The Reliefs Sought
This is an Application for Leave of the High Court - by Four Concerned Citizens - to challenge, by way of Judicial Review, the validity of the 28th Amendment to the Constitution Bill (2009)
The Reliefs Sought are
1) A Declaration that the Result of the Referendum taken on 2 October 2009 should be declared Null and Void.
2) A Declaration that the Government has acted outside of its Constitutional authority by failing to lay the “Guarantees” in front of the Oireachtas.
3) A Declaration that the amendment itself is repugnant to the Constitution as it does not contain the scope and extent of the application of the Lisbon Treaty to the Irish nation described by the Government and the Referendum Commission as the “Guarantees” when referring to the Presidency Conclusions of the Brussels European Council of 11-12 December 2008.
4) A pre-emptive Order that the costs of this case and any subsequent Judicial Review be granted to the Applicants on the basis that this matter is brought in the national interest.
These reliefs are set out in greater detail below
The Present Court Situation - Oct 21st 2009
It is quite probable, considering the seriousness and urgency of the matter that the Supreme Court itself will deal with the substantive issues and examine the legal arguments and grounds presented which aim to show that the Amendment which was voted on by the Irish people on 2 October 2009 should be declared invalid. If any one of these cases were to be successful the authority of the Government to ratify the Lisbon Treaty on behalf of the people would be thrown into grave doubt and would need clarification from the Court
The National Mens Council of Ireland are providing assistance to the efforts of these Four Concerned Citizens. I have been asked to send you the outline details of their applications for leave for Judicial Review as presented to the High Court.
We are therefore attaching a copy of a document which consolidates the five substantive grounds provided by the Four Concerned Citizens that will be examined by the Courts.
The Four Concerned Citizens believe that you the public should be kept up to date of the fact that serious legal challenges to the ratification process by Ireland are in the pipeline in case you should wish to consider making your position in support of our cause pending the final outcome of the Court's deliberations.
With this in mind we would be pleased to receive correspondence from you to confirm your support.
When I receive this I will be in a position to provide further documentation by email as the case progresses.
These Four Concerned Citizens are of the opinion that the Government of Ireland has acted outside of its authority in relation to the Amendment Bill and in ratifying the Lisbon Treaty in advance of the Amendment being enacted.
Yours sincerely, Roger Eldridge
PRO, Concerned Citizens
The Grounds upon which the above reliefs are Sought are
1) Brought by Mr Mark McCrystal:
a. The Government have ratified the Lisbon treaty without amending the Constitution.
2) Brought by Mr Richard Behal:
a. Irish citizens living in Northern Ireland have been denied an opportunity to decide on their future
3) Brought by Mrs Nora Bennis:
a. There has been a cynical deception of the people instead of obtaining their "informed" consent.
4) Brought by Mr Harry Rea:
a. The "Guarantees" themselves are a usurpation of the sovereignty of the people. The Government has acted beyond its authority by involving the heads of the member states in the EU in their private capacities to create an internationally binding treaty which will affect the fundamental rights of the people and their Constitutional protections WITHOUT obtaining their consent through the Oireachtas or by referendum to do so.
5) Brought by Mr Richard Behal:
a. Retaining the same title for the latest Bill is an attempt to eradicate the existence of the previous plebiscite which the Government lost and which they should have respected.
Grounds No 1
1. The Government have ratified the Lisbon treaty without amending the Constitution
The result of the referendum to amend the Constitution has been published and must abide by the regulations laid down in the law.
The Deputy Secretary General to the President. Mr Loughlan Quinn has confirmed that the regulations in place specify that the result of the Referendum must be published in the government publication, "Iris Ofiguil" and that the People have seven (7) days from the date that the referendum result is published in which to lodge their objection to the refeerendum result in the High Court. The result was published on Tuesday 6 October 2009.
The President is prohibited from signing the referendum Bill into law and affirming the amendment to the Constitution until this seven day period is passed. This means the Constitution can not lawfully be amended until at the earliest Tuesday 13 October 2009.
However, very strangely according to the Dail debates for Thursday 8 October 2009 the following statements were published:
Page 4 of 27
Vol. 690 No. 5
Order of Business.
Thursday, 8 October 2009
Treaty of Lisbon: Motion.
Minister of State at the Department of Foreign Affairs (Deputy Dick Roche): I move:
That Dáil Éireann approves the terms of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on 13 December 2007, copies of which were laid before Dáil Éireann on Tuesday, 6 October 2009.
I move this with some considerable relief.
Question put and agreed to.
Clearly the government does not actually believe it requires the formal legal approval of the people to ratify the Lisbon Treaty so one has to presume either,
1. We did not need to amend our Constitution before they could ratify the Lisbon Treaty and that the amendment is a trick; or
2. The ratification before the Amendment has become law is unlawful and renders the ratification of the Lisbon Treaty invalid and the Referendum to amend the Constitution as a deceit and therefore invalid.
