The official decision on Lisbon should enter into legal force

by Desmond O'Toole - The Labour Party Thu Jul 03, 2008 16:42

What complete gibberish. Even someone with only a passing interest in, or knowledge of Irish constitutional law can see through the enormous holes in these arguments. If this is the quality of the legal arguments that some on the NO side are relying on then I'm sure that neither the EU nor the Irish government need fear a legal challenge to current discussions.

Let's take just a couple of these issues. Firstly, the decision that the Irish people took a few weeks ago was to decline to amend Bunreacht na hÉireann so as to enable the Irish government to ratify the Lisbon Treaty. Whatever about the political consequences of that decision, the legal consequences are pretty straight-forward, i.e. the Irish government cannot ratify the Lisbon Treaty. It doesn't get much more simple than that. Nor, legally, does it extend beyond that (save as I discuss below). Secondly, the decision that the Irish people took presents absolutely no legal obstacle to other EU member states from pursuing their individual ratifications of Lisbon. There may be political questions about the wisdom of their continuing with ratification, but there is abolutely no legal impediment whatsoever in EU or wider international law to these member states continuing with the ratification process. The only legal impediment presented to the actions of other states or of the EU itself is, of course, that Lisbon cannot enter into legal force so long as one or more country witholds its ratification.

Whatever your individual view on the Lisbon Treaty it is clear that the referendum debate was much confused by spectacularly erroneous legal claims made by both sides. Some on the YES side claimed that rejecting Lisbon meant that Ireland could be ejected from the EU - that was false. Some on the NO side claimed that Lisbon would threaten Ireland's tax base, force the privatisation of public services like health and education, introduce abortion, euthenasia, legal prostitution and hard-drug taking and require all infants to be implanted with EU microchips - those spurious legal claims were false as well.

The pseudo-legal claims made in the above article at least have the merit of continuing this proud tradition of spoof legal speculation! But that is the only merit they have.

by Howard Holby Thu Jul 03, 2008 19:21

Your comment does not 'discuss' any subject at all, merely pretends to do so.

The number of your false arguments are too many to focus on all of them, but let's look at this one:

[Whatever about the political consequences of that decision, the legal consequences are pretty straight-forward, i.e. the Irish government cannot ratify the Lisbon Treaty.]

Indeed. That's exactly the main point of the article. However, you conveniently skipped the sad fact that, as we speak, despite the major legal obstacles, the Irish government is planning to ratify the treaty by a second referendum, or worse, maybe ignoring the first and without holding a second.

Furthermore, indeed, the Irish people are directly no legal obstacle to the EU, - it is also evident from the article - but the Irish government would be, if it would enact the June 12 decision and would officially declare the Irish rejection of the treaty. If the EU would ignore the decision of Ireland as one of the member states agreeing to unanimity (see the references), this would have (or has) an international consequence, because it is a violation of international law via the breach of existing international agreements.

Third, the article is not about the Lisbon Treaty: it is about the legal nonsense to hold two referendums on the same question, or hold two different ones and consider the second in lieu of the first.

by Frank Thu Jul 03, 2008 20:40

The people have told the government they cannot alter the Constitution to adopt Lisbon. If the government wants to put Lisbon before us again shouldn't they seek the agreement of the people first to allow them to do so and then submit Lisbon 2?

by Sceptic Thu Jul 03, 2008 21:47

“If the government wants to put Lisbon before us again shouldn't they seek the agreement of the people first to allow them to do so and then submit Lisbon 2?

No need. There is nothing in the constitution which would prevent the Government putting the question again if they wished - hence a preliminary plebiscite would not be necessary.

"the legal consequences are pretty straight-forward, i.e. the Irish government cannot ratify the Lisbon Treaty."

Not true for sure. Legislative ratification might be possible but the issue might have to be submitted to the Supreme Court first. Martin Mansergh has been arguing something along these lines.

"EU’s recent offence against Ireland denying the legal force of the June 12 referendum".

There has been no offence and the Irish Government has been a party to the decisions of the council on this matter. It is not us v them. We are part of them - it is a collective body. The legal force of the referendum is not necessarily the last Irish word on the matter and the referendum does not bind other governments from ratifying if they so decide. You see thing too readily in legal terms only and miss the main points involved at this stage.

“In legal terms the main question is this: has the Irish Government submitted the official decision of Ireland on Lisbon to the EU or not?”

This is not the main question. It does not need to submit the decision in a legal manner and in any case the decision may not be the final one.

“the issue should be brought to international court.”

Here you are getting into fantasy. What international court? The ECJ? This matter is still in the political domain at the Council. It’s not a simple legal issue that as you keep portraying it and it’s not a Irish veto on the other 26 Government as you keep going on about.

“if it is contradiction with the Irish constitution to abandon the result of the June 12 referendum and hold a second referendum in lieu of the first?”

It would not be in contradiction of the constitution. The second referendum would just be another one. Nothing was put into the constitution as a result of Lisbon 1 - there is nothing tangible to excise or ignore. The loss of Lisbon cannot bind the future and close the question forever. Previous precedents in regard to second referenda on Nice, Divorce, Abortion and STV are clear enough. A second yes would overcome the first no. It’s as simple as that. There is no manipulation involved. The executive and legislature have the legal authority to put an amendment to the people if they so decide. It is the people’s privilege to accept or reject it.

“there is no constitutionally justified reason to hold the same referendum on the same questions twice.”

There does not have to be. It’s a decision for the Oireachtas if it decides it is in the national interest.

by Frank Thu Jul 03, 2008 22:04

Does that mean that the No vote has no constitutional status?

by Alan Bunbury Fri Jul 04, 2008 03:44

Okay this is a bit long but please read it as I make very important points. Basically I agree with the guy who says that this article is full of legal holes. Read on to find out why.

