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 Legal Challenge to A Second Lisbon Treaty Referendum ?

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PostSubject: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 6:12 pm

The Irish Times published this 20th December 08:

Quote :
Members of the Campaign Against the EU Constitution have said they will consider taking a constitutional challenge if the Lisbon Treaty referendum is re-run.

Legal advice to the campaign has said grounds could be found to bring a challenge on the basis that by asking the people to vote again on exactly the same treaty, the Government would be acting unconstitutionally.

The comments came as Taoiseach Brian Cowen prepared to present a roadmap on the way forward for Ireland following the rejection on the Lisbon Treaty referendum last June.

Former Green Party MEP Patricia McKenna, who is affiliated to the campaign through the People's Movement, said there were also serious constitutional question marks hanging over the survey carried out after the referendum to find out why people voted the way they did.

She said a number of issues were involved in the Hanafin case, a challenge taken on foot of the divorce referendum in 1995, but the judgment made it quite clear that the Government could not "go behind the backs of the people after a vote" to try and look for ways to get around their decision.

She also said if the Government decided to try and pass some parts of the Lisbon Treaty through the Dail that would open the door for a legal challenge because people have already voted on the treaty.

"I think the government have to be very careful," she said.

Michael Youlton, co-ordinator of the campaign and a member of the Irish anti-war movement said all bets are off at the moment and if a legal challenge was necessary, the campaign would find the funds.

Has anyone heard any more of this? And where would the campaign find the very substantial funds?
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 6:27 pm

Funds... some sympathetic barristers who aren't charging them for it and feel confident enough that they won't get chased for fees afterwards.

A load of nonsense - aboslutely no chance they would succeed. I am not a betting man but that kind of case is the kind I would bet my proverbial house on. First, quite plainly it is not unconstitutional and second it would be a seriously activist move from a Supreme Court which has rapidly retreated from judicial activism. No Supreme Court in Irish history would have ruled in favour of them in this circumstance and this Supreme Court is about the least likely to. The Supreme Court has absolutely no role in deciding what can and cannot be brought before the Houses of the Oireachtas, that is clear in the Constitution and well the judiciary knows it.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 7:46 pm

I don't have a lot of time for the present so this will be brief I'm afraid. Also this is guesswork on my part. I'll send a few emails this evening and see what the official position is.

Remembering the divorce referendum being run twice seems to suggest that it's okay to have the same referendum more than once. So therefore imo, that's not where the legal challenge would lie.

Ireland rejected the Lisbon treaty, or at least her voting population did. However, our government did not. They have not ratified it that's true, but they have not officially rejected it. They went to Europe and acted as if the vote was meaningless. They should have formally rejected the treaty, that's what the vote mandated imo, and therein lies a credible legal challenge.

Even if the challenge were to fail it would still form the basis for a very strong campaign for Lisbon II.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 7:52 pm

Hermes wrote:
I don't have a lot of time for the present so this will be brief I'm afraid. Also this is guesswork on my part. I'll send a few emails this evening and see what the official position is.

Remembering the divorce referendum being run twice seems to suggest that it's okay to have the same referendum more than once. So therefore imo, that's not where the legal challenge would lie.

Ireland rejected the Lisbon treaty, or at least her voting population did. However, our government did not. They have not ratified it that's true, but they have not officially rejected it. They went to Europe and acted as if the vote was meaningless. They should have formally rejected the treaty, that's what the vote mandated imo, and therein lies a credible legal challenge.

Even if the challenge were to fail it would still form the basis for a very strong campaign for Lisbon II.

If there's nothing in the Constitution that prevents the government from running a second referendum on the same issue, then the government cannot be acting unconstitutionally in doing so. Nor is there any basis for claiming that the government should have "rejected" Lisbon, because the proposed constitutional amendment didn't give the government any such mandate. All the referendum was on was on whether the Constitution should be amended to allow the government to ratify Lisbon. Referendums do not dictate government policy, but changes to the Constitution - and it is government policy to try and get Lisbon ratified.

Really, this is another huge waste of time and money, and will probably be seen as such.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 8:06 pm

Another quick post before I run out the door.

The Constitution states that the only way to alter the Constitution is via referendum. The government has told the EU that Ireland cannot ratify the treaty at this time, rather than telling them that it cannot be ratified. That's a splitting hairs argument I agree. But the law is all about words. One can but surmise at the response the government would have gotten if they'd told the EU that they couldn't ratify Lisbon. Methinks the reply wouldn't have consisted of some assurances. Therefore there is a credible argument that my 'war of words' angle has some, if only a little, merit. On top of this, I might be very wide of the mark in my guesswork. Ms McKenna might be going down a different road altogether.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 8:15 pm

Hermes wrote:
Another quick post before I run out the door.

The Constitution states that the only way to alter the Constitution is via referendum. The government has told the EU that Ireland cannot ratify the treaty at this time, rather than telling them that it cannot be ratified. That's a splitting hairs argument I agree. But the law is all about words. One can but surmise at the response the government would have gotten if they'd told the EU that they couldn't ratify Lisbon. Methinks the reply wouldn't have consisted of some assurances. Therefore there is a credible argument that my 'war of words' angle has some, if only a little, merit. On top of this, I might be very wide of the mark in my guesswork. Ms McKenna might be going down a different road altogether.

