Your Constitution

Kalashnikov_Kid

Thanks for clarifying above issues

walrusgumble wrote: »

I understand the difficulties Ireland have caused by implementing the ECHR into its own laws

but, genuinely, what new provisions and guarantees does the the Charter provide to current EU and ECHR and our domestic laws? Isn't most of these Charter provisions found elsewhere in European or other international law legislation? don't get me wrong, i would like to see the charter come in, but does it really make much difference? (noting that although items like the international covanent on social and political rights is signed by ireland, its not in our laws - thus need for charter?)

My taking is that it clarifies the rights of the citizen in a more explicit manner than Bunreacht, therefore becoming an important reference for future Irish-based ECJ challenges? Which could inversely lead to more challenges?

anyone with a brain knows that neutrality is not mentioned.

You'd be surprised...lisbon

Its was a national policy. even if, (jesus) we were to look at the defunct preamble it speaks of having good relationship with other countries - could that interpret helping them out in war?

Exactly. Irish neutrality was always more of a national policy, if it could even be called that, rather than something legally-defined. Common sense always preceeded anything else (1939-45, 1969). Therefore a non-issue by today's standards, IMO.

Long Onion

prinz wrote: »

Why not another redraft in 5 years time? And another in 2 years? etc. It becomes unworkable. Amendments yes, but a redraft of the whole thing, er Pandora's Box. You mentioned stem cell research etc that the Bunreacht didn't account for. What happens when you've got the new constitution drafted and some scientist makes another breakthrough, do we have to redraft again..

The only way a re-draft would work is if it were done well. It would involve applying the valuable casebook of Constitutional law built up since the original text was first released. Whether this would be possible in modern Ireland is another question, in reality, I doubt very much if there is the political or judicial will to do so.

This does not, however, mean that it would not be an option worth debating. There seems to me to be no concrete reason why modern Ireland would not be capable of drafting an equally impressive, yet more relevant text than the original drafters. We have learned many valuable lessons through the years.

prinz wrote: »

Is it desirable that given changes in social standards, norms etc, that the outcome remain identical? That to me would be a far greater danger. People today being judged according to a 70 odd years old literal reading. I would much prefer a flexible approach by contemporary interpretation.

By and large, we ar arguing different sides of the same coin here. The literal approach to Constitutional interpretation has fallen from favour and a broader approach has been adopted, the precedent issue though has left a number of instances where previous dicta have been funged in a effort to arrive at the just conclusion. Whilst this is often the most equitable outcome, it does highlight continuing difficulties with Constitutional law in Ireland.

prinz wrote: »

There are still some laws in some places stemming from nigh on the Middle Ages, should these be imposed strictly today? If you want to go by the letter of the law and a strict interpretation etc. I would feel much safer with a judge having the option and ability to use discretion, common sense, and being able to judge the applicability and relevance of certain laws in a modern case.

I would also favour doing a clear out of the statute books at some point, I don't think this would be a bad thing. I am not a critic of the Common law approach per se I merely think that the unique social circumstances which formed the immediate background of the current text continue to hamper the judiciary from time to time as cases involving issues unthinkable by the original drafters arise. I am not saying that a re-draft would prevent this forevermore, but feel that we could put the older issues to bed for once and for all.

Whilst the text itself is just over 70 yrs old, the Catholic theology underpinning it pre-dates it by 2000 years, trying to reconcile this "spirit" which surfaces in numerous places throughout the text would be difficult to do without fundamentally altering its aims. If we were to go this far (which I feel we will in our lifetime) why not go that final step?

prinz wrote: »

I was genuinely interested in what you had studied. It's been a few years for me and I'm definitely rusty. I'm reading your posts here and I'm hearing names and terms which I haven't heard in a long time

I originally took this as being sarcastic, apologies if it wasn't meant this way. I have a primary degree in Politics, one in Marine Engineering (Don't ask!), a post grad in Law and have, this year returned to complete a Masters in Law, Technology & Governance. The evolution of law has always been of personal interest to me, though I doubt that I will ever know as much as I would like ty in this area. (p.s. I was fortunate enough to do very well in all but the engineering which I just scraped though, but I was only a young 'un then)

prinz wrote: »

IIRC things like this were identified as "social aspirations". Personally I believe there's every need for them (apart from the Holy Trinity reference). Of course these can be challenged and amended by the people. I would be far more cautious about a select group redrafting the constitution, as it would be almost impossible to vote upon, i.e. a referendum on every Article, section, subsection, wording etc. Therefore if you're not happy with something in the Constitution as it is, challenge it, and let the people decide.

