Preamble. The Preamble. Introduction. Issues

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1 The Preamble Preamble Introduction In the name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution A Preamble is not an essential element of a constitution. Some constitutions do not have any. Only the enactment phrase We, the people, enact this Constitution has formal significance. Any normative elements in a Preamble are likely to be expressly provided for in the Constitution. The Saorstát Constitution had no Preamble but the opening words of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, to which it was a schedule, read: Dáil Éireann sitting as a Constituent Assembly in this Provisional Parliament, acknowledging that all lawful authority comes from God to the people and in the confidence that the National life and unity of Ireland shall thus be restored, hereby proclaims the establishment of the Irish Free State (otherwise called Saorstát Éireann) and in the exercise of undoubted right, decrees and enacts as follows... If a Preamble is not necessary, what purpose does it serve? From the terms of the Preamble to our own Constitution, and by reference to other Preambles, it may be deduced that a Preamble is intended to express a sense of national identity and destiny and to include invocational, commemorative, exhortatory and aspirational elements. The Preamble to the 1937 Constitution, as is usual in constitutions with a Preamble, reflects the historical context religious, social, economic, political in which it was enacted. There has been great change in most of those areas over the past sixty years, yet it might be thought preferable that a new or revised Preamble should be contemplated only in a substantially different and inspirational political context such as might be created by new North-South relations. Issues 1 whether it is possible to amend the present Preamble The Review Group considered whether the Preamble was open to amendment, as provided in Article 46, even though the words of enactment occur only in the last line. The Attorney General s Committee on the Constitution (1968) noted that the Preamble itself uses the phrase this Constitution and that the title Bunreacht na héireann precedes the Preamble, both of which suggest that the Preamble is part of the Constitution and can be amended as such. Moreover, because the people adopted the Preamble together with the rest of the Constitution, it would seem unreal to suggest that the people do not have power to amend it. The fact that it has been cited in cases and invoked in judicial decisions (see below) also seems to confirm that it is part of the Constitution and thus subject to amendment as provided in Article 46.

2 2 whether the Preamble has legal effect As indicated above, the Preamble has been cited in legal cases and has been taken into account in judicial decisions, for example, McGee v Attorney General [1974] IR 284, The State (Healy) v Donoghue [1976] IR 325, King v Attorney General [1981] IR 233, Norris v Attorney General [1984] IR 36 and Attorney General v X [1992] 1 IR 1. For this reason and others mentioned in the immediately preceding paragraph it seems that it does have legal effect. The Review Group adverted to the relevance of the Preamble to the question of the role of natural law in the Constitution, and decided that this issue was most appropriately considered under Articles 40-44, which deal with Fundamental Rights. 3 whether the Preamble should continue to have legal effect It is arguable that, in principle, it is neither necessary nor appropriate for the courts to invoke the Preamble. The Preamble is unlike the long title of a Bill in that its manifold purposes and its literary style give it much less precision of meaning. Moreover, headings and marginal notes in a Bill, as distinct from the long title, are not cognisable by the courts. It is questionable whether an essentially rhetorical, as distinct from legal, text could properly be treated as a source of fresh enlightenment or significant guidance as to the meaning or intent of specific constitutional provisions. On this view, it would be more realistic not to accord it any legal significance. A contrary view is that what the Preamble expresses should be available, when appropriate, as an aid to interpretation of the Articles, though not as a source of substantive law. 4 whether the Preamble should be amended The Review Group considered four possible approaches: i) leave the Preamble as it is This did not commend itself to most members of the Review Group who felt that the language, reflecting the ethos of the 1930s, is overly Roman Catholic and nationalist in tone, is gender-biased, and would be objectionable to many in Ireland today. ii) insert an explicit provision in the Constitution declaring the Preamble to be the historical introduction in 1937 to the Constitution, with the corollary that it would also be declared no longer cognisable by the courts This tacitly recognises the majority view noted under i) and would simply enshrine the Preamble as a historical entity. iii) while adopting i) or ii), leave amendment of the terms of the Preamble to a future inspirational political context While such a context would provide the ideal occasion for rewriting the Preamble, most members of the Review