The refusal of any Constitutional amendment at any given referendum is purely a refusal at that vote. Otherwise, if the principle applies in referendums, it applies in all votes, and severely hampers the government by making every piece of legislation or Constitutional change a one-shot chance - presumably in the entire existence of the State. That means if we ran a referendum on repealing the abortion amendment, and it failed, that's it - no future Irish generation will ever be able to repeal that amendment. Does that seem like a logical or desirable outcome?
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 8:53 pm

ibis wrote:
Hermes wrote:
Another quick post before I run out the door.

The Constitution states that the only way to alter the Constitution is via referendum. The government has told the EU that Ireland cannot ratify the treaty at this time, rather than telling them that it cannot be ratified. That's a splitting hairs argument I agree. But the law is all about words. One can but surmise at the response the government would have gotten if they'd told the EU that they couldn't ratify Lisbon. Methinks the reply wouldn't have consisted of some assurances. Therefore there is a credible argument that my 'war of words' angle has some, if only a little, merit. On top of this, I might be very wide of the mark in my guesswork. Ms McKenna might be going down a different road altogether.

The refusal of any Constitutional amendment at any given referendum is purely a refusal at that vote. Otherwise, if the principle applies in referendums, it applies in all votes, and severely hampers the government by making every piece of legislation or Constitutional change a one-shot chance - presumably in the entire existence of the State. That means if we ran a referendum on repealing the abortion amendment, and it failed, that's it - no future Irish generation will ever be able to repeal that amendment. Does that seem like a logical or desirable outcome?

I don't think the issue is as simple as that. What if for example, the government decided to host two referenda, two weeks apart, the second being conditional upon the first being rejected and indeed, a third, another two weeks down the line if the second failed and so on and so on... The Constitution does not forbid this directly but it would not take someone with a large dose of IQ to rightly point to it being a strongarm tactic used to force the will of the people. It would completely nullify the idea that it is only the will of the majority of voters that may change our Constitution.

The multiple abortion referenda we have had have been facilitated by time and events in the public, where it could be argued that there might have been a shift in public opinion - The X case being an example, providing for both a legal interpretation and a possible shift in opinion. In my own opinion, the abortion issue crops up when the government wish to spam a referendum and take folks' minds off whatever else may be up for the vote at the same time.

In this instance though, there has been nothing whatsoever to suggest a change in viewpoint of the the majority. Instead we have the government hoping to stimulate a change in viewpoint, at the behest of people who did not give our government their mandate. It's unrepresentative and very undemocratic. I'm not arguing that the government shouldn't be able to bring the same question before the people on more than one occasion, far from it. I'm saying that there should be some credible reason for it, that suggests that the people may have changed their minds. I'm saying the petulant approach currently being pursued by our government is incredibly insulting to both the people and to the idea of democracy.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 9:22 pm

I didnt study law in a jurisdiction with a written constitution but my understanding is that the terms of a constitution, as with any law, will evolve through judicial interpretation over time. In common law, judicial precedent is set everytime judges make a new ruling, something which they are very slow to do for fear of destabilising the law and creating uncertainty.

http://nuweb.northumbria.ac.uk/bedemo/Sources_of_English_Law/page_10.htm

In the case of constitutional law, judges will refuse to make a decision if they feel they are, in effect, being asked to legislate rather than interpret the law and will refer cases/issues determined by statute/constitution to parliament for clarification/referendum/further statutory legislation. The rejection of the Lisbon Treaty means this constutitional amendment has never even been on the books and there is no reason whatever therefore to refer it back to the people who have already rejected it by the highest legal authority prossible. Holding a second referendum in these circumstances makes a complete nonsense of an important part of our legal system. Though the law is vague on when a referendum may be called, forcing people to vote repeatedly on something which they have alredy decided and which has never been implemented precisely because of their vote is outrageous.

http://en.wikipedia.org/wiki/Amendments_to_the_Constitution_of_Ireland
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 9:33 pm

Accepting a rule that a subsequent referendum could not be held to change the result of a previous recent referendum would be very wrong.

Firstly there is no justification to for the rule as the people are sovereign and would surely have the right to amend such a rule.

Secondly, it could be abused by people who want to resist the sovereign will of the majority of the people. For what time period should such a referendum result be untouchable and how could such a period be anything other than arbitrary?

Thirdly, it would be undemocratic as it would value the votes of the recently departed above the votes of those that have recently attained the age of majority.

Fourthly, it would prevent the population from reacting quickly to changing circumstances. This would be dangerous in a globalised economy on an imperiled planet.

I take a jaundiced view of any argument to deprive people of a vote in order to protect their democratic rights.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 9:45 pm

Aragon wrote:
I... Though the law is vague on when a referendum may be called, forcing people to vote repeatedly on something which they have alredy decided and which has never been implemented precisely because of their vote is outrageous.

