Dáil Éireann - Volume 67 - 26 May, 1937

Bunreacht na hEireann (Dréacht)—Coiste (d'ath-thógaint).

Debate resumed on the following amendment:—

Article 12.—In Section 3, sub-section (1), line 4, before the words “be eligible” to insert the word “not.”

The President: The discussion last evening was, I think, on the question as to whether it should be possible for a President to be eligible for a second [1085] period of office. I think we would all agree as to the purpose to be aimed at. So far as we can secure it, we ought to try to provide that whoever will occupy that office would be in a position of independence in the sense that he would not be likely to neglect his duty for the purpose of winning favour with any political Party. A difference of opinion arose, apparently, on the point as to whether that can be better secured by leaving him eligible for re-election or not. I think that even on the opposite benches some of the speakers argued on one side and some on the other, each trying to secure the same purpose. I, naturally, in putting down this Draft had to make up my mind on the matter and, in my view, the balance of the argument for independence lay on the side of leaving it possible for him to be re-elected. Remember, that to be re-elected the President has to get the support of the people. He is answerable to them. They will judge his actions during his first period of office by his conduct in that office and, consequently, if a man has proved satisfactory, I see no reason why he should not be allowed to go forward again for re-election. Those who will oppose his re-election, if they have any reason for it, will put forward as a ground: “Well, he has not acted in such wise,” or “He is no longer suitable for the office,” or some other reason of that kind. Therefore, it seems to me that the balance is in favour of making it possible for him to go forward for re-election, remembering all the time that it is the people will have to decide the question. They will be the judge of all his actions. It has been said that he can only go forward if he is supported by a Party. That is true, but the Party will not support a man who is going to be unpopular with the electorate. If a Party does try to support a man who has not acted in the way which his duty would demand, the people have a very good way of answering any such candidature.

With respect to the proposal of allowing him to go forward for more than two periods of office, two periods of office cover a considerable time, no doubt, and there has been some sort [1086] of suggestion that he should be eligible for a second period but not for a third period without a break. Again, my previous argument would apply to that case. If a man is held by the people to be suitable for the office, there does not seem to be any good reason for what I might call artificially excluding him. The only argument that I can think of is that sometimes after a prolonged period of office, a man is not active. He does not bring as fresh a mind to his work as a new man going into the office. There might possibly be a suggestion that if a man had held office for two periods—a comparatively long period in a person's life, 14 years—he might have got stale but we must remember that his functions are those of a judge rather than those of an executive. Notwithstanding all that has been said about it, the fact is that under this Constitution he has no executive powers in the sense of willing and deciding on doing things himself. Certain documents are sent to him to sign in regard to petitions which may come to him from the Seanad. He has to examine these petitions and make up his mind as to whether it is a matter that should go, let us say, to the people, or a matter that should go to the Supreme Court. Therefore, it seems to me that the argument that you want a fresh mind does not necessarily arise. It may arise in the case of the proposed re-election of a particular individual and the people may say: “Very well, this man is getting a bit old, it is better to get a fresh man.” My own view is that the less we put in the Constitution in the way of restrictions of that kind, the better. The people will have to be the judges themselves and if they do not think that a person is suitable to be elected as President, it may be assumed that they will not vote for him. However, if there is any strong view held that, after two periods of office at least, there should be a break I am quite willing to concede that but my own instinct is against it. I think you should put no artificial barriers at all there. Let these things be decided by the people in the circumstances in which they find themselves.

[1087] Of course, the possibility of a person being elected for two terms or three terms is almost altogether out of the question. I was given the records of Presidents of the French Republic where the period of office is a term of seven years. I cannot at the moment give you the details but they are not germane except for the fact that only one of them over the whole period has continued for a second term of office and then he held office only for a period of two years in the second period when he resigned. Most of them refused to go forward for a second period, the reason apparently being that the office of President, whether of the French Republic or of any other country, is not a bed of roses. The tendency will be that a man who has spent seven years in office will not go forward again unless there is some very good reason for his doing so, not merely a personal reason. There might be a good national reason for doing so. That is my attitude towards the amendment. I would resist an amendment excluding a person automatically from a second period of office but if the House feels that there should be a break after two periods, so as to make it quite clear that this is not intended as a life office for any person, I am quite willing to agree to that. If, however, my wishes were to count, I would say that we should put no restriction of any kind like that in the Constitution.

Mr. Fitzgerald-Kenney: The President stated that arguments had been put forward on this side of the House for and against the question of whether a person should be eligible for one period or two periods of office. I heard no argument put forward against the amendment——

The President: By Deputy MacDermot.

Mr. Fitzgerald-Kenney: ——except by Deputy MacDermot, and I do not think that Deputy MacDermot put forward his argument very seriously. The only argument which Deputy MacDermot attempted to put forward was that a man might be looking for [1088] a pension. That was the only argument I heard put forward and, as I say, I do not think the Deputy put that forward seriously, because I presume the question of whether the office of President is going to be pensionable—and I sincerely hope it will not —will be settled by legislation.

Mr. MacDermot: I do not know whether Deputy Fitzgerald-Kenney wants me to correct him or not; I do not want to interrupt him if he would rather not be interrupted. What I suggested was, in fact, what the President said, that it seemed to me that if a man knew he could have only one period of office, that he was not going to have a pension afterwards, and perhaps had no means of livelihood to look forward to, he might be forced into the position of courting a particular political Party more than he would do if he knew he could be elected to office again.

Mr. Fitzgerald-Kenney: I cannot follow that reasoning at all. If he cannot again be elected what is he to get from that political Party?

Mr. MacDermot: He might get a Civil Service post. He might get a post of representative in a foreign country. He might get the post of Senator.

Mr. Fitzgerald-Kenney: And all those things, according to Deputy MacDermot, would be much more attractive than a second term of office? I hardly think Deputy MacDermot is quite serious.

Mr. MacDermot: What on earth is the Deputy——

Mr. Fitzgerald-Kenney: Now, I am in possession. It is perfectly obvious that any person who stands for the position of President must have a Party machinery behind him. He could not succeed if he had not, no matter what the excellency of the man might be. He could not canvass; he could not arrange for transport; he could not arrange for personation agents, all of which will be necessary in the election of a President made by popular vote. He must have a Party machine behind him. How is he going [1089] to secure that Party machine unless he makes himself very pleasant to the Party which is the strongest Party, to the Party which is then in power, the Party which at the moment is the popular one in the country? It is probable that the Party in power, if they are a new Parliament at any rate, will be the popular Party, and he will have to make himself popular with that Party.

That is a very strong reason for putting him out. What is the reason for keeping him on? The suggestion seems to be that there will probably be one man, and one man only, in the country who is fit to hold the post. That is what lies behind the whole of the President's argument.

There will be in the country one man, and one man only, fit to hold the post. The holder of this post, as the Constitution stands at the present moment, will be a man to whom the most extraordinary powers can be given, a man to whom the most extraordinary powers can be transferred, according to the Constitution as it stands at the moment. That office is one which can be made a life office. The President would like to see the possibility of a life office for an individual. I submit to the House that that is completely wrong, that if a person has filled this post for five years, he will have had a very good innings. If he holds it for seven years he will have got a very long innings. My view is that he should not hold it for fourteen years. My view, and the view which I press on the House as strongly as I can, is that that is an office which ought not to tend to become a permanent office for one individual. It ought to change from time to time, and I have not seen or heard of any argument from the President or from anybody else to show that a second man cannot be got as good as the first man.

As a matter of fact the President, it seems to me, cuts the ground from under his own feet when he tries to minimise the powers which this new President is to get. If the powers are so limited as the President spent a considerable amount of time yesterday in endeavouring to make out they [1090] were, then it becomes more and more apparent that there must be more than one man in the State capable of filling the office. If there is more than one man capable of filling the office, then surely there is no necessity for keeping on the one man. As far as having a man perfectly fair and perfectly impartial is concerned—or as nearly fair and as nearly impartial as human nature allows any individual to be—you certainly attain that end far and away more by giving a man one term of office and then terminating it. He has got his one term of office. Upon that he will be judged, and judged for all time. He has got nothing to think of except the reputation which he will earn for himself in his one term of office. He has got no axe to grind. He has got no electorate to look after. He has got no Executive Council to be nice and polite and, if necessary, subservient to, in order that he may get in again. I press upon the President to accept this amendment by Deputy Costello, that nobody shall be eligible for election a second time.

Mr. MacDermot: I must confess that I should like it to be the normal thing for a President to have two terms of office and no more. That is why I was anxious to reduce the term of office to five years, so that two terms should not cover too long a period. My reason for wishing it to be the normal thing that the President should have two terms of office is because, I think, it is a safeguard against his yielding to the temptation of playing up to a particular Party. The fact that he may be standing again with a different Party in power is surely a motive to him to abstain from partisan conduct, if he were tempted to such conduct? Let me take the analogy not of the Ceann Comhairle in the Dáil, because perhaps that would be a disrespectful analogy to take, but let us say of the Chairman of the Seanad. He is appointed as a result, shall we say, of the support of a political Party. It is expected that, during his term of office, he will exercise his functions impartially and without subservience to any Party. Would that expectation be more likely or less likely to be [1091] realised if he knew that he could never hold office after the first period; if he knew that for his future he had to look to the gratitude of his own Party and not to the trust of all Parties? In this case, the President will not only have a motive for trying to secure the trust of all Parties in the Legislature, but he will have a motive for trying to secure the good opinion and the trust of the people. The thing that has impressed me in the argument put forward by Deputy Fitzgerald-Kenney and some of his colleagues has been the extraordinary distrust of the native good sense and sense of fairplay of the Irish people as a whole.

The President: On this matter, Deputy Fitzgerald-Kenney speaks about somebody having got a good innings. I suggest that that is not the point of view to take on this matter, as if it were a question of giving an opportunity to individuals to have an innings. That is not the point, I take it. I take it what we want to have is a functionary, an officer of the State, of the type who will perform his duties properly and do the best for the State, and the people are to be the judges. This idea of giving people innings, I think, is altogether wrong. I need not speak of the Deputy's complete perversion, it seemed to me, of the argument put forward by Deputy MacDermot; Deputy MacDermot dealt with that himself. As regards this question of the powers of the President, the powers which the Constitution gives are not the powers that the Opposition tried to represent the President would have, and that it makes it immaterial who is there. I think that is a swing round.

Mr. Fitzgerald-Kenney: I did not say immaterial. I said it was a post for which there could be more than one man in the country to fill.

