who in recent times has not done it— not one, so far as I know. Where you have had, as you have had on various occasions during the last 100 years, a transition from a republic to an autocracy, you have it generally on the part of a man who had a plebiscite of the people behind him.

[1062] You are asking for that trouble. There is no good in getting up, as the President does, and saying, “I am reasonable; I will accept anything you say but do not say anything important; if there is anything unimportant I will accept it, but if it is important I will not.” Then when we get to the real business the President says: “I had a mandate for the Second Reading; this is not capable of discussion; this is not capable of amendment because the Bill received a Second Reading.” No curtailment of the powers of the President is possible because we gave a Second Reading to this Bill! That is not displaying any sense of the responsibilities of Parliament and any sense of the functions of Parliament. We see that type of mind running through this Constitution. But we object to these powers and we look with great anxiety at these powers. I find it very hard to get my mind—much as I should like to do it—to accept the position that what the President is aiming at is merely this question of the transfer of powers dealing with external relations. If that is so why not be satisfied with the power to amend the Constitution? The President admits it is such an important change in the Constitution that the people should be consulted. Therefore, he admits that it should not be done by ordinary law. There are much more important things so far as the powers of the President are concerned in the Constitution. The wishes of the Opposition ought to be met so far as this amendment is concerned. The Article will not get rid of the powers of the President leading to autocracy. I see that too many of the powers in this Draft lead to autocracy, not to have a general fear that this may lead to it also. The President tells us that no wise man will abuse these powers. If everybody were wise, if everybody even in high positions were wise there would be no necessity for these written Constitutions. The President must legislate precisely against that danger. We know it may be possible that the new President may be one of those obstinate people who thinks he knows everything better than anybody else, one of those people who thinks he knows better what the people [1063] want than the people's representatives. I know that sort of thing can occur. I know very well that the President finds it hard to envisage such things occurring! But he ought to make an effort to see there is a danger of such a tendency. That is a matter that should exercise the President's imagination; it is a matter that he should make an effort to guard against. The President speaks of deception practised on the people. Therefore, he says it is his duty to save the people from the deception that is practised on them by the elected representatives. I think that the manner in which the President has met this amendment is most unreasonable and, if it is an instance of his sweet reasonableness on more important matters, what are we to expect?

The President: I do not know where there is any use in talking further on this amendment.

Professor O'Sullivan: Hear, hear.

The President: In designing and going through this Constitution I have put myself not on these benches, but on the opposite benches. I have been anxious to see provisions in this Constitution so that if the people, who for the considerable period of time we have been here as a Government had been showing a very definite tendency towards the totalitarian State and towards dictatorship, happened to get over here on these benches, this Constitution would not give them any loophole to do what Deputy O'Sullivan suggests might be done. I have gone through this Draft Constitution, as Deputy MacDermot says he did, and not merely gone through it, but I have designed it with jealous care, so that, if there should be a change of Government at any time, the people who showed such a tendency towards dictatorship at one time should not have the means of giving effect to such tendencies. There is nothing in this document which would make it possible to set up a dictatorship here. The powers given to the President are definitely limited.

I am compelled again to go over those powers because of the wild statements made in connection with this [1064] amendment. The President's powers are directly circumscribed. The powers are, by this Constitution, in the hands of the elected Government. Where the President comes in in an executive capacity, he acts on the advice of the Executive Council and he cannot act otherwise. In regard to legislation his powers are confined to two things, namely, that he refers to the Supreme Court a measure which appears to be one which is contrary to the Constitution. The other power he has is to refer to the people a measure on which there has been disagreement between the two Houses. The President has no power if the two Houses agree. In the case of a measure in which there is disagreement between the two Houses the disagreement is resolved if the President considers it is a matter that ought to be referred to the people. That is the way in which disagreement between the two Houses is resolved. What is the good of talking about this?

Professor O'Sullivan: It is nonsense.

The President: Yes, it is absolute nonsense.

Professor O'Sullivan: I have as good a right to express an opinion on this as the President.