3 Group would prefer that it be amended in any event in the near future. This, in fact, is the fourth option. iv) amend the Preamble This is the preferred option of a majority of the Review Group who feel that the Preamble as it stands is inappropriate. If it is decided to amend the Preamble, there are two possibilities: a) confine the Preamble to the words of enactment by the people of Ireland This is the course favoured by a majority of the Review Group who are influenced by the fact that substantive elements in a Preamble tend to be expressly provided for in the various Articles. Thus, the desire that the dignity and freedom of the individual may be assured is provided for in Articles 40-44, the aspiration that true social order [be] attained is expressly recognised in Article 45, the aspiration that the unity of our country [be] restored is reflected in Articles 2 and 3, the desire that concord [be] established with other nations is provided for in Article 29. The recitation of such desiderata in the Preamble tends to be both selective and superfluous (and would be so even should Article 45 be deleted). b) if, nevertheless, it is felt that a revised version of the Preamble should be prepared, the essentially political nature of a Preamble should be kept in mind and care taken to avoid divisiveness and to recognise, instead, diversity of traditions, ideals and aspirations. Consideration might be given to the following points: 1) the words of enactment should be in the name of the people of Ireland (see amendment of Article 4 as proposed by the Review Group) 2) the Preamble should be declared not to be cognisable by the courts 3) the diversity of belief in present-day Ireland raises the question whether any wording corresponding to the present first and third paragraphs is now appropriate. It is noteworthy that the 1972 Irish Theological Association working party unanimously agreed that no one should be required, as a condition of citizenship, to endorse a basic belief or tradition which he does not share and was not satisfied that a religious strand was necessary or desirable in a Preamble 4) there should be recognition of the diverse origins and traditions, ethnic, historical, political and spiritual, of the people, their varying social and cultural heritages, and the sacrifices and sufferings as well as the achievements of the people s forebears

4 5) it should be affirmed that the aspiration to unity of many in Ireland will be sought peacefully and through reconciliation and consent 6) more general aspirations could be included on the lines of the existing penultimate paragraph but including peace, reconciliation, justice, freedom and economic, social and cultural progress, together with the common good and concord and cooperation with other nations, as aims to be promoted indicating that these will be pursued on the basis of the inherent dignity of the individual and the equality of all. Having regard to commitments made in both the Downing Street Declaration and the Framework Document, it might well be that progress in negotiations for an agreed Ireland would provide further considerations for such a revision of the Preamble. Recommendation A majority of the Review Group favours the replacement of the present Preamble by the basic formula of enactment of the Constitution by the people of Ireland. If, however, a more extensive, revised Preamble is preferred, guidelines are suggested.

5 Articles I National Right to Self- Determination Article 1 The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions. Article 1 sets out the national right to self-government and other related rights. This affirmation is of universal validity. The scope of the term The Irish Nation has been questioned but the Review Group does not see any reason for proposing an amendment of the Article. Recommendation No change is proposed.

6 Articles II III National Territory Article 2 The national territory consists of the whole island of Ireland, its islands and the territorial seas. The Review Group is excused by its terms of reference from considering Articles 2 and 3. Because these Articles are central to the resolution of political relationships in Ireland, and between Ireland and Great Britain, the Review Group concludes that it should not offer any comment. Article 3 Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.

7 Articles IV Name of State Article 4 The name of the State is Éire, or in the English language, Ireland Article 4 sets out the name of the State. The Review Group considers that the provision is unnecessarily complicated and that it should be simplified to indicate, in each language version, the name of the State in that language. The Review Group also considered whether the Article should be amended to include Republic of in the name of the State. It is satisfied that the legislative provision (section 2 of the Republic of Ireland Act 1948), which declared the description of the State to be the Republic of Ireland, is sufficient. Recommendation The Article should be amended to read: Éire is ainm don Stát. The name of the State is Ireland.

8 Articles V Nature of the State Article 5 Ireland is a sovereign, independent, democratic state. Article 5 sets out the nature of the State as sovereign, independent and democratic. The Review Group considered whether the term republic should be substituted for state and does not favour any change. Recommendation No change is proposed.

9 Articles VI Powers of Government Article All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good. 6.2 These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution. Article 6 states the people s right to decide by whom and how they are ruled and reserves the power of government to the organs of State established by the Constitution. Conclusion Some members of the Review Group see no need to change the text of this Article, considering that the words under God are widely acceptable. Others prefer that religious references generally should be reviewed by the Oireachtas in the context of amendment of the Preamble and other relevant parts of the Constitution.

10 Articles VII National Flag Article 7 The national flag is the tricolour of green, white and orange. Article 7 prescribes the national flag. The Review Group is of the view that the provision might need reconsideration in the context of an overall settlement of political relations in Ireland but not otherwise. Recommendation No change is proposed.