I'm afraid, Aragon, that Irish constitutional law is anything but vague on "when a referendum may be called".

Articles 46 & 47 are very clear as to the requirements for an initiative to amend the constution. The issues as to what question may be put to the people, how often and in what circumstances are entirely matters for the Oireachtas. The floating of a legal challenge to the State's right to put the Lisbon Treaty back to the people in a second referendsum is little more than tilting at windmills. It does not surprise me that Patricia McKenna is not quite up to speed on Bunreacht na hÉireann given the lamentable lack of understanding that she and many of her colleagues showed over the provisions of the Lisbon Treaty. Patricia really doesn't do constitutional law very well at all.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:09 pm

Hermes wrote:
ibis wrote:
The refusal of any Constitutional amendment at any given referendum is purely a refusal at that vote. Otherwise, if the principle applies in referendums, it applies in all votes, and severely hampers the government by making every piece of legislation or Constitutional change a one-shot chance - presumably in the entire existence of the State. That means if we ran a referendum on repealing the abortion amendment, and it failed, that's it - no future Irish generation will ever be able to repeal that amendment. Does that seem like a logical or desirable outcome?

I don't think the issue is as simple as that. What if for example, the government decided to host two referenda, two weeks apart, the second being conditional upon the first being rejected and indeed, a third, another two weeks down the line if the second failed and so on and so on... The Constitution does not forbid this directly but it would not take someone with a large dose of IQ to rightly point to it being a strongarm tactic used to force the will of the people. It would completely nullify the idea that it is only the will of the majority of voters that may change our Constitution.

Well, no, it wouldn't. It would, if anything, illustrate it. Making the decision by some other means after a referendum rejection would nullify the idea, but, frankly, unless the government either rigs the referendum returns or threatens and intimidates voters as they go to the polls, the result of a free vote is a free vote. You can't claim that a free vote nullifies the idea of a free vote - that's nonsense.

Maybe I look at this as a parent. If you have a small child, and that small child wants something (say a biscuit), they will ask repeatedly in the hopes that you will change your mind. Now while that's bloody irritating, it does not at any point nullify the principle that the decision is mine, as the parent. If the child simply takes the biscuit, then they have set aside that principle - and if the child were able to physically coerce me into agreeing they could have the biscuit, the same.

Of course, I appreciate that people will say "ah yes, but the government is intimidating the voter", but on examination, we find that all this means is that the government has chosen to highlight what it believes are the negative consequences of refusing their request. That's not intimidation, and claiming it is is pretty sad. Nor is holding the vote repeatedly or engaging in PR either intimidation or vote-rigging. All those are allowed tactics - as is, of course, trying to characterise those things as being exactly the same as Zanu-PF thugs standing outside every polling station looking at ballot papers.

Hermes wrote:
The multiple abortion referenda we have had have been facilitated by time and events in the public, where it could be argued that there might have been a shift in public opinion - The X case being an example, providing for both a legal interpretation and a possible shift in opinion. In my own opinion, the abortion issue crops up when the government wish to spam a referendum and take folks' minds off whatever else may be up for the vote at the same time.

That suggests that people like COIR and those others who bring up abortion every time are some kind of false flag group. I'm sorry, but I'm going to dismiss that idea out of hand. Jens-Peter Bonde brought up abortion, as did Libertas, as did COIR - there's no sign that the government brought it up or wanted to.

Hermes wrote:
In this instance though, there has been nothing whatsoever to suggest a change in viewpoint of the the majority. Instead we have the government hoping to stimulate a change in viewpoint, at the behest of people who did not give our government their mandate. It's unrepresentative and very undemocratic. I'm not arguing that the government shouldn't be able to bring the same question before the people on more than one occasion, far from it. I'm saying that there should be some credible reason for it, that suggests that the people may have changed their minds. I'm saying the petulant approach currently being pursued by our government is incredibly insulting to both the people and to the idea of democracy.

Again, there's no particular reason why the idea that there has to be some "significant change" gets erected into some sort of criterion for a second referendum (except the obvious reason that it suits one side of the debate) - and to be honest, the change in Ireland's situation between Nice I and II was much less significant than the collapse of its economy and public finances. Sure, we had a general election - which elected the same government, and Nice didn't feature in the election campaigns.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:12 pm

Desmond O'Toole wrote:
Aragon wrote:
I... Though the law is vague on when a referendum may be called, forcing people to vote repeatedly on something which they have alredy decided and which has never been implemented precisely because of their vote is outrageous.

I'm afraid, Aragon, that Irish constitutional law is anything but vague on "when a referendum may be called".

Articles 46 & 47 are very clear as to the requirements for an initiative to amend the constution. The issues as to what question may be put to the people, how often and in what circumstances are entirely matters for the Oireachtas. The floating of a legal challenge to the State's right to put the Lisbon Treaty back to the people in a second referendsum is little more than tilting at windmills. It does not surprise me that Patricia McKenna is not quite up to speed on Bunreacht na hÉireann given the lamentable lack of understanding that she and many of her colleagues showed over the provisions of the Lisbon Treaty. Patricia really doesn't do constitutional law very well at all.

There's a lot more than Articles 46 and 47 to this argument.

Article 1:
Quote :
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 6.1
Quote :
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.

I'm not suggesting that "final appeal" means that there may be no other appeals. I'm suggesting that once the people have decided upon a national policy, that it is not the govenment's right to subvert or pervert it.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:15 pm

Hermes wrote:
Desmond O'Toole wrote:
Aragon wrote:
I... Though the law is vague on when a referendum may be called, forcing people to vote repeatedly on something which they have alredy decided and which has never been implemented precisely because of their vote is outrageous.

I'm afraid, Aragon, that Irish constitutional law is anything but vague on "when a referendum may be called".

Articles 46 & 47 are very clear as to the requirements for an initiative to amend the constution. The issues as to what question may be put to the people, how often and in what circumstances are entirely matters for the Oireachtas. The floating of a legal challenge to the State's right to put the Lisbon Treaty back to the people in a second referendsum is little more than tilting at windmills. It does not surprise me that Patricia McKenna is not quite up to speed on Bunreacht na hÉireann given the lamentable lack of understanding that she and many of her colleagues showed over the provisions of the Lisbon Treaty. Patricia really doesn't do constitutional law very well at all.

There's a lot more than Articles 46 and 47 to this argument.

Article 1:
Quote :
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 6.1
Quote :
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.

I'm not suggesting that "final appeal" means that there may be no other appeals. I'm suggesting that once the people have decided upon a national policy, that it is not the govenment's right to subvert or pervert it.

Which might be meaningful if the government had put a policy question before the people, as opposed to an amendment to the Constitution. Looking back, however, we discover that the proposal voted on did not say "government policy shall be to ratify Lisbon" - a No, therefore, doesn't in any way preclude the government from pursuing exactly such a policy.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:18 pm

I wonder if they aren't being taken for a ride by some crafty barrister.

As has been said, this case cannot succeed. The right to hold a referendum is vested in the Oireachtas by the Constitution. There have been a string of cases in which people have tried to prevent the government from putting a referendum to the people, and they have all failed without exception because the court simply doesn't think it is its place to prevent any question from going to the people.

The activism thing that johnfás pointed out is also important. It is important to remember that the Crotty judgement that we all take for granted was seen as extremely activist when originally handed down, and this was one of the many bases for criticism of the case. Compare that with this situation which is massively more intrusive than Crotty. No way.

The CAEUC have duped the Iris voters with their sensationalist language and scaremongering, and now they think they can dupe the Supreme Court. Big mistake.

I started a similar thread on P.ie here: http://www.politics.ie/lisbon-treaty/39421-right-re-run-constitutionally-protected.html
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:34 pm

Hermes wrote:

There's a lot more than Articles 46 and 47 to this argument.

Article 1:
Quote :
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 6.1
Quote :
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.

I'm not suggesting that "final appeal" means that there may be no other appeals. I'm suggesting that once the people have decided upon a national policy, that it is not the govenment's right to subvert or pervert it.

The point of Aragon's that I was responding to was his claim that constitutional law is "vague" on when a referendum on an amendment to the Constitution may be called. I pointed out that Art's 46 & 47 show that this is not the case. The articles that you are quoting are all very interesting, but they have nothing to do with the point that I was contesting. In particular, these articles have no bearing on the capacity of the Oireachtas to agree to put such questions as it wishes to the people, whenever and howsoever our public represenatives may choose to do so. Such issues are political questions unconstrained by Bunreacht na hÉireann.

If Pat McK and her friends are foolish enough to waste their money on this particular windmill-tilt, then the best of luck to them. It has long been understood that a fool and her/his money is easilly parted.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:36 pm

It is quite bizarre, as Zhou says, that anyone should even suggest limiting referendums in the name of democracy.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:36 pm

Quote :
Well, no, it wouldn't. It would, if anything, illustrate it.
Making the decision by some other means after a referendum rejection
would nullify the idea, but, frankly, unless the government either rigs
the referendum returns or threatens and intimidates voters as they go
to the polls, the result of a free vote is a free vote. You can't claim
that a free vote nullifies the idea of a free vote - that's nonsense.

Maybe
I look at this as a parent. If you have a small child, and that small
child wants something (say a biscuit), they will ask repeatedly in the
hopes that you will change your mind. Now while that's bloody
irritating, it does not at any point nullify the principle that the
decision is mine, as the parent. If the child simply takes the biscuit,
then they have set aside that principle - and if the child were able to
physically coerce me into agreeing they could have the biscuit, the
same.

Of course, I appreciate that people will say "ah yes, but
the government is intimidating the voter", but on examination, we find
that all this means is that the government has chosen to highlight what
it believes are the negative consequences of refusing their request.
That's not intimidation, and claiming it is is pretty sad. Nor is
holding the vote repeatedly or engaging in PR either intimidation or
vote-rigging. All those are allowed tactics - as is, of course, trying
to characterise those things as being exactly the same as Zanu-PF thugs
standing outside every polling station looking at ballot papers.

I like the parent and child anology, it's apt. But we should remember that the parent whilst being described as a representative of the child, is so from an authoritarian perspective. Yes the parent represents the child, but from the perspective that the parent decides what the child's needs are. The relationship established between a parent and a child is not a democratic one, there may be negotiations etc. but the parent does not do as he or she is told to by the child. For me, this argument boils down to 'representation.' By all means, the government should educate the people as to the pitfalls etc. that not accepting Lisbon will entail and indeed, they should illustrate the benefits too. However, all this should occur before the referendum. There is nothing wrong with trying to steer the people to vote a certain way. There is something wrong when the people exercise their right to steer the government and the government decides to ignore this and progress their own design. Nothing has happened that shows the people wish to adopt the same policy the government is trying to push. Plenty has happened to show that the people wish to change the government's policy. And being the final arbiters of national policy, the people have a right to expect the government to get with the program.

Ibis wrote:
That suggests that people like COIR and those others who bring up
abortion every time are some kind of false flag group. I'm sorry, but
I'm going to dismiss that idea out of hand. Jens-Peter Bonde brought up
abortion, as did Libertas, as did COIR - there's no sign that the
government brought it up or wanted to.

I'm afraid that I should have been clearer. I meant that when the government run an abortion referendum in conjunction with another referendum, that I consider it to be an act of spamming. COIR etc. pushing this subject during Lisbon are only slightly different. Whilst I don't think it was a false flag operation per se, I do consider it to have been spam nonetheless.

Ibis wrote:
Again, there's no particular reason why the idea that there has to be
some "significant change" gets erected into some sort of criterion for
a second referendum (except the obvious reason that it suits one side
of the debate) - and to be honest, the change in Ireland's situation
between Nice I and II was much less significant than the
collapse of its economy and public finances. Sure, we had a general
election - which elected the same government, and Nice didn't feature
in the election campaigns.

Please don't let's get into a debate about why wasn't there a constitutional challenge about the second Nice referendum. The fact that the second referendum occurred is not proof that any Lisbon challenge will fail. Also, voting for Lisbon wouldn't have averted the economic collapse. Nor would it have changed our government's response to it, unless you wish to get into the: "the government are not competent to rule argument and thus we need Lisbon" debate. That could get very confusing as I would advocate the idea of the government's incompetency. I shouldn't be putting words into your mouth, so I'll shut up now.


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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:39 pm

People are not objecting to limiting referndums - they are objecting to having the results of referenda ignored.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:41 pm

Aragon wrote:
People are not objecting to limiting referndums - they are objecting to having the results of referenda ignored.
Well there you go, that's exactly why the case will fail.The referendum result is not being ignored. Lisbon hasn't been ratified.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:49 pm

Aragon wrote:
People are not objecting to limiting referndums - they are objecting to having the results of referenda ignored.

The people were asked in June to vote to amend the Constitution and enable the State to ratify the Lisbon Treaty.

The people voted not to amend the Constitution and not to enable the State to ratify the Lisbon Treaty.

The Constitution has not, therefore, been amended and the State has not ratified the Lisbon Treaty.

Whatever else the State may be accused of it is a pretty wild stretching of the meaning of the word to claim that the results of the referendum have been "ignored". Quite the contrary, in fact. The result of the referendum has been followed to the letter.


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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:54 pm

Hermes wrote:
Quote :
Well, no, it wouldn't. It would, if anything, illustrate it.
Making the decision by some other means after a referendum rejection
would nullify the idea, but, frankly, unless the government either rigs
the referendum returns or threatens and intimidates voters as they go
to the polls, the result of a free vote is a free vote. You can't claim
that a free vote nullifies the idea of a free vote - that's nonsense.

Maybe
I look at this as a parent. If you have a small child, and that small
child wants something (say a biscuit), they will ask repeatedly in the
hopes that you will change your mind. Now while that's bloody
irritating, it does not at any point nullify the principle that the
decision is mine, as the parent. If the child simply takes the biscuit,
then they have set aside that principle - and if the child were able to
physically coerce me into agreeing they could have the biscuit, the
same.

I like the parent and child anology, it's apt. But we should remember that the parent whilst being described as a representative of the child, is so from an authoritarian perspective. Yes the parent represents the child, but from the perspective that the parent decides what the child's needs are. The relationship established between a parent and a child is not a democratic one, there may be negotiations etc. but the parent does not do as he or she is told to by the child.

Well, in the analogy, the child is the government.

Hermes wrote:
For me, this argument boils down to 'representation.' By all means, the government should educate the people as to the pitfalls etc. that not accepting Lisbon will entail and indeed, the should illustrate the benefits too. However, all this should occur before the referendum. There is nothing wrong with trying to steer the people to vote a certain way. There is something wrong when the people exercise their right to steer the government and the government decide to ignore this an progress their own design. Nothing has happened that shows the people wish to adopt the same policy the government are trying to push. Plenty has happened to show that the people wish to change the government's policy. And being the final arbiters of national policy, the people have a right to expect the government to get with the program.