Grounds No 2
2. Irish citizens living in Northern Ireland have been denied an opportunity to decide on their future
The people voted in 1998 to amend Articles 2 and 3 of their Constitution to foster democratic co-operation between both jurisdictions on the island of Ireland.
It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.
It is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution.
Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the island.
The 28th Amendment to the Constitution Bill (2009) has the potential to fundamentally alter the lives of individual citizens and persons in the Republic of Ireland and therefore of individual Irish citizens and persons in Northern Ireland.
It is therefore a disenfranchisement of individual citizens living in Northern Ireland that the right and potential to vote in the referendum that took place on 2 October 2009 was not extended to them.
Grounds No 3
3. Cynical deception of the people instead of obtaining their "informed" consent.
According to the document titled, "DECISION OF THE HEADS OF STATE OR GOVERNMENT OF THE 27 MEMBER STATES OF THE EU, MEETNG WITHN THE EUROPEAN CONCIL, ON THE CONCERNS OF THE IRISH PEOPLE ON THE TREATY OF LISBON" the Heads of State or Government of the 27 Member States of the European Union, whose Governments are signatories of the Treaty of Lisbon, taking note of the outcome of the Irish referendum of 12 June 2008 on the Treaty of Lisbon and of the concerns of the Irish people identified by the Taoiseach, desiring to address those concerns in conformity with that Treaty, having regard to the Conclusions of the European Council of 11-12 December 2008, have agreed on the following Decision:
"Under SECTION C, SECURITY AND DEFENCE
Any decision to move to a common defence will require a unanimous decision of the European Council. It would be a matter for the Member States, including Ireland, to decide, in accordance with the provisions of the Treaty of Lisbon and with their respective constitutional requirements, whether or not to adopt a common defence."
In response the Attorney General decided to amend the 28 Amendment to the Constitution 2008 by inserting the following provision into the Twenty-Eighth Amendment of the Constitution (Treaty of Lisbon) Bill 2009 which proposes to amend and update the provisions of the Constitution relating to Ireland’s membership of the European Union. The proposed amendment states at point 9.,
"The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 42 of the Treaty on European Union where that common defence would include the State."
Clearly by inserting this provision into the wording of the proposed amendment which directly relates to the alleged concerns of the people so that it will be contained in the Constitution the people can personally and domestically by reference to the Supreme Court as the ultimate authority thereby avail of this protection if they believe that the State is in any way violating that position and have their rights vindicated.
The Attorney General and government have purposely omitted any mention of the fact that the "Guarantees" specify therein the following SECTION A, RIGHT TO LIFE, FAMILY AND EDUCATION wherein it states,
"Nothing in the Treaty of Lisbon attributing legal status to the Charter of Fundamental Rights of the European Union, or in the provisions of that Treaty in the area of Freedom, Security and Justice affects in any way the scope and applicability of the protection of the right to life in Article 40.3.1, 40.3.2 and 40.3.3, the protection of the family in Article 41 and the protection of the rights in respect of education in Articles 42 and 44.2.4 and 44.2.5 provided by the Constitution of Ireland."
By purposely omitting any reference to this section in the wording of the proposed amendment and by comparing this with the treatment given to the ""guarantees" on a Common Defence policy where the "Guarantees" were given effect in the Constitution it is clear that the Attorney General and the Taoiseach do not intend that the people will be availed of the opportunity to use the "Guarantees" to protect their fundamental freedoms of the right to life, the protection of the family and the protection of the rights in respect of education.
It is clear that the ratification of the Lisbon Treaty will affect the people's fundamental rights. It is also entirely clear that without any express mention of the "Guarantees" to our fundamental rights enshrined in the Constitution there will be an effect to such rights and the "Guarantees" will have had the effect of deceiving the people into believing that by approving of the latest proposal to amend the Constitution their fundamental rights in the specified areas are thus protected when they are not.
Such deception is clearly adverse to the concept of the freely given informed consent of the people which is the basis on which a result in a Referendum can be validated.
For this reason I believe that the result of the Referendum should be declared void and the amendment should be declared lost.
The Taoiseach and the Referendum Commission are guilty therefore of a cynical deception
I also make the following points:
- The State executive/government approached the Council of Ministers/Heads of State of the the EU members in the guise of the protectors of and representatives of the people's concerns for their Fundamental Rights.
- In evidential reality the Executive, the Legislature and the lower courts of the Judicial arms of the State have, throughout the history of the State, frequently trampled upon the Fundamental Rights of the people. Our Constitution contains safeguards whereby any citizen nor individual may call upon the assistance of the superior courts by invoking the Fundamental Rights enumerated in the Constitution.