The President: It is absolute nonsense to say that this Constitution enables a dictatorship to be set up. It is suggested that the words “and by law” enables a dictatorship to be set up, and that the extra functions that could be given by law would open the doors to the giving of dictatorial powers. That is also impossible. That Article that we are discussing now gives no powers at all. It says “shall exercise and perform the powers and functions conferred on the President by this Constitution and by law.” The Article that gives the President functions is Article 13, and that article says “subject to this Constitution.” And this Constitution says that the sole legislative authority for the country shall be the Parliament. That cannot give the President any legislative function. No executive function can be given to him because it is not given to him by the Constitution, and no judicial function is given to him.

[1065] I put it as a challenge to the Opposition side to tell us how it is that, even by law, the President could get under this Constitution dictatorial powers or dictatorial functions. It is not possible under the Constitution. The Constitution has to envisage two sets of circumstances, one in which this country would be associated with the States of the British Commonwealth and the other in which this country might not be associated with the British Commonwealth, that association having been changed by the will of the people in their own interests. It is important that the Constitution should be capable of meeting either of these two alternatives. I do admit that if I were at present in opposition I would say that before that change was made the people should be consulted. But a situation might arise in which the matter might have to be handled over-night, and while a permanent solution would certainly have to be referred to the people, there might be a situation which might have to be dealt with immediately and it might be necessary in the interests of the State to transfer those powers for the time being to the President. But what are they? They are of a nominal character. The responsibility for their functioning would be altogether on the Government of the day. I repeat that there is not in this Constitution a single particle of foundation for the assertion that the President can get dictatorial powers. None whatever. I cannot see the arguments from the opposite side——

Professor O'Sullivan: Hear, hear.

The President: ——with regard to matters of that kind. The same opinion was expressed on the Second Reading, and if we are not to go on interminably with this discussion we have to come to a decision. I hold that we have, on the Second Reading, come to a decision on this matter. The case put up by the other side was that this put the President in a dictatorial position. This side took up the attitude that it did not. We voted on it, and that was decided and accepted. We have to go on the general principle, therefore, that this Constitution is accepted by this side [1066] as not being the Constitution that the other benches would represent it to be.

Mr. Morrissey: The main principle is the dictatorial powers.

The President: The main principle is that the Deputies opposite, without any particle of foundation and for purely political purposes, make this out to be different from what it is. That is my conviction.

Mr. Morrissey: That is not the point.

The President: If Deputies on the opposite benches are going to deal with the Constitution on that basis, we will accept it. We would like to have it dealt with on the other basis, but if that is not possible, and knowing that the Opposition want it the other way, we will have to take the gauntlet if it is thrown down to us. This Constitution is not, and cannot be shown by any reasonable person who approaches the matter in a proper spirit to be, of a dictatorial nature. It does not put the President in a dictatorial position. You may go to the people and do your best. The people understand perfectly well, and they will not be misled.

Mr. Morrissey: Hear hear. And you are finding that out!

The President: We are prepared to meet you, if you want that. But if you wish to adopt the other attitude, we will meet you on the hustings. What the President wants to insist on is that this Constitution is what it is on the face of it and not what Deputies opposite represent it to be.

Mr. Morrissey: It is just what the President says it is.

The President: I have been anxious to meet Deputies and I was prepared to go a certain distance, but there are limits to the point at which you can meet them. If they want it the other way, the people will judge and all the power of the Deputies opposite to misrepresent this Constitution will be in vain. Now, in regard to this, the view I take of it is that you cannot under this, by law, give to the President [1067] any powers either on the legislative, executive or judicial side, and the only thing of importance left over and possible to be given is that he might operate as the organ for external affairs instead of the King, according to the present Act, the Act passed in December. If anybody can show me, with all his imagination, if anybody can get up a single case in which powers of a dictatorial character can be given, and substantiate it, then I am willing to withdraw, but not until [1068] that is shown to me. I am not willing to meet the views expressed in connection with this particular section. In any event, we would have to deal with this at a later stage, where actual powers are being conferred in Article 13. That matter would have to stand by our decision on Article 13. If Deputies want to have a vote on the matter at this stage, they can do so, but I am not going to give way at this stage.

Question put:— “That the words proposed to be deleted, stand.”

The Committee divided: Tá, 61; Níl, 38:—

Aiken, Frank.

Allen, Denis.

Beegan, Patrick.

Blaney, Neal.

Boland, Gerald.

Boland, Patrick.

Bourke, Daniel.

Brady, Seán.