Nope. The people can certainly decide what government policy is, but that's not what they were asked. Since it wasn't, interpreting it as being so is an act of, well, interpretation - and my interpretation is different from yours. Of course someone who wants Lisbon abandoned will interpret the No as meaning that government policy should be to abandon Lisbon, and take the No as evidence of that. Unfortunately, that wasn't the question, and the evidence that the voters voted to change government policy is just as entirely missing as evidence that they approve of it - and for the same reason, which is they weren't asked. I'm afraid there's no case to answer in that respect.

Hermes wrote:
Ibis wrote:
That suggests that people like COIR and those others who bring up
abortion every time are some kind of false flag group. I'm sorry, but
I'm going to dismiss that idea out of hand. Jens-Peter Bonde brought up
abortion, as did Libertas, as did COIR - there's no sign that the
government brought it up or wanted to.

I'm afraid that I should have been clearer. I meant that when the government run an abortion referendum in conjunction with another referendum, that I consider it to be an act of spamming. COIR etc. pushing this subject during Lisbon are only slightly different. Whilst I don't think it was a false flag operation per se, I do consider it to have been spam nonetheless.

Seems fair. Unfortunately there's a lot of spam in referendums.

Hermes wrote:
Ibis wrote:
Again, there's no particular reason why the idea that there has to be
some "significant change" gets erected into some sort of criterion for
a second referendum (except the obvious reason that it suits one side
of the debate) - and to be honest, the change in Ireland's situation
between Nice I and II was much less significant than the
collapse of its economy and public finances. Sure, we had a general
election - which elected the same government, and Nice didn't feature
in the election campaigns.

Please don't let's get into a debate about why wasn't there a constitutional challenge about the second Nice referendum. The fact that the second referendum occurred is not proof that any Lisbon challenge will fail. Also, voting for Lisbon wouldn't have averted the economic collapse. Nor would it have changed our government's response to it, unless you wish to get into the: "the government are not competent to rule argument and thus we need Lisbon" debate. That could get very confusing as I would advocate the idea of the government's incompetency. I shouldn't be putting words into your mouth, so I'll shut up now.

No, well, we're not going to have much of a discussion on government incompetence, apart from a "let us count the ways". I would say, though, that such government incompetence should not be a factor in deciding on Lisbon, but already has been in several ways.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Mon Jan 05, 2009 10:56 pm

Desmond O'Toole wrote:
Aragon wrote:
People are not objecting to limiting referndums - they are objecting to having the results of referenda ignored.

The people were asked in June to vote to amend the Constitution and enable the State to ratify the Lisbon Treaty.

The people voted not to amend the Constitution and not to enable the State to ratify the Lisbon Treaty.

The Constitution has not, therefore, been amended and the State has not ratified the Lisbon Treaty.

Whatever else the State may be accused of it is a pretty wild stretching of the meaning of the word to claim that the results of the referendum have been "ignored". Quite the contrary, in fact. The result of the referendum has been followed to the letter.

Which is, in fact, the No side's problem with it, and why they're talking about limiting referendums, so that a No would have the decisive effect they want.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Tue Jan 06, 2009 3:28 am

Hermes wrote:
Desmond O'Toole wrote:
Aragon wrote:
I... Though the law is vague on when a referendum may be called, forcing people to vote repeatedly on something which they have alredy decided and which has never been implemented precisely because of their vote is outrageous.

I'm afraid, Aragon, that Irish constitutional law is anything but vague on "when a referendum may be called".

Articles 46 & 47 are very clear as to the requirements for an initiative to amend the constution. The issues as to what question may be put to the people, how often and in what circumstances are entirely matters for the Oireachtas. The floating of a legal challenge to the State's right to put the Lisbon Treaty back to the people in a second referendsum is little more than tilting at windmills. It does not surprise me that Patricia McKenna is not quite up to speed on Bunreacht na hÉireann given the lamentable lack of understanding that she and many of her colleagues showed over the provisions of the Lisbon Treaty. Patricia really doesn't do constitutional law very well at all.

There's a lot more than Articles 46 and 47 to this argument.

Article 1:
Quote :
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 6.1
Quote :
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.

I'm not suggesting that "final appeal" means that there may be no other appeals. I'm suggesting that once the people have decided upon a national policy, that it is not the govenment's right to subvert or pervert it.

I'm afraid you are fundamentally mistaken in your understanding of constitutional law. There are only two forms of referendum available - referenda on constitutional amendments and referenda on statute laws. In the former the people have a simple 'yes' or 'no' role. They have to approve a constitutional amendment for it to be enacted. On legislation, the law comes into force unless the people in a special weighted majority block it. Even if the people ratify a Bill and it is enacted, the constitution makes it clear that the Oireachtas has absolute freedom to repeal that law if it wishes.

The reference to the people deciding all questions of national policy simply means that decisions are made by elected representatives of the people, with important issues shaping the electoral process in a general election. The wording by John Hearne means nothing other than popular sovereignty through parliament. There is no other way allowed for in the constitution and legally and constitutionally no way for the people to participate in decision making other than in amending the constitution, rejecting bills if one is referred to them in a plebiscite, and in a general election. Policy making referenda do not exist under Bunreacht na hEireann.