11 Articles VIII Language Article The Irish language as the national language is the first official language. 8.2 The English language is recognised as a second official language. 8.3 Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof. Discussion Article 8 establishes the two official languages of the State. It accords primacy to the Irish language which is described both as the national language and the first official language. The English language is recognised as a second official language. This wording is unrealistic, given that English is the language currently spoken as their vernacular by 98% of the population of the State. The designation of Irish as the national and the first official language is of little practical significance. The intention to give special recognition to the Irish language is understood and respected but it is arguable that this might be better achieved, while allowing both languages equal status as official languages, by including a positive provision in the Constitution to the effect that the State shall care for, and endeavour to promote, the Irish language as a unique expression of Irish tradition and culture. The Review Group considers that there is an implicit right to conduct official business in either official language and that the implementation of this right is a matter for legislation and/or administrative measures rather than constitutional provision. The word Béarla is now commonly used in Irish to denote the English language and should supersede the expression Sacs- Bhéarla. Recommendation The first and second sections of Article 8 should be replaced by English and Irish versions on the following lines: 1 The Irish language and the English language are the two official languages. 2 Because the Irish language is a unique expression of Irish tradition and culture, the State shall take special care to nurture the language and to increase its use. 1 Is iad an Ghaeilge agus an Béarla an dá theanga oifigiúla. 2 Ós í an Ghaeilge an chuid is dúchasaí de thraidisúin agus de chultúr na héireann, beidh sé de chúram ar an Stát an teanga a chaomhnadh agus a h-úsáid a leathnú.

12 Articles IX Nationality and Citizenship Article On the coming into operation of this Constitution any person who was a citizen of Saorstát Éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law No person may be excluded from Irish nationality and citizenship by reason of the sex of such person. 9.2 Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens. Introduction Article 9 deals with nationality and citizenship. It confers citizenship on all who, immediately prior to entry into force of the new Constitution, were citizens of Saorstát Éireann (Article ), anticipates legislation to make further provision for acquisition and loss of citizenship (Article ) and prohibits exclusion from citizenship on grounds of sex (Article ). Article 9.2 imposes on citizens the duty of fidelity to the nation and loyalty to the State. The subsequently enacted legislation, that is, the Irish Nationality and Citizenship Acts , makes further provision in regard to citizenship. Issues 1 whether Article should be deleted on the grounds that it is spent The Review Group noted that this issue was addressed by the Attorney General s Committee on the Constitution (1968) which indicated in its report that the subsection will continue to have effect as long as anyone who was a citizen of Saorstát Éireann in 1937 is still living and, after that, while claims to citizenship by descent from such persons may arise. The Review Group agrees with this view and concludes that the subsection is not spent. Recommendation No change is proposed. 2 whether Article should be deleted on the grounds that the matter could be adequately dealt with by ordinary legislation The Review Group considers that the subsection is a fundamental and uncomplicated provision guaranteeing Irish citizenship to all persons who were citizens of Saorstát Éireann immediately prior to entry into force of the new Constitution, and as such is appropriate for inclusion in the Constitution. It concludes accordingly that it should not be deleted. Recommendation No change is proposed.

13 3 whether a provision on citizenship by birth should be inserted in the Article The Review Group notes that sections 6 and 7 of the Irish Nationality and Citizenship Act 1956 provide, inter alia, for citizenship by birth. These provisions are not lacking in complexity. They confer entitlement to citizenship on all persons born anywhere in Ireland, except children of aliens entitled to diplomatic immunity in the State at the time of birth. However, in the case of a person born in Northern Ireland after December 1922 (and not a citizen by descent), realisation of that entitlement is subject to the making of a declaration by or on behalf of that person that he or she is an Irish citizen. This latter proviso is presumably for the purpose of avoiding the conferring of Irish citizenship by birth in Northern Ireland on unwilling recipients and it seems unlikely that it will be amended in the near future. (It should be noted that most persons born in Northern Ireland after December 1922 are entitled to citizenship by descent, without requirement of any declaration). Conclusion The Review Group, recognising that a provision on citizenship by birth necessarily includes exceptions and conditions and is correspondingly complex, is of the view that the subject is more appropriately dealt with in ordinary legislation. It concludes that a provision on the subject should not be inserted in the Article. 4 whether reference to both nationality and citizenship in Article should be retained The use of both nationality and citizenship is probably attributable to a continuation of a British Commonwealth usage. It does not seem that the two terms have different legal meanings. Article anticipated legislation in regard to both citizenship and nationality, now comprised in the Irish Nationality and Citizenship Acts which do not purport to give the two terms different meanings. The Attorney General s Committee on the Constitution (1968) concluded that the term nationality was probably obsolete in Irish law but that in popular usage it implied inclusion of all those of the Irish race. Nevertheless, the term nationality is included in the citizenship legislation (the Irish Nationality and Citizenship Acts); the term national is used in section 6 of the Transfer of Sentenced Persons Act 1995; and Article 8 of the EU Treaty, as inserted by the Maastricht Treaty, refers to nationals of member states. In these circumstances retention of the term nationality in the Article would appear to be justified. Recommendation No change is proposed. 5 whether a provision to limit the basis on which citizenship by naturalisation may be granted should be inserted in Article 9 Section 14 of the Irish Nationality and Citizenship Act 1956 provides for conferring of Irish citizenship by means of the grant