The President: There is no question about it. In my opinion the people would have an opportunity of putting in any man they pleased at the end of seven years. They will have an opportunity of voting on whatever man is put up. I dare say there will be a number at each election. It is [1092] true the President has not got the powers that the Opposition by their speeches last night suggested that he could have. It is an important position, a position of dignity. It is a position which, if properly filled, will do a good deal for the importance of the State. While it is a position of dignity and responsibility there is a difference between a position of dignity and responsibility and one of power. I hold that the President has very little power. He can be a great influence in the State generally, by his conduct in the office, and for that reason it is important, if you get a man who has shown during his period of office that he has filled the position properly, to his own credit and to the credit of the country, that he should not be debarred by an artificial enactment there from having a second period of office. That brings me to the argument of Deputy MacDermot. He said that normally he would agree to the President having a second period as at the end of his period there was bound to be an election. You cannot arrange that. My own belief is that it will work out clearly as we have it here. I shall read what has happened in the case of French Presidents. Normally when a man has spent seven years in that particular office he will be likely to retire rather than to continue for another period.

Mr. MacDermot: Normally, but in the United States he gets a second term if he makes a good President. I agree that the period there is not the same.

The President: There is no use making an analogy with the United States in this case. The President of the United States is an executive.

Mr. MacDermot: I recognise that.

The President: He has power there that we give here in the main to the Government.

Mr. MacDermot: I recognise that.

The President: It is wrong to try to draw an analogy between the two positions. A much better analogy would be that of the French Republic. I do [1093] not think it is on parallel lines, but it would be nearer to the position here. My view is that we cannot count on his having a second period of office. Therefore, I believe the normal period ought to be such as to avoid frequent elections and to run across the normal life of one Government which we may take roughly at four years, on the average.

Mr. MacDermot: Is not the President extending it by the Constitution?

The President: I will come to that, and I will give reasons. With regard to the length of the President's term, there has to be an election at the end of seven years. He may or may not continue in office, or he may go up for election again. If he does go up, and if he has not satisfied the people, he will not be elected. What is the sense of interposing a barrier which, to my mind, is unnecessary? On the whole, I think the right thing is to leave it open to the people to decide. If there are good reasons for the re-election of a man for the two terms, they will re-elect him. As a very considerable period will have to elapse, it might be advisable to indicate that no longer than two terms could be served by anyone. That is not my own view, but I have no objection. It might be well to indicate that no person should go up for a third term without a break. I have no strong views on the matter. It seems to me, if we do that, and if we take as an example what happened in France, very few people will come up against the barrier. This is the note about the position in France. The President of the French [1094] Republic holds office for seven years and is re-eligible for office. So far, one President consented to be re-eligible and five resigned. The one President who consented and was re-eligible held office for only two years of the second term. The others frankly said that they did not wish a further term. That is the position there, and I think that is likely to be the position. The only thing I do not like is to see an artificial barrier interposed here which might be very awkward at some particular time. I suggest that we should not put in a barrier.

Mr. MacDermot: I am opposed to the amendment and I will support the Government on it, but as regards what the President said, if he studies the chapter on France in Bryce's “Modern Democracies” he will see that a feature of French politics has been the intense jealousy of Parliament towards the President. Of course, the President there is elected by Parliament and not, as we propose here, by the mass of the people; and we have no reason to think that the mass of the people here will have the same strong prejudice — amounting almost to a principle in France— against giving a man a second term, that the French have. I repeat that I am in favour of a man having a second term; but an amendment after this one in my name provides that nobody shall have more than a second term, and I would press the President to make the concession he has indicated he might make by accepting that amendment.

Amendment put.

The Committee divided:—Tá, 29; Níl, 63.

Bennett, George Cecil.

Bourke, Séamus.

Broderick, William Joseph.

Brodrick, Seán.

Cosgrave, William T.

Curran, Richard.

Daly, Patrick.

Desmond, William.

Doyle, Peadar S.

Fagan, Charles.

Finlay, John.

Fitzgerald, Desmond.

Fitzgerald-Kenney, James.

Holohan, Richard.

Keating, John.

McFadden, Michael Og.

McMenamin, Daniel.

Morrisroe, James.

Nally, Martin.

O'Donovan, Timothy Joseph.

O'Leary, Daniel.

O'Mahony, The.

O'Neill, Eamonn.

O'Reilly, John Joseph.

Redmond, Bridget Mary.

Reidy, James.

Rice, Vincent.

Rowlette, Robert James.

Wall, Nicholas.

Níl

[1095]Aiken, Frank.

Allen, Denis.

Beegan, Patrick.

Blaney, Neal.

Boland, Gerald.

Boland, Patrick.

Bourke, Daniel.

Breathnach, Cormac.

Briscoe, Robert.

Carty, Frank.

Clery, Mícheál.

Concannon, Helena.

Cooney, Eamonn.

Corbett, Edmond.

Corry, Martin John.

Crowley, Fred. Hugh.

Crowley, Timothy.

Daly, Denis.

Derrig, Thomas.

De Valera, Eamon.

Donnelly, Eamon.

Dowdall, Thomas P.

Everett, James.

Flynn, John.

Flynn, Stephen.

Gibbons, Seán.

Good, John.

Goulding, John.

Harris, Thomas.

Hayes, Seán.

Hogan, Patrick (Clare).

Houlihan, Patrick.

[1096]Kelly, Thomas.

Keyes, Michael.

Killilea, Mark.

Kilroy, Michael.

Kissane, Eamonn.

Lemass, Seán F.

Little, Patrick John.

Lynch, James B.

MacDermot, Frank.

McEllistrim, Thomas.

Maguire, Ben.

Moane, Edward.

Moore, Séamus.

Moylan, Seán.

Neilan, Martin.

O Briain, Donnchadh.

O'Grady, Seán.

O'Reilly, Matthew.

Pattison, James P.

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.

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

Amendment declared lost.

Mr. MacDermot: I move amendment No. 16:

In section 3, sub-section 1º, line 5, after the word “re-election” to add the words “once but only once.”

I have already spoken about this, and I have nothing to add.

The President: I do not think it really matters. My feeling about this is that we ought not to put in any restrictions of this kind. I feel that putting in a few things like that is very much like the case of a man who might find his window rattling and to prevent it from rattling nailed it down and so prevented fresh air coming into the room. In order to meet one thing or to prevent one thing we are going to the opposite extreme. We should be a little careful about going to extremes in matters of this kind. However, I accept the amendment.

Amendment No. 16 agreed to.

Mr. Fitzgerald-Kenney: I move amendment No. 17:

Before Section 4 to insert a new section as follows:

Each of the following persons shall be disqualified from being elected to or holding or retaining the office of President:

(a) a person who is undergoing sentence of imprisonment with hard labour for any period exceeding six months or of penal servitude for any term imposed by a court of competent jurisdiction,

(b) an imbecile and any person of unsound mind,

(c) an undischarged bankrupt, under an adjudication by a court of competent jurisdiction,

(d) a person who is by law for the time being in force in relation to corrupt practices and other offences at elections incapacitated from being a member of Dáil Eireann by reason of his having been found guilty by a court of competent jurisdiction of some such practice or offence,

[1097] (e) a member of the Defence Forces on full pay,

(f) a member of any police force on full pay,

(g) a person employed in the Civil Service.

This amendment sets out that certain persons shall not hold the office of President. It makes those persons ineligible for the office of President who are ineligible for election to the Dáil. It is very much the same as the provisions in the Electoral Act. I submit to the House that it is obvious that some such sort of provision is necessary.

The President: I do not know if it is accurate for the Deputy to say that this is exactly the same as the provision in the Electoral Act. Is it? Is the Deputy certain that that is so?

Mr. Fitzgerald-Kenney: I will not say this amendment is the same as the other.

The President: There is a similarity certainly but I think that it is not an appropriate thing to put into a Constitution. I do not know of any Constitution where you have a number of categories set out like that of people who are ineligible. Surely we can depend upon the good sense of the people not to elect a person who is in any of these categories. Remember it is the people themselves who are electing the President. It would be different if it were some minor group who are to make this selection and who possibly might not make it properly for the people. But in this case first of all you have to get the people who are going to be candidates nominated by a number of councils or by a number of members of one or other House of the Oireachtas and then they have to go forward for election by the people. In what circumstances is it likely that a person who is undergoing a term of imprisonment is going to be nominated by 20 members of the Oireachtas and put forward for election by the people? If there was any chance of that happening then I would be inclined to think that there was something strange about the imprisonment. Again in the case of [1098] a person being an imbecile or of unsound mind, would it not be perfectly needless to put in a restriction like this? The third in the list is an undischarged bankrupt under an adjudication by a court of competent jurisdiction. I think, if such a person were going forward for election as President, he would not have any chance of being elected. He would have to get 20 members of the Oireachtas or four county councils to nominate him. What chance would such a person have of getting himself nominated? Then we have the case of a person who is by law guilty of corrupt practices. I think that in a campaign of that sort a person guilty of corrupt practices would have a poor chance of being elected. Surely if it could be pointed out against that person that he is guilty of corrupt practices, that would in itself make it impossible for him to be returned. Now we come to the other category and it proposes that we are to have a restriction on one who is a member of the Defence Forces on full pay. It can be made a regulation that no such person can go forward. There might possibly be a case where it would be possible to include that as a definite disqualification. I can imagine such a disqualification being inserted because there might be a danger of a person who is actually an officer in the Army going forward for election and possibly having a coup of some kind brought off. I can see a case for that. With regard to the question of the police I do not see any case to be made for it. With regard to a person employed in the Civil Service I do not see any case either. Perhaps some case could be made in the matter of a civil servant. If there is to be a constitutional barrier in any one of these classes the only one to which we need pay any attention is (e) a member of the Defence Forces on full pay. There might be a danger there. My own attitude is that as the Article stands it is all right. I think that we should take out certain possibilities in that text and amend it by way of deletion rather than by way of addition. I will meet that amendment by bringing in an amendment on the Report Stage which would debar serving officers.

[1099] Mr. MacDermot: I wonder would this amendment debar a serving officer from resigning and then offering himself for election?

The President: No, it would not.

Mr. MacDermot: I presume that that is desired. I do not know what Deputy Fitzgerald-Kenney has in mind, but I would have thought, if he wishes to prevent a member of the Defence Forces from being a candidate, he would wish to prevent him from resigning in order to be a candidate.