If the No side are foolish enough to waste money going through such a pointless legal case that is their own business. They have not a leg to stand on legally. Irish people do not and cannot set policy perameters. They vote to elect TDs. They vote on constitutional amendments and in theory can vote on the odd law.

Nor, contrary to myth, do they ever, nor can they ever, vote on treaties. There was no 'referendum on Lisbon', or Nice, or anything else. The Oireachtas put forward a proposed constitutional amendment to enable the Oireachtas to ratify the Lisbon treaty. The people rejected the constitutional amendment. The Oireachtas is entirely free if it chooses under Bunreacht na hEireann to put forward a million amendments on the issue if it wants. Only the Oireachtas and no other body can propose an amendment and there is no limit whatsoever to how many times the Oireachtas can revisit the issue with new amendments. Under Bunreacht na nEireann if the people vote down a new amendment on Lisbon the Oireachtas can propose another, and another, and as many as it takes to get one approved. That is allowed under the Bunreacht. Any undergrad law student, much less every senior and junior counsel and judge in the country, knows that. In proposing amendments the Oireachtas is entirely sovereign and cannot be restricted. The rejection or passage of one amendment in no way restricts the right of the Oireachtas to revisit that issue unless the amendment explicitly removes that power from the Oireachtas and no such amendment has ever been proposed let alone adopted.

Patricia is on a loser on this point if she is foolish enough to go ahead with it. The only issue is what speed the courts will achieve in rejecting the argument, not whether the argument is rejected. That is open and shut in constitutional law.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Tue Jan 06, 2009 4:25 am

Papal Knight wrote:
Hermes wrote:
Desmond O'Toole wrote:
Aragon wrote:
I... Though the law is vague on when a referendum may be called, forcing people to vote repeatedly on something which they have alredy decided and which has never been implemented precisely because of their vote is outrageous.

I'm afraid, Aragon, that Irish constitutional law is anything but vague on "when a referendum may be called".

Articles 46 & 47 are very clear as to the requirements for an initiative to amend the constution. The issues as to what question may be put to the people, how often and in what circumstances are entirely matters for the Oireachtas. The floating of a legal challenge to the State's right to put the Lisbon Treaty back to the people in a second referendsum is little more than tilting at windmills. It does not surprise me that Patricia McKenna is not quite up to speed on Bunreacht na hÉireann given the lamentable lack of understanding that she and many of her colleagues showed over the provisions of the Lisbon Treaty. Patricia really doesn't do constitutional law very well at all.

There's a lot more than Articles 46 and 47 to this argument.

Article 1:
Quote :
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 6.1
Quote :
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.

I'm not suggesting that "final appeal" means that there may be no other appeals. I'm suggesting that once the people have decided upon a national policy, that it is not the govenment's right to subvert or pervert it.

I'm afraid you are fundamentally mistaken in your understanding of constitutional law. There are only two forms of referendum available - referenda on constitutional amendments and referenda on statute laws. In the former the people have a simple 'yes' or 'no' role. They have to approve a constitutional amendment for it to be enacted. On legislation, the law comes into force unless the people in a special weighted majority block it. Even if the people ratify a Bill and it is enacted, the constitution makes it clear that the Oireachtas has absolute freedom to repeal that law if it wishes.

The reference to the people deciding all questions of national policy simply means that decisions are made by elected representatives of the people, with important issues shaping the electoral process in a general election. The wording by John Hearne means nothing other than popular sovereignty through parliament. There is no other way allowed for in the constitution and legally and constitutionally no way for the people to participate in decision making other than in amending the constitution, rejecting bills if one is referred to them in a plebiscite, and in a general election. Policy making referenda do not exist under Bunreacht na hEireann.

If the No side are foolish enough to waste money going through such a pointless legal case that is their own business. They have not a leg to stand on legally. Irish people do not and cannot set policy perameters. They vote to elect TDs. They vote on constitutional amendments and in theory can vote on the odd law.

Nor, contrary to myth, do they ever, nor can they ever, vote on treaties. There was no 'referendum on Lisbon', or Nice, or anything else. The Oireachtas put forward a proposed constitutional amendment to enable the Oireachtas to ratify the Lisbon treaty. The people rejected the constitutional amendment. The Oireachtas is entirely free if it chooses under Bunreacht na hEireann to put forward a million amendments on the issue if it wants. Only the Oireachtas and no other body can propose an amendment and there is no limit whatsoever to how many times the Oireachtas can revisit the issue with new amendments. Under Bunreacht na nEireann if the people vote down a new amendment on Lisbon the Oireachtas can propose another, and another, and as many as it takes to get one approved. That is allowed under the Bunreacht. Any undergrad law student, much less every senior and junior counsel and judge in the country, knows that. In proposing amendments the Oireachtas is entirely sovereign and cannot be restricted. The rejection or passage of one amendment in no way restricts the right of the Oireachtas to revisit that issue unless the amendment explicitly removes that power from the Oireachtas and no such amendment has ever been proposed let alone adopted.

