Regarding the Other Referendum
The Thirty-Fifth Amendment to the Constitution Bill 2015 proposes that the minimum age for the Presidency – currently 35 – be lowered to 21. Notably, 21 currently is the minimum age for election to the Dáil. The referendum is scheduled for May 22, the same date as the marriage referendum. So far, however, it has garnered much less attention than its counterpart.
The current minimum age
requirement in Ireland mirrors similar provisions in the US Constitution, under
which a candidate for President or Vice-President must be 35. The rationale behind the minimum age
requirement would appear to be that the candidate should be sufficiently mature
and experienced to hold office. Some
commentators, indeed, quite fairly question whether 21 is too young to hold an
office so prestigious as that of the Presidency.
The matter was considered by the
Constitutional Convention, though the outcome was equivocal. 50% of Convention
members supported a reduction in the minimum age, but 47% were opposed; hardly
a ringing endorsement. To date, polling
shows that the amendment is likely to be defeated, despite the absence of any
concerted opposition.
It is indeed curious that amongst
the various creditable proposals for amending the constitutional provisions on
the Presidency, this one has been prioritised. It is arguable that there would have
been much more public support for an amendment liberalising the candidacy rules
for the Presidency. At the moment, a candidate has to be nominated by 20
members of the Oireachtas or the councils of four counties or county boroughs, making it difficult to secure a nomination. Notably, during the Committee Stage in Dáil
Éireann, Socialist Party deputies proposed an amendment to the Bill that would have
allowed a person to be nominated by at least 5,000 voters (or fewer, if permitted
by law). They also proposed removing the
religious elements of the oath of office taken by the President. Arguably, both of these proposals would have
been likely to stir up greater interest and probably were of greater relevance than
the current amendment.
There has been some limited commentary on
the issue so far, but nowhere near the level of rigorous public debate
associated with the marriage referendum. In an intelligent and thoughtful piece in the
Irish Times, Arthur Beesley leans against the proposed reduction in the minimum age. He points out that the role is a limited and
largely ceremonial one, likely to bore and frustrate an enthusiastic and able
wunderkind. The freedoms of youth, he
adds, would “not sit well in high office”, with a young President likely to
suffer the fate of young royals in our neighbouring jurisdictions, growing up
in the glare of public scrutiny. Citing the experience of Zayn Malik, who recently left the band One Direction to resume a normal life, he concludes:
“No, the proper place for a 21-year-old is
in a nightclub; or a night-train to Mongolia with nothing much to do in the
morning; or a job in which mistakes can be made without major incident; or a
college library; or in a band; or even a boy band.”
Beesley describes the proposed amendment as “an empty gesture devoid of meaning.” It
would be better for the average young person, he maintains, if the State worked
on addressing youth unemployment as well as the lack of affordable
accommodation and child care. Indeed, it
is fair to say that the change proposed is largely symbolic, designed to send a
signal that young people too can aspire to the highest office in the land, that
they are equal citizens, but unlikely to result in a younger President being
elected.
Symbolic gestures can, however, often have a powerful resonance and impact.
One of the least noted but most symbolically powerful aspects of the introduction
of civil partnership in 2010 was a specific provision made in the enacting
legislation for the possibility that a future President might have a civil
partner, and thus be entitled to a pension on the President’s death. The message was a powerful (if hardly noticed)
one; it implied that a gay or lesbian person, with a same-sex partner, could
legitimately aspire even to the highest office in the land.
It is worth bearing in mind that
the amendment is not proposing that any particular young person be elected
President. The simple proposition is that those aged 21
or over be allowed to stand for the Presidency, to able to put themselves
forward on the same basis as a person of or over that age. The candidate would
have to establish – like any other candidate - that he or she is worthy of
election. The reality is that without a
substantial track record, experience and profile, a younger candidate will face
a steep uphill challenge. Yet it should not be readily assumed that no young person would meet the People’s exacting
standards. Hopefully, we are beyond the
days when people were appointed to roles based primarily on longevity and
seniority rather than ability and competence.