14 of a certificate of naturalisation. Section 15 sets out conditions to be complied with if the certificate is to be granted. Section 16 permits these conditions to be waived in certain specified circumstances. Recommendation No change is proposed. The Review Group is aware that unease has been expressed in regard to the waiver of conditions in some cases in recent years. It is of the view that, in so far as there might be a problem in this respect, it would not be appropriate to seek to deal with it by constitutional provision. It would be open to the Oireachtas to provide in legislation, more specifically than in section 16 of the Act, for the circumstances in which the conditions under section 15 might be waived, and/or for subjecting waiver decisions to closer scrutiny by the Dáil. 6 whether a provision to limit the basis on which legislation might provide for loss of citizenship should be inserted in the Article The Review Group noted that the provisions for deprivation of validly acquired citizenship in the Irish Nationality and Citizenship Acts are confined to citizenship by naturalisation. Even in that limited field, the grounds for deprivation of citizenship are relatively narrow. It does not appear necessary to impose any restriction on the legislative activity of the Oireachtas in this respect. Recommendation No change is proposed. 7 whether the prohibition in Article of exclusion from citizenship by reason of sex should be extended to other grounds for exclusion Citizenship is an essential feature and a defining element of a state. Hence it is not surprising that states usually guard jealously their right to confer or withhold citizenship according to national interests and concerns. Thus, prohibition of discrimination in granting citizenship on some grounds might not be appropriate, although discrimination on the same grounds in the general human rights field would be unacceptable. Accordingly the Review Group hesitates to recommend an extension of the prohibition which might unjustifiably restrict the freedom of the Oireachtas to be selective in its legislation on the conferring of Irish citizenship. Recommendation No change is proposed.

15 8 whether any amendment of Article 9.1 is required in the light of the Maastricht Treaty provisions on EU citizenship Article 8 of the EU Treaty (as inserted by the Maastricht Treaty) establishes citizenship of the EU and confers that citizenship on every national of a member state. The following Articles 8a to 8d (similarly inserted by the Maastricht Treaty) set out the rights of citizens, including freedom of movement and residence in any member state; the right to vote and be a candidate in the European Parliament and certain national elections in any member state; the right to avail oneself of the authorities of another member state for diplomatic or consular protection in a third country in which one s own state is not represented; the right to petition the European Parliament and to apply to the EU Ombudsman. The EU Treaty provision leaves it to national laws of the member states to determine their respective citizenships and does not seek to confer Irish citizenship on any persons. Ireland, unlike some other member states, does not differentiate between categories of its citizens for purposes associated with EU citizenship. The Review Group considers that amendment of the section in the light of the EU provisions is not required. Recommendation No change is proposed.