Another safeguard exists whereby a Judge of the lower courts may refer a matter to the Superior Courts by way of a Case Stated and a further safeguard exists whereby the President may, by way of Article 26, refer a Bill to the Supreme Court to test its Constitutionality. (e.g. The Matrimonial Homes Bill).
- The "guarantees" act only to prevent the EU compelling the State to introduce EU regulations or directives which violate or conflict with Irish Fundamental Rights. It doesn't prevent the State "willingly" doing so. The "guarantees" protect the State from the EU and not the people from the State. A reading of the amendment discloses that it merely grants to the State the unfettered discretion to ratify or not the Lisbon Treaty, and/or adopt individual protocols and other provisions on behalf of the Nation. This point is not being made by the Referendum Commission.
- Elsewhere within the "Presidency Conclusions" published by the Council of the European Union which contain the "guarantees", that are referred to by the Referendum Commission and the Government, at Annexe 2 the European Council confirms that the Treaty of Lisbon allows the EU to deal with the areas of: "social exclusion", "equality between men and women", "protections of the rights of the child" and "health" - all of which have the potential to impact on the Fundamental Rights of the Irish people, particularly the Family. This sits directly in conflict with the "guarantees" in the same document.
It should be noted that there already apparently exists a lacuna in the absence of safeguards regarding the domestic Constitutional law of Ireland in that because EU regulations are instituted otherwise than through the Oireachtas, if a question were to arise as to the translation, interpretation and implementation of these regulations, there doesn't appear to be a domestic process or other process by which an affected person might seek a remedy and challenge its lawfulness and question whether or not it was in deed "necessitated" by the Treaties. This already poses a danger to the people's liberty. Given the State's track record as outlined in point 2 above, any expansion of the State's obligations coupled with this lacuna will inevitably lead to increasing disenfranchisement of the people.
Grounds No 4
4) The "Guarantees" themselves are a usurpation of the sovereignty of the people. The Government has acted beyond its authority by involving the heads of the member states in the EU in their private capacities to create an internationally binding treaty which will affect the fundamental rights of the people and their Constitutional protections WITHOUT obtaining their consent to do so.
There exists a widespread and persistent myth that the central decision by the Supreme Court in the Crotty case [Crotty v. An Taoiseach  IESC 4;  IR 713 (9th April, 1987)] was that the government could not ratify a Treaty without holding a referendum to obtain the views of and consent of the people.
That is not the case. There are many Treaties - all those concerned with the implementation of the Universal Declaration of Human Rights and the United Nations Convention on the
Rights of the Child for example - which the Government have ratified without consulting the people and asking for an amendment to the Constitution.
The judgement in the Crotty case is actually almost the opposite of what the myth claims. It clearly affirms that the State, being the servant of the people and aware of its duty and limits set out in the Constitution is PROHIBITED from provisionally agreeing to terms of any Treaty with a foreign body that COULD jeopardise the exercise WITHIN IRELAND of the rights of the people acknowledged in the Constitution that the state has the duty to observe.
The judgement affirmed at point 49 of the Crotty judgement that the Government, in its negotiations with foreign bodies, is mandated to IMPRESS upon them that certain terms of agreement ARE NOT PERMITTED UNDER THE CONSTITUTION AND SO ARE NOT ELIGIBLE FOR COMPROMISE (an agreement or a settlement of a dispute that is reached by each side making concessions ) WITHIN A TREATY UNLESS THEY OBTAIN APPROVAL FROM THE PEOPLE VIA THE OIREACHTAS.
49. However the exercise of the power is limited. In the first instance the Government alone has the power, as already mentioned, to speak and listen as the representative of the State, and, subject to the constitutional restraints, to make treaties. Article 28, s. 3, sub-s. 1 of the Constitution provides that war shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann. That is one express constitutional prohibition on the exercise by the Government of its powers in its international relations. So far as treaties or international agreements are concerned Article 29, ss. 5 and 6 deal further with the matter. They provide that (a) every international agreement to which the State becomes a party shall be laid before Dáil Éireann, (b) the State shall not be bound by any international agreement involving a charge upon public funds unless: the terms of the agreement shall have been approved by Dáil Éireann (save where the agreements or conventions are of a technical and administrative character) and (c) no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. As a general rule neither the Government nor the Oireachtas can be restrained until their intentions are translated into acts. In proper cases they are subject to judicial cognisance, and judicial review and restraint.
If the Government FAILS TO IMPRESS upon the foreign bodies with whom it is negotiating on behalf of the people that certain aspects are impermissible it would be an alienation of its duty to proceed with the formal signing of such a Treaty. The Crotty judgement makes it clear that if the Government believes it is in the interests of the people to forgo aspects of their fundamental rights protected in the Constitution for the claimed benefits of making the Treaty it must make the case to the people and persuade them that they should forgo their rights and protections by LAYING IT BEFORE THE OIREACHAS or by amendment to the Constitution before renegotiating the Treaty again.