The President: It only shows the difficulties you get into when you put up these barriers at all. Does the Deputy feel there would have to be a period of years? The question is whether it is advisable that a man who acts in good faith, having nothing behind it and no suggestion of using his military position in any way, should be debarred? Is there any reason why a person who has served in the Defence Forces should suffer disqualification when he resigns, disqualifications that are placed on nobody else? I can see that somebody might talk in a similar way about civil servants—that a civil servant might use his position in order to ingratiate himself with a political Party. But I think a civil servant actually serving has not, ordinarily, any way of coming before the public and trying to enlist support for his candidature. On the other hand, if a civil servant has done such good work as will bring him favourably before the notice of the public, such work as would suggest that he might be elected to this office, I do not see why he should be debarred. If you do not debar him altogether or debar him for a number of years, there is a very simple way out of it—that is simply to resign before the election. In due course, when people are discussing the election of a particular candidate, this will be properly taken into account. I do not see any good purpose to be served by interposing these barriers here. However, if there is some view about a special danger from the Army, and if it is possible to suggest [1100] a type of amendment which would meet the case, then I will accept it.

Mr. Fitzgerald-Kenney: Every single argument which we have heard from the President is an argument against having a single restriction in relation to the election of an individual even to membership of the Dáil. They are not likely to be elected, is the President's argument. Could not exactly the same argument be made, that they are not likely to be elected to the Dáil? Here we have certain categories of undesirable people. Why should they not be set out? They are set out in the Electoral Acts. Why should they be eligible in this instance? Why should an undischarged bankrupt, for example, be eligible to be elected as the President of the State, or a member of the Defence Forces on full pay? And, if you please, Deputy MacDermot cannot see the difference between a member of the Defence Forces on full pay and a person who has resigned from membership of the Defence Forces. Nobody ever suggested that an ex-Army officer should be ineligible for the post, but I suggest that a serving Army officer should not be eligible, and in the same way a police officer or a person employed in the Civil Service should not be eligible. Nobody ever suggested that an ex-civil servant should not be eligible, but we do suggest that a person serving as a civil servant should not be eligible.

These are precisely the classes which are, in our opinion, ineligible for a legislative position. They are ineligible for membership of the Dáil, and why should a lower standard be taken for the office of President? We are told that this is to be an office of great dignity, and then we come along and find that it is to be an office possessing not even the dignity of the Dáil and persons shall be eligible for this post who are undischarged bankrupts or who come under the other categories set out in the amendment.

There is another aspect which the President and Deputy MacDermot very carefully ignored—

“elected to or holding or retaining the office of President.”

Therefore, an imbecile or any person of unsound mind is capable of holding [1101] or retaining the office of President, or a person who is declared a bankrupt while he is President. All those would be covered by this amendment. That aspect has not been dealt with at all. Surely a man should be ineligible to hold the office of President if he comes under any of these categories? It is admitted by President de Valera that it would be highly undesirable that any person in any of the categories set out here should be elected to the office of President. Why not say so? If they are undesirable, what is the objection to say so? You have your precedent for it. If it is desirable, in the opinion of the House, that this class of person should be eligible for the office of President, of course this amendment will be rejected. If the House holds the contrary opinion then, of course, the amendment must be accepted.

Mr. Aiken: Deputy Fitzgerald-Kenney has drafted this amendment with great care, and it is interesting to see the types of people that he has left eligible. He only makes ineligible those undergoing sentences exceeding six months. If they have served a sentence of six months they are quite eligible. A man who has got 15 years for killing his mother would be eligible, according to Deputy Fitzgerald-Kenney. In the same way an habitual thief, a man who has served several sentences, would be eligible under this amendment. We must assume that the Deputy has some such people in mind when he holds they are eligible for the position.

Mr. Fitzgerald-Kenney: If the Minister for Defence wishes to add any persons to this category, I am perfectly willing to accept them.

Mr. Aiken: I am merely showing the Deputy the foolishness of his amendment.

Mr. Fitzgerald-Kenney: Here are certain categories set out which are the same as are in the Electoral Acts, and I suggest that these are precisely the persons it is necessary to keep out.

The President: I do not see why we should be bound here by the Electoral [1102] Acts. I might hold that putting in these classes in the Electoral Acts is unnecessary. There is no similarity between the two positions. Here it is a question of one man. He is put before the whole country and he is discussed over whatever period of time there is before the election. I hold it is not worthy of a document like a Constitution to put these things in. It rather suggests the people are capable of electing this type of person, and I hold they are not. In the case of the Electoral Acts I would say, do not put them in there either. If such people are to be elected, there must be something very extraordinary about the position they occupied before.

I think it would be unworthy of the Constitution to put them in. It suggests that something is possible which, in fact, would not be possible. The only case one has to look out for would be the case of a serving officer, one who was serving and who resigned for the purpose of going up for election. But there is the point that the President can occupy no other office in the State but the one, and when he occupies that he is definitely limited in regard to his functions by this Constitution and they cover the position of the Army amongst other things. On the whole, I will resist the amendment.

Mr. O'Neill: I suggest that the difficulties that have arisen here have arisen owing to the omission of any possible qualification for the position of President. The President has surely some conception of the great qualities that will add to the dignity and the overpowering position of the new President, but in the actual Constitution there is nothing laid down in the form of a qualification except that he must be of a certain age. From that it would follow that even persons not eligible to be elected on a county council or to membership of the Dáil would be quite suitable for the position of President.

The President: If the people elect him.

Mr. O'Neill: As a matter of fact, any person can be nominated and [1103] elected as President if he has attained 35 years. There is no other qualification.

The President: Either we are going to have democracy or we are not. The whole position in this Constitution is that the people can judge when a person is put before them whether that particular individual is, in their opinion, the most suitable. Once you have the supreme authority in that matter consolidated, as it is directly by this method, I do not think you want to put in any qualifications whatever. The whole object of the Constitution is to see that during periods when the people are not themselves judges or able to judge on any particular matter, that judgment can be carried out in their name in the proper way. Whenever there is a question being referred directly to the people, I see no reason at all why there should be any qualifications, and, in fact, I am very doubtful whether we are wise in putting in the limitation of 35 years of age. There may be a certain set of circumstances in which a younger man might be elected. I do not say that if I were voting myself, I would be inclined to take a person younger than 35, but 35 years is found in a number of other Constitutions. My own feeling, then, is that I would take away the 35 years of age and say that whoever is going to be elected will be the choice of the people themselves. They have the right to choose and once it is referred to them they ought to be the judges of capacity, or incapacity, or anything like that. As we are talking about this, I would propose on Report Stage to delete the words in Section 4, Article 12, “and is not placed under disability or incapacity by law,” because I think they are dangerous. The danger was pointed out in another connection and I think they are dangerous here. The section will then read:

“Every citizen who has reached [1104] his 35th year of age is eligible for election to the office of President.”

And if I get any support from the other members of the House, I should be inclined to say that I would wipe out the 35 years of age provision, too.

Mr. O'Neill: Does the President not see that a presidential election might become a great farce? Anybody could get a certain number of persons to nominate him. The President does not visualise that?

The President: If you have come to the stage when the election of President has become a farce, democracy has also become a farce at that stage.

Mr. Fitzgerald-Kenney: Oh, nonsense !

Mr. O'Neill: Any individual who might like to throw an aspuchán on the mode of election could easily get himself nominated by a number of persons.

The President: But he cannot be elected.

Mr. O'Neill: He will not be, but you will be making a farce of the thing. Some person of straw, or some disreputable character, might get himself nominated.

The President: He has to get 20 persons and four county councils to nominate him.

Mr. O'Neill: He might be able to get them. It is quite possible.

Mr. Fitzgerald-Kenney: And we are not a democratic State, because there is a limit to the persons who can be elected to the Dáil.

Mr. O'Neill: There is no monetary deposit required even.

Mr. Aiken: It did not stop the Deputy from getting here. That is the big argument against it.

Question put.

The Committee divided: Tá, 33; Níl, 68.

Bennett, George Cecil.

Bourke, Séamus.

Broderick, William Joseph.

Brodrick, Seán.

[1105]Daly, Patrick.

Desmond, William.

Doyle, Peadar S.

Fagan, Charles.

Finlay, John.

Fitzgerald, Desmond.

Fitzgerald-Kenney, James.

Haslett, Alexander.

Holohan, Richard.

Keating, John.

Lynch, Finian.

McFadden, Michael Og.

Morrisroe, James.

Coburn, James.

Cosgrave, William T.

Costello, John Alysius.

Curran, Richard.

[1106]Nally, Martin.

O'Donovan, Timothy Joseph.

O'Higgins, Thomas Francis.

O'Leary, Daniel.

O'Mahony, The.

O'Neill, Eamonn.

O'Reilly, John Joseph.

O'Sullivan, John Marcus.

Redmond, Bridget Mary.

Reidy, James.

Rice, Vincent.

Wall, Nicholas.

Níl

Aiken, Frank.

Allen, Denis.

Beegan, Patrick.

Blaney, Neal.

Boland, Gerald.

Boland, Patrick.

Bourke, Daniel.

Brady, Seán.

Breathnach, Cormac.

Briscoe, Robert.

Browne, William Frazer.

Carty, Frank.

Clery, Micheál.

Concannon, Helena.

Cooney, Eamonn.

Corbett, Edmond.

Corry, Martin John.

Crowley, Fred. Hugh.

Crowley, Timothy.

Daly, Denis.

Derrig, Thomas.

De Valera, Eamon.

Donnelly, Eamon.

Dowdall, Thomas P.

Everett, James.

Flynn, John.

Flynn, Stephen.

Gibbons, Seán.

Goulding, John.

Harris, Thomas.

Hayes, Seán.

Hogan, Patrick (Clare).

Houlihan, Patrick.

Jordan, Stephen.

Kehoe, Patrick.

Kelly, James Patrick.

Kelly, Thomas.

Keyes, Michael.

Killilea, Mark.

Kilroy, Michael.

Kissane, Eamonn.

Lemass, Seán F.

Little, Patrick John.

Lynch, James B.

MacDermot, Frank.

McEllistrim, Thomas.

Maguire, Ben.

Moane, Edward.

Moore, Séamus.

Moylan, Seán.

Neilan, Martin.

O'Briain, Donnchadh.

O Ceallaigh, Seán T.

O'Grady, Seán.

O'Reilly, Donnchadh.

Pattison, James P.

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.

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

Amendment declared lost.