"So far Ireland has been the only one of the 27 EU-states to demonstrate an independent court decision in favour of democracy and the rule of law"

False. Presumably by the rule of law you mean the rule of the Constitution, and this court decision you refer to is the Crotty judgement which held that Ireland's Constitution requires that a referendum be held before the State can cede Irish national sovereignty, even in part, through signing an international treaty.

The reason this argument has no merit at all is that Ireland's Constitution, surprisingly enough, only applies to Ireland. Other nations have their own constitutions, and these constitutions do not require national referendums to allow the state to ratify international treaties. Making an signing treaties is seen in many European countries as a competence of the state, and the state is allowed to do its job. This is reinforced by the constitutions of these countries which were all democratically ratified by the people. So it would be quite ridiculous to say that other nations have failed to uphold justice because they did things according to their own constitutions and not ours.

Concerning the ratification of the Lisbon Treaty, if we accept your premise (that a constitutional court still exists to protect justice in Ireland) then it is clear and obvious that our vote cannot be ignored. As the people do not vote Yes to the 28th amendment, the Constitution was not amended so as to allow the State to ratify Lisbon, so they can't (well they can try, but it would be struck down by the SC). And if we do not ratify the Lisbon Treaty, it and its laws CANNOT APPLY HERE!! That is what you have to understand about Ireland's relationship with the EU; as the legal validity of ANY law in Ireland derives from the Constitution, no law or treaty or whatever which is repugnant to the provisions of our Constitution can apply here. Therefore, our legal relationship with the EU is based not on which of our laws or institutions the the EU chooses to recognize, but rather on which EU laws, institutions and treaties we choose to recognize.

Regarding the implementation of the Lisbon Treaty in other nations, that is very much a political issue and in any case it is well outside the parameters of this article, as this article concerns the Irish constitutional court (Supreme Court) which obviously cannot rule on the implementation of international treaties in other jurisdictions.

" 2) In legal terms the main question is this: has the Irish Government submitted the official decision of Ireland on Lisbon to the EU or not?"

Actually that's not the main question at all, it's not even a valid question. There is no submission of the decision of the people on Lisbon to the EU, that's not the way it works. We don't vote directly to ratify or reject the Lisbon Treaty, we vote to amend the Constitution to allow the State to ratify the Treaty. Since we did not vote to allow them to ratify the Treaty, they are not allowed, and therefore they didn't; so you could, I suppose, say that they DID indeed submit the decision of the Irish people to the EU in not ratifying. Of course, this is completely in keeping with Irish constitutional law, I don't really see what there is to reverse.

Regarding your spiel about a second referendum being unconstitutional, we know from experience, from Irish constitutional legal theory and of course from common sense that it would not be.

" 1) What needs to be examined in the first place: if it is contradiction with the Irish constitution to abandon the result of the June 12 referendum and hold a second referendum in lieu of the first? A second referendum would be based on the false assumption that a) the answer of the electorate obtained on June 12 was not to be acknowledged as the official decision of Ireland b) the result of the June 12 referendum is not valid. Since neither of a) or b) is true, to disregard a valid and official result of a referendum would imply forcing the voters to acknowledge such right of the Government and would establish a precedence of organising referendums without assuming that the referendum outcome would enter into legal force."
False, again. A referendum does not necessarily have to be based on any assumption, not legally anyway. There are two instances in the quoted paragraph where you get law and politics mixed up, this is the first instance. Politically, the decision of the government to hold a referendum or a re-run of a referendum or anything else could be based on any number of assumptions on the part of the government. The government could be assuming any number of things when passing any law and to guess at which assumption the government are basing their choice on would be pure speculation (there are certainly more possible assumptions than (a) or (b)). Legally however, the only assumption behind the government's choice to re-run a referendum is that they think it is a matter of profound importance and would like the people to exercise their sovereignty in choosing whether or not to amend the Constitution, again. That is the only assumption the court will recognize because it is the only thing that is relevant from a constitutional point of view. It is not the role of the Supreme Court to punish the government for bad politics.

Indeed, the whole fear of a second referendum is based on the false premise that the people are somehow forced to vote a certain way by a second referendum, which is not true. The government could call for 50 referenda and the people could just vote No to all of them.

The second instance where you confuse law with politics is when you talk about the "precedence" (sic) established by a certain decision by the government. Precedent is very important in law because it is, to a large extent, binding in the courts. This is NOT the case in the houses of parliament. Precedent means absolutely nothing in politics and how the government conducts itself, and just because a government acts in one way one time in no way means that it is in any way bound or obliged to act the same way another time. So all this talk of precedent is rubbish.

You also say that to hold a second referendum would mean organizing referenda without assuming that the outcomes would enter into legal force. This is quite the opposite of the truth. Indeed, if the outcome of a referendum did not enter into legal force, why bother having a second referendum? It is precisely because the first referendum DOES have legal force that the government needs to hold a second referendum.

