Supreme Court may be asked to rule on Lisbon

Vinegar Hill

A letter has been sent to President McAleese asking her to convene a Council of State to have the Supreme court decide if this treaty violates our constitution and sovereignty.

http://www.independent.ie/national-news/lisbon-treaty/independent-td-urges-president-to-intervene-in-debate-over-lisbonmcgrath-calls-for-council-of-state-meeting-1381641.html

Any opinions on this? I for one would take the Supreme Courts ruling over the others on the board.

oscarBravo

What a bizarre move by McGrath. How can the treaty be unconstitutional, when the whole point of the upcoming referendum is to amend the constitution so as to allow the state to ratify the treaty?

redspider

oscarBravo wrote: »

What a bizarre move by McGrath. How can the treaty be unconstitutional, when the whole point of the upcoming referendum is to amend the constitution so as to allow the state to ratify the treaty?

McGrath is on the 'No' side, so he's using this 'review' mechanism as a tool to boost the 'No' side perhaps. But it is a mechanism that can be used, as reviewing any proposed change to our own constitution can be done to see if it conflicts with other aspects of the constitution - in McGrath's letter he has indicated Article 9. Its a perfectly valid and legal step for the President to request.

By the way, "Mr Cowen warned his own Fianna Fail TDs that they would be kicked out of the party if they voted against the treaty." The PD's are rowing in behind it as are the Green TD's. Politically, I'm wondering why McGrath is in the 'No' camp and kicking up a fuss about it. He could remain a 'No' and keep a low profile and just get a wrap on the knuckles for being 'bold' from the government whip(s). Is it a sign that he is not getting what he wanted and is about to officially leave the government? At least it looks like he is threatening to, so maybe.

Redspider

Gobán Saor

Reference of Bills to the Supreme Court

Article 26

This Article applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas other than a Money Bill, or a Bill expressed to be a Bill containing a proposal to amend the Constitution, or a Bill the time for the consideration of which by Seanad Éireann shall have been abridged under Article 24 of this Constitution.

1. 1° The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.

The Supreme Court has no jurisdiction to deal with a reference by the President of this bill. End of story. Draw your own conclusions as to McGrath's stunt.

PS The President is not referred to in the Constitution as, or given the role of, the so-called "Guardian of the Constitution." Another bar-room lawyer myth.:rolleyes:

IRLConor

Actually I would have read that as:

Article 26 (reformatted) wrote:

This Article applies to:

• any Bill passed or deemed to have been passed by both Houses of the Oireachtas other than a Money Bill,
  
  or
  
  
• a Bill expressed to be a Bill containing a proposal to amend the Constitution,
  
  or
  
  
• a Bill the time for the consideration of which by Seanad Éireann shall have been abridged under Article 24 of this Constitution.

which would allow the President to refer it to the Supreme Court.

Silly move by McGrath though, it's likely to weaken his ability to get things done.

Gobán Saor

IRLConor wrote: »

Actually I would have read that as:
...
which would allow the President to refer it to the Supreme Court.

Wouldn't think so. If you adopt that interpretation, bullet points two and three are subsets of bullet point one and hence unnecessary. That interpretation also conflicts with Article 26.3.3 which says that the President shall sign a bill into law once it is found to be constitutional by the Supreme Court. If Article 26 applied to referendum bills, you'd obviously need a referendum first.

IRLConor

Gobán Saor wrote: »

Wouldn't think so. If you adopt that interpretation, bullet points two and three are subsets of bullet point one and hence unnecessary. That interpretation also conflicts with Article 26.3.3 which says that the President shall sign a bill into law once it is found to be constitutional by the Supreme Court. If Article 26 applied to referendum bills, you'd obviously need a referendum first.

Not quite.

Part 1 only covers bills passed by both houses.

Part 2 includes bills that are for amending the constitution but doesn't require them to have been passed by both houses. Therefore, a bill passed by the Dáil but yet to be examined by the Seanad could be referred by the President to the Supreme Court before the Seanad got hold of it. This couldn't be done for non-Constitutional bills.

Part 3 could allow a similar "early" referral but it's less clear to me. I'd need to really brush up on my Irish to properly examine that.

Of course my training is in pedantry, not law, so I could be wrong.

Gobán Saor

IRLConor wrote: »

Not quite.

Part 1 only covers bills passed by both houses.

Part 2 includes bills that are for amending the constitution but doesn't require them to have been passed by both houses. Therefore, a bill passed by the Dáil but yet to be examined by the Seanad could be referred by the President to the Supreme Court before the Seanad got hold of it. This couldn't be done for non-Constitutional bills.

Part 3 could allow a similar "early" referral but it's less clear to me. I'd need to really brush up on my Irish to properly examine that.

Of course my training is in pedantry, not law, so I could be wrong.

You are. Article 26 specifies that a bill found constitutional by the Supreme Court shall be signed into law by the President - it doesn't provide for an intermediate step of letting the Seanad consider it. The only consistent interpretation is the one I first put forward ie any bill passed by both houses (except money bills, referendum bills or an Article 24 abridged bill) can be referred to the Supreme Court by the President.

Gobán Saor

The Irish Times covers this today and confirms my interpretation of Article 26 that a referendum bill can't be referred. It also quotes McGrath as accepting that he was wrong and the President does not have the power to do as he requested.