The Irish Constitution / Explained by Darrell Figgis

by Darrell Figgis

V.

THE EXECUTIVE POWER.

I have likened a Constitution to a pyramid, the base of which is the People, and the apex the Executive Authority. In all pyramids, it is the apex that first catches the eye, not the base; yet it is from the base upward that democratic constitutions are built. Usually it happens in most countries that the Executive masters the Law-making body, and that the Law-making body in turn masters the People. It is therefore necessary to remember, and to emphasise, that the true order is the other way about, the People being the master of the Law-making body, and the Law-making body the master of the Executive. In the degree in which that true order is asserted, and observed, the health of the State is preserved. In the degree in which it is neglected, or frustrated, there is suspicion, irritation, discontent. And as it is always the Executive which tends naturally, where it does not intrigue deliberately, to upset that order, by gathering all power into its hands, obviously the provisions respecting the formation and maintenance of Executive Power are the most critical part of every Constitution.

It was a wise man, and an experienced, who said that it did not matter to him who had the making of laws, so long as he had the administration of them. “For forms of government let fools contest,” said the poet; “That which is best administered is best.” And as the administration of a State is reposed in the care of the Executive Power, for the most part beyond the sight of the Law-making Assembly of the people, it is essential that the Constitution should provide that the Executive should at all times, and with the utmost flexibility, lie in the control of the Legislature. Otherwise, whatever safeguards may be provided that laws carry the consent of the people, the people will in the end find themselves baffled, unable to track into the thicket of secret decisions the will that they have elsewhere endeavoured plainly to express.

It is therefore the plain duty of every Constitution to keep the Executive simple and flexible, responsive always to the will of the Legislature, as the Legislature should always be responsive to the will of the people. Crises will arise in the history of every nation when the powers of the Executive require to be strengthened; and at such times those powers will be readily conceded. But it is the Legislature and the people which must decide; and the Constitution must leave them free to do so. It is no part of the duty of a Constitution to provide for a time of crisis, and to make that provision fixed and rigid for all later times, when circumstances will have completely changed.

All that it is the absolute duty of a Constitution to do is to state how the Executive shall be formed, and to define its responsibility to the Legislature. The rest may be left to the practice of the future. Certainly to indulge in experiments in a Constitution respecting so vital a part of it as the Executive (experiments unlike anything yet attempted in any Constitution in the world) is an extremely hazardous proceeding. Nor are such experiments necessary in a Constitution, since they may be tried in the course of ordinary legislation, and surrendered if they prove impracticable. It is one thing to experiment—which a Constitution should allow. It is another thing to be pledged to one’s experiments for ever—which is what a Constitutional provision is intended to mean.

The experimental nature of the provisions for the Executive in the present draft of the Constitution is manifest. They are unlike anything in any Constitution. They are quite unlike the provisions in the Swiss Constitution, from which the inspiration is supposed to be derived. Switzerland is a Confederation, consisting of twenty-two sovereign cantons, where only limited powers are conferred on the federal authorities. The twenty-two sovereign cantons differ widely in religion, language, habits and traditions. They are jealous of the federal authorities, and jealous of one another, and therefore insist that the Federal Council (which acts as the Executive), as well as the Federal Assembly, shall be representative directly of the languages, religions and traditions of different parts of the country. Certain of the larger towns and cantons, indeed, claim prescriptive rights to the appointment of members of the Federal Council. This Council, therefore, is appointed for the whole term of the Assembly by the two chambers of the Assembly sitting together, and are chosen by the two chambers, as the Constitution says, “from among all Swiss citizens eligible to the National Council.” The members of the Council may speak, and propose motions, in both chambers, but they may not vote in either, for they form a separate institution outside the Assembly.

It is well to see what are the provisions for the Executive Power under the Swiss Constitution in order to note how widely the Executive in our draft differs from them. Good or bad, our draft stands or falls by itself, and cannot depend from the Swiss example, from which it differs both in itself and in the circumstance which it is designed to meet. The intention may be of the noblest; but intentions are only prophecies; and the Fundamental Law of a Constitution is scarcely the place to commit a whole people to a prophecy. The intention is to overcome party government, and is conceived at a time when parties are divided along lines that do not represent the economic issues that ordinarily influence the course of legislation. For parties, in so far as parties represent true economic issues, are a natural and inevitable medium for conducting the government of a country. Where parties do not represent such issues, but are held together by unnatural organisations, they do, it is true, obscure the orderly government of a country. The remedy is to be found, not in an enforced and arbitrary creation of an Executive, but in the right election of the Legislature, of which the Executive must be a reflection if the Legislature is to work harmoniously with it, and keep a constant control over it. To attempt by arbitrary provisions to create an Executive that does not accurately and at all times reflect the Legislature (on whatever party lines that Legislature be composed) is automatically to remove that Executive from the continuous control of the Legislature. And it is surely the essential business of a Constitution to insist that that control be emphasised, not diminished. Otherwise, whatever be the intention, the Executive will become irresponsible, government will fall into the hands of rulers who can only with difficulty be removed, and constant friction will ensue.

Such is the broader line of argument. In detail the Executive provisions of the present draft seem even less defensible. For authority is reposed in an Executive Council formed of two parts. Of twelve Ministers, it is stated, four must be members of the Chamber and eight must not be members—or, if they were members before, they cannot continue to be members, and must resign. It is true that on the motion of the President of the Council these four (who are members of the Chamber) may be increased to seven; but the draft makes it perfectly clear that according to the normal procedure under the Constitution the proportions are to be four and eight; and it is on the normal, not on the exceptional, procedure that attention must therefore necessarily be laid.