"On one hand it should be ruled out that the result of a second referendum that in any way would include a question on ratifying the Lisbon Treaty would be recognised in lieu of the first result, because there is no constitutionally justified reason to hold the same referendum on the same questions twice. On the other hand, if the second referendum would include different questions, structured in a different way with different alternatives, the second referendum under no circumstances can be viewed as the replacement of the first. "

Here you are saying that the Supreme Court should disregard the popularly expressed opinion of the people because they are bound by a decision they made earlier. This is extremely undemocratic and no court would ever accept this. The people have the right to change their minds, that is key to the definition of popular sovereignty. If the people were bound by their own earlier decisions, then amendment of the Constitution would not be possible because the people chose to ratify the Constitution in 1937. Also, you are wrong to claim that a referendum could be invalid because there was no Constitutionally justifiable reason to hold it. All bills passed by the government, including amendment bills, carry a presumption of constitutionality. This means that unless someone can prove why a bill (or act) is repugnant o the Constitution, it will be presumed to be constitutional and the court will decline to strike it down. So it's not enough to say that there is no constitutionally justifiable reason to hold a referendum. There must be a constitutionally justifiable reason NOT to hold the referendum. Which, as I have pointed out, there is not, not from a legal point of view, because the reasons why the government acts the way it does are strictly within the political sphere and therefore the courts will refrain from adjudicating on them.

Furthermore, there is no constitutional requirement that a referendum be identical to its predecessor, that would be absurd.

Honestly, where did you study constitutional law??

by Alan Bunbury Fri Jul 04, 2008 03:50

Further to the above post I should make it clear once again that the State could theoretically try to ratify the Treaty without a referendum but they would definitely be brought to court. The article in question presumes that a constitutional court exists in Ireland that is strong enough to protect justice and the Irish Constitution; it also assumes that a referendum on the Lisbon Treaty is the only just and constitutionally valid option. So here I was arguing on the premises put forth by the author of the article himself. In any case, the chances of the Supreme Court actually overruling or distinguishing Crotty are extremely slim.

by Howard Holby Fri Jul 04, 2008 08:43

[where you get law and politics mixed up]

For your information: the constitutional law includes factors above the letter of the law, not of daily politics, as you try to distort the meaning of my article, but of philosophy, political theory and morality. These provide the perspective necessary to interpret a constitution at all times in accordance with the very principles of democracy. Therefore any law under a constitution upholding that "Ireland is a sovereign, independent, democratic state."
should be measured as per the objective meaning of "sovereign, independent, democratic" rather than by the meanings obtained from the dictionary of a politically biased pro-Lisbon lawyer.

May I remind you that your one-dimensional approach in evaluating what is constitutional/legal would in theory allow for enacting any dictatorial law? Just one example: in the not too far past under certain circumstances it was considered legal to force children under state custody without the permission of their parents. The acts of the former Nazi or Communist regimes were also carried out as legal acts; thus your approach would imply the assumption that their acts are all justified because of being legal. (Instead of dwelling on my typos you may want to contemplate on this.)

[The reason this argument has no merit at all is that Ireland's Constitution, surprisingly enough, only applies to Ireland. Other nations have their own constitutions, and these constitutions do not require national referendums to allow the state to ratify international treaties.]

Surprisingly enough, only Ireland indeed. Other nations also have their own constitutions, however these are being replaced by a new one, called "Lisbon Treaty". The peoples of these nations are not even informed by their governments that the treaty being ratified on their behalf is a federal constitution, a replica of the former EU Constitution. (see my articles on this.) A replacement of a constitution without the permission of a people is typically referred to the criminal act of "overthrowing a constitution".
NB: the Irish Government also failed to inform the Irish people of the fact that the Lisbon Treaty is not just a treaty, as you also try to suggest, but a constitution, therefore without any detail-level considerations, the ratification of the Lisbon Treaty, as a federal constitution as a whole, would in effect repeal the the Constitution of Ireland as a whole:

THE NATION
Article 1
The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.

(Refer to my other publications for more details on this)

And, believe it or not, 'surprisingly enough', the constitutions of the other EU-countries include similar articles!

[Legally however, the only assumption behind the government's choice to re-run a referendum is that they think it is a matter of profound importance and would like the people to exercise their sovereignty in choosing whether or not to amend the Constitution]

Could you please explain what do you mean by "legally", in general and in the above context? Are you incidentally mixing law with politics when referring to an assumption "they think it is a matter of profound importance"? Because they think so? And you believe that whatever they think to be important satisfies the criterion of being 'legal'? This is why the Irish voters' tax-money needs to be paid for an infinite number of referendums and deceit-propaganda for the Lisbon Treaty, because a yes vote is politically so important to the government? This is why one (or two or three...) rejection(s) of amending the Irish constitution is not enough?

by Doubtful Fri Jul 04, 2008 08:49

Personally, I'd be very cautious about placing too much reliance on the law (and legalistic arguments) -- certainly not at the present time.

Some may wish to be reminded that today (July 4th, which also happens to be American Independence Day) is the first anniversary of the "lawful" destruction of the huge heritage site at Baronstown, which has been reported at http://www.indymedia.ie/article/83306

by Howard Holby Fri Jul 04, 2008 10:21

[The people have told the government they cannot alter the Constitution to adopt Lisbon. If the government wants to put Lisbon before us again shouldn't they seek the agreement of the people first to allow them to do so and then submit Lisbon 2?]

Very good point, Frank. There has to be a way to block any referendum that is aimed at overwriting a former referendum. A possible paraphrase of the question could be: is it constitutional to interpret the voters' decision in a referendum as a temporary rather than final decision?

A list of the issues to be submitted to the Supreme Court:

Is it constitutional to force the voters to vote in a referendum as many times as needed until they would give a certain answer favoured by the government?

Is it constitutional to interpret the voters' decision in a referendum as a temporary rejection rather than a final decision?

Is it constitutional to ratify - either by parliamentary or direct vote - any version of the federal constitution called "Lisbon Treaty" without repealing the following articles of the Irish Constitution:

THE NATION
Article 1
The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.
Article 5
Ireland is a sovereign, independent, democratic state.
Article 6
1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution..