Social aspirations are indeed, in my opinion, essential in the text of any Constitution, but certain aspirations could be deemed as universal and timeless (in Western Society anyway, Eastern attitudes to our ideas of essential rights is a whole other can of worms) I would welcome enumerated rights in many areas, but tying them to specific religious ideals is not ideal given changing attitudes to the Church.

Given the recent surge in 'patchwork' family structures, the civil partnership bill, is giving special protection to the family based on "marriage" still the best way to ensure judicial protection to the children of the state all of whom will be cherished equally? This is not to say that the rights I hold dear are the only ones worth considering, it would be a matter for national debate.

prinz wrote: »

You believe in writing and rewriting laws to keep them continually updated yes? Unfortunately that goes against the judicial system we have, and a radical overhaul of the whole thing would be needed. Personally I wouldn't mind a civil legal system. It's something I think of from time to time, in the light of ridiculous sentencing etc in recent times... I think of what could have been if Napoleon had had his way. I can see the benefits of both tbh.

I too can see the benefits of both sides, and do not think that constant re-drafting would give any more certainty than we currently have, but trying, once every 30 years or so to improve on that which we have (with the benefit of hindsight & experience) may be worth considering. There are indeed many attractive features of Civil Law systems and of the Common Law also. Usually when looking at both sides of a debate, the best solution can be found at the mid-way point.

Given the law though, it seems that such a compromise between precedent and statute would lead to very muddy waters indeed, something which both excites and worries me as we become more closely enveloped in the EU. Interesting times lie ahead.

walrusgumble

Kalashnikov_Kid wrote: »

Thanks for clarifying above issues



My taking is that it clarifies the rights of the citizen in a more explicit manner than Bunreacht, therefore becoming an important reference for future Irish-based ECJ challenges? Which could inversely lead to more challenges?



You'd be surprised...lisbon



Exactly. Irish neutrality was always more of a national policy, if it could even be called that, rather than something legally-defined. Common sense always preceeded anything else (1939-45, 1969). Therefore a non-issue by today's standards, IMO.

Naturally, you will use your own mind to take what you want out of the importance of the charter. please do not take my simple opinion as the final word (not that you would of course) - obviously the EU feel that there is a need for the charter - simply either i don't see the big deal about it or i have not appreciated the importance or it has not being explained to me, or i am simple ignorant to it. just my attitude is, we have many of these provisions at least in writing or in our case law to cover the principles. Its a case of interpretation. As you would fully accept and note from other posts, interpretations are not set in stone.

Yes, i see what you mean by your opinion of the importance of the charter regarding the constitution. fair and valid point. another example is often by reading the protocols from the ECHR which sometimes goes further that the articles or the UN Children's Convention. THe Internal Social and political covenant as you will be aware speaks alot about employment and social type matters and rights of family. but yes, if it was part of the EU treaty, agreed, it would greatly help a litigant before an irish court (along with the ECHR & its case law)

When you mentioned immigration matters, yes i do see where there would be huge influence, in particular the area relating to an EU citizen who is effectively exercising his / her rights to freemovement (in compliance with Directive 2004/38EC) and wishes for members of his / her family to be with him/her.

With regard to Neutrality, one could easily question whether or not this country in the past was actually neutral in the strict sense of the prinicple - A recent book of Jospeh Walshe - Secretary of the Dept of External Affairs, would be an interesting read into this area. Of course then there is the issue of eh, (say it quietely) Shannon.

actually, consider if the constitution actually stated in black and white, that the country was neutral, and imagine if, (since the topic is in the public sphere recently) Lynch and co decided to enter the north (ok, old art 2& 3 was there, but it could have led to a war with the auld John Bull) would some glance at the constitution be required in order to act? Surely in times of severe emergency (we are all aware that the constitution has being amended here on this point) there would be no time for dilly and dallying over whether an action is allowed by a document?

OldJay

Given the heady responses to threads such as this, they seem, to me, to be wholly disproportionate to the p*ssy electoral turnouts time after time again in this country.
Does everyone opining on this matter actually vote?

Scofflaw

walrusgrumble wrote:

but, genuinely, what new provisions and guarantees does the the Charter provide to current EU and ECHR and our domestic laws? Isn't most of these Charter provisions found elsewhere in European or other international law legislation? don't get me wrong, i would like to see the charter come in, but does it really make much difference? (noting that although items like the international covanent on social and political rights is signed by ireland, its not in our laws - thus need for charter?)