16 Article X Natural Resources Article All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body All land and all mines, minerals and waters which belonged to Saorstát Éireann immediately before the coming into operation of this Constitution belong to the State to the same extent as they then belonged to Saorstát Éireann Provision may be made by law for the management of the property which belongs to the State by virtue of this Article and for the control of the alienation, whether temporary or permanent, of that property Provision may also be made by law for the management of land, mines, minerals and waters acquired by the State after the coming into operation of this Constitution and for the control of the alienation, whether temporary or permanent, of the land, mines, minerals and waters so acquired Introduction The Review Group considered Article 10 which vests in the State all natural resources, royalties etc situate within its jurisdiction (section 1), and all land, mines, waters etc previously owned by Saorstát Éireann (section 2), subject, in each case, to other ownership rights in them. It further enables legislation providing for the management and alienation of these assets (section 3) and of other assets acquired subsequently by the State (section 4). Issues 1 placement of the Article The Review Group considers that aspects of the Article, particularly section 2, might well have been placed originally in the Transitory Provisions. Nevertheless, it concludes that this consideration is not of such significance as to justify a proposal for change of placement. 2 continental shelf resources The Review Group notes that developments in international law allow Ireland to exercise jurisdiction in respect of the natural resources of the continental shelf (outside territorial waters). It considered in this context whether section 1, which covers only natural resources within the jurisdiction as established by the Constitution, should be amended to include the natural resources of the shelf. The Review Group noted the conclusion of the Attorney General s Committee on the Constitution (1968) that there were no significant limitations, other than those imposed by international law, on the power of the State to enact legislation having extra-territorial effect, including legislation covering the natural resources of the continental shelf. The Review Group agrees that no amendment of the Article in that respect is required. Moreover, these resources appear to come within section 4, which envisaged legislation providing for management etc of subsequently acquired resources. Recommendation No change is proposed.

17 Article XI Revenues of the State Central Fund Article 11 All revenues of the State from whatever source arising shall, subject to such exception as may be provided by law, form one fund, and shall be appropriated for the purposes and in the manner and subject to the charges and liabilities determined and imposed by law. This Article provides for a central fund into which all State revenues, other than those specifically excepted by law, must be paid. This provision is essential to the proper control and management of the public finances and is linked with Dáil supervision of the receipts and expenditure of the State under Article 17 and the control and audit functions of the Comptroller and Auditor General under Article 33. Recommendation No change is proposed.

18 Article XII XIV The President The President Article There shall be a President of Ireland (Uachtarán na héireann), hereinafter called the President, who shall take precedence over all other persons in the State and who shall exercise and perform the powers and functions conferred on the President by this Constitution and by law The President shall be elected by direct vote of the people Every citizen who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at an election for President The voting shall be by secret ballot and on the system of proportional representation by means of the single transferable vote The President shall hold office for seven years from the date upon which he enters upon his office, unless before the expiration of that period he dies, or resigns, or is removed from office, or becomes permanently incapacitated, such incapacity being established to the satisfaction of the Supreme Court consisting of not less than five judges A person who holds, or who has held, office as President, shall be eligible for re-election to that office, but only once An election for the office of President shall be held not later than, and not earlier than the sixtieth day before, the date of the expiration of the term of office of every President, but in the event of the removal from office of the President or of his death, resignation, or permanent incapacity established as aforesaid (whether occurring before or after he enters upon his office), an election for the office of President shall be held within sixty days after such event Introduction Broadly speaking, democratic governments are of two kinds presidential and cabinet. In a presidential government the President is both Head of State and Head of Government, that is, chief executive of the State. In a cabinet government the President, or a constitutional monarch, is Head of State and a Prime Minister, at the head of a group of ministers called the cabinet, is Head of Government. In the Constitution, Ireland has chosen for itself the cabinet kind of government. The cabinet, led by the Taoiseach, exercises the executive power of the State, in accordance with the Constitution, and is accountable to the people through the people s representatives in the Dáil. The President has no executive powers apart from some discretionary ones that make the President the guardian of the Constitution. The President carries out the functions the Government wish him or her to perform on behalf of the State. The Constitution obliges the Taoiseach to keep the President generally informed on domestic and international policy. The President signs and promulgates legislation, accredits Irish diplomatic representatives abroad and receives foreign ambassadors to Ireland, represents Ireland on State visits abroad, and acts in manifold other ways to strengthen the cultural and social ties binding the people of Ireland to one another and the people of Ireland to other peoples throughout the world. On the ten occasions for which there has been an election to the presidency, it has not been necessary to proceed to a ballot on five occasions because only one candidate was nominated. The President, freed from executive functions and the divisiveness which political activity would necessarily entail serves as a personification of the State. From the President the people seek a reflection of their highest values and aspirations. In return, the President takes precedence over all other persons in the State and is honoured in a style concordant with the republican character of the State and the social genius of its citizens. The Review Group noted two features of the office of President which are important in defining its nature. The first is that, in being elected by direct vote of the people, in taking precedence over other persons and, in effect, discharging the functions of a Head of State, the President, in performing official duties, does not and cannot represent any particular group or interest but must represent all the people. The second is that, in providing that the President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of the office, the Constitution underlines the non-political, non-partisan nature of the office.