Is it constitutional to withhold the information from the voters that the international treaty they would ratify by a 'yes' vote is a federal constitution, therefore a 'yes' vote to Lisbon would in essence repeal the Irish Constitution as a whole by repealing the above articles?

Further to the above point, is it constitutional to force the voters into even one referendum in which they may unknowingly overthrow the Irish Constitution?

Or, if the next plan of the government is to pursue parliamentary ratification, is it constitutional to override a decision obtained via referendum by a parliamentary decision? Is it constitutional for the Irish Parliament to perform overthrowing the Irish Constitution?

by Howard Holby Fri Jul 04, 2008 10:34

[Money speaks louder than constitutional law.]

Exactly. But instead of resigning to this fact we urgently need to re-establish the conditions of a democratic rule of law, rather than letting the intensifying dictatorial trend dominate the law.

The question of Lisbon has become an issue of the highest relevance. We have reached the point where governments overthrow their constitution simply on the basis of a lie, on the denial of the constitutional identity of Lisbon. If there is no independent court to protect the constitution from being overthrown, the only way to restore constitutional order and the rule of law is to force the state officials to obey the law.

In other words: if there is no law to protect/restore constitutional order, the only way to restore constitutional order is to overthrow the government that has overthrown the constitution.

by Doubtful Fri Jul 04, 2008 12:16

I would very much agree with you that "Lisbon has become an issue of the highest relevance" -- and not just for Irish people (in my view), but for people everywhere, and for all their descendants as well.

However, I also see the core problem regarding the "law to protect/restore constitutional order" as a very old one, and one which has been a major thorn-in-the-side of humanity for a very long time -- all the way back to Roman times at least, and long before that I suspect.

Many in fact would argue that it was this self-same problem (very closely linked with rampant corruption of course) which brought about the downfall of the Roman Empire, and several others besides.

Consequently, I'm not at all sure that "overthrowing the government" would produce any useful results: at least not before giving the present government an opportunity to "consider their present position", and to take the necessary corrective action: PDQ (Pretty Damn Quick).

Our Government, ALL THREE main branches -- Executive, Legislative and Judicial that is -- could, for example, start by flushing out all the unconstitutional (i.e. unlawful) legislation they have produced (and sustained) during the reign of former Prime Minister Bertie Ahern TD: starting perhaps with a review of the refused application for Legal Aid made in the letter at http://www.annmariekelly.org/LegalAidApplication/3Novem...4.htm

There can be no doubt whatsoever that the legal remedy ALREADY exists for doing this now desperately needed piece of work -- please see at http://www.citizensinformation.ie/categories/government...sions

All that's needed at the present time is "the political will" to start actually USING the procedures outlined at the GOVERNMENT address just above. (At the present time, these EXTREMELY important procedures all appear to be just "theoretical window-dressing" of some kind spinning around in cyberspace, which the citizens of the Republic of Ireland cannot get ANY access to in practice.)

Related link: http://www.humanrightsireland.com/PrimeMinisterCowen/9M...l.htm

by Howard Holby Fri Jul 04, 2008 14:05

[Consequently, I'm not at all sure that "overthrowing the government" would produce any useful results: at least not before giving the present government an opportunity to "consider their present position", and to take the necessary corrective action: PDQ (Pretty Damn Quick).]

Essentially, in this article and my comments I have said the same thing, with the difference that I see no reason for skipping the constitutional challenge, and for that purpose I have offered this discussion, we may say, on how to give a chance to the Government to take the necessary corrective action. My main point is that when speaking of democracy, the term covers much more than observing human rights, minority rights, or protection of any segment of a society, either by party politics or ideology, because democracy belongs to a taxonomy above all these. In any society where constitutional democracy is assumed (as it is assumed in Ireland by the Irish Constitution) ,rather than a form of a dictatorial regime, democracy is not a luxury or a choice of a political orientation, ideology or party politics, but a constitutional obligation with a priority higher than any other legal obligations , in the sense of the entire conceptual content of the term "democracy". (For a well-rounded explanation please see my other articles on this, especially "Our future under a ratified Lisbon Treaty") Therefore, in any constitutional democracy the law itself should be the objective principles of democracy, and this is an undebatable, objective fact that holds true, either with or without discussion.

In addition to the article, and my comments on the list of other questions to be raised, after a quick brainstorming session with my colleagues, another idea has been crystallised about challenging the Irish Government through the Supreme Court regarding a second referendum on Lisbon, by raising the question:

Can the Irish Government justify the need for a second referendum on Lisbon with a reason that is independent of the decision obtained by the first referendum?
If not, it is evident that the second referendum would be held as an attempt to override the first, and thereafter, depending on the outcome of the nth referendum there would be a 'need' for an n+1th.

Everyone is encouraged to forward this proposition to those who could be interested and may take the appropriate actions to initiate a court challenge.

by Sceptic Fri Jul 04, 2008 20:22

"it is evident that the second referendum would be held as an attempt to override the first,"

Lisbon 2 if it happens will confirm the result in Lisbon 1 or change it, not override it. The problem is that the government and 90% of the Dáil feel it very much in the national interest to ratify. That being the case they are bound to try someway of getting around the dilemma the State will be in without ratification if ratification goes ahead amongst the others or most of them. In fact the position is they would be loathe to run it again and would prefer not to. But they cannot close off any of the very few options that might be open to them.

It is not a question of overriding democracy. They have to consider the national interest as they see it and manage the State’s EU membership as they see fit. All you do as a nay sayer with no responsibility whatever in these matters is to protest and oppose from the sidelines. You are advocating options which are not available vis a vis the other States or that would be very damaging politically if they were to be exercised. You ought to make some effort to understand that.

by Frank Fri Jul 04, 2008 20:30

The Dail presumed the outcome of the vote. They thought they had learned from Nice 2 and its clear theyt hadn't. Now the problem is this; the will of the people does not figure in what the government feels is in the States best interest. Does the will of the people as expressed in a referendum have any constitutional status or is it just a nuisance to be side stepped with political and technical chicanery?

by cropbeye Fri Jul 04, 2008 23:11 Cork city (North side)

This discussion is very worth while.

But we should also keep in touch with other citizens accross Europe who

could be considering bringing their own Governments to court regarding

their proccess of ratification.

by paul o toole Sat Jul 05, 2008 14:48

David Cameron told the house of commons that the Prime Minister Gordon Brown...
....' was so ashamed of this constitution that he had to go into a room on his own and sign it alone'....
Now thats democracy fur yeh...it simply dosent exist......I know a couple of out of work carpenters......wonder if they'd be interested in getting started on a few guillotine's.....clean up this mess.

by Desmond O'Toole - The Labour Party Sun Jul 06, 2008 17:46

Howard, your further postings on this matter have continued in the same rambling, legalist vein that your first one did. Your further posts have served to confirm just how unfamiliar you really are with Irish constitutional law.

Let's do this in an ABC way so that everyone can follow:

(a) Bunreacht na hÉireann binds the Irish state and its citizens only. It does not bind any other state or international institution.

(b) There is absoutely no legal impediment whatsoever to other states proceeding with the ratification of the Lisbon Treaty. The only international legal implication of the Irish vote is that as things currently stand the LisbonTreaty may not enter into legal force unless and until all 27 member states have ratfied it.

(c) Bunreacht na hÉireann is the basic law of this Republic and stands as the highest code of Irish law. EU law only has effect in Ireland because Bunreacht says it has effect and then only to the extent that Bunreacht and the Treaties it references say that EU law may have effect. However, Bunreacht is not a static document. Rather it is dynamic, i.e.. it can be changed and indeed has been repeatedly since its adoption by the people in 1937.

(d) Bureacht contains within its provisions the mechanism by which amendments to the Constitution can be initiated. There are very few limits on the nature of the amendments that may be placed before the Oireachtas and then the people providing that the government follows the process for amending the constitution outlined by Bunreacht. Similarly, there are no limits in Bunreacht to the number of times a question may be put before the Oireachtas and thence the people. The only such limits are political, i.e. are dependent on public opinion.

The superficial and rambling legal analysis that you have presented is completely flawed. I think that even you understand that at some level given your suggestion that people circulate your arguments in the (vain) hope that someone, somewhere might launch a legal action. If you had any confidence in your own arguments you'd be setting down a legal challenge yourself.

Liek I said in my first post, I don't think that the Irish government or European Commission need fear any legal challenge based on your quixotic arguments.

by paul o toole Sun Jul 06, 2008 18:04

If a referendum on the constitution has been accepted as having been given the asscent of the people or not, surely this is a legally binding decree in and of itself.
I think the first poster is making that argument which I agree with.

The actual piece of legislation enacting the change in our constitution is actually rife with direct contradiction also, besides the Lisbon Treaty itself being probably the most spurious piece of legislation ever produced.

by Desmond O'Toole - The Labour Party Mon Jul 07, 2008 01:08

Hi Paul - I appreciate you reply, but I think that what you have said also shows muddled thinking on Irish constitutional law.

The only "legally binding" element in all of this is what is contained in Bunreacht na hÉireann. If the people assent to a change to Bunreacht in a constitutional referendum, then the new amended articles of Bunreacht are what have legal effect. If the people withhold their assent to a proposed change to Bunreacht by voting NO to a proposal then Bunreacht remains unchanged and its existing provisions retain their existing legal effect.

Outside of that, the referendum result itself has no seperate legal effect. In other words, the decision to vote down a proposal to amend the Constitution does not present any legal difficulties at all to the people being asked on a later occaision to vote on the same matter. So. for example, should the government re-present the Lisbon Treaty to the Irish people in the Spring of next year, any attempt to use the courts to strike down such a referendum proposal woudl inevitably fail.

Likewise, the result of a referendum does not bind the government to any course of action beyond what is contained in Bunreacht na hÉireann. This, for example, is why some commentators who claim that the NO vote on June 12th somehow legally compels the government to demand an end to the ratification of the Lisbon Treaty by other EU member states are so completely wrong. If you don't believe me then try a court challenge to the government's response to the referendum result and see how futile such an approach would be.

The decision that was taken on June 12th can certainly be argued to place political limits on the governments freedom of action, including the calling of a second referendum. But, it cannot credibly be claimed that the referendum result itself places any legal restriction on the government (or the EU or other member states) beyond that which is already contained in the unamended Bunreacht.

by paul o toole Mon Jul 07, 2008 09:49

i believe that is what I said in the last entry, that thhere are no legal restraints on government to re-hash the referendum. that they can have as many re runs as they need to get their preferred outcme.
That i was agreeing with what the thread was about, legalising a result of a referendum for the protection of the people until it is 'enschrined' into our constitution, but that will never happen when the European project is to remove human and civil rights from the people and not protect them as they state at every turn.

by Frank Mon Jul 07, 2008 20:01

Is it unconstitutional for the government not to accept the peoples vote? And should it be?

by Desmond O'Toole - The Labour Party Tue Jul 08, 2008 20:15

It would clearly be unconstitutional for the government "not to accept the people's vote". That is why Cowen has accepted the referendum result and the process by which the State may ratify the Lisbon Treaty has come to a full-stop.

However, it is perfectly constitutional for the government to bring the matter back to the people again, as was done with the Nice Treaty, abortion, divorce, STV ...

The referendum binds the government legally in the sense that it may not ratify Lisbon. It does not, however, bind the government politically and does not prevent the government seeking to progress ratification of Lisbon at a later date. This is basic constitutional law, my friends. It may be inconvenient on this matter, but it's how our constitution works.

Let's take another example to illusrate the point. Progressives would not accept that previous referendum results on abortion, for example, put an end to the political question of access to abortion or prevent a future government raising the matter again with the people. If the Supreme Court ever made such a decision we'd all be, rightly, up in arms. The only legal effect is that contained in Bunreacht itself and not in the referendum result.

by Frank Wed Jul 09, 2008 15:46

"It would clearly be unconstitutional for the government "not to accept the people's vote". That is why Cowen has accepted the referendum result and the process by which the State may ratify the Lisbon Treaty has come to a full-stop."

But the process hasn't stopped because since the vote they've been actively seeking out means by which they can either circumvent it or resubmit in a disguised format.

"However, it is perfectly constitutional for the government to bring the matter back to the people again, as was done with the Nice Treaty, abortion, divorce, STV ..."

This is where I believe legal clarity needs to brought to bear. The will of the people as expressed in referenda and its impact or bearing on the intent of government needs to be defined.

"The referendum binds the government legally in the sense that it may not ratify Lisbon. It does not, however, bind the government politically and does not prevent the government seeking to progress ratification of Lisbon at a later date. This is basic constitutional law, my friends. It may be inconvenient on this matter, but it's how our constitution works."

Which begs the question; Why have referenda at all?

"Let's take another example to illusrate the point. Progressives would not accept that previous referendum results on abortion, for example, put an end to the political question of access to abortion or prevent a future government raising the matter again with the people. If the Supreme Court ever made such a decision we'd all be, rightly, up in arms. The only legal effect is that contained in Bunreacht itself and not in the referendum result."

Perhaps there is scope to make a referendum result binding on the term of office of any given government. But any subsequent party who at the next election seeks election to government must put out a separate constitutional manifesto as to exactly what they propose to do on the issue if elected.

by Desmond O'Toole - The Labour Party Thu Jul 10, 2008 00:35

Hi Frank - thanks for your observations. I'll take them one-by-one if I may:

(1) "But the process hasn't stopped because since the vote they've been actively seeking out means by which they can either circumvent it or resubmit in a disguised format."

The ratification process in Ireland has stopped, i.e. the government may not proceed to complete the process of ratification. The referendum result, however, has no legal effect on the political process other than with respect to public opinion. I'm sorry that this comes as something of a surprise to some people, but the legal effect of a referendum is on the articles of Bunreacht na hÉireann alone. Referenda do not legally bind the political process directly, it's Bunreacht that does that and as Bunreacht was not amended on this occaision the constitutional position remains unchanged. This is the difference that I have been repeatedly stressing here. It's pretty much basic constitutional law, I'm afraid.

(2) "This is where I believe legal clarity needs to brought to bear. The will of the people as expressed in referenda and its impact or bearing on the intent of government needs to be defined. "

It has already been defined, Frank. The legal clarity is there in all of the textbooks on Irish constitutional law. By all means seek further clarity by, for example, taking a case against the government to the High Court, but I'm afraid that would be something of a fool's errand as the outcome of any such challenge is quite predictable.

(3) "Which begs the question; Why have referenda at all?"

We have referenda in order to change Bunreacht na hÉireann. I'd much rather have the contents of Bunreacht decided by referenda of the people than by the Oireachtas alone. Wouldn't you?

You appear to want to extend the legal effect of referenda to the politcal field. Leaving aside the constitutional difficulties this would throw up, do you really want to do that? Any such innovation would inevitably tie the hands of future governments wrt the amendments they might propose and would limit our capacity to seek change to Bunreacht. That may be what you want wrt the Lisbon Treaty, but is it really what you want wrt abortion or other issues on which referenda have already been held?

(4) "Perhaps there is scope to make a referendum result binding on the term of office of any given government. But any subsequent party who at the next election seeks election to government must put out a separate constitutional manifesto as to exactly what they propose to do on the issue if elected."

Fine, if you can persuade some party likely to form a government at the next GE to adopt this proposal and see it through. But, bear in mind, that any such restrictions on the freedom available to the government to propose amendments to Bunreacht would itself have to be the subject of referendum to give it constitutional effect.

At least you appear to have accepted the point, albeit reluctantly (and I understand that), that the legal effect of the referendum decision last month is limited to Bunreacht and does not bind the political actions of the government wrt Lisbon or any other matter.

by Frank Thu Jul 10, 2008 13:31

"The ratification process in Ireland has stopped, i.e. the government may not proceed to complete the process of ratification. The referendum result, however, has no legal effect on the political process other than with respect to public opinion. I'm sorry that this comes as something of a surprise to some people, but the legal effect of a referendum is on the articles of Bunreacht na hÉireann alone. Referenda do not legally bind the political process directly, it's Bunreacht that does that and as Bunreacht was not amended on this occaision the constitutional position remains unchanged. This is the difference that I have been repeatedly stressing here. It's pretty much basic constitutional law, I'm afraid."