Patricia is on a loser on this point if she is foolish enough to go ahead with it. The only issue is what speed the courts will achieve in rejecting the argument, not whether the argument is rejected. That is open and shut in constitutional law.

Pure sophistry. If we had voted yes would we now be having a second referendum? Not on your nelly. If the No side, in that event, were demanding a rerun the media would be howling with outrage about it, nay, sneering with contempt at our lack of respect for the 'settled will of the people'. Hypocrites, all of you.
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PostSubject: Re: Legal Challenge to A Second Lisbon Treaty Referendum ?   Tue Jan 06, 2009 4:39 am

Aragon wrote:
Papal Knight wrote:
Hermes wrote:
Desmond O'Toole wrote:
Aragon wrote:
I... Though the law is vague on when a referendum may be called, forcing people to vote repeatedly on something which they have alredy decided and which has never been implemented precisely because of their vote is outrageous.

I'm afraid, Aragon, that Irish constitutional law is anything but vague on "when a referendum may be called".

Articles 46 & 47 are very clear as to the requirements for an initiative to amend the constution. The issues as to what question may be put to the people, how often and in what circumstances are entirely matters for the Oireachtas. The floating of a legal challenge to the State's right to put the Lisbon Treaty back to the people in a second referendsum is little more than tilting at windmills. It does not surprise me that Patricia McKenna is not quite up to speed on Bunreacht na hÉireann given the lamentable lack of understanding that she and many of her colleagues showed over the provisions of the Lisbon Treaty. Patricia really doesn't do constitutional law very well at all.

There's a lot more than Articles 46 and 47 to this argument.

Article 1:
Quote :
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 6.1
Quote :
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.

I'm not suggesting that "final appeal" means that there may be no other appeals. I'm suggesting that once the people have decided upon a national policy, that it is not the govenment's right to subvert or pervert it.

I'm afraid you are fundamentally mistaken in your understanding of constitutional law. There are only two forms of referendum available - referenda on constitutional amendments and referenda on statute laws. In the former the people have a simple 'yes' or 'no' role. They have to approve a constitutional amendment for it to be enacted. On legislation, the law comes into force unless the people in a special weighted majority block it. Even if the people ratify a Bill and it is enacted, the constitution makes it clear that the Oireachtas has absolute freedom to repeal that law if it wishes.

The reference to the people deciding all questions of national policy simply means that decisions are made by elected representatives of the people, with important issues shaping the electoral process in a general election. The wording by John Hearne means nothing other than popular sovereignty through parliament. There is no other way allowed for in the constitution and legally and constitutionally no way for the people to participate in decision making other than in amending the constitution, rejecting bills if one is referred to them in a plebiscite, and in a general election. Policy making referenda do not exist under Bunreacht na hEireann.

If the No side are foolish enough to waste money going through such a pointless legal case that is their own business. They have not a leg to stand on legally. Irish people do not and cannot set policy perameters. They vote to elect TDs. They vote on constitutional amendments and in theory can vote on the odd law.

Nor, contrary to myth, do they ever, nor can they ever, vote on treaties. There was no 'referendum on Lisbon', or Nice, or anything else. The Oireachtas put forward a proposed constitutional amendment to enable the Oireachtas to ratify the Lisbon treaty. The people rejected the constitutional amendment. The Oireachtas is entirely free if it chooses under Bunreacht na hEireann to put forward a million amendments on the issue if it wants. Only the Oireachtas and no other body can propose an amendment and there is no limit whatsoever to how many times the Oireachtas can revisit the issue with new amendments. Under Bunreacht na nEireann if the people vote down a new amendment on Lisbon the Oireachtas can propose another, and another, and as many as it takes to get one approved. That is allowed under the Bunreacht. Any undergrad law student, much less every senior and junior counsel and judge in the country, knows that. In proposing amendments the Oireachtas is entirely sovereign and cannot be restricted. The rejection or passage of one amendment in no way restricts the right of the Oireachtas to revisit that issue unless the amendment explicitly removes that power from the Oireachtas and no such amendment has ever been proposed let alone adopted.

Patricia is on a loser on this point if she is foolish enough to go ahead with it. The only issue is what speed the courts will achieve in rejecting the argument, not whether the argument is rejected. That is open and shut in constitutional law.

Pure sophistry. If we had voted yes would we now be having a second referendum? Not on your nelly. If the No side, in that event, were demanding a rerun the media would be howling with outrage about it, nay, sneering with contempt at our lack of respect for the 'settled will of the people'. Hypocrites, all of you.
Very vicious post, Aragon. You don't seem to be able to grasp the basics of representative democracy, either. Don't you understand that our democratically elected representatives have some rights and competences by virtue of their being democratically elected? Don't you get that their opinions on the issue do matter? If they want to re-run a referendum that is their entitlement (see the Constitution), regardless of what you think, just like if they want to pass a Defamation Act or a Finances Act that is their entitlement too, regardless of whether or not you like it (point out to me where it mentions "Aragon from MachineNation" in the Constitution and I'll be very impressed).
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