Being president of Ireland is an unusual job. Candidates need to be political animals – it would be rather difficult to be elected to the office otherwise – but, once elected, they are expected to remain aloof from party politics. President Michael D Higgins notably resigned his 43-year membership of the Labour Party upon his election in 2011.
Nonetheless, there are occasions where this combination of political experience and political neutrality is just what the situation demands. The current impasse over the formation of the next government is just one such situation.
The president has a relatively modest range of functions and, of these, the majority are to be performed "on the advice of the government". However, there are two functions in which the president has absolute discretion: the power to refer laws to the Supreme Court to test their constitutionality, and the discretion to refuse to dissolve the Dáil where the taoiseach has ceased to retain the support of a majority.
Referring Bills to the Supreme Court is a primarily legal matter – Mr Higgins has twice convened the Council of State to consider whether he should make such a reference, but he has yet to actually refer a Bill.
By contrast, the president’s discretion to refuse to dissolve the Dáil requires the president to read the political tea leaves. There is no point in refusing a dissolution unless there is a realistic prospect of an alternative government being formed. Thus, the president needs to exercise political judgment; but he also needs to avoid being seen to favour any particular party.
Deadlocked
No president has yet exercised this discretion. Because there is no clear precedent, there can be some confusion in the public mind as to what exactly the role of the president is in situations where the Dáil is deadlocked on the nomination of a taoiseach.
The leading textbook on Irish constitutional law observes that the notion that the president can “send for” a deputy and ask him or her to form a government “appears to have infiltrated the political and journalistic subconscious, having been suggested by observation of British practice”.
However, under the Constitution, the president’s role is passive rather than active. The president has discretion to refuse to grant a dissolution when requested; but beyond that, there is no role for the president to reach out to political leaders, mediate in negotiations, or cajole them into agreement.
In 1967, the report of the committee on the Constitution considered the possibility of amending the Constitution to give the president the discretion to designate the member of the Dáil whom he considered most likely to secure the confidence of the House and appoint ministers on his nomination, with these appointments remaining effective until there is a vote of no confidence in the Dáil.
Changing nature
The committee cautioned, however, that such a reform “might be seen as involving the president directly in party politics and thus changing the nature of his office entirely”.
In a 1989 article in the Irish Jurist, Gerard Hogan (now a judge in the Court of Appeal) argued that "public and political consensus is now in favour of an 'active' presidency", and that this was an argument in favour of adopting the suggestion of the 1967 committee.
However, these recommendations have never been implemented. Some (perhaps many) people might like to see the President get more involved in salvaging a government from the wreckage of an inconclusive election but, as things stand, the Constitution does not envisage such a role.
The late Dr Garret Fitzgerald revealed in his memoir that following the 1987 general election, he had spoken to president Patrick Hillery in advance of the vote on nominations for taoiseach. Mr Hillery apparently indicated that if the Dáil was deadlocked, he would refuse a request for dissolution in the hope that the mounting pressure would force a resolution. In the event, no deadlock arose as Charles Haughey was elected taoiseach.
As against this, Mr Hillery granted dissolutions on two occasions (1982 and 1989) when a refusal to do so might have avoided an election. Therefore, the 1987 episode, and the discussions between taoiseach and president in particular, must be seen as something of an outlier.
In summary, Mr Higgins has no constitutional role in the efforts to form a government; at most, he might suggest to the parties that they try a little harder by refusing a dissolution.
Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork