The official decision on Lisbon should enter into legal force

national | eu | opinion/analysis Thursday July 03, 2008 14:01 by Howard Holby

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 [1, 2]. In the new situation brought about by the EU-leaders’ rejection of Ireland’s decision [3, 4, 5], Ireland is again tested as the last fortress of democracy within the EU. This test is on whether the official decision on Lisbon arrived at on June 12, 2008 would enter into force, or the constitutional foundations of Ireland, similarly to the other 26 states, would be bent or circumvented to serve the interests of foreign political forces [2]?

The questions and the proposition of this article are meant to provide a starting point for further legal considerations, building on the assumption that an independent court still exists to protect the constitution, the rule of law and democracy in Ireland.

Initial questions:

1) When responding to the EU’s recent offence against Ireland denying the legal force of the June 12 referendum, why do we think only in terms of ‘respecting a referendum’, when the fundamental issue is legal/constitutional and the key concept is the decision of Ireland , irrespective of the method by which the decision has been made?

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?

3) From the answer to the above several other questions follow: if not, why not, and how could such decision be reversed by the Irish constitutional law?

Regarding the plan on “a second referendum on Lisbon” [5, 6, 7, 8, 9] two main points can be considered:

A. The constitutional demand that the Irish Government would acknowledge the official result of the referendum of 12 June and accordingly would submit the official rejection of Lisbon by Ireland to the EU .

B. Once the official rejection of Lisbon would be submitted to the EU with the claim that the rest of the EU would withdraw from further ratifications, and this legal obligation is still denied by the EU, the issue should be brought to international court.

With regard to point A:

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.

2) If the Government is planning to impose the question of the Lisbon ratification on a modified treaty and/or in a context different from the first referendum-question, another key question could be raised: if it is constitutional to use a second referendum as an instrument to manipulate the electorate and subvert their decision obtained via a recent referendum? This would imply that the voters should acknowledge the right of the Government not only to arbitrarily disregard the result of any former referendum but also to arbitrarily fabricate a new context within which the voters are forced to alter their disregarded decision.

3) Further to the above point, if the second referendum on a ‘renegotiated’/modified Lisbon Treaty is planned to be held to overwrite the result of the first referendum, the second should include the exact same conditions as the first. The question regarding Lisbon needs to be answered on its own right by ‘yes’ or ‘no’ solely by consideration of the Treaty. The answer to the question of ratification would be fundamentally distorted when not independently asked but in association with other conditions/decisions. Any manipulation of the former plain referendum question would render the authentic answer of the voters subordinate to arbitrary/coercive factors.

4) Since the outcome of the first referendum contained a very serious international implication: the cancellation of the Lisbon Treaty with regard to all of the 27 member states, a second referendum should be held with the association of the same international consequences/conditions, otherwise it cannot be viewed as a substitute of the first.

5) If a second referendum would be held without substantial modification of the treaty, only regarding details that would be secondary and long-term implications of the overall loss of national sovereignty [10], it would leave a second referendum without justification. However, if a second referendum would be held with substantial modification of the treaty, this would raise the question of fair treatment of the other member states and lead us again to the argument that a second referendum with substantially different questions cannot be considered to be the replacement of the first.

Summary and conclusion

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.

In either case we encounter a contradiction which can only be resolved if the decision of the June 12 referendum would enter into force, regardless of any further plans of a second referendum.

If the Irish Government has submitted (or once would submit) Ireland’s official rejection of Lisbon as per the June 12 referendum and the EU decides to disregard Ireland’s decision by violating the principle of unanimity [9], the issue is strictly in the realm of international law and as such is a solid basis for a litigation case against the EU and against all the member states ratifying an illegal treaty.

References

[1] MEP Exposes The EU Lisbon Treaty!!!
The speech of Jens-Peter Bonde, a member of the European Parliament from Denmark:
http://www.youtube.com/watch?v=8Kr0Foq3CQE&feature=related

[2] Our future under a ratified Lisbon Treaty
http://www.indymedia.ie/article/87683
http://www.indymedia.ie/article/87712
http://www.indymedia.ie/article/87730

[3] Respect the Irish Vote: Aftershock in European Parliament
http://www.youtube.com/watch?v=M6QmH-7fu68

[4] More questions for the far-wrong side of Lisbon
http://www.indymedia.ie/article/88135

[5] Is there a democratic life after a dead Lisbon Treaty?
http://www.indymedia.ie/article/88033

[6] Ireland under pressure to vote again on treaty
http://www.guardian.co.uk/world/2008/jun/20/ireland.eu
“Asked whether Ireland would need to stage a second referendum to resolve the impasse thrown up by last week's rejection, Sarkozy said: "Is it possible without a vote? To ask the question is to answer it."

[7] EU Constitution author says referendums can be ignored http://www.telegraph.co.uk/news/worldnews/europe/220002....html

[8] Cowen gets year to sell 'Lisbon II' in new vote
http://www.independent.ie/national-news/cowen-gets-year....html

[9] Lies, Damned Lies, and a Referendum Re-run
http://www.indymedia.ie/article/88061

[10] Lisbon Treaty: national level competences to be transferred to the EU
http://www.indymedia.ie/article/87923