19 Article XII XIV The President Every citizen who has reached his thirty-fifth year of age is eligible for election to the office of President Every candidate for election, not a former or retiring President, must be nominated either by: i. not less than twenty persons, each of whom is at the time a member of one of the Houses of the Oireachtas, or ii. by the Councils of not less than four administrative Counties (including County Boroughs) as defined by law No person and no such Council shall be entitled to subscribe to the nomination of more than one candidate in respect of the same election Former or retiring Presidents may become candidates on their own nomination Where only one candidate is nominated for the office of President it shall not be necessary to proceed to a ballot for his election Subject to the provisions of this Article, elections for the office of President shall be regulated by law The President shall not be a member of either House of the Oireachtas If a member of either House of the Oireachtas be elected President, he shall be deemed to have vacated his seat in that House The President shall not hold any other office or position of emolument The first President shall enter upon his office as soon as may be after his election, and every subsequent President shall enter upon his office on the day following the expiration of the term of office of his predecessor or as soon as may be thereafter or, in the event of his predecessor s removal from office, death, resignation, or permanent incapacity established as provided by section 3 hereof, The functions of the President The President appoints the Taoiseach on the nomination of Dáil Éireann and the other members of the Government on the nomination of the Taoiseach with the previous approval of Dáil Éireann. The President s other functions are of two kinds those the President performs at the instance or with the approval of the Government and those rarer ones which the President performs at his or her own discretion. Article 13.9 makes it clear that the powers and functions conferred on the President by the Constitution are to be exercised and performed, in nearly all instances, on the advice of the Government. Article allows legislation that confers additional powers and functions on the President it is under this Article that the President has been given functions in foreign affairs but Article provides that any such additional powers and functions can be exercised and performed only on the advice of the Government. Apart from the appointment of the Taoiseach and the other members of the Government, the President performs the following functions in relation to the appointment of constitutional officers: 1 the President appoints the Attorney General on the nomination of the Taoiseach (Article 30.2) 2 the President in his or her absolute discretion may appoint up to seven people to serve on the Council of State (Article 31.3) 3 the President appoints the Comptroller and Auditor General on the nomination of Dáil Éireann (Article 33.2) 4 the President appoints the judges of the Supreme Court, the High Court and all other courts established pursuant to Article 34 (Article 35.1). (The President makes various other appointments in accordance with statutory provisions.) The President performs the following functions in relation to the Oireachtas: 1 The President on the nomination of Dáil Éireann appoints the Taoiseach ( ) 2 The President on the nomination of the Taoiseach with the previous approval of Dáil Éireann appoints the other members of Government (Article ) 3 the President on the advice of the Taoiseach accepts the resignation or terminates the appointment of any member of the Government (Article ) 4 the President summons and dissolves Dáil Éireann on the advice of the Taoiseach (Article ) but may in his or her absolute discretion refuse a dissolution if the Taoiseach ceases to retain a majority in Dáil Éireann (Article )