An Ceann Comhairle: Amendments Nos. 18 and 19 are concerned with the same matter and it seems to me that amendments Nos. 20 and 22 are consequential.

Mr. Costello: I move amendment No. 18:—

In Section 4, sub-section 2º, line 1, to delete the word “not” and substitute the word “including.”

The object of the amendment is to provide that a retiring President must require the same type of nomination as any other candidate. It is very difficult to see how the provisions in the Draft Constitution can be justified. It is, apparently, desired that a former President should be able to nominate himself for re-election at the conclusion of his term of office. It may be that, at the end of the term, he will have so lost the confidence of Parliament that he will not be able to get the necessary number of Deputies to nominate him. It may be, too, that he will not be able to get the necessary number of county councils to nominate him. I cannot see any reason why there should be a differentiation between him and his co-candidates for the position at the time he leaves office.

[1107] The President: The Deputy said he could not see how the provisions of the Draft could be justified. The justification is the putting of the President-candidate in a position of independence so that he will not have to go round and look for nominations from members of any political Party in the Dáil or from the members of any political Party which you might have in the Second House. He is elected by the people to watch the people's interests directly and immediately. His duty is, in the cases in which he is brought into action regarding disputes between the two Houses, to act impartially and fairly. In doing that, he may possibly displease the majority in one House. It is undesirable that the President should have to look for 20 nominations from the Second House if he were again going forward for election. This provision applies mainly to a person who is going forward for a second period of office and the intention is to put him in a position of independence. If the people are likely to elect him because he has faithfully discharged his duties and watched their interests, I see no reason why he should not be eligible to go forward and obtain their judgment upon his conduct without being beholden to the members of any political Party. The justification of the provision is that it secures the independence of the President who may be a candidate for a second term of office.

Mr. Costello: I would be in entire agreement with the President on the necessity for putting this new functionary into a position of independence. In moving an amendment last night the object of which was to provide that the President should not be eligible for a second term of office, I said that if there was any justification for this new position at all, it could only be that the holder would be impartial and stand above politics. The President, apparently, hopes that that will be the position. I would like to see that position, but once there is the necessity for the President to seek re-election by popular vote, then in my view at all events that cuts the ground entirely away [1108] from his position of independence and from his position of impartiality.

The President said that it would be invidious for him to have to look for four county councils or 20 members of the Dáil to nominate him, but he has got to look for about 250,000 votes. I do not know the precise number of electors in the country, but with adult suffrage I understand the number will be over 1,000,000. He has to get a majority of those votes in order to be re-elected. Not merely has he to get 20 voters, because after all that is what Deputies are, but he has also got to seek the votes of over 500,000 people. The President said it would be invidious and undesirable for him to have to go to four county councils or to 20 Deputies to nominate him, but there is much more than that in it. If he is to be re-elected he has to get either by his own personal prestige, through the Party machine or by some other method over 500,000 votes. That, in my view, completely takes away from him his position of independence. When it is stated as the only justification for this that it would be invidious for him to have to look for 20 Deputies or four county councils to nominate him in order that his position of independence shall be maintained, then I fail to follow the justification.

The President: May I add as a further argument that this person we are thinking of has already got a large number of votes to elect him to his office. He has got, therefore, not 20 or 30 people who may be presumed, if he has carried out his duties faithfully, to support his election, but he has got the vast number who formerly elected him. The fact that he has been elected by popular vote to this position singles him out as a man who has got sufficient support to warrant, if he cares to go forward again, his name being entered on the ballot paper. That is all that it means. I hold that it does add to his position of independence of political Parties to be put in that position.

Mr. Fitzgerald-Kenney: If the general electors in the State have elected one individual in the hope that he will [1109] make good that is not any proof that he will make good. Neither the electors nor anybody can be infallible. The electors can do their best to choose a perfectly suitable man. That man may appear to them to be suitable before he has been tried, but once he has been tried, and has been seen doing the work of his office, he may appear to them entirely unsuitable. Surely a man taken from any Party in the Dáil or Seanad who could not get 20 members willing to nominate him would be eminently unsuitable for the position.

The President: Would he not be judged so by the people and not be elected?

Professor O'Sullivan: Why should that not apply to everybody else as well as to the person we are discussing? There may be some man prominent in the public life of the country who may have liked to go forward, but who, owing to his public actions, had aroused the hostility of the Dáil. Why should he be compelled to do what this person is not being asked to do? The President is envisaging a man who will not get the support of one-sixth of the members of the Dáil. I wonder does the President see that we have here a clashing between two authorities: the one elected directly by the people, and the other their elected representatives sitting here. Once more the President refuses to face that particular issue. Is it not much more likely that what may happen is that when this man comes to the close of his term of office he will play Party politics against the popularly elected Dáil? That should not be encouraged. You are asking him to play Party politics by this provision. That is what the House is doing. You are cutting across what you pretend you want to do by putting him in a position of this kind. If, at the end of his seven years in office, he intends to go forward for election, then at the close of his term he will try, or may try, to play Party politics against the Dáil. Apparently, the present President envisages that that is done practically against an unanimous Dáil, and against the other House as well. If he cannot get 20 people or four [1110] county councils to nominate him, why should he be put in this position of preeminence on the ballot paper?

Mr. O'Neill: I think that the principle of allowing an outgoing President to nominate himself is against the very fundamental idea of democracy in elections. If he has been a success in the position, the present President would like to maintain him in that position, to keep him above ordinary matters, but, at the same time, in the case of elections in a democratic country, all who go forward ought to be put in a position of equality. When he has completed his seven years in office, and if he has been a success in it, he should be prepared to go back, so to speak, into the political arena again and meet his competitors on level terms. To allow him to nominate himself would, in my opinion, be undemocratic.

Mr. MacDermot: I think that, on the whole, the President ought to accept these amendments. I warmly sympathise with his idea of securing the sort of independence which he speaks of, but, after all, the Dáil and the Seanad together will amount to some 200 people. It is not conceivable that the outgoing President, if he has performed his duties with propriety, will not be able to get 20 members to nominate him out of a total of 200. There is a further point. Under the Article, as it stands, not alone can the outgoing President nominate himself, but a President who may have retired years ago, and wishes to come back, may nominate himself. What justification can there be for that? As I have said, I warmly sympathise with the desire of the President to preserve the dignity and the independence of the office. If it were necessary to get 20 persons from the Dáil alone, I would not have been in favour of submitting the outgoing President to that necessity, but, when he has the Seanad to turn to as well, I do not think that one can contemplate a situation in which he would suffer any loss of dignity or independence by being obliged to get 20 nominators.

The President: What is the point of nomination anyhow? In the case of Dáil elections, certain fees have to [1111] be paid when candidates are being nominated. That is to prevent such a large number of candidates going forward that it would be quite impossible for elections to be held at all. No such factor enters here. There may be two or three living persons who have held office, and, therefore, capable of having their names added to the ballot paper. Is not the purpose of nomination preceding an election simply to restrict your ballot paper so that you will have one of convenient size for the people to vote on? Deputy O'Neill spoke about democracy. Nominations, in my opinion, have nothing to do with democracy. They are simply a method of preventing large numbers of people going forward. At the time of nominations for election to the Dáil, for instance, certain fees have to be paid, and in certain circumstances some of those who go forward forfeit the fees. In this case you do not add more than one or two or three names to your ballot paper, and therefore do not make the election more difficult. Notwithstanding what has been said on the other side, I am definitely of the opinion that the fact of being able to put his name on the ballot paper does put the individual, whether the retiring President or one who has formerly held the office, in a position of independence in which he can go on his own merits before the people because of the fact that he has served loyally and well during his period of office. I think that the fact that he has served well and faithfully during that period should make him eligible to go forward. If he should go before the people, not having served well and faithfully, I think reject him very easily: but if he has served well and faithfully, I think there is no reason why he should not be capable of being re-elected by the people.

Mr. Costello: I do not want to prolong unduly discussion on this particular point, although we regard it as a very fundamental matter, and therefore I shall only make one or two final observations. I think it [1112] will be admitted that anybody who has occupied a position in this country for six or seven years has very little chance of being re-elected to that office unless he has been a very outstanding personality and a very successful man. We have our own quota of jealousy in this country, as everybody knows, and the very fact that a man had occupied such a position for seven years would tend to prevent people from re-electing him, and they would say that it was time another man got the job. I think that that would be the normal outlook of any person who might be thinking of seeking re-election, and that it would only be on rare occasions that he would seek re-election. If he is a man of very outstanding personality and if he has been successful and served well and faithfully, he will have no trouble in getting the necessary nomination by the Oireachtas. On the other hand, if the person who has occupied that position in one who will not be elected and who has very little, if any, chance of being elected, as the Article stands at the moment, he can put the country unnecessarily to the expense of an election which will cost, perhaps, £100,000.

Let us suppose for a moment that this man has been in office for seven years, or for 14 years, as the case may be, and that the people say “seven years” —or 14 years, as the case may be—“is enough for him; we want somebody else,” and supposing that the Dáil and the Seanad are unanimous that another person ought to occupy the position— the Dáil and the Seanad, in fact, representing the wishes of the vast majority of the people—nevertheless, as it stands at the moment, this outgoing President may, wholly unnecessarily, nominate himself for the position and put the people to the expense of an election. I should be glad to hear the President's views on that point, and I should be glad to hear what justification he can put forward for that. To say that this person will be put in a position of independence of political Parties because he can nominate himself, is absurd, and it also overlooks the fact that it takes away the method of [1113] popular election. As I have said, if an individual has been there for seven years, and has served faithfully and well, he should have no difficulty in getting a number of people to back him; and if he cannot get them to back him, then he ought not to be allowed to go forward.

The President: The only thing is the possibility that you might have an uncontested election if it were not permissible for this man to go forward for election. The same thing could happen in connection with the Dáil, where you can have people putting forward members for election to the Dáil and also causing an election. We have got to face the possibility of having an election for the office of President, and, in my view, the times when you are going to have an agreed election will be very, very few, indeed. From my experience, I should say that the chances of getting agreement and an uncontested election are going to be very slight.

Mr. Costello: Just wait till the people have a few chances for a popular election of this nature, and we will see what will happen.

The President: The Deputy is talking sense there.

Mr. Costello: I am glad that the President at any rate recognises that, and recognises that I do talk sense occasionally.

The President: As a matter of fact, if I were asking the Deputy's opinion privately, I would listen to it with the greatest care. I am afraid, however, that when he speaks from the benches opposite, he goes half the way with his argument as a lawyer, and then you can see the turn around.

