THE first provisional Report of the Constitution Review Group raises some important issues which it is intended should be discussed by an all party Committee of the Oireachtas, soon to be established. While this first report covers a quite wide range of issues, the more controversial areas appear to me to be those relating to the President and the Dail.
Three issues relating to the Presidency particularly merit consideration: the process of nominating candidates for this office and two other inter related matters, viz the President's role in relation to the dissolution of the Dail and the possibility of the President having a function in relation to the process of identifying a potential Taoiseach in a post election deadlock situation - such as was threatened in 1987 and actually arose in 1989.
The Review Group feels that the existing procedure for nominating candidates for the Presidency - which requires 20 members of the Oireachtas or four county councils - is "too restrictive and in need of democratisation" and does not "involve a popular element" because in practice this system confines nominations to the larger political parties, or perhaps to a combination of several smaller parties.
On this issue the Review Group's Report - which in relation to other matters is generally both comprehensive and clear - appears to me to be both inadequate and somewhat obscure.
On the one hand it is unhappy with an arrangement under which "a certain number of registered voters may conjoin to nominate a candidate . . . would be difficult" because "validation of such nominators would be difficult".
But it then goes on to propose that "some alternative mechanism, based on a specified number of voters, ought to be explored". For this reader at least the apparent distinction between a system involving "a certain number of registered voters" and an alternative involving "a specified number of voters" is too subtle.
An alternative suggestion made would involve a simple reduction in the number of members of the Oireachtas required for a nomination. This at least has the merit of clarity, but would not, of course, democratise the system or introduce a popular element. In its final report on these issues the Review Group might usefully, clarify what it has in mind in relation to this matter.
ON the issue of the President's discretion to refuse a dissolution of the Dail to a Taoiseach who "has to retain a majority in Dail Eireann", the Review Group is concerned about a possible politicisation of the Presidency on the grounds that the vagueness of this concept leaves the occupant of that office open to possible criticism over the manner in which he or she interprets the loss of a Dail majority.
In order for the presidential discretion to come into play the Review Group asks itself: should it be necessary for a Government actually to have been defeated in a Dail vote - or would an announcement of a withdrawal of support by a crucial number of deputies be sufficient?
And what would be the implications of a Taoiseach seeking to pre empt an anticipated loss of majority by dashing to Aras an Uachtarain to seek a dissolution in advance of it actually happening?
These are all potential problems, but they must arise in other parliamentary regimes where the head of state has an equivalent role. Either some kind of solution has been found for them elsewhere, or in other countries there must be less sensitivity to the possibility of a head of state being "politicised" by having occasionally to exercise this kind of discretion. It is not clear why the Review Group sees us as having a special problem.
The report dismisses various possible alternative solutions to the problem and then - because of concern about what could only be a very rare event apparently feels obliged to propose as a solution either a radical move to fixed term parliaments, which seems to me to be an over reaction to the problem, or else the introduction of an unexplained device known as a "constructive vote of no confidence", to which, apparently, it intends to return when it comes to deal with Article 28 on the Government.
It is perhaps worth noting that no discretionary power in relation to a dissolution existed under the 1922 Constitution which, although it was required to be monarchical in form, was in fact carefully designed by the drafting committee under Michael Collins's chairmanship to exclude the king from the kind of role he played in the domestic affairs of all other Commonwealth countries.
Under that Constitution if a government lost its majority in the Dail it thereby also lost its power to dissolve the Dail and had to resign forthwith. This in fact happened in April 1930, but the defeated Head of Government, W.T. Cosgrave, was at once re elected to that position, and reappointed all his former ministers to their old portfolios, subject only to the transfer of the Department of Lands from the Fisheries to the Agriculture Minister.
In 1937 the formal substitution of a President for the king in domestic affairs paradoxically made it politically possible to import from the British - unwritten - Constitution a discretionary role for the new President in relation to a request for a dissolution by a Taoiseach who had lost a Dail majority.
But since until December 1992 no government defeat occurred under circumstances where a majority for an alternative Government could be found within the existing Dail, the issue of a discretionary refusal of a dissolution remained a theoretical one.
And even when this situation eventually arose the President was spared the task of exercising her discretion because of Albert Reynolds's statesmanlike decision to resign so as to allow an alternative Government to be formed, rather than seek a dissolution.
Further comment on this matter must, however, be deferred pending development by the Commission of its proposal for a "constructive vote of no confidence".
THERE remains the question of whether the President should have some role in the nomination of a Taoiseach. For a parliamentary democracy our Constitution is, I think, unusual in excluding the Head of State from such a role, and in leaving the matter exclusively to the elected chamber - with the enhanced danger of deadlock following an election that has accompanied the recent proliferation of parties in the Dail.
Again there is a historical reason for this - the determination of the authors of the 1922 Constitution to exclude the king from our domestic affairs.
And in 1937 de Valera, conscious no doubt of the fact that internationally the king, rather than the newly invented President, would continue to be recognised as head of the Irish State, may have been reluctant to raise a controversial issue by bringing the internationally unrecognised President into the process of selecting the head of government.
The Constitution Review Group recognises - and proposes - that we correct the resultant anomaly of the absence of constitutional recognition of the President as Head of State.
But, once again, its concern about embroiling the President in politics leads it to pull back from recommending that the holder of this office be accorded the kind of role in relation to the identification of a new head of government that many other heads of state customarily play in parliamentary systems. Instead, they return to their earlier proposal for the introduction of a "constructive vote of no confidence".
It seems a little paradoxical that, if this Review Group's recommendations on the Presidency are accepted, we may find ourselves perpetuating at the very end of the 20th century an exiguous role for our head of state in relation to parliament that owed its origin solely to the historical accident of the purely symbolic role temporarily played by the British monarch in the very early stages of our State's history.