Higgins comments crossed the line

Gerard Howlin says Michael D Higgins’s comments on the Savita Halappanavar case were inappropriate for his office

ON Wednesday in Liverpool, President Michael D Higgins waded into the live controversy over the tragic death of Savita Halappanavar. Speaking off the cuff, he said: “My wish, frankly, is that there be some form of investigation which meets the needs of the concerned public and meets the needs of the family and meets the need of the state.” He concluded his remarks about the death of Savita Halappanavar by saying he hoped that “particularly above all else, out of it women will be safer and get the medical services to which any woman is entitled in any part of the world”.

Those views may be widely held but they are also highly political. Crucially, they risk diminishing confidence, among all citizens in the president’s capacity to exercise his constitutional responsibilities impartially. They broke the appropriate boundaries of his high office.

It is regrettable but a fact that the investigation into the death of Savita Halappanavar is a political controversy. It is understandable that, motivated by compassion for her husband, Michael D Higgins the man might advocate for her family. It is, however, wrong that a president would — while abroad and through the media — pile on pressure on the Government of the day to take a course of action on an issue that it was not minded to.

The Government may well be wrong. It is absolutely not the president’s role, however, to infer, let alone to say so. Whether intended or otherwise, this was at least the inference of his inept remark.

Arguably more serious, however, is his statement that the outcome of this very sad story would be that “above all else women will be safer”. Many people, including me, agree. Article 40.3.3 of the constitution, however, states: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Rightly or wrongly, and in my view wrongly, the constitution does not consider the safety, let alone the life of the mother, as a concern it values, as the president advocated, “above all else”. To the contrary, her right to “life” which is more specific, and a far higher threshold to satisfy any intervention compliant with the X case than her “safety”, is constitutionally only “equal” to that of the unborn child. While premising his remarks with the view that the “constitution and later European court cases have to be respected and we have to move on”, clearly the president’s remarks were implicitly a “move on” from the current constitutional position.

This is the crux of his intervention. He has an overriding responsibility to uphold the constitution. He has at his discretion powers to refer bills to the Supreme Court he believes may be repugnant to it. He can likewise refuse dissolution of the Dáil to a taoiseach who has lost his majority.

There is real difficulty in framing legislation that effectively protects the life, let alone the health and safety, of the mother that is also compliant with Article 43.3.3. Given that difficulty, there will be a question mark now about the president’s impartiality. Will he be as zealous referring a law to the Supreme Court that, in seeking to protect the mother, arguably for some diminishes the “equal” and constitutionally enshrined right of the child?

Likewise, if this or another taoiseach were to lose his Dáil majority over such legislation, would President Higgins now be believed to be impartial in the exercise of his absolute discretion whether or not to grant a dissolution? Regrettably, the president’s remarks have given a basis for arguing that he would not.

It should be remembered how recently and at what personal cost to himself that the constitutional prerogatives of the president were zealously protected by President Cearbhall Ó Dálaigh. President Hillery likewise rebuffed political pressure to influence his decision on whether he would grant a Dáil dissolution to Garret FitzGerald in 1982. President Higgins may have imagined he was stretching the office of president when he spoke in Liverpool. In fact, he risked diminishing it.

Part of the core argument Michael D Higgins, the presidential candidate, made during his successful campaign was that, among all the candidates, he especially had the political experience and constitutional nous to be president. He trumpeted his understanding of the office including his limitations. In Liverpool, he dropped the ball, and the best service he could now provide to the presidency is to remember that, as he continues his term, he should continue to speak and learn to choose his words more wisely. His words in Liverpool were not bravery in speaking out. They were self-indulgent in not shutting up before thinking through all the implications.

* Gerard Howlin is a public affairs consultant and was a government adviser from 1997 to 2007.


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