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Presidential Elections Unconstitutional
 national |
politics / elections |
opinion/analysis
 Wednesday March 30, 2005 18:31 by John Fitzgibbon - Various johnfitz at connect dot ie Dublin 01 2853387
Keep it Quiet! They don't want to know
Attempts to raise the constitutionality of Presidential elections in 1997 and recently via the papers and radio shows were completely ignored. The 1997 letter herewith outlines the thinking. A further aspect raised its head in the recent election, i.e. the denial by politicians of citizens right to stand for election and the coungy's right to elect their president. Letter sent to: Sunday Business Post, Irish Times, Sunday Tribune, Irish Catholic, Sunday Independent, Irish Independent, Pat Kenny Show, Liveline, etc on 22/10/97
Editor,
The presidential election process is unconstitutional!
I want to challenge its constitutionality but haven't money or free legal aid!
Only Dana and Derek Nally used the constitutional options correctly. The others were preselected by parties & are seen to represent those parties.
Party supported candidates have a grossly unfair advantage over other candidates.
The Parties are putting forward 3 candidates of their choice. Generally, the odds against anyone else being elected without party support are very high. This has likely ruled out excellent potential candidates.
The peoples choice has been, and is being, subordinated to the parties' choices. (only 3 to 4% of adults are in a party)
A candidate needs only 20 TDs/senators or 4 Councils for nomination. There could be up to 10 nominated by TDs and senators each nominating 1, and another 6 or 8 nominated by councils. Abuse of the procedures until now doesn’t make it right.
Why do parties unconstitutionally, undemocratically, control the choice of president?. Has the Attorney General not a role in this?.
Why didn’t Albert go for 20 TDs when he was challenging his party’s joint sponsorship of John Hume or, later, if he was to be the people’s president?. Why didn’t others?? e.g. the other FF & FG hopefulls
The ridiculous controversy, damning Mary McAleese by association, shows that parties will stoop to anything to have THEIR OWN candidate elected.
The parties (particularly the PDs, Democratic Left, Fine Gael) vilified and harangued John Hume for talking with Jerry Adams to bring about the first peace process. That they would have agreed him as a cross-party choice for president, except for Albert’s pique, implicitly shows their cynical opportunism.
Politicians may have, in their own interest, damaged Mary McAleese’s chances of being a healer of divisions should she be elected. They quickly put the president in his/her box if (s)he puts a foot wrong but, they have commandeered the choice of president from the citizens.
In the current referendum the Govt must give equal weight & financial resources to both arguments as a result of the McKenna judgement in the Divorce referendum process.
In a Presidential election each candidate must, likewise, have a fair and equitable (based on their perceived merits only) chance of election. The parties have ruled that out
What of Govt parties nominating/ supporting/endorsing a candidate. Can Govt, or members of Govt, legally(constitutionally) add their weight to a particular candidate, attend rallies in favour of one candidate? & use state cars etc to attend them.
M Bannotti made a boob questioning the appropriateness of Northerners being candidates and was silenced while J Bruton took up the Adams connection (implicitly it seems, on her behalf) to damage the stronger runner.
Why doesn’t M Bannotti disassociate herself from FG & the ugly campaign being waged by John Bruton against M McAleese using the leaked documents &, probably, exacerbating the harm done by that leak?. D Nally distanced himself when he discovered he was being duped seemingly by the same sources as FG were using to blacken Mc Aleese.
If the Marys & Adi are interested in a democratic election & a fair deal for candidates and electors, why are they prepared to use the grossly unfair advantage of party support. That support virtually eliminates the potential of other runners to get elected &, unconstitutionally, fills a NON-PARTY political office with a PARTY candidate.
If the parties stayed out of the race it could be a democratic election and the person chosen would, more likely, be the peoples choice.
John Fitzgibbon
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Comments (9 of 9)
Jump To Comment: 9 8 7 6 5 4 3 2 1JOHN WROTE: "Parties, (given no role by the constitution) nominated candidates and supported them by publicity, canvassing, finance etc giving them unfair advantage over other candidates. They were not then treated equally with the non-party candidates in the election contest."