Breathnach, Cormac.

Breen, Daniel.

Briscoe, Robert.

Browne, William Frazer.

Carty, Frank.

Cleary, Micheál.

Concannon, Helena.

Cooney, Eamonn.

Corbett, Edmond.

Crowley, Fred. Hugh.

Crowley, Timothy.

Derrig, Thomas.

De Valera, Eamon.

Donnelly, Eamon.

Dowdall, Thomas P.

Flinn, Hugo V.

Flynn, John.

Flynn, Stephen.

Goulding, John.

Harris, Thomas.

Hayes, Seán.

Houlihan, Patrick.

Jordan, Stephen.

Kehoe, Patrick.

Kelly, James Patrick.

Kelly, Thomas.

Killilea, Mark.

Kilroy, Michael.

Kissane, Eamonn.

Lemass, Seán F.

Little, Patrick John.

Lynch, James B.

McEllistrim, Thomas.

Maguire, Ben.

Moane, Edward.

Moylan, Seán.

Neilan, Martin.

O Briain, Donnchadh.

O Ceallaigh, Seán T.

O'Grady, Seán.

O'Reilly, Matthew.

Pearse, Margaret Mary.

Rice, Edward.

Ruttledge, Patrick Joseph.

Ryan, James.

Ryan, Martin.

Ryan, Robert.

Sheridan, Michael.

Smith, Patrick.

Traynor, Oscar.

Victory, James.

Walsh, Richard.

Ward, Francis C.

Níl

Bennett, George Cecil.

Broderick, William Joseph.

Corish, Richard.

Cosgrave, William T.

Costello, John Aloysius.

Curran, Richard.

Daly, Patrick.

Dockrell, Henry Morgan.

Dolan, James Nicholas.

Doyle, Peadar S.

Fagan, Charles.

Fitzgerald, Desmond.

Fitzgerald-Kenney, James.

Holohan, Richard.

Keyes, Michael.

Lavery, Cecil.

Lynch, Finian.

MacEoin, Seán.

McFadden, Michael Og.

McGilligan, Patrick.

McGuire, James Ivan.

McMenamin, Daniel.

Morrisroe, James.

Morrissey, Daniel.

Nally, Martin.

Norton, William.

O'Donovan, Timothy Joseph.

O'Higgins, Thomas Francis.

O'Leary, Daniel.

O'Mahony, The

O'Neill, Eamonn.

O'Sullivan, John Marcus.

Pattison, James P.

Redmond, Bridget Mary.

Reidy, James.

Rice, Vincent.

Rowlette, Robert James.

Wall, Nicholas.

Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and Bennett.

[1069] Question declared carried.

The President: With regard to my amendment No. 13:—

In section 2, sub-section 3º, to delete the words “proportional representation by means of”—

someone has suggested—this is purely a small point of wording—that you cannot have proportional representation when there is only one person in question, but the system of election by the single transferable vote you can have. As there has been a question raised about this as to its precise wording, perhaps it would be better to leave it over until Report Stage. The point at issue is that in the case of the election of a single person, it is not proper to speak of proportional representation, but it is quite sufficient to set down the method of the single transferable vote. The exact wording, I am informed, is not quite satisfactory, and I should like to bring it in again on Report.

Mr. McGilligan: Is this amendment No. 13?

The President: Yes.

Mr. McGilligan: Is the amendment being moved?

The President: I said I was withdrawing it to present it again on Report Stage. The point in question is that proportional representation can hardly be properly applied to the election of a single individual, but the method of the single transferable vote, which is associated with that system, can be applied and the question is what is the more accurate way of expressing the idea. There is a question as to whether this particular mode of expression is the more accurate way of doing it. As the question has been raised, I am anxious to get further opinions and to bring it in on Report.

Mr. McGilligan: I would suggest for further consideration that the proper phrase to be used is “voting shall be on the principle of proportional representation” and that the latter part should be dropped.

The President: This is in connection with the election of the President.

[1070] Mr. McGilligan: Yes, and I suggest that this amendment should be made through the whole Constitution. wherever proportional representation is set down.

The President: I cannot accept that because there are various types of proportional representation.

Mr. McGilligan: Why should we bind ourselves to this one?

