Does the Irish Constitution Forbid a Vocal Presidency?

Abstract

Constitutional and political orthodoxy holds that the President of Ireland should be ‘above politics’ and must refrain from engaging in commentary that is partisan or against Government policy. We call this the constitutional ‘convention of silence’. Using the Jennings test for conventions, we argue that this convention is not mandated by the Irish Constitution and that political commentary by the President is constitutionally permissible. First, ‘precedent’ and ‘belief’ in the convention among relevant actors are no longer present. Second, the stated ‘reason’ for the convention – ensuring constitutional harmony – is undermined by the fact that the President and Government are constitutionally distinct. Third, it is further undermined by the President’s direct election, which gives the officeholder legitimacy in speaking on matters about which there is political disagreement. We conclude by offering potential advantages that a more openly political Presidency may bring to the Irish constitutional system.

Keywords: Irish Constitution, Irish President, Constitutional law