After Nice and or the EU Constitution was rejected the ratification process in other countries stopped also if I remember correctly as essentially, as with Lisbon, there was no legal point to it. But it seems now that the reason for the ratification process to continue with Lisbon in other countries is to put political pressure on the Irish No vote or to somehow isolate it as a means to undermine its overall effect. In such circumstances the Irish government is constitutionally bound to defend the political outcome of that vote precisley because it is under political attack. It cannot adopt the position that Gay Mitchell adopted and simply condemn it. Neither can the government join in with this isolationist approach as a means to resubmit Lisbon 2 and have it passed via the fear factor. You cannot detatch the political reasons for the continuing ratification process from the legal obligations of the government concerning the expressed will of the people.

"It has already been defined, Frank. The legal clarity is there in all of the textbooks on Irish constitutional law. By all means seek further clarity by, for example, taking a case against the government to the High Court, but I'm afraid that would be something of a fool's errand as the outcome of any such challenge is quite predictable."

But my point is this, that there is a clear imbalance between the status of a Yes and No vote.

"We have referenda in order to change Bunreacht na hÉireann. I'd much rather have the contents of Bunreacht decided by referenda of the people than by the Oireachtas alone. Wouldn't you?"

But we have Bunreacht to provide a framework within which the politics of the state should conduct itself. The Constitution cannot be seen as an institution by which politics must cleverly exempt itself. And to my mind constantly rerunning referanda until the desired result is achieved is part of this scenario.

"You appear to want to extend the legal effect of referenda to the politcal field. Leaving aside the constitutional difficulties this would throw up, do you really want to do that? Any such innovation would inevitably tie the hands of future governments wrt the amendments they might propose and would limit our capacity to seek change to Bunreacht. That may be what you want wrt the Lisbon Treaty, but is it really what you want wrt abortion or other issues on which referenda have already been held?"

But government is quite content to run with the excuse that their political decisions are legally bound on them to avoid having to take political responsibility for them. It cuts both ways. Perehaps future referenda should go beyond a simple Yes or No and include alternative choices clearly spelt out?

"Fine, if you can persuade some party likely to form a government at the next GE to adopt this proposal and see it through. But, bear in mind, that any such restrictions on the freedom available to the government to propose amendments to Bunreacht would itself have to be the subject of referendum to give it constitutional effect.

At least you appear to have accepted the point, albeit reluctantly (and I understand that), that the legal effect of the referendum decision last month is limited to Bunreacht and does not bind the political actions of the government wrt Lisbon or any other matter."

And this is why I believe the status of a No Vote needs to be upgraded to include political ramification.

by Desmond O'Toole - The Labour Party Thu Jul 10, 2008 17:01

Hi Frank. Thanks again for your response. I'll continue taking each point in turn if I may:

(1) "After Nice and or the EU Constitution was rejected the ratification process in other countries stopped also if I remember correctly as essentially, as with Lisbon, there was no legal point to it. But it seems now that the reason for the ratification process to continue with Lisbon in other countries is to put political pressure on the Irish No vote or to somehow isolate it as a means to undermine its overall effect."

It was only after the rejection of the Constitution by France and the Netherlands that the ratification process stopped. I don't remember the process stopping wrt the Nice Treaty., hence how we could be asked again to vote on that Treaty at that time.

The reasons you outline for the ratification process continuing on Lisbon may well be true, in part. There are other reasons as well, of course, such as the view taken of their own national interests by those countries yet to ratify. They're entitled to do that, however, and the Irish NO vote provides no legal obstacle to them. As I said before Bunreacht binds this State and its citizens only, not any other.

(2) "In such circumstances the Irish government is constitutionally bound to defend the political outcome of that vote precisley because it is under political attack. It cannot adopt the position that Gay Mitchell adopted and simply condemn it. Neither can the government join in with this isolationist approach as a means to resubmit Lisbon 2 and have it passed via the fear factor. You cannot detatch the political reasons for the continuing ratification process from the legal obligations of the government concerning the expressed will of the people."

Frank, I'm afraid you're wrong on this one. The government is not constitutionally bound "to defend the political outcome of the vote." That's simply not true. I know it's frustrating for some that this is the case, but that's how our constitutional system works. The State (inc. the government) is bound by Bunreacht alone in this regards and not directly by the referendum result. Referendum results do not bind political action by governments - that would be something that many of us would draw the line at if it was ever proposed.

(3) "But my point is this, that there is a clear imbalance between the status of a Yes and No vote."

This is a good point. There is definitely an imbalance between referendum outcomes, although that changes depending on the nature of the question put in a referendum, and it is a function of written constitutions in general. This is because it is Bunreacht that binds the State and its citizens not the referendum. If the YES side had won then Bunreacht would have been changed and the State would have ratified Lisbon. As the NO side won, Bunreacht was not changed and the constitutional, legal situation remained unaltered, i.e. as it was before the vote.

(4) "But we have Bunreacht to provide a framework within which the politics of the state should conduct itself. The Constitution cannot be seen as an institution by which politics must cleverly exempt itself. And to my mind constantly rerunning referanda until the desired result is achieved is part of this scenario."

Bunrecht sets out the limits to action by the State and its citizens and the obligations of each. On the other hand, Bunreacht may influence the political discourse but it does not determine it. In our democracy we are free to act and speak as we wish providing of course that we observe the law, including the articles of Bunreacht. Continuing to press the case for ratification of Lisbon and even bringing it back for another referendum, if that turns out to be the case, is well within the law and the provisions of our constitution. The Nice Treaty showed that in spades.

(5) "But government is quite content to run with the excuse that their political decisions are legally bound on them to avoid having to take political responsibility for them. It cuts both ways. Perehaps future referenda should go beyond a simple Yes or No and include alternative choices clearly spelt out?"

On the first point, you're not the first person to make the point that politicians are prone to inconsistency. It may cut both ways politically, but not constitutionally. And that's really the point I have been making.