The essential difference is that if Lisbon is ratified the Charter assumes more than its current advisory status. At present, EU law takes the Charter (or, rather, the ECHR) into account, but is not bound by it. You could not, therefore, currently use the argument that an EU regulation breaches your rights under the ECHR to have that regulation struck down - if the Charter assumes Treaty status as per Lisbon you could. Certainly there are various hedges and provisos in the Charter's definition of rights, but nevertheless, under Lisbon the Charter would assume the form of a judicable set of rights which could be used to strike down EU legislation.

Further, of course, the rights in Bunreacht, slim as they are, are irrelevant to EU law because of our protective amendment exempting EU law from constitutional challenge.

cordially,
Scofflaw

walrusgumble

Scofflaw wrote: »

The essential difference is that if Lisbon is ratified the Charter assumes more than its current advisory status. At present, EU law takes the Charter (or, rather, the ECHR) into account, but is not bound by it. You could not, therefore, currently use the argument that an EU regulation breaches your rights under the ECHR to have that regulation struck down - if the Charter assumes Treaty status as per Lisbon you could. Certainly there are various hedges and provisos in the Charter's definition of rights, but nevertheless, under Lisbon the Charter would assume the form of a judicable set of rights which could be used to strike down EU legislation.

Further, of course, the rights in Bunreacht, slim as they are, are irrelevant to EU law because of our protective amendment exempting EU law from constitutional challenge.

cordially,
Scofflaw

thanks for the clarification. fair enough. so that gives the argument that europe is going down the fair and just route (or whatever other fancy wording) and not the money grabbing capitalists etc that some groups spout out or preceive the union to be?

it gives the people/applicants at the ECJ more real connection/participation with the union? could it assist an applicant further when they bring high court cases (assuming its an area of law where the eu has competence of course) and the judge decides to refer a preliminary case to the ECJ via article 234EC?

i note in cases like carpenter and chen (as you know free movement cases) where the ECJ brought in Article 8 to justify their decisions, some countries (looking on articles an example was denmark - where they or authors feared there was too much expansion on the free movement and was now going into a more general right) or eurosceptics went a bit loopy of what might be preceived as error (in light of ecthr cases like mahmood - spelling- one case which set out the criteria when considering family rights of non eu citizens under article 8) it would be great for some uniform and clarity.

Scofflaw

walrusgumble wrote: »

thanks for the clarification. fair enough. so that gives the argument that europe is going down the fair and just route (or whatever other fancy wording) and not the money grabbing capitalists etc that some groups spout out or preceive the union to be?

It's quite balanced, I think. European governments in general perceive the need to allow business a certain amount of freedom while protecting workers and society generally from the more obnoxious side-effects of business freedom. So there's something of both in the way the EU is set up, and the treaties allow a degree of latitude each way that encompasses the degree of left-right variation in European politics. Of course, if you're outside that range, you're going to consider the EU either callous money-grubbing capitalism (as do the far left groups) or stifling corporatist statism (as do the far right groups and most of the US).

The fact that both the further left and the further right detest the EU is something I find comforting, since it suggests that the EU hasn't leant too far in either ideological direction.

walrusgumble wrote: »

it gives the people/applicants at the ECJ more real connection/participation with the union? could it assist an applicant further when they bring high court cases (assuming its an area of law where the eu has competence of course) and the judge decides to refer a preliminary case to the ECJ via article 234EC?

Yes, it would - they're personal rights. Currently, you could take a case that EU data retention legislation infringed your right to privacy under the European Convention on Human Rights (the Charter's model) but the Court doesn't have to consider it applicable or binding - the Charter would be both applicable and binding.

walrusgumble wrote: »

i note in cases like carpenter and chen (as you know free movement cases) where the ECJ brought in Article 8 to justify their decisions, some countries (looking on articles an example was denmark - where they or authors feared there was too much expansion on the free movement and was now going into a more general right) or eurosceptics went a bit loopy of what might be preceived as error (in light of ecthr cases like mahmood - spelling- one case which set out the criteria when considering family rights of non eu citizens under article 8) it would be great for some uniform and clarity.

I presume that for those who see the free movement of people within the EU as a threat, the Charter right to free movement (COFR 45: "Every citizen of the Union has the right to move and reside freely within the territory of the Member States. ") will presumably be anathema. However, the main definition of the right of free movement will remain ECJ case law. The Treaties still don't define 'free movement' - it's actually a very good example of what happens when you don't pin things down with "a load of legalese".

cordially,
Scofflaw