The evidence is that the Government signed a Treaty which contained terms repugnant to the Constitution and THEN asked the people in 2008 to condone their unlawful actions by amending the Constitution in the areas that their rights would be compromised. That they failed to properly inform of this is to their great shame and dereliction of duty.
When the people voted to not ratify the existing terms of the Lisbon Treaty in 2008 the State had to decide how to progress. It could have/should have told the other member states that Ireland could not ratify the Treaty or it could have re-negotiated the Treaty so that the new terms did not compromise the people's Constitutional protections. What it could not do is to refuse to accept the decision of the people and push ahead with the Treaty without the approval of the people. This is in fact what the Government decided to do.
To make matters worse the Government decided to play a deceit on the people. What they did was specifically prohibited by the Crotty decision that they are very familiar with. From this they knew that they are not entitled to go off on their own and negotiate a new Treaty but this is precisely what they did. They created an internationally binding agreement which has the legal force of a Treaty - the one they subsequently labelled the "Guarantees" - with a foreign body - the heads of the EU member states acting in their private capacities, ie not with any mandate from their own democratic institutions.
The terms of this new Treaty - even though they are to affect the fundamental rights and obligations of the Irish people - were never put to the people or laid before the Oireachtas for approval and so the Government acted unlawfully. In doing this the State has alienated its duty to observe and respect the people's rights to a foreign body - the Council of Ministers - and in the process has usurped the sovereign power of the people to decide their own fate without recourse or submission to any foreign power. Again the Crotty judgement at point 97 makes this abundantly clear:
97. No express power is given by the Constitution to the Courts to interfere in any way with the Government in exercising the executive power of the State. However, the Government, and all of its members and the administration in respect of which the members are responsible, are subject to the intervention of the Courts to ensure that in their actions they keep within the bounds of lawful authority. Where such actions infringe or threaten to infringe the rights of individual citizens or persons, the Courts not only have the right to interfere with the executive power but have the constitutional obligation and duty to do so. But that right to interfere arises only where the citizen or person who seeks the assistance of the Courts can show that there has been an actual or threatened invasion or infringement of such rights
According to the Referendum Commission's public information statements the "Guarantees" clearly amount to a Foreign Policy Treaty. The "Guarantees" relating to protections of the unborn, the Family founded on Marriage and Parental Rights regarding the educational welfare of their children do not and will not form any part of our domestic Constitution. They will not be voted on by the people and will not therefore be inserted into the Constitution even though they affect the Government of the country. A petitioner to the Supreme Court can not therefore employ the "Guarantees" to seek to have the State respect their rights.
The Crotty judgement established beyond any doubt that such an act amounts to an alienation of Foreign Policy and is impermissible under the Constitution. Regardless of the nature of this International Treaty, even if it is argued that it is in the interests of the Irish people, the people are being asked in this Referendum, through the wording of the amendment to approve of the Government having done something which their Constitution does not allow.
Effectively the people are being led by the Government to betray themselves. If this Referendum result is allowed to stand and precipitate an amendment to the Constitution this would set a precedent that this and any future government can enter into International Treaties without the approval of the people. For this reason I believe the Referendum result should be declared null and void.
Grounds No 5
5) Retaining the same title for the latest Bill is an attempt to eradicate the existence of the previous plebiscite which the Government lost and which they should have respected.
The current Referendum is titled "TWENTY-EIGHTH AMENDMENT OF THE CONSTITUTION BILL 2009". The previous Referendum which the people rejected was also titled "TWENTY-EIGHTH AMENDMENT OF THE CONSTITUTION BILL 2008". The settled convention used to title each successive proposal from the Government for amendment to the Constitution since 1987 is that each Bill is allocated a new ordinal number in sequence, first, second, third etc. Where a proposal was rejected by the people in a referendum a record is maintained in the Constitution of that event and the next proposal for amendment is given the next higher number.
The 24th amendment to the Constitution Bill was to deal with the Treaty of Nice and even though this was rejected by the people this vote is recorded and subsequent proposed amendments took cognisance of this in their numbering. The second proposal to deal with the Treaty of Nice was therefore titled the 26th Amendment to the Constitution Bill as there was another failed amendment - the 25th on the issue of abortion in between.
By breaking with this convention it is reasonable to construe that Government intends to wipe-out from history any record of the rejected 2008 amendment proposal. I contend that such revisionism that would negate the existence of a previous plebiscite is unlawful and renders the current proposed referendum invalid. It should be noted that the Government /Taoiseach's website has not updated amendments to the Constitution for the past six years.