20 Article XII XIV The President as soon as may be after the election The President shall enter upon his office by taking and subscribing publicly, in the presence of members of both Houses of the Oireachtas, of Judges of the Supreme Court and of the High Court, and other public personages, the following declaration:- In the presence of Almighty God I, do solemnly and sincerely promise and declare that I will maintain the Constitution of Ireland and uphold its laws, that I will fulfil my duties faithfully and conscientiously in accordance with the Constitution and the law, and that I will dedicate my abilities to the service and welfare of the people of Ireland. May God direct and sustain me The President shall not leave the State during his term of office save with the consent of the Government The President may be impeached for stated misbehaviour The charge shall be preferred by either of the Houses of the Oireachtas, subject to and in accordance with the provisions of this section A proposal to either House of the Oireachtas to prefer a charge against the President under this section shall not be entertained unless upon a notice of motion in writing signed by not less than thirty members of that House No such proposal shall be adopted by either of the Houses of the Oireachtas save upon a resolution of that House supported by not less than two-thirds of the total membership thereof When a charge has been preferred by either House of the Oireachtas, the other House shall investigate the charge, or cause the charge to be investigated. 5 the President may at any time, after consultation with the Council of State, convene a meeting of either or both of the Houses of the Oireachtas (Article ) 6 the President may, after consultation with the Council of State, communicate with the Houses of the Oireachtas by message or address on any matter of national or public importance (Article ) and address a message to the nation at any time on any such matter (Article ) provided the Government approves (Article ). The President performs the following functions in relation to legislation: 1 every Bill passed or deemed to have been passed by both Houses of the Oireachtas requires the signature of the President for its enactment into law (Article ), but the President, after consultation with the Council of State, may refer any Bill (other than a Money Bill, a Bill to amend the Constitution, or, under Article 24, a Bill to preserve public peace and security or deal with a public emergency) to the Supreme Court for a decision as to whether the Bill is, or parts of it are, repugnant to the Constitution, and sign it into law only if it is declared not to be so repugnant (Article 26); the President, after consultation with the Council of State, may accede to a request from the Seanad to appoint a Committee of Privileges to determine whether a particular Bill is or is not a Money Bill (Article ); moreover, where a majority of the members of the Seanad and not less than a third of the members of the Dáil petition the President to decline to sign a Bill because it contains a proposal of such national importance that the will of the people thereon ought to be ascertained, the President, also after consultation with the Council of State, may decline to sign the Bill until it has been approved either by the people in a referendum or by a resolution of the Dáil following a dissolution and re-assembly (Article 27) 2 the President promulgates every law made by the Oireachtas (Article ). Promulgation the public proclamation of a law is an essential characteristic of law and is formally achieved by publication of a notice in Iris Oifigiúil, the official gazette. The President has the following functions in relation to defence: 1 the supreme command of the Defence Forces is vested in the President (Article 13.4), but its exercise is regulated by law (Article ) 2 all commissioned officers of the Defence Forces hold their commissions from the President (Article ).

21 Article XII XIV The President The President shall have the right to appear and to be represented at the investigation of the charge If, as a result of the investigation, a resolution be passed supported by not less than two-thirds of the total membership of the House of the Oireachtas by which the charge was investigated, or caused to be investigated, declaring that the charge preferred against the President has been sustained and that the misbehaviour, the subject of the charge, was such as to render him unfit to continue in office, such resolution shall operate to remove the President from his office The President shall have an official residence in or near the City of Dublin The President shall receive such emoluments and allowances as may be determined by law The emoluments and allowances of the President shall not be diminished during his term of office. Article 13 The President The President shall, on the nomination of Dáil Éireann, appoint the Taoiseach, that is, the head of the Government or Prime Minister The President shall, on the nomination of the Taoiseach with the previous approval of Dáil Éireann, appoint the other members of the Government The President shall, on the advice of the Taoiseach, accept the resignation or terminate the appointment of any member of the Government. The President has the following function in relation to criminal punishment: the right to pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are vested in the President (though not necessarily exclusively so) (Article 13.6). The Review Group discussed two of the President s discretionary powers: that relating to the dissolution of the Dáil is discussed below and that relating to referral of Bills to the Supreme Court is discussed separately in chapter 4 section entitled Constitutionality of Bills and Laws. Issues 1 whether the office of President should exist The Committee on the Constitution (1967) was divided on the question. Those who would abolish it argued that the powers of the President were those of a figure-head, that the President s formal duties as Head of State could be performed by the Taoiseach, and that abolition would create savings. Those who wished to retain the office argued that the Taoiseach could not realistically perform the President s function of guardian of the Constitution, in particular that of assisting in ensuring that legislation repugnant to the Constitution does not become law, that the duties of the two offices would impose a severe burden on any single individual, and that the performance of the formal duties of Head of State necessarily involved costs, so that abolition would result in little or no savings. The Review Group considers there is no public demand or good reason for abolition of the office. A State requires a Head of State; the President s function as guardian of the Constitution requires that the office be separate from the executive. The Review Group notes that the Constitution does not describe the President as Head of State. The need for this reticence disappeared with the coming into force of the Republic of Ireland Act 1948 and the removal from the British monarch of all functions in relation to external affairs and their assignment to the President. The Review Group considers that Article 12.1, therefore, should be amended to describe the President as Head of State. Recommendation Amend Article 12.1 to describe the President as Head of State.