On your second point, that poses more problems than it solves. We might imagine the ballot paper that we could have been presented with under such an arrangement. In place of Tá/Níl we might have had: vote to ratify, vote not to ratify ever, vote not to ratify at this time but maybe later, vote not to ratify unless a, b, or c happens (like the IFA's and SIPTU's brinkmanship)! The way a written constitution works is that we vote either to change or not to change the Constitituion. It's a simple up-down vote. Such an approach ensures that a court may only interpret Bunreacht and may not seek to put itself into the minds of disparate voters in interpreting a referrendum result.

In any even, such a proposal, like your previous one, would first need the support of a party likely to be in a position to bring forward legislation in the Dáil and then would need to go before the people in a referendum itself.

(6) "And this is why I believe the status of a No Vote needs to be upgraded to include political ramification."

Except that can't be done without (a) persuading a party to bring forward such a proposal to the Dáil, and (b) hoilding another rreferendum. That is not, fortunately, in the gift of either the government or the Oireachtas.

by Frank Thu Jul 10, 2008 21:32

Mo chara,

1, "It was only after the rejection of the Constitution by France and the Netherlands that the ratification process stopped. I don't remember the process stopping wrt the Nice Treaty., hence how we could be asked again to vote on that Treaty at that time.

The reasons you outline for the ratification process continuing on Lisbon may well be true, in part. There are other reasons as well, of course, such as the view taken of their own national interests by those countries yet to ratify. They're entitled to do that, however, and the Irish NO vote provides no legal obstacle to them. As I said before Bunreacht binds this State and its citizens only, not any other."

If the same principle applied vis a vis the stopping of the ratification process with Lisbon as it did with the EU Constitution we can only conclude that because it hasn't stopped there is a political strategy behind it directly bearing on the Irish vote. No other reason is plausible. Our vote certainly did not empower legally a halt to other ratifications but it does make them legally redundant if all 27 signatures are required. So the political strategy which is clearly evident in the continuing ratification process must be confronted by our government as a mechanism to undermine the Irish vote.

2, "Frank, I'm afraid you're wrong on this one. The government is not constitutionally bound "to defend the political outcome of the vote." That's simply not true. I know it's frustrating for some that this is the case, but that's how our constitutional system works. The State (inc. the government) is bound by Bunreacht alone in this regards and not directly by the referendum result. Referendum results do not bind political action by governments - that would be something that many of us would draw the line at if it was ever proposed."

The point I'm makimg concerning the defence of the vote stems directly from the fact that there exists an external political strategy to undermine it. That's a crucial difference. For example the bail Referendum was an internal matter in so far as it did not impact on any external government. If it was lost certainly an Irish government can revisit it with a view to addressing the concerns raised but I find it disingenous that they could or would do so because an external power pressurised it into doing so.

3, "This is a good point. There is definitely an imbalance between referendum outcomes, although that changes depending on the nature of the question put in a referendum, and it is a function of written constitutions in general. This is because it is Bunreacht that binds the State and its citizens not the referendum. If the YES side had won then Bunreacht would have been changed and the State would have ratified Lisbon. As the NO side won, Bunreacht was not changed and the constitutional, legal situation remained unaltered, i.e. as it was before the vote."

But voting NO cannot be interpreted as an unthinking act. Equally would a Yes Vote ever be revisited?

4, "Bunrecht sets out the limits to action by the State and its citizens and the obligations of each. On the other hand, Bunreacht may influence the political discourse but it does not determine it. In our democracy we are free to act and speak as we wish providing of course that we observe the law, including the articles of Bunreacht. Continuing to press the case for ratification of Lisbon and even bringing it back for another referendum, if that turns out to be the case, is well within the law and the provisions of our constitution. The Nice Treaty showed that in spades."

Indeed but Constitutions need to be viewed beyond their technical content. Equally they need to be interpreted beyond their legal remit. Shouldn't the ethos of the Constitution be defended and promoted just as much as it should be complied with to the minimalist technical sense?

5, "On the first point, you're not the first person to make the point that politicians are prone to inconsistency. It may cut both ways politically, but not constitutionally. And that's really the point I have been making."

And the point I'm trying to explore is that such inconsistency should not be technically excused by the Constitution but exposed by it.

6, "On your second point, that poses more problems than it solves. We might imagine the ballot paper that we could have been presented with under such an arrangement. In place of Tá/Níl we might have had: vote to ratify, vote not to ratify ever, vote not to ratify at this time but maybe later, vote not to ratify unless a, b, or c happens (like the IFA's and SIPTU's brinkmanship)! The way a written constitution works is that we vote either to change or not to change the Constitituion. It's a simple up-down vote. Such an approach ensures that a court may only interpret Bunreacht and may not seek to put itself into the minds of disparate voters in interpreting a referrendum result.

In any even, such a proposal, like your previous one, would first need the support of a party likely to be in a position to bring forward legislation in the Dáil and then would need to go before the people in a referendum itself."

During the Abortion referendum three options or positions were put which allowed the people more usage of their Yes or No option. A text as vast as Lisbon could have been broke down into ten substantive questions or so which would have afforded a similar usage. Equally it would have afforded a more accurate reflection as to what the people were thinking. I know it was a kegal text etc and no doubt some remote legal p[oint could object to such a breakdown but it is a more democratic and more constitutional way of moving on referendums. I accept that this would need a political party to move it but the debate on it is not dependent on them to start it.

6, "Except that can't be done without (a) persuading a party to bring forward such a proposal to the Dáil, and (b) hoilding another rreferendum. That is not, fortunately, in the gift of either the government or the Oireachtas."

As I said who knows where a good debate can lead to?

Slan