The revival of the executive presidency proposition is being carefully nurtured by a discourse that has emerged about the current President of our republic being able to exercise an unfettered discretion to withhold his assent from the Constitution (Amendment) Bill 2014 after its legislative stages will have been completed in the Parliament.
The emergence of this narrative by persons who were previously opposed to the proposal that had been advanced by former prime minister Patrick Manning appears to be a matter of political convenience as an extension of opposition to the bill itself.
In calling upon the President to defy the will of the constitutionally-elected Parliament by taking it upon himself to refuse the will of the legislature by exercising his powers in a unilateral manner without recourse to the provisions of the Constitution that regulate the exercise of presidential powers is a dangerous development.
It represents a threat to whichever government is elected after the next general election, because the essence of the argument being advanced is that the type of presidency that we already have is an executive one. If we accept the narrative, then any government elected at the next general election will have to fear the exercise of these unfettered discretionary powers by a president that will frustrate their legislative measures by "withholding assent."
If the argument that is being made now is carried to its logical conclusion, then former prime minister Manning ought not to have troubled himself with seeking to amend the Constitution to create an executive presidency, as it seems to some persons that we have it already. The 1962 Constitution had the following provisions in relation to the Governor-General at section 44(2):
"When a bill is presented to the Governor-General for assent, he shall signify that he assents or that he withholds assent."The 1976 Constitution substituted the word "President" for the word "Governor-General" at the new Section 61.
In the 2009 Working Document presented by former prime minister Manning, the following provisions were proposed:
78.(1) Subject to this Constitution, the power of Parliament to make laws shall, except where otherwise authorised by an act, be exercised by bills passed by the House of Representatives and the Senate and assented to by the President.(2) The Parliament shall ensure that every bill that is passed shall be presented to the President within 40 days after the date of its passage.
(3) The President shall signify his assent when a bill is presented to him for assent within 14 days.
(4) A bill shall not become law unless it has been duly passed and assented to in accordance with this Constitution.
(5) A bill may be assented to during the period occurring between the end of one session of Parliament and the beginning of the next or at any subsequent time during the life of that Parliament.
As with the independence and republican constitutions, the proposed executive president would have been required to act on the advice of Cabinet except in cases where he was required to act on the advice of some person or authority other than the Cabinet, after consultation (1976 only), or in his own deliberate judgment or discretion.
In respect of assent to legislation, the Manning executive president could only assent, as the terminology of "withholding assent" was deleted. This was being proposed because the President would preside over the Cabinet whereas the current arrangements are such that the President does not preside over the Cabinet and does not take responsibility for policy and/or legislation proposed in furtherance of policy initiatives.
The key issue in parliamentary systems or hybrid presidential-parliamentary systems where the doctrine of the collective responsibility of the Cabinet applies is the fact that only the Cabinet can take responsibility for "the general direction and control of the government".
The President is not assigned this responsibility under the existing Constitution and, therefore, any unilateral action by the President, in the future, to frustrate the will of the constitutionally-elected Parliament and Cabinet on the enactment of legislation would constitute an affront to the Constitution.
For the time being, those who are proposing that the President should undertake an adventure into an area that can cause constitutional breakdown ought to consider the implications of their narrative for the future.Playing fast and loose with presidential powers which have interlocking connections that impose fetters upon discretion is not to be treated lightly.
Political opposition to the amendments can be addressed by another government which may want to repeal these measures or through recourse to the courts. What would happen if the current narrative about "withholding assent" were to be used to prevent any repeal? Would the proponents of the unfettered discretion of the President to refuse assent to legislation be comfortable to concede their point if it were to be used against them?
The discretion of the President to assent or to withhold assent to legislation is fettered by other provisions in the Constitution. Those who were opposed to an executive presidency before, now find themselves advocating one without even recognising it.