22 Article XII XIV The President Dáil Éireann shall be summoned and dissolved by the President on the advice of the Taoiseach The President may in his absolute discretion refuse to dissolve Dáil Éireann on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil Éireann The President may at any time, after consultation with the Council of State, convene a meeting of either or both of the Houses of the Oireachtas Every Bill passed or deemed to have been passed by both Houses of the Oireachtas shall require the signature of the President for its enactment into law The President shall promulgate every law made by the Oireachtas The supreme command of the Defence Forces is hereby vested in the President The exercise of the supreme command of the Defence Forces shall be regulated by law All commissioned officers of the Defence Forces shall hold their commissions from the President The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities. 2 whether there should be direct elections for the Presidency Ireland is rare in electing its Head of State directly. Direct election gives the President two unique features: he or she is the only constitutional officer directly elected to an office and no other officer is elected by a majority of the national electorate. The mandate the President receives from the electorate is to carry out the constitutional duties of the presidency. These cannot be altered or added to via the election campaign. The invocation by a President of a presumed mandate for a particular policy, for example one concerning the interests of a particular grouping in the community (which could not under the Constitution be questioned in Parliament or in the courts), could create tensions between the President, Parliament and Government. Indirect election of the President, by a majority in Parliament or a special electoral college, would obviate this danger. Thus in Australia, the proposed office of President is likely to be filled by a qualified majority of Parliament. The 1967 Committee was divided on the issue. The Review Group notes that there is no public demand for change and that it may be inferred that the people wish to retain their right to vote directly for a President. The Review Group notes, too, that, if the President continues to be directly elected, the text of Article would need to be amended. It describes the method of election as proportional representation by means of the single transferable vote. The term proportional representation denotes the filling of a number of seats by different parties in proportion to the votes they receive. It cannot refer to the filling of a single seat. See the Review Group s discussion of the electoral system in chapter 4 section entitled Elections to Dáil Éireann. Recommendation Delete the words and on the system of proportional representation from Article whether the procedure for nominating a presidential candidate is too restrictive Recommendation The Review Group considers that the constitutional requirements for nominating a presidential candidate are too restrictive and in need of democratisation. In some countries a popular element is secured by providing that a certain number of registered voters may conjoin to nominate a candidate. The Review Group feels that validation of such nominators would be difficult. However, some alternative mechanism, based on a specified number of voters, ought to be explored. Another method that might loosen the nomination procedure would be to reduce the number of members of either House required for nomination.

23 Article XII XIV The President The President may, after consultation with the Council of State, communicate with the Houses of the Oireachtas by message or address on any matter of national or public importance The President may, after consultation with the Council of State, address a message to the Nation at any time on any such matter Every such message or address must, however, have received the approval of the Government The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions The behaviour of the President may, however, be brought under review in either of the Houses of the Oireachtas for the purposes of section 10 of Article 12 of this Constitution, or by any court, tribunal or body appointed or designated by either of the Houses of the Oireachtas for the investigation of a charge under section 10 of the said Article The powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Government, save where it is provided by this Constitution that he shall act in his absolute discretion or after consultation with or in relation to the Council of State, or on the advice or nomination of, or on receipt of any other communication from, any other person or body. 4 whether the powers of the President should be expanded A total re-structuring of our governmental structure so that it becomes a presidential rather than a cabinet kind would result in a major expansion of the President s powers. The Review Group notes that there is no demand for such a radical change. It is sometimes suggested that the discretionary powers of the President should be expanded to embrace certain executive functions such as the selection of judges (at present the President has no choice but to appoint those candidates proposed by the Government) or the appointment of the chairman and members of the Constituency Commission. Conclusion The Review Group considers that to extend the powers of the President to allow him or her to act in the area of the executive would have two serious effects: i) it would involve the President in party politics. Thus if the President had the power to select judges, the appointment of judges could become a contentious political issue in presidential elections ii) it would reduce accountability. Whereas the Government are accountable to the Houses of the Oireachtas and the courts, the President is not so answerable. The Review Group considers that the executive functions of government should be carried out by or on the authority of the Government, the democratically elected body whose actions are subject to continuous, public review. In relation to the appointment of members of the Constituency Commission, the Review Group notes that this is in course of being determined by law and that therefore there is no need to recommend change. Indeed it feels that ordinary legislation should be capable of providing such transparency as is required in any area in which the executive operates. 5 the minimum age of eligibility for election to the office of President Countries that set an age limit for their President differ on the age specified. Some set thirty-five years, as we do, others set forty. Italy requires its President to be over fifty. It was observed that no upper age limit is prescribed. On the question of the minimum age limit, opinion in the Review Group is divided. Some members see no sufficient reason to differentiate in this respect between eligibility for Dáil membership (and consequently for ministerial office) and for the presidency, and were prepared to rely on the judgment of the electorate to make a proper choice between candidates. Other members consider that the presidency calls for special qualities which are more likely to accrue and mature over a longer span of