The President: That is a matter on which we may have to have a difference of opinion, but there is no question of a difference of opinion here, or perhaps there is. When a single person is being elected, the system of a single transferable vote which has been used is available.

Mr. McGilligan: It was always held that with regard to proportional representation, which this country adopted, we had adopted the worst possible system.

The President: That may be the Deputy's opinion.

Mr. McGilligan: It is not my viewpoint, but one held by a number of people, and it is a matter that might be argued.

The President: We can argue it when it comes up again.

Mr. McGilligan: Is it not peculiar that on Committee Stage, which is the Stage for argument, we have nothing before us?

Amendment No. 13 withdrawn.

Mr. MacDermot: I move amendment No. 14:—

In section 3, sub-section 1º, line 1, to delete the word “seven” and substitute the word “five.”

This is to reduce from seven years to five years the period of office of the President. Seven years seems a very long time, and I suggest that five years is more moderate and reasonable.

The President: The length of Parliament is five years, and I think the period set down is a very common term for a Presidency. If you are going to have election by the people, [1071] the term of seven years is not too long. It is the term in the case of a number of Presidents in other countries, and consequently it seems to be a reasonable term.

Mr. McGilligan: In the United States, I think it is four years.

The President: That is a different system, as the Deputy knows.

Mr. McGilligan: Undoubtedly, but it is four years, even with great executive powers and direct election for those special powers.

An Ceann Comhairle: Is it withdrawn?

Mr. MacDermot: I do not wish to withdraw it unless nobody else is in favour of it. If the Opposition are in favour of it, I should like to press it to a vote.

Mr. McGilligan: The period can only be properly considered and argued when we have the powers clearly before the House. Until we know the extent of the powers and the check there will be in the way of Government control, it is impossible to determine what the period should be. Perhaps Deputy MacDermot would defer his amendment until we see what the powers are to be?

Mr. MacDermot: Am I limited to withdrawing the amendment?

An Ceann Comhairle: The Deputy can withdraw it and reintroduce it at a later stage.

The President: We are making no real progress because we are simply putting off our decisions.

Mr. McGilligan: Who is responsible for that?

The President: That is all right but you can carry it too far.

Amendment, by leave, withdrawn.

Mr. Costello: I move amendment No. 15:—

In Section 3, sub-section 1º, line 4, before the words “be eligible” to insert the word “not”.

The object of the amendment is to make certain that a person who has [1072] occupied the position of President for such a long period as seven years shall not be eligible for re-election. There is a fundamental principle behind this amendment. I have already expressed my dissatisfaction with the method of election of the President by direct vote by the people. I have pointed out the dangers that lie in that system. If the system is persisted in, these dangers can be minimised by providing that, during the tenure of office of President by a particular individual who has attained to office by direct vote of the people, he will not be subjected to political influence. If the provisions of the Draft Constitution, as they stand, are persisted in, the President will be eligible for re-election on his own nomination. Having occupied this office for a period of seven years, he will go before the people for re-election. During that period of seven years, all his public actions may be directed towards the one aim of being re-elected at the end of his term of office. A period of seven years for any public office is rather too long. In the case of the office being created under this Draft, it is entirely unjustifiable. He is being given very extensive personal discretionary powers.

In order to get elected at all to the office, he must be a politician. He must have behind him a political party—a machine of some type whether it belongs to one of the existing parties or is created by himself. Whether the machine he uses for the purpose of securing election is that of an existing party or one set up by himself, the results may be—it is not necessary for me to go beyond saying they “may be”—disastrous from a public point of view. Having secured election through a party machine, the President, if he desires to be re-elected at the end of the seven years, must perform the functions of his office during those seven years with the ultimate object of re-election. That is not in the public interest.