Mr. Costello: Well, at any rate, then, I am a good lawyer? Does the President admit that?

The President: I do. As I said, I would listen to the Deputy's opinions with the greatest care, but his opinions, as advanced from the benches opposite, are different. Perhaps, Sir, I should not be speaking of personal things, but on a former occasion, speaking about the Deputy, I pointed out that, when [1114] he tried to get his own judgment as an officer of the law reversed, he was playing the part of a politician.

Mr. Costello: I was playing the part of an advocate.

The President: The Deputy is acting as an advocate now. As I have said if I could get the opinions of the lawyers on the Opposition Benches on this Constitution, as lawyers, I should be very happy, and I think I should be getting a very great deal of help from them. Unfortunately, however, I am precluded from getting their opinions as lawyers and can only get their opinions as people who want to put a certain political colouring on this document. That is most unfortunate, but I suppose it is inevitable. However, we can agree to differ, and I still hold that this is a better provision than the one suggested in the amendment. I think that the chance of anybody, who had not served well and faithfully, being re-elected, or of having an uncontested election, is so remote that it is not worth providing for.

Professor O'Sullivan: I must say that I was glad to get one admission from the President. Evidently, he is ready to admit the truth, so long as it does not come from these benches. I think that he has never so clearly or so truthfully summed up his position as on this occasion. It is a perfect summing up, and truthful, but not from Fine Gael. Now, I just want to direct the President's attention to one particular matter in connection with the method of election. The ordinary individual must get 20 persons from this House to nominate him—from this House, on the first occasion, at any rate, because the Seanad may or may not be in existence then—or four county councils. Now, I can quite conceive that there might be quite a number of people who would like to go forward for election but who may not be able to get that nomination. A man who was prominent in Labour politics might not be in a position to get 20 members from this House.

The President: That is why I put in the provision for the four county councils. That was put in in order to make it possible for such a man to go forward.

[1115] Professor O'Sullivan: Surely, if a man is not able to get 20 members from this House, he is certainly not likely to be able to get four county councils?

The President: If the Deputy will put down an amendment we can consider it.

Professor O'Sullivan: Well, thank God, this is not my Constitution. There is a number of things in my constitution which are healthier than that. However, here is a point that is almost deliberately ruling out, by omission, the possibility of a man, prominent in Labour politics, being elected to that position; and yet a man who gets in through ordinary Party politics is put in this privileged position, while a man who has worked hard for Labour in this country cannot get the necessary nomination. I hold that that is unsound and unfair.

Mr. O'Neill: I think the President misunderstood my remarks about this thing being opposed to the principle of democracy in elections. What I meant was that it is unfair that, in a matter of this kind, a man should be enabled to start with something in his favour that other people have not got. I think that each man should start equal in a matter of this kind. Even though the man has held the position formerly, and has served loyally and well, and with éclat, and so on, nevertheless he should start on the same level as he started on originally, and he should start on the same level as the other competitors.

The President: I think that the very fact that he has served well and faithfully would make it impossible for him to be on the same level in that sense. He could not be in the same position as the other competitors, in any case, in view of his past services.

Question:—“That the word ‘not’ stand”—put and declared carried.

An Ceann Comhairle: That covers amendments Nos. 19, 20, 21 and 22. I take it that it is decided that the retiring President may nominate himself?

Professor O'Sullivan: Yes.

An Ceann Comhairle: There is a danger that amendments Nos. 24, 25, [1116] 26, 27 and 28 may overlap. I shall have to put the question on amendment No. 23 to save amendments Nos. 24 to 28.

Mr. O'Neill: In relation to my amendment referring to the second period of office, do I take it that the President has accepted the proposal that there will be a second period and no more?

The President: Yes. I take it that the second period of office may either run consecutively to the first period or commence at another period?

Mr. O'Neill: Yes.

The President: On that understanding, I am meeting the Deputy.

Mr. Costello: I move amendment No. 23:

To delete Section 10.

Again I shall try to be as laconic as possible, although the amendment raises a matter of very great principle. The proposal in Article 12 (10) 1º, 2º, 3º and 4º is that the President may be impeached. The official amendments in the President's name take away one bad element that was in the original Draft. The original proposal was that it was only the Seanad or a certain proportion of the Seanad, that could impeach the President. The proposals that are put forward in the amendments, as I understand them, envisage an impeachment by either House, and a trial by the House that does not impeach. That serves, to some extent, to take away some of the bad portions of the sub-section. At the same time, I think that impeachment of the President is in this 20th century an absolute absurdity. Impeachment is something that happened in the old days in the British House of Parliament. I do not really know what it means. Impeachment here in this clause of the Constitution sounds very well. It is terrifying to say that a man may be impeached. In fact, all that will happen is that there will be an awful lot of talk either in the Seanad or in the Dáil, and in the end nothing will happen, if ever anybody is impeached.

[1117] Assuming that there was any intention to carry out this direful method of trying a person for grave misdemeanours and high crimes, whatever they are, what would be the result of it? The man would be brought here, presumably, and held within the precincts of the Dáil if the Seanad were impeaching him and a lengthy document, drafted in the archaic language appropriate to impeachment, would be read out by one of the officials, if not the Ceann Comhairle. He would stand solemnly and in the most solemn accents read out this archaic document containing a long list of dire crimes that merited impeachment and the Dáil might or might not pronounce impeachment. Then the President would say “Good-bye and thanks; I am impeached but I am carrying on all the same until I am removed.” What punishment is going to be inflicted upon him except that he is going to be deprived of his lucrative post as guardian of the liberties of the people? Having been impeached in this archaic language, and with all the solemnity which will doubtless surround that particular ceremonial, he will lose his job. That is all there is to it. Then he will be set free to offer himself for re-election and he can be re-elected by the people, having been solemnly impeached.

I want to know what is the justification for all that? There seems to me to be none. It is the height of absurdity, something that is likely to be the cause of the greatest amusement. I cannot see that it is in any way likely to be a deterrent against a man committing what are called high crimes in the Constitution. Having committed a few high crimes, which might or might not be high crimes in law, he would go around to his Party machine and get himself elected again. He is on the top of the world then. He is above the law and he can snap his fingers at the Dáil. He may be impeached again and again. It seems to me to be a ridiculous performance and why such a provision was put there, I do not know. At all events, it would be no harm to leave it there if, and only if, the other part of this particular provision, giving him immunity from the [1118] law, is taken away. While he has immunity from the law it is no protection for the people. Perhaps the President would tell me what is a “high crime?” I do not know. I know what a misdemeanour is but I do not know whether this clause means that he may be guilty of a high crime and a low misdemeanour or then again that he might be guilty of a low crime and a high misdemeanour. Does the word “high” as used in the clause qualify misdemeanour or qualify crime only? I know what a crime is. I have some idea of what a misdemeanour is and I have a vague notion of what a felony is but I see that the word felony is not included in the clause. How the Dáil, having been advised, by one of those lawyers about whom we are so contemptuous, will discover when the occasion arises, whether an offence is a high crime or misdemeanour I do not know. At the present time, I do not know what a high crime is and on the construction of this clause, I do not know whether he is to be impeached for a high misdemeanour as well as for a high crime —whether the word “high” qualifies the word “misdemeanour” as well as the word “crime.” Perhaps the President would tell me what a high crime is, or whether there is any difference between a high misdemeanour and a low misdemeanour.

Mr. MacDermot: I share Deputy Costello's dislike for this Article. I put down an amendment to remove the words “or other high crimes and misdemeanours” because they seemed to me to be archaic and unintelligible. I want to know what is really intended. Is it not that the President should be removable on account of gross misconduct? If that is what is intended, would it not be far better to express that simply and to leave out these words “high crimes and misdemeanours”?

The President: I think the Deputy would also have some difficulty in defining what gross misconduct is. Somebody would have to determine what would be gross misconduct. Somebody also will have to determine what a high crime is.

[1119] Mr. Costello: Who?

The President: The Dáil probably, the court which will try him. It will have to sit obviously before this process can be set going. There must be a motion that the conduct of the President has been such that it would come under this section. That would have to be agreed upon by two-thirds of the Seanad, the initiative coming in this instance from the Seanad. Two-thirds of the Seanad would have to say that the conduct of the President was such that it came under the section and that what he had been guilty of was, in fact, a gross crime or gross misconduct. It occurs to me that “misconduct” might appear to be even a wider term than “high crime” or “misdemeanour.” Impeachment is a term which was probably inserted in the American Constitution from the example of the British. The British example was followed. It is part of the American Constitution and there have been, I believe, a number of cases under it, though not very many, but I think this Article will never have to be used in fact, against the President. There is nothing archaic about it if you admit that there are certain things that the President might do which would make him unworthy of his office. It simply means that the Parliament becomes the court.

He might be guilty of treason. Fortunately, that is defined here, and Deputy Costello or anybody else will not have to go far to find what it covers. It is not so easy to define in any rigid way what are the other types of crimes for which it would be advisable that his conduct should be called in question by the Parliament. Consequently, the House that initiates will have to satisfy itself by a two-thirds majority that his conduct has been such as would make it come under this Article. They would be the judges. Then they would have to come and make that case before the other House—we will say the Dáil. Again, the matter of whether the conduct was of a type [1120] which could properly come under this Article would be called into question, and if there was agreement the trial would take place. Procedure, no doubt, would be found by law by which this trial would take place. The need of the Article is that you do want to have some means by which to try a person who has been guilty of conduct which ought, in the opinion of two-thirds of each House, be punished by, first of all, removal from office. I should not like to venture an opinion at the moment— although it occurred to me before to have it examined—as to whether, when a President is removed from office as the result of a resolution, he would not be immediately amenable to the ordinary law. If the crime were cognisable under the ordinary law, I think he would. It may be necessary perhaps to amend it. Under other Constitutions in some cases they explicitly exclude any other punishment except removal from office. They provide that, if the President is removed under a clause such as this, no other punishment save that of removal from office shall be inflicted, but I am not quite sure— as I say, I should not like to venture an opinion at the moment— whether under this Constitution the President should not be proceeded against immediately he was removed from office for any crime of which he was guilty. However, you do want to have some such provision as this; if only as a deterrent it would be useful. I think you do want some provision of this sort, and I think this is as good a provision as any other. Trial before an ordinary court, I think, would not be the proper procedure.

