President Higgins, for all of his life, has been a man of the left. Although his views on international affairs have not always aligned with his personally expressed support for civil liberties, he has, nonetheless, always taken the side of personal freedom in political discussions in Ireland. His biography on the official website of the President describes him as “academic and statesman, human rights advocate, promoter of inclusive citizenship”.
In other words, if that biography is correct, nobody is more qualified than he for the present moment.
The Government is presently proposing to pass through the Oireachtas legislation that would make a joke of the idea of “inclusive citizenship”, on the basis that it would overtly exclude a whole class of people – those who cannot prove their covid immunity – from bars, restaurants, and other settings. They are doing so despite an explicit previous promise that they would not countenance such a thing.
Article 40.1 of the Irish Constitution reads:
1 All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
It is certainly arguable – and to my non-lawyerly eyes convincing – that the present proposal does not hold Irish people equal before the law, and certainly, that it is an enactment that has due regard for differences of capacity.
The constitution gives the President very few powers. He cannot flatly refuse to sign a law. In fact, he is empowered to do basically nothing without the consent of the Oireachtas, except for one thing: He can convene the council of state, and, before signing a law, refer it to the Supreme Court for them to determine whether the law is constitutional.
This is not something that can, or should, be done lightly. For one thing, if a law is held to be constitutional by the Supreme Court, having been referred by the President, it can never be challenged in court as unconstitutional again. If, at the end of that process, it is found to be constitutional, then that is where the process ends.
For another thing, the office of the President has traditionally been deferential to elected Governments. This is as it should be. These, however, are exceptional circumstances.
In ordinary times, a law not referred by the President for constitutional scrutiny could immediately be challenged by other citizens. The problem, in this case, is that precedent shows that this process simply does not work for Covid laws. Last year, Declan Ganley took a high court case alleging that the ban on public masses was unconstitutional. The courts still have not arrived at a verdict, and, in fact, are now openly hearing arguments on whether the case is moot since the law in question no longer applies.
In other words, the prospects for citizens to legally seek to vindicate their constitutional rights, in this case, are limited to non-existent.
Further, this is not, unlike previous Covid laws, a unanimously supported measure. At the time of writing, it faces opposition from at almost half of the Dáil. It is a politically controversial, as well as legally dubious, proposal. It directly impacts upon the civil rights of a large swathe of Irish citizens. No Irish Government has ever done, or tried to do, anything like it. It is in the public interest that we are all clear on the question as to whether they are actually empowered to do it in the first place.
This is why the office of the Presidency exists, and this is why it has this power. If Higgins does not choose to exercise it here, then we might as well abolish the office altogether.