It is very undesirable that a man occupying a responsible office of this kind should be subjected, in any way, to political influences or should have to look to the political effect of any of his official acts on his electorate when [1073] he comes up for re-election at the end of this term. It is not in human nature that he should omit to direct his actions towards securing re-election. If there is any justification whatever—I see none—for the creation of this office of President, elected by direct vote of the people, then the only justification is that the person so elected will be impartial and above political parties. If he belongs to one or other of the political parties striving for power in the State or even if he has a party of his own, it is not going to work to the public advantage. His actions will be directed to his own political advantage. The only way we can minimise the evil effects which will result if this system of direct vote for the President is persisted in, is by providing that there shall be only one term of office for each individual. I should be glad to hear from the President any justification he can offer for providing for the re-election of a man who has occupied this position for seven years. It may be that a particular man will have so conducted himself during that period that the people would like to have him again. That may be a justification but the disadvantages of having a person fulfilling the functions and responsibilities proposed to be placed upon him under this Draft will be obvious unless, so far as we can effect it, he be above politics and beyond party influence. That must be done if there is to be any sort of respect for this office or the holder of it. We can only minimise the evil results which may flow from this system by providing that once a person is elected, he will have security of tenure for seven years and that, during those seven years, he can fulfil his functions impartially without consideration of politics and without having to think what his fate will be politically at the end of the seven years.

Mr. Norton: I support this amendment. I do so on the grounds that we are setting out to create a new State functionary who will perform very important tasks and who may have some additional tasks of an important character transferred to him for exercise. It seems to me to be eminently desirable that the person [1074] who functions as President should be as independent as it is possible for the legislative machine to make him. We have got to remember that, under the system of election proposed in this Draft Constitution, the only person who stands any chance whatever of being elected is a reliable party camp-follower. A person in the country of high educational and intellectual attainments and of high cultural standing, possessing all the qualifications which might be regarded as virtues if we were looking solely for virtues in a President, would not have the ghost of a chance of being elected as President of the State under this Constitution. All that man's intellectual and scientific attainments and all his virtues would avail him nothing unless he had a good party machine behind him.

Mr. T. Kelly: How do you know that?

Mr. Norton: I have sufficient experience of political parties to know that the party managers will make sure of the type of person who will be elected to the Presidency, and I imagine that Deputy Kelly would probably confirm my fears in that respect.

Mr. T. Kelly: I shall not be a candidate.

Mr. Norton: What is going to happen in the beginning is that political parties will find the best camp-follower they can with the strongest possible appeal to the people. He will have been a rabid party man. He is going to be selected at a party conference and he will be dressed up in all the virtues it is possible to bestow upon him for the period of the election. That is the kind of person the people will be asked to elect. He will go into office with a definite political tag around his neck.

He has got into that exalted position because of the manipulation of the party machine and its capacity to sell his virtues politically to the public, and that is the kind of President that we are going to start off with. Inevitably, that man will be reminded by those who worked for him during the period of the plebiscite, and by the Party machine that found him, that he [1075] would not be there were it not for their efforts, and the temptation in the way of the new President to do the things that the Party machine expects of him is going to be very great indeed.

I can imagine a situation developing under this Constitution where the President, having been elected by the political Party which forms the Government, will be very anxious, in return for his elevation to high office, to please the political Party in power. I can imagine all kinds of references being made to his past Party loyalties, to the esprit de corps that existed between them and to the difficulties that would be caused to the Government if the President did not see eye to eye with the Taoiseach under this Constitution. All that makes for the absence of independence or the want of independence. If the President is eligible for re-election at the end of seven years, it seems to me that all his actions during his period of office will be designed to ingratiate himself still further with the political machine on which he must depend for re-election at the end of the seven years, and in his effort to ingratiate himself with the machine he will be less of an independent President than those, who want to see the President function as impartially as possible, desire. I am in favour, therefore, of putting the President in a position where he can exercise his independent judgment during his period of office: where he will not be afraid to annoy the local branches of the Party that put him there, where he will not have to make representations to get a person, for instance, into the Guards or into the Army or to get a person appointed as a peace commissioner, that he will not have to make sure that he is to be answerable to the Party machine for all that: that, having been once elected as President, he will know that at the end of seven years he cannot be re-elected. I believe that knowledge of that fact on the part of the President would ensure that during his period of office he would behave as an independent President and not as a rubber stamp for the Executive Council, or as one who finds jobs for those who supported him at the last election.

[1076] Mr. T. Kelly: Could the Deputy not imagine a man of an altogether different character being elected?

Mr. MacDermot: The question that occurs to my mind is whether the President will be given a pension when his period of office has expired.

Mr. Norton: If the period is made four years, he could get two pensions under this.