Mr. Fitzgerald-Kenney: I would submit to the House that this suggested procedure is absolutely absurd. Now, let us consider what would happen assuming that there is a crime for which the President is to be impeached here. The Dáil will assemble. Witnesses will be brought in and examined before the Dáil. I am assuming now that there is a trial before the Dáil. You can change the word to “Seanad” if the Seanad happens to be the court. [1121] The members of the Seanad will come in here and appoint their five or six impeachers, who will make long statements, as Burke and Sheridan did on the impeachment of Warren Hastings. Counsel will appear for the defence, as they did on the impeachment of Warren Hastings. They will raise points as to whether such and such a thing is or is not evidence. That will be argued out solemnly and this House will divide as to the admissibility or inadmissibility of that point of evidence. That will go on, and the procedure will last for weeks and weeks. That is an attempt to try a case by witnesses before an Assembly like the Dáil which has got no precedent to rule on points of evidence or points of procedure. It is an absurd method.

As to the things that can be tried before it, any misdemeanour I take it can be tried. Let us say the Governor-General is guilty of forgery. Let me take that one example. He can be tried here and dismissed from office. He cannot be tried before any court, but he can be tried here. Let him be brought before another court and natural justice as well as the law of the country will say autrefois convict. That is the old legal phrase, and that is according to natural justice, too. If the man has been found guilty and sentenced to be deprived of his office he must have a complete answer before any tribunal before which he is tried. Autrefois convict is a perfect answer, or, if the Dáil voted the other way and he is brought before a court, autrefois acquit. The French translation used in the law is not perfectly up-to-date. The final “t” is sounded. Whatever happens here will be a final bar to any subsequent procedure, and the Dáil or the Seanad is surely not the best or even the proper tribunal before which a man should be tried for his reputation.

There is a statement in the Constitution—I need not refer to the exact number at the moment—that everybody is to be entitled to a trial by jury, but by this section you are taking away from the Governor-General his right to trial by jury for [1122] a high crime, for say a misdemeanour. This is quite inconsistent with the clause which gives every citizen the right to trial by jury. If he is charged with a serious crime, or a misdemeanour, as distinct from a summary offence, this denies to him the right to trial by jury which every citizen of the State has got. The President seemed to think—I may have interpreted him wrongly, or he may not have conveyed his view clearly—that any misconduct in office would be a high crime or misdemeanour. It is not. I take the example of that case so very regrettable in Irish history, the Parnell case. Suppose a similar thing were to happen; suppose whoever is President were to fail as Parnell failed, there would not be a method of removing him from office under this. He has not been guilty of a high crime. There is no misdemeanour under the law and he still remains in office. He cannot be indicted under this Article because it is not a high crime, not a misdemeanour and not an offence at all. Surely it is a very unsatisfactory position, that a man who has been found guilty by the Dáil or the Seanad of having committed a crime known to the law is to remain as President. If he has committed a crime then he is tried here, removed from office and nothing further happens. The method of trial will be grotesque.

The President: We may take it that the procedures outlined by Deputy Fitzgerald-Kenney would be certainly very heavy types of procedure. Surely the procedure can be laid down by law. For example, you could arrange that a certain part of the investigation could be carried on by a committee of the Dáil. I am only thinking of the possibility of procedure being arranged by law. At this stage I am not going to say that it would not be possible to devise a method of procedure by which this trial could be carried out with reasonable facilities.

Mr. Fitzgerald-Kenney: There is no such power in the Article.

The President: I am not going to take it that such a type of procedure [1123] would have to be adopted. If we had to try in the Dáil a case that came to the courts we could devise procedure to make it possible to conduct that trial justly and reasonably.

Mr. Fitzgerald-Kenney: Your procedure is laid down in this Article.

The President: No.

Mr. Fitzgerald-Kenney: The procedure is before the whole Dáil.

The President: It is to be the final court and judge. It has been suggested to me that in the United States we have a precedent where it is carried out by a committee. It is my belief that it would not be beyond our wit if we had to do it here.

Mr. Fitzgerald-Kenney: Was there ever an impeachment in the United States?

The President: There was.

Mr. Fitzgerald-Kenney: I remember one, the case of General Jackson.

The President: My recollection is that of Johnson. There were 11 of them. I am not going to accept it from anybody that if we had the task of providing a fair trial for a person, and that the Dáil was the court, we could not devise procedure to give a fair trial. It is not going to be easy to convince me that it could not be done. The next point is this: are we not to make some provision by which if a person is guilty of treason, or, even if we are not able definitely to define what we mean by high crime, a crime that will be regarded as such by the Seanad and the Dáil, so as to have a means of getting rid of a person who was guilty of such? Whether you accept this or not, some procedure must be devised, and I will be very happy if anyone can suggest a better method. I think the President's office, being such as it is, is one that ought to be dealt with by Parliament, and not by the courts. I do not see how you could definitely bring him before the ordinary courts. This is like the vision we had of the extraordinary powers that a President might take in such and such circumstances. I [1124] think if we had to deal with a case it would not be impossible to do so. I do not want to suggest to anyone that I am quite happy about this. I wish human nature was such that there would be no necessity for anything of this kind. But we want to have some means by which, if a President in office is guilty of treason, or of any crime which would be regarded, in the opinion of the Houses of Parliament, as a high crime, it would be possible to investigate the charge and, if proved home, remove him from office. With respect to the question of further trial, Deputy Fitzgerald-Kenney more or less indicated that it would not be possible to try a man again. I quite understand that principle of justice if he were being tried definitely with a view to getting a sentence, if, for instance, the Dáil or the Seanad could save a person from the infliction of a death penalty. I think the penalty here being of a restricted character, that his trial would be on the point, not on what punishment should be meted out for what he had done, but rather on the question of having done this thing, and having been found to have done it, whether he was in fact a fit person to keep in office. In other words, the trial would be of a restricted character. I doubt very much if it would run counter to natural justice, as suggested by Deputy Fitzgerald-Kenney, if he was found unfit for the office and removed, and if he could not in that case come under the cognisance of the ordinary courts. That is a point I do not want to argue now. The main thing is that I think some provision is necessary. This is the best I can think of anything that has been suggested. If anyone on the opposite benches can improve on the provision I will be ready to meet it.

Mr. MacDermot: The chances of the President being guilty of treason seem to me to be extremely small. As to high crimes, I do not know what they are. What about low crimes?

Mr. Moore: What are they?

Mr. MacDermot: Are we adequately protected against a situation where a President might have committed some act that in the almost unanimous opinion of the Oireachtas rendered him [1125] unfit to continue in office? Suppose he had done something grossly dishonourable in private life, which did not make him actually amenable to criminal law, something regarded as a swindle, or became an irreclaimable drunkard—one can imagine all sorts of things that might, in the opinion of almost every citizen acquainted with the facts, render him unfit to hold that office—if that occurred, is there anything in the Constitution to enable the country to get rid of him before his term expired? My opinion is that the Oireachtas should be able to get rid of a man who had shown himself manifestly unfit for the office, even if he had not committed anything so alarming as treason or a high crime.

The President: I take it that the Deputy does not want to remove the provision, but rather wants to widen the net.

Mr. MacDermot: I would like to widen the net, but I would also like to have a less pretentious net. My instincts revolt violently against all the talk of impeachment.

Mr. Costello: What is wrong with the ordinary courts? I do not know why you are dodging the courts.

Parliamentary Secretary to the Minister for Finance (Mr. Flinn): Can anyone tell us how this problem is dealt with in other countries?

The President: This is the procedure in America.

Mr. Flinn: There are a number of places with Presidents and others holding high offices. Are there any other alternative methods? That seems to me to be the line to take, to see what someone else does.

The President: Before this was put in, there was an extensive examination. It was not an easy question to deal with. As a result of the examination. this is the best that could be done. I challenge the lawyers on the other side, that here is a chance to live in history, by devising a method by which the difficulty Deputy MacDermot mentioned could be dealt with.

Mr. Lavery: As the Article is to [1126] remove the President, is there any necessity for using the magnificent word, “impeachment.”

The President: Is it the word you object to?

Mr. Lavery: It seems to be an anticlimax to impeach a person for a high crime, and in conclusion to do no more than to remove him from office. The President is satisfied that, if removed by the Dáil, he might come under the jurisdiction of the ordinary courts in respect of the matters complained of. Is it clear that he could? There is the principle in law that a man should not be tried twice. I think the President used the exact words of the Article, and that when impeached before the Dáil and convicted, a man might say he had suffered the full penalty that the law required. The President has asked for some alternative. Is there any difficulty in providing merely that, if a charge is made against the President which unfits him for his office, the Dáil, or the Dáil and Seanad, or any other tribunal which is considered appropriate, should investigate that charge and remove him from office? Surely, that is the whole result of the Article as it stands at present, and that will be sufficient.

Mr. Norton: I agree with Deputy MacDermot that it is very unlikely that the President will be guilty of treason. Firstly the opportunities open to a President to commit the crime of treason against the nation are not very great. Usually folk in the position of a President do not come before the courts on charges of treason. That is left for lesser lights of the community. A President usually manages to escape any liability in that connection. As Deputy MacDermot pointed out, I think it is more likely that the President would be guilty not of crime of the magnitude of treason, but of a much less important crime. For instance, we might have a situation where we pay the President £5,000 per year—perhaps we might even be generous enough to pay him £10,000—yet we might discover that, notwithstanding the fact that he was receiving a substantial salary from the State, the [1127] President would not pay his bills. Suppose we had the position where the President would not pay his grocer. Perhaps he would not pay his rent; perhaps he would not pay his income-tax; or perhaps he would engage in the pastime of backing horses and would be constantly in the courts pleading the Gaming Act. I think everybody will agree that that kind of President would be a disreputable President and ought to be removed from the office as quickly as possible. I think the Legislature would desire to remove a person of that kind. Will this Article enable us to do it? It seems to me that this is sledge-hammer language, although the task to be performed is one which does not require the use of such a heavy instrument. I assume that under “misdemeanours” it would be possible to bring a President who would not pay his debts before either House of the Oireachtas.

Mr. Costello: Not at all.

Mr. MacDermot: “High crimes or misdemeanours.”

Mr. Norton: “High crimes or misdemeanours.” Does the “high” govern “misdemeanours?” I think it would be a sufficiently high misdemeanour if the President were in the courts every week pleading the Gaming Act. Are we entitled in a situation like that to bring the President before either House of the Oireachtas and say to him: “Look here, we think this conduct of yours is thoroughly reprehensible and disreputable and that you are not a fit person to hold office.” I think it is that kind of crime and misdemeanour that a President is likely to commit than the crime of high treason. That is the situation we are dealing with and which must be met, perhaps even more so than the possibility of the President committing high treason. If we are entitled to indict the President for that kind of disreputable conduct, it seems to me that such a word as “impeachment” is altogether out of place in dealing with misdemeanours of that kind.