The role, in fairness, is largely
ceremonial, with the President being required to act primarily on the advice of
Government (or, less frequently, on the advice or nomination of the Taoiseach
or Dáil), with little personal discretion reserved to the office holder himself.
A young person might find this frustrating,
though so too would many an older person of ability and vision. Notably, the
current and two immediately preceding Presidents have done much to carve out a meaningful
role within the constitutional confines. There is no reason to believe that
a younger person with similar energy and vision would also be able to stamp his
or her mark on the position.
The President does hold significant
discretion in a number of limited areas.
He can refer a bill to the Supreme Court to test its constitutionality. He may refuse to dissolve the Dáil where
requested to do so by a Taoiseach who no longer has majority Dáil support, a
decision with significant political implications. He also holds a number of powers designed to
protect the prerogatives of the Seanad, though these are rarely if ever
exercised. The exercise of these powers
(and more so the decision not to
exercise them) requires considerable political wisdom and experience. It is
possible, given these factors, that the electorate would prefer someone with a
proven track record and some form.
It is submitted, however, that we
should not readily assume that age automatically equates to wisdom. The current
economic crisis, for instance, was not fomented in student dorms or at the back
of lecture halls. The boardroom tables of banks and regulators in the years
leading to the crash were hardly heaving with ingénues fresh out of grad
school. Older people, in short, are not
immune from making bad decisions.
Longevity does not automatically guarantee ‘a safe pair of hands’. Indeed
there are a good number of potential (and not so potential) presidential candidates
whose prior life experience, in my view, would decisively discount them from the
role.
The prospect of a wise and able
presidential candidate of younger years should not, therefore, be discounted. Our current President ably exhibits that
energy, vision and zeal are not qualities confined to the younger politician. Why then should we assume without enquiry that
younger people will lack the wisdom of an older President?
If it is the case that electors
see the Presidency as a ‘reward’ for good service, as a form of retirement
present, the case for maintaining the current age restriction might more easily
be sustained. It is arguable, however,
that the responsibilities of the role are such that past triumphs alone should
not be the sole reason for appointment.
Nonetheless, in practice, given the restrictions on candidacy, any reform
is likely to attract an infinitesimally small coterie of under 35 year old
candidates. There were 7 candidates in
2011, which was a record (the previous record, set in 1997, was 5). Indeed, even
if there were constitutional change, the age profile of candidates is unlikely to fall
significantly. In the 2011 election, the
average age of the candidates was 60. The
youngest candidate (Mr Seán Gallagher) was 49, a clear 14 years over the
minimum age; the remaining candidates were 57, 59, 60, 61, 67 and 70. The winning
candidate, President Michael D Higgins, was 70, twice the current minimum age,
though the second placed candidate happened to be the youngest. President Robinson and President McAleese were
both 46 at the time of their respective elections, but this was considered a departure
from the norm. President de Valera took
office at the age of 77; President Hyde was 78 when deemed elected in 1938.
In practice, therefore, little might change though symbolically, the change
would be important. It would serve to signal
that longevity and seniority alone are not a good enough basis for promotion,
still less to elect a person to high office. It sends out the signal that the contribution
of young people in society is valued and that energy and vision count as well as
experience in choosing a President. It
is disappointing, however, that the Government did not choose to make further
and perhaps more practically important changes to the Presidency, not least to
reform the restrictive methodology for nomination.
The amendment, incidentally,
resolves a potential anomaly in Article 12.
The current English text speaks of the candidate having reached his
thirty-fifth year of age, during which he or she may presumably be 34. The
Irish text, however, seems to make it clearer that the person must be 35. In
cases of conflict between the Irish and English texts, the Irish text prevails
and, as such, it is readily accepted that the minimum age is in fact 35. The
amendment, however, makes it clear in each language that the candidate must be
21 and, if passed, would resolve a long-standing constitutional quirk.
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