Mr. MacDermot: If he is not, and if he is not a man of independent means, then the knowledge that he cannot be re-elected President will not secure him against the feeling that he has got to please a particular Party. In fact, it may make things worse if it is essential to him to be provided for at the time that his period of office expires. Indeed, it may make him more a partisan during his period of office than if he had to submit himself to the judgment of the people. I agree that it is most desirable that the President should not act as a partisan. Mind you, I think that his opportunities for acting as a partisan are limited, but it is desirable at any rate that he should not take such opportunities, but should discharge his office impartially.

I think that perhaps Deputy Costello and Deputy Norton are unduly pessimistic. I think I know the Irish people well enough to say that a man's chances of being re-elected to the office of President would be increased by his discharging the duties in a worthy, in a dignified and in an impartial manner. I suppose it is true to say that a man can never be elected without the assistance of a political machine, but I am not convinced that, as Deputy Norton has said, the political machines would choose rabid partisans. I think that, probably, if the two political Parties at the present moment were putting up candidates, they would select somebody from among their members who was rather of the quieter type than of the aggressive type of partisan.

Mr. Norton: We have to guard against every risk.

[1077] Mr. MacDermot: The question is, how best to guard against risks. If I could see a sure way of guarding against partisanship I would be all in favour of adopting it, but I am not at all certain that to forbid a man to have more than one period of office may not make him more of a partisan during his period of office. I do think that seven years is a long term, and 14 years, it seems to me, is an altogether inordinate term under this Constitution. In fact, the term may be 21 years. There is really no limit to what it may be, and I am of opinion that there ought to be some limit. That is why I put down an amendment suggesting five years, and a further amendment suggesting that the new President could not be re-elected more than once. Deputies know that is the rule followed, although not laid down by law, in the United States. The President there is never re-elected more than once.

Mr. McGilligan: And not for more than eight years in all.

Mr. MacDermot: I would still urge on the President that the period of office should be less than seven years. I think that on the whole it would be a good thing and not a bad thing, provided the period is shorter, that there should be the opportunity of one re-election. I think a man would probably conduct his post all the more worthily for knowing that he has got that opportunity of testing the feelings of the Irish people again.

Mr. McGilligan: Again, the difficulty occurs of discussing either the length of the period of the Presidential office or whether the occupant should be allowed to offer himself for re-election more than once after the first time without having some fairly clear idea as to the powers. I view the Presidential office in a completely different way from the attitude adopted with regard to it by Deputy MacDermot. I see in this a completely new office. The people of this country, so far as they have political points of view and political sympathies, have been definitely on the side of all those in the neighbouring [1078] country and in every other country where people fought for representative Government, and, having secured that, fought against anyone being put in authority over that Government whether it was King, Governor-General or anybody else. That being the situation here, it is now proposed to set up a completely new functionary. It is proposed to give him almost unlimited powers, and these may be enlarged. Right through the Constitution there are certain loopholes by the use of which he may get extreme powers for himself, and, with the aid of a willing and a subservient Government he could, when the point of retirement from office arrived, get legislative power: he could get the whole of the external matters thrown over to him. There is no way of coercing him to do what he is supposed to do under the Constitution. That being the situation, I can see grave danger arising from the circumstances of his appointment.

The man to be elected will undoubtedly be a Party man, a chief, who will have the whole aid and support of the Party and its friends behind him. That will not be given except for a consideration, a consideration not merely in the past but promised in the future. In this situation, if you are going to have a man vested with a certain amount of powers which are open to abuse, and no way of coercing him into their proper use, then I say it is a bad thing to have a political head permitted to be elected a second time. There will be a grave temptation to him to play at politics during the whole period of his office. Deputy MacDermot appears to waver in the view as to whether a man is more likely to play politics if he knows that he can have but one term of office than if he knew he could go forward for a second term. The Deputy seemed to argue in favour of two terms of five years. He referred to the United States. The people in the United States know what they are voting for. They vote for a President who is given enormous executive powers. His period of office is limited to four years and the convention there is that he is not re-elected more than once after his first term, so that the [1079] longest period he can fill the office is eight years. The people of the United States know, as I have said, what they are voting for. We have not that system here but we are camouflaging it.

[1080] The President: I move to report progress.

Progress reported; the Committee to sit again to-morrow.

The Dáil adjourned at 10.30 p.m. until Wednesday, 26th May, at 3 p.m.