[1128] Mr. T. Kelly: Do you want the police court?

Mr. Norton: I would not object to putting him there. I do not think he ought to get any more protection, if he will not pay his debts, than any other citizen. I am surprised that Deputy Kelly should stand for any kind of specialised treatment of a President who will not pay his debts.

Mr. MacDermot: Deputy Lavery made a concrete suggestion.

Mr. Norton: The President should look at the phrasing of the paragraph with a view to adjusting it to the situation which is likely to arise. The word “impeachment,” which seems to govern the entire category of crimes the President can commit, could be altered to that type of trial he is likely to get and adjusted to the phraseology of the kind of crime he is likely to commit.

Mr. Costello: There is one aspect of this problem which I should like to put before the President. We have been concentrating on the powers of the Dáil or the Seanad, as it may be, to impeach. I do not like this new functionary at all, but I feel bound to say that he is entitled to some protection. We have been seeing how we can lay hold of him and remove him if he does not pay his debts or commits high crimes or misdemeanours. Much as I dislike him, I think he is entitled to a little protection from the Dáil. We might take it into our heads some time or other, and I hope Providence and my constituents may spare me to witness this extraordinary trial by impeachment of some unfortunate President, as I think it will be a matter of considerable amusement. At the same time, I think the President ought to be protected from vexatious impeachment either by the Dáil or Seanad. There is a little protection for him in the Article as it stands, because I think he can go to the courts and prevent this Assembly from impeaching him for matters that were not high crimes or misdemeanours. It is just as well that we should face the matter seriously. Certainly the word “misdemeanour” has a technical meaning. [1129] “High crime” has no technical meaning, but the word “crime” may have. I think the President, if he was vexatiously impeached, or if some sort of procedure was started to impeach him, might possibly seek the protection of the courts against it. I cannot say, but I think he could. He ought to have some protection against vexatious impeachments.

I entirely agree with Deputy Norton that we ought to have some procedure by which scandalous behaviour, not amounting either to a crime or a misdemeanour, such as bankruptcy, profligacy, corrupt practice, undue interference in politics, could be dealt with. A lot of matters of that kind might be committed by a President which would unfit him for his office as President and still not be either a crime or a misdemeanour. While we ought to envisage that situation, at the same time, I think he is entitled to some protection.

It might be that you would have a position where you will have a President, who must be a man of some appeal, and probably of powerful personality; where you will have a Prime Minister of a similar type, who must necessarily, in the ordinary course of events, be a man of outstanding personality. If there is a clash between those two, it may be that the Prime Minister, desirous of getting rid of the President, might rig up a charge against him of a vexatious or frivolous kind and, by virtue of his outstanding personality and force in the Dáil, and possible influence in the Seanad, might be able to get an impeachment sentence and removal carried out against a man who is properly carrying out his duties. I put the point of view that, while we are entitled to say that we can remove a man who ought to be removed, at the same time, I think this new functionary, if we must have him ought to have a little protection.

I still have, strange as it may appear, some weakness for the Courts of Justice in this country. I cannot see why we cannot provide that the courts shall investigate a matter of this kind at the instance of two-thirds of the Seanad, or any other instance, say, the Attorney-General. The taxpayers pay independent judges. As I say, I have a weakness [1130] for the judiciary and, no matter who they may be, I think they will give everybody a square deal. They will stand between the President and the Dáil or Seanad and equally between the Dáil or Seanad and the President and give both parties a square and fair deal. The alternative to that is to provide specifically in the Constitution for the cases where a man would become disqualified from holding office. It may be a blot upon the Constitution, as an artistic document, to provide specifically for matters such as bankruptcy, breach of duty, and things of that kind, that would ipso facto disqualify him. But, either that method, or the method of having a charge investigated before the Courts of Justice, appears to me the only solution of the problem, and the Dáil ought to look at it in a serious fashion.

The President: I am very glad that Deputy Costello has turned the attention of the House to that particular aspect of the case, namely, that the President needs protection. I think Deputy Norton will realise that the person put into that position will be a mark for a number of people who will want to start vexatious actions against him——

Mr. MacDermot: Why?

The President: Because of the fact that it would be a species of blackmail which they would not attempt to proceed with in the case of an ordinary individual. The man in that position does not want to have his high office dragged up in the courts. There have been instances where that sort of thing has been done before. I am sure that those on the opposite benches will have the same sort of experiences as we will have of that sort of thing. It is therefore very necessary to protect the President from actions of that kind. The problem is how to give the necessary protection against individuals who think that any sort of case against the President will be sufficient to make him pay because of the publicity that would attach and the damage that may be done to his reputation by bringing him into court. He would also need protection from political [1131] Parties. Deputy Costello instanced cases where he might act against the wishes of the political Party of the day.

So you have, on the one hand, the need of giving the President adequate protection and, on the other hand, you have the need of protecting the community from what would arise if you have a President in office who would be unworthy of his high position. That is the trouble. We have looked into a number of Constitutions. Deputy Flinn asked if I could tell the House what is done in other Constitutions. Here we find in the case of the Polish Republic this provision:—

“The President of the Polish Republic does not incur any Parliamentary or civil responsibility.”

Now we have heard a great deal from those who were talking about the President here being above the law. That is the provision in the Polish Constitution.

“The President of the Polish Republic does not incur any Parliamentary or civil responsibility for acts done in the exercise of his functions.”

That is a provision in one of the Constitutions.

Mr. Norton: There is a dictatorship there. Is that the existing Constitution?

The President: I cannot say whether this in itself is the dictatorship Constitution in Poland. The point about it is this, I do not know whether the dictatorship is in accord with this Polish Constitution at all or what it has to do with the dictatorship that was set up. The dictatorship will be found to have been set up contrary to the Constitution. That is a thing that you have to face—that no Constitution that you will make will completely save you from the possibility of a dictatorship being set up in certain circumstances. This was the Constitution set up by the new Polish State, a democratic State with a form more or less democratic. That was the provision we had in this Constitution:—

“The President of the Republic does not incur any Parliamentary or [1132] civil responsibility for acts done in the exercise of his functions.”

Then the next provision reads:—

“The President of the Republic may be impeached by the Diet only upon a vote approved by a majority of three-fifths in the presence of at least half the number of Deputies fixed by law, if he guilty of high treason, of violation of the Constitution or of penal offences. The trial shall take place before and judgment be delivered by the Tribunal of State according to the provisions of a special enactment.

“The President of the Republic shall be suspended from office from the time he is put on trial before the Tribunal of State.”

We will have to look up the Tribunal of State and see what the procedure is. In Czecho-Slovakia.

“The President may not be proceeded against on any criminal charge save high treason, in which case he shall be tried by the Senate upon the indictment by the Chamber of Deputies.”

That is more or less the provision here.

“The only penalty that may be inflicted upon the President shall be the loss of his office of President and permanent disqualification therefor.”

“The details shall be determined by law.”

In the case of the French Republic, there is a provision that

“The President of the Republic shall be responsible only in case of high treason.”

Then provisions are made for dealing with matters of that sort. I quite agree that these provisions do not deal with the cases that might have to be dealt with. The trouble is that if you open your net wide enough you are catching fish that were never intended to be caught.

Mr. Flinn: The only cases given there are trial by Parliament. Is there any case in which there is trial by any other means?

[1133] The President: We have the Tribunal that was referred to. There is the Diet in the case of the Polish Constitution. In the case of America the President, the Vice-President or any civil officer of State may be impeached for high treason or misdemeanours.

Mr. Costello: That was in the 18th century.

The President: It is continued up to the present time. There is no doubt if you want to give a number of cases and try to arrive at some sort of definition as to what is the class of crimes called by crimes and misdemeanours you will find that it will be impossible to do so. There have been 11 cases of impeachment in America. The result of your examination of these would enable you to arrive at a definition. Then there is this provision in the American Constitution:

“Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honour, trust or profit.”

The officer, after removal, is also

“liable and subject to indictment, trial, judgment and punishment according to law.”

You can, obviously, if you want to avoid any clash with that principle, make it clear that the purpose of the trial is only to see whether the President is fit for office or not and leave him open afterwards to proceedings in accordance with ordinary law. We would all like to see a provision by which a person who is unworthy to hold office should be capable of being dealt with. We would all like to see that done in such a way that the individual holding office would be protected in the case where the individual was not really guilty of these crimes at all, the individual who would be proceeded against for vexatious reasons by a political Party who tried to get rid of him because he was not amenable to their counsels, or by some individual who, seeing the position occupied by the President might be inclined to proceed against him in order to get money. If anybody can improve on [1134] this section of the Article, I would like to get suggestions from him. One suggestion which has been made is the ordinary court. I think Deputy Lavery's suggestion was that the class of crime was of a general catalogue of gross misconduct, but the method of procedure would be the same.

Having heard all the arguments, now I am practically in the position I was when I first agreed to this particular proposal. The word “impeachment” seemed a bit cumbersome and has a terrifying sound. The person who is going to be impeached is, however, a very high officer, and the wording of the Article suggests that this impeachment is a thing that should not be done lightly and that this sledge-hammer ought not to be employed except where there was a genuine necessity. By putting in this word “impeachment” you indicate that this should not be set in motion except for very grave reasons. That is the advantage of getting this archaic word; whereas if instead of that you put in the ordinary courts, the President could be brought up on a petty matter. My view is that I am in no better position and there has been no advance, except, perhaps, the suggestion of gross misconduct, which is dangerous, in my opinion, because any misconduct might be suggested in the House that is initiating it as gross misconduct. However, I will think over the suggestions that have been made and see if we cannot do something with them; but I think it is just as well to have this heavy machinery of trial by Parliament kept in the belief that, at any rate, we can devise here, if necessary, by law a procedure which will make for justice.

Mr. MacDermot: It is not only a case of heavy machinery; it is a case of heavy and even misleading terminology which might prevent us dealing with cases that ought to be dealt with. What Deputy Lavery suggested was that it could be stated in much simpler language that a charge against the President of gross misconduct, such as might disqualify him from office, could be brought by two-thirds [1135] of either House of the Oireachtas and submitted to the judgment of the other House.

