From Socialist Voice, July 2009

Questions for Brian Cowen, Enda Kenny, Éamonn Gilmore and John Gormley about a second referendum on the Lisbon Treaty


     What do you understand to be the legal meaning of article 6 of the Constitution of Ireland, which states that it is the right of the Irish people “in final appeal, to decide all questions of national policy”?
     Were the changes to the Constitution proposed in the 28th Amendment of the Constitution Bill (2008) “questions of national policy”?
     862,415 people voted against the constitutional changes. This represented 53.4 per cent of those who voted. Is a majority vote really sufficient to ensure respect for a particular referendum decision? What else would have been required in June 2008? What will be required for the second referendum?
     None of you has promised to respect a second No vote. Why is this?
     The Supreme Court judgement in the Raymond Crotty case determined that a Government cannot enter into obligations as far-reaching as those contained in the Lisbon Treaty without recourse to the people in a referendum. The purpose of such a referendum is to ask the people to decide whether or not to legislate to amend the Constitution. Irish referendums are a form of direct legislation. Will the second referendum be in conformity with the Crotty judgement?
     Specifically, how did the last European Council meeting in Brussels arrive at the word “consult” to describe the process involved in the proposed second Irish referendum? Where did this formulation come from? Is the word used to justify the formulation in the Decision, which simply “takes note of the outcome of the Irish referendum of 12th June 2008 on the Treaty of Lisbon and of the concerns of the Irish people identified by the Taoiseach”?
     Referendums in countries such as the UK, France and Holland are essentially advisory and political; the citizens are not making the law. In Ireland they are. Is this an attempt to play down the enormity of the democratic and constitutional swindle involved in the second referendum? Or, even more seriously, is it laying the ground for an attempt to ratify the Lisbon Treaty whatever the outcome of the second referendum?
     Where have all the promises to “respect” the decision of the Irish people gone?
     By what principles of democracy can the results of an opinion poll of 2,101 adults carried out one month after the actual referendum―and in a period in which those who voted No were subjected to a torrent of insults, misrepresentation and hectoring from various politicians and media, and whose key theme was that No voters did not really know what they were doing when they voted as they did―be given precedence over the actual result of a properly conducted referendum in which people were asked to agree to amend the Constitution so that the 26-County state could ratify the Lisbon Treaty and be a member of the new European Union established by that Treaty?
     Even if the matters identified as “concerns” to be addressed by the other EU member-states represented the only reasons for the No vote, what is the democratic and constitutional basis for this approach? Do you accept the determination of the Supreme Court in the Hanafin judgement, as expressed by the then Chief Justice Hamilton: “Because of the secrecy of the ballot, it is not possible to ascertain by direct evidence, the factors which influenced the people in casting their votes, what their motives were in casting their votes or the reasons why they cast their votes in a particular way . . . The people are presumed to know what they want, to have understood the proposed amendment submitted to them and all of its implications”?
     How is the Decision of the EU Heads “legally binding,” as is claimed?
     Why is it not signed by the Heads of the other twenty-seven EU member-states?
     This Decision changes absolutely nothing in the Treaties. If it did change anything, would it not have to be ratified by all twenty-seven member-states in their national parliaments or by referendums?
     Also, if it is legally binding, why is it necessary to add a protocol incorporating the same matters as are covered in the Decision to the next EU Accession Treaty in 2010 or 2011?
     Protocols have the same status as a Treaty. But is it legally feasible to attach such a protocol to what will be an accession treaty for Croatia to join the EU?
     What did the “militant EU federalist” Andrew Duff mean when he warned: “Adding this protocol to the Croatian accession treaty would leave the accession treaty wide open to attack in the courts”?
     Can you show where there is even a comma of difference between the Treaty rejected in June 2008 and the Treaty that we will vote on later this year?
     If we vote Yes to what we correctly rejected then, could you honestly claim that James Connolly was wrong when he said that Ireland had a green flag because we were a green people?

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