NAMA Is it legal or constitutional?

In All Fairness

Just wrote a massive well considered post on this and then my comp crashed. Couldn't be arsed writing it again so just going to leave the question out there. Prize for first poster to get the attorney general out of the toilet he's hiding in waiting for his place on the board of both banks.

MarkR

More importantly, will we get paper hats?

MrMicra

It is not legal because the enabling legislation has not been passed.

The constitutional objection would come from Article 43 (Private Property). Transferring the loans to NAMA is not unconstitutional overpaying for them might be as taxpayers who do not own shares in banks will be forced to subsidise those who do. As those who don't have share ownership tend to be poorer than those who do it could and will be argued that NAMA is illegal under article 43.2.

In other words Lenihan and Fianna Fail plan to overpay the banks for worthless loans to help rich bank shareholder (like judges) and tax poor working families to do it! I think that there is good reasoning behind this but also NAMA is obviously a money bill and can't be objected to at all.

If Lenihan and Fianna Fail don't overpay for the loans the banks are nationalised for a song and the bank shareholders can (and will) sue under article 43.1 (I don't think that they can win however).

These are the only constitutional objection that I can see and I think that NAMA will be certified as a Money Bill under article 22 and be immune from constitutional challenge.

HOWEVER: Parts of the proposed legislation are clearly illegal under EU law. The Comission has clarified what is acceptable state aid in the current crisis (thank God for the EU by the way).

The full document as a PDF:
http://tinyurl.com/lgaexo

The full document:
http://tinyurl.com/mpf7yl

The Press Release:
http://tinyurl.com/meq8ab

If you look at the press release (which is all that I have done) it requires:
"full transparency and disclosure of impairments, which has to be done prior to government intervention" this has not taken place at all the level of impairment is a commercial secret and was treated as such by Judge Cooke (quite correctly I am certain) when he examined the documents in Liam Carroll's second bid for an examiner.

The commission do allow for:
"valuation based on real economic value (rather than market value), implemented by independent experts and certified by bank supervisors"

Part of the NAMA bill at the moment explicitly keeps the mechanism for valuation of impairments secret. This provision will be illegal.

The commission also demand:
"validation by the Commission of the valuation of the assets"
adequate remuneration for the State, at least equivalent to the remuneration of State capital and
coverage of the losses incurred from the valuation of the assets at real-economic-value by the bank benefiting from the scheme

The EU will save Ireland from Fianna Fail. The Commission will make a massive overpayment in the way that is currently being talked about impossible.

Long Onion

I wouldn't be so sure that it is unconstitutional. Ultimately, ownership of all land is vested in the state and not in the individual, in so far as this is the case, transfer of ownership to NAMA is no less constitutional than a CPO.

Of course, there are a considerable number of projects which rest outside the state, these could throw up some significant challenges. To be honest, I can't see that nationalisation, or the 'Good Bank' proposal is going to end up being any different from a legal perspective. Either way, the state will have to intervene and write down the value of these assets, either way the tax payer will have to shoulder the burden of the write downs/re-capitalisation and either way, the burden will be spread amongst all citizens - rich and poor.

If we can limit the liability of the taxpayer to development lands only and not also take responsibility for residential mortgages and commercial loans which are going south, then I see NAMA as a lesser of two evils.

In relation to the point about the valuations being kept secret, I disagree with Justice Cook's call on this, we are facing an unprecedented development in Irish history so I fail to see why hithertofore accepted legal precedent should continue to be relentessly applied. If the taxpayer is to shoulder the burden here, I think that we have a right to insist that all aspects of the process are transparent. There is a difference between unconstitutional and undemocratic, in it's present guise NAMA is definately the latter.

MrMicra

Long Onion wrote: »

I wouldn't be so sure that it is unconstitutional. Ultimately, ownership of all land is vested in the state and not in the individual

I don't think that's correct. That might be the English position but I would have thought that Article 43 changes the law.

Long Onion

MrMicra wrote: »

I don't think that's correct. That might be the English position but I would have thought that Article 43 changes the law.

Nope, check it out for yourself - the state is the ultimate owner of all land in the country. This position has never been changed, if it were to change, land could never be commissioned for the public good - the current situation with the corrib gas field and also with the hill of Tara is testiment to the fact that this position has never been altered.

AnonoBoy

I'm going to defer to the better judgement of my elders on this one.

*Off to find out what Amanda Brunker thinks of the whole thing*

twinytwo

emmmm open to correction on this .. but 40 of the countires top ecomimists tell the government that this wont work the way they have but the government who cant tell their ass for their elbow are going to do it anyway.... i for one dont want my grandkids paying for this

Kev_ps3

who cares, its wrong, and imo criminal thought up by criminals.

leitrim lad

another point everyone seems to be missing ,is that altough the likes of liam carroll might not be legally allowed to buy back land that nama reposesses, with legislation being introduced to stop this kinda messing going on,

there is nothing stopping liam carroll ,sean dunne and the rest of them getting their inlaws or some other relation who may not have an association with them on paper, or in the icb ,to stand in as directors in a new company and borrow money again from the same banks to buy back the same land, and once the deal is done , mr carroll/dunne could just come in on this new company as a director and with in a year be the chairman, and be up and running again, as if nothing ever happened,

this is possible ,but the brains behind nama havent got the cop to cop on to this,

but i beleive they have copped on to this and have left sufficent loopholes for the likes of carroll ,and dunne and mc namara, to creep back in ,to the tent, with out the tax payer even knowing

i think nama will mean that my daughter and unborn other child will