Dr. Rowlette: I should like to put one question to the President. He said that in the case of the Czecho Slovakian Constitution the popular House could impeach the President before the Seanad. The proposal in the draft Constitution before us is that the Seanad could impeach the President before the popular House.

The President: There is an amendment in connection with that matter.

Mr. MacDermot: The suggestion is that it can be done either way.

Dr. Rowlette: The more reasonable thing would seem to be that the popular House should act as prosecutor and that the more detached House should be in the judicial position.

Professor Alton: Has the President decided whether the Tribunal of State is to be a tribunal ad hoc or whether it should consist of jurists or members of either House?

The President: I am trying to get the information.

Mr. Norton: Will the President indicate what legal advice he has had as to the precise scope of the term “misdemeanours”? That is an important matter in considering the phraseology of the paragraph. No matter what the scope of high crimes and misdemeanours may be, I think the term, impeachment, is hardly the one to use in respect of misdemeanours. Probably this paragraph might be divided into two parts, one stopping at the word “Constitution,” in the second last line, and then using such language as “a charge in respect of such offence as high crimes or misdemeanours.” When one talks about impeaching a person for a misdemeanour it seems to be a misuse of terminology and some other term than impeachment ought to be used where we talk of misdemeanours. The important point is, what is the precise scope of the word misdemeanours? Has it any definite legal significance?

[1136] Mr. MacDermot: Will the President reconsider the whole of Article 10 in the light of this discussion and then, perhaps, on the Report Stage he might introduce something to cover it?

The President: I shall be glad to do so, but I am anxious to make progress and I have the feeling that when we come to the Report Stage we will have the same opinions expressed and the same differences as before. I was asked about the Tribunal of State. This is the Polish Republic, the 1922 Constitution, and it sets out that the Tribunal of State is composed of the President of the Supreme Court, who presides, and 12 judges, eight judges selected by the Diet and four by the Senate, who shall not be members of either House. Only persons who do not exercise any public functions and are in full enjoyment of civil rights can be members of the Tribunal of State. The Tribunal are elected by the Diet immediately after the opening of the session and for its duration.

Professor Alton: Are the judges mentioned there, jurists?

Mr. MacDermot: They are obviously not professional judges.

The President: I am not so sure of that.

Mr. Norton: From the last sentence it would not appear they were.

Mr. McGilligan: It is indicated there that they shall not be members of either House.

The President: It is quite possible the word “judges” there simply means people appointed to judge a particular matter, not ad hoc appointments, but appointed for this particular purpose. That is a type of tribunal which could possibly be tried if there is any strong view in the House for it. If there were certain persons to be selected to deal with a charge of that sort, so many might be elected by one House and so many by the other. This is one of a number of drafts dealing with this matter. At one stage I had a proposal that the charge should be investigated by the Supreme Court, who would examine it and give a report to the House that was to [1137] pronounce final judgment as to whether the President was fit to hold office or not. There was a good deal of procedure necessary to insert it in the Constitution and it seemed much more direct to leave the procedure to the House to be dealt with in the case of any special trial.

If Deputies wish, I will have this matter examined again in the light of the discussion that has taken place in order to see if we can do any better, but I have no clear indication as to what the leaning is. Apparently there is a dislike to the cumbrous machinery of impeachment. There is a dislike even to the word “impeachment” itself. There is the difficulty, on the other hand, about what class of case should be cognisable by whatever court is arranged for in this process. I do not know that we would be able to get solutions for this. You will have the difficulty I have indicated, namely, that when you open the net to deal with all possible cases, you increase the danger of purely vexatious actions against the President.

Mr. Norton: What is the scope of “misdemeanours?” Has it any legal significance?

The President: My information is that you cannot define it immediately and directly. It is pretty elastic. Deputy Costello said he knew what a misdemeanour was, but he did not know what high crime was. Perhaps one way to find out that information would be to investigate the circumstances in the United States, where the same terms are used, and one could see by examining the cases of impeachment what classes of cases had been regarded as high crimes and misdemeanours.

Mr. MacDermot: I think the President would find that it would be where a man made himself particularly obnoxious to a political Party.

Mr. Norton: Is it not a very doubtful phrase to leave in the Article? The President may be impeached by the machinery set out here. He will be tried and found guilty before anyone has discovered whether it is possible to bring a charge against him. Can [1138] we not have a phrase that will obviate the necessity of going to the United States for a definition?

The President: You do not need a definition. Deputy Lavery's suggestion about misconduct would be probably much wider than this. I am not saying it would not be the better term to use here, but whatever term we use, it will be extremely difficulty to define it and to say whether a particular offence does come under that heading or not. What you have to depend on in that case is that, in the first instance, the initiating body, either the Senate or the Dáil, by two-thirds majority, will decide that this particular case appears to be one for which the President ought to be impeached. It goes forward then to the other House for trial, and they will also ask, “Have we jurisdiction in this case? Is this a case in which the trial should proceed?” I take it the decision of these two Houses will determine whether a particular case comes under the definition or not, and you cannot do better.

Mr. Norton: Would it be possible for the President, while that process is taking place, to go to the courts and move there for an injunction restraining the Dáil or Seanad from preferring a charge of this kind against him on the ground that it is not in fact a misdemeanour?

The President: Deputy Costello seemed to suggest that that procedure was possible—that the courts could prevent either House from impeaching the President. I wonder was he right? I do not think they could. That is my own view.

Mr. Costello: If any President gives me a brief to protect him from the Dáil, I will put up a good argument.

The President: I am afraid they are not always good. I have no doubt that if there are any arguments to be found for his case, the Deputy will search hard and will probably find them, but that does not at all mean that the court, of necessity, would agree with him. I doubt very much, as a layman, whether the courts would, [1139] according to this Constitution, say: “You must not try the President on this” because it is laid down that the President may be impeached and the procedure of impeachment is indicated. I think the courts would tell Deputy Costello: “We have no jurisdiction in this matter; the jurisdiction is quite evidently settled in the Constitution” and let that matter be argued.

Professor O'Sullivan: Suppose the House goes beyond the powers of the Constitution in impeaching the President, who will decide it?

The President: I do not think anybody can decide. The safeguard there is the two-thirds.

Mr. Costello: Would the President not think that somebody ought to protect the new President against excessive powers?

The President: That is the point with which Deputy O'Sullivan made so much play last night—if your Supreme Court is wrong, what other people are there? Ought there not to be some appeal beyond your Supreme Court?

Professor O'Sullivan: We have one here.

The President: In this case, the only safeguard he has is that one House must, by a very substantial majority, decide that he should be impeached, that his conduct is such as to merit impeachment, and in the second House they have the chance of saying: “This is not clearly under this Constitution at all,” and then, finally, there will be the question of his guilt or otherwise. With regard to Deputy MacDermot's point, we might be able to widen the net. “Gross misconduct” has been suggested, but I think, on the whole, this procedure is as good as any that can be devised. By the way, in the case of some Bills I was putting through the question of the removal of a judge for stated misbehaviour was brought up here. I wonder who is to define misbehaviour and what procedure would be followed if there was a case of that sort before [1140] the Dáil. It would not, I take it, take the form of a trial such as should be provided for by proper procedure here, but if the case came up before us, the question to be decided is whether the conduct in any particular case was such as to be regarded by the Dáil as misbehaviour, and also by the other House, under the new Constitution. I do not think you can define these things. You have to leave them to be decided.

Mr. McGilligan: I understand that Poland was brought up as an example of a comparable situation and I want to speak very briefly on that matter. It is impossible to talk here of the functions of the President, or of anything that may happen to him for disregard of the directions given to him in the discharge of those functions on the analogy of the Polish situation, because the situation here is that the President is going to be allowed to do certain things and nobody is to take responsibility for those actions. In Poland, the situation is entirely distinct. In Poland there is the clear cut phrase that “to be valid, every governmental act of the President must be signed by the President of the Council and the Minister within whose Department the matter lies,” who thereby accept responsibility. In Poland, you have that democratic point of view carried out, that whatever the President does, some Minister must stand for him. It is only then, for something beyond that, that the Polish phrase comes in, and he is to be impeached for high treason, violation of the Constitution, or penal offences. It is not a mixed phrase such as the word “misdemeanours” which has certain attachments in the criminal law, and then, that word some way diverted by the probable carrying forward of the adjective “high” from the word to which it is particularly affixed. There is no comparison between the two matters. If the President is put into the Constitution here for the future as, in every act he does, being under the control of the Government, in so far as they, by refusing a Minister's signature, can prevent him acting, and if a new position arises in which, every time he does act, some Minister signs for him and takes responsibility, [1141] there is a new situation, and it is the situation to be compared with the Polish situation, but that is not the situation, or anything like it, that has been put before us.

The other matter on which there is likely to be conflict is Article 13, paragraph 8:

“The President shall not be answerable to either House of the Oireachtas for the exercise and performance of the powers and functions of his Office for any act done or purporting to be done by him in the exercise and performance of these powers and functions.”

There is a clean getaway from any liability to the House and it is followed by special paragraph 3, which precludes any action at law or in equity, or other legal proceedings, civil or criminal, lying against the President during his term of office. That was the Constitution as presented to us—a cast-iron situation, completely fortifying the position of the President. No action at any time could lie against him, and, in addition to that, there is this phrase that in regard to the exercise and performance of his duties or any purported exercise of them, he is not answerable to either House, and then, as a sort of weakening of that position, you have this peculiar phrase that he may, however, be impeached for treason. It is only treason as defined in the Constitution, and not treason as defined in the Treasonable Offences Act or any extention of that word to be made by the law. Following that you have the vague phrase, “other high crimes or misdemeanours.” How that phrase is going to be interpreted, when that word is attached to it in the context of treason as defined in the narrow definition in the Constitution, and that word “high” in front of “crimes,” and probably these two words carried forward to the word “misdemeanours,” is a very doubtful situation, but let nobody think that they are getting a proper comparison when they bring in Poland because there is not the same situation.

Mr. Flinn: My difficulty in this matter is not the difficulty of the House. It is that I do not regard [1142] an Assembly of this kind as a good tribunal to decide a matter of fact. I think it may be honest and competent in many ways, but as a tribunal to decide a matter of fact, I do not think it is. What I would suggest is that we drop the word “impeach” and say: “The President may be charged at the instance of not less than two thirds of the total membership of the Dáil or Seanad” for whatever you like—treason as defined by the Constitution or other misdemeanours unfitting him for his office.

Progress reported.