THIS IS CONSTITUTIONAL: Groups of TDs and Senators are entitled to come together and discuss their nominations and decide to or not nominate a particular person. The fact is that this is their constitutional right.
Citizens are entitled to support the election campaign of a candidate and finance that if they wish. TDs, Senators, Ministers, etc, have the same rights in this regard as any other citizen.
They were 'not treated equally' with non-party candidates because the non-party candidates were unable to build up support the same as the main candidates.
JOHN SAYS: "However, they also decided to stop nominators who were party members from nominating any of the eligible candidates."
THIS IS CONSTITUTIONAL: Parties did not stop them. Council members decided in their own free will not to nominate any candidates. They maintained the right to nominate someone. This was not taken from them. They decided not to exercise their right.
JOHN SAYS: "The people were denied their right to elect the President by the decision of the party hierarchies"
THIS IS CONSTITUTIONAL. The Parties did not nominate anyone. But it is in accordance with the Constitution. If there is only one nominated candidate the candidate is elected unopposed.
JOHN SAYS: "The fact that the parties have abused the constitution since it was adopted doesn’t make that abuse, though it has become normal, correct."
I SAY: The provisions for the Presidential election were designed to limit nominations. There are many dodgy undemocratic provisions in the Constitution. For example, the existence of a President, the existance of a Council of State, the existance of the Seanad, the unaccountable Judiciary, etc., etc. I have no illusions that the Constitution is democratic... it clearly is not!
JOHN SAYS:"I am ending my contributions on this topic for the moment as I have a few more “idiotic” ones to tackle"
I SAY: I won the argument. You should read the constitution before you start contacting the media about non-existant breaches of the constitution. They didn't cover you because it made no sense. McKenna Judgement was about the use of State funds. This is not the same as the support that citizens can give in their personal capacity.
Student asks: please clarify how the 1997 referendum was unconstitutional!
Simple. Parties, (given no role by the constitution) nominated candidates and supported them by publicity, canvassing, finance etc giving them unfair advantage over other candidates. They were not then treated equally with the non-party candidates in the election contest.
The recent election was unconstitutional because-
5 or 6 elegible candidates wanted to stand. The parties decided not to stand candidates (and rightly so, it’s not their function). However, they also decided to stop nominators who were party members from nominating any of the eligible candidates.
This violated 2 articles-
12. 4. 1° that says Every citizen who has reached his thirty-fifth year of age is eligible for election to the office of President. This denied eligible candidates their right to stand and
Article 12. 2. 1° that says The President shall be elected by direct vote of the people but-
The people were denied their right to elect the President by the decision of the party hierarchies
For millions of years the world was flat and everybody knew it. It was the powers that were that hounded the idiot (as you described me in your first posting) that contested that “fact”.
The fact that the parties have abused the constitution since it was adopted doesn’t make that abuse, though it has become normal, correct.
It’s worth remembering that the high court found agains McKenna twice before the Supreme Court ruled 4-1 in her favour. Even legal eagles can err, not to mind their fledgelings
Thanks for your tenacity in this matter. It has helped to clarify my thinking and, hopefully, yours. I am ending my contributions on this topic for the moment as I have a few more “idiotic” ones to tackle
Slan is beannacht, John
"Article 12
2. 1° The President shall be elected by direct vote of the people.
4. 1° Every citizen who has reached his thirty-fifth year of age is eligible for election to the office of President.
2° 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.
3° 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.
4° Former or retiring Presidents may become candidates on their own nomination"
THIS WAS NOT VIOLATED. The nomination process was totally constitutional. Tell me where it was broken in 1997.
"Article 40
1. All citizens shall, as human persons, be held equal before the law."
THIS WAS NOT VIOLATED. Every citizen over 35 was able to be nominated if they were nominated in accordance with the law and the constitution.
JOHN WROTE "1. suitable candidates are not prevented from standing by decision of the parties as in the recent election..."
They were prevented from standing because they were not nominated properly. The Constitution says that 20 Oireachtas members or 4 Councils have to nominated someone. Nobody got this fair and square.
JOHN WROTE "2 the candidates are not given grossly unfair advantage throught party or other unfair support. "
How is party support unfair? How do you work that out? All citizens are entitled to be members of parties! All citizens are entitled to support or not support a candidate. How is a group of people working together to further their views unconstitutional?
YOU ARE RIGHT to say that state resources must be spent in a way that is balanced between two sides of an argument in a referendum. And that in an election expences used by Oireachtas members must be declared as part of the final expences for the candidate. This wass identified in 2002, not 1997.
ADVICE: please clarify how the 1997 referendum was unconstitutional! The expences of Oireachtas members were only to be included in election expences declarations after 2002.
Mike / law student,
I unfairly assumed that respondants would be familiar with and recognise the relevant paragraphs (given below) of the Constitution. The Constitution takes no cognisance of whether parties exist or not. It says clearly who can stand and who, TDs senators and councils must nominate them.
I mentioned the McKenna and Coughlan judgements because they ruled that unfair advantage given to one side in referenda was unconstitutional. The same applies to presidential elections. The people’s choice prevails only if
1. suitable candidates are not prevented from standing by decision of the parties as in the recent election and
2 the candidates are not given grossly unfair advantage throught party or other unfair support.
This has gone to the extreme in the US where big business had pre purchased the presidency to the tune of hundreds of millions of dollars whether Bush or Kerry won.
Article 40
1. All citizens shall, as human persons, be held equal before the law.
This includes the Constitution, the fundamental law of the State.
Article 12
2. 1° The President shall be elected by direct vote of the people.
4. 1° Every citizen who has reached his thirty-fifth year of age is eligible for election to the office of President.
2° 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.
3° 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.
4° Former or retiring Presidents may become candidates on their own nomination
John, you made points about the President's office being 'non-party'. This is not true. Show me the provision in the constitution that restricts the President from being a fully fledged member of a political party.
You also made points that the Constitution was breached in the 1997 election. You fail to come up with the provision of the constitution you think was broken. You may be right that the Constitution is unfair to potential non-party candidates but that does not mean that the 1997 election process was unconstitutional.
You make claims that politicans are not allowed to influence people in how they vote in the Presidential election. The fact is that all members of the Oireachtas are citizens with the right to be politically active and to advocate a candidate.
John, here is a link to a copy of the Constitution. Tell me where it was breached. http://www.taoiseach.gov.ie/upload/publications/297.htm
I didn't suggest any of what you read into my statement
Nowhere in the Constitution does it say that the office of the President is 'non party'. The President, like any other citizen is fully entitled to be a member of a political party or other organisation. The only constitutional right deprived from the President is the right to leave the state (which must be done with the consent of the government. BTW once President Hillary was on sailing trip with friends but couldn't leave boat to have lunch on Isle of Mann and was left alone on yaught!) Otherwise the President has all the rights that you and I have. There are many myths going around about the Constitution. Maybe you should read it before you come on here making idiotic points.
The fact is that the nomination of the 5 candidates in 1997 was totally constitutional. Parties are allowed regulate their internal affairs. A candidate requires 20 members of the Oireachtas to be nominated. McAleese, Bannotti, Roche received this. How FF decide to endorse a candidate is their own business. Official nomination papers is all that matters.
People holding political office are fully entitled to endorse a candidate and look for the election of a candidate. This is the right of ANY citizen and can't be deprived because of being elected.
Your problem should be with the provisions of the constitution which restrict the nomination proceedure. The proceedure that is there was followed throughout the history of the office of President. It wasn't democratic and open to all, but it was legal.
I understand your argument about why a "party" candidate would have a huge advantage over an "independent" candidate and also that who gets to be a "party" cadidate might be the decision of just a few people.
But your headline was about this being "unconstitutional" rather than being just "unfair" or otherwise undesirable and you speak of wishing to bring a legal challenge. Unfortunately you seem to have lost the part of your article where you discuss the clause(s) of the Consititution which you feel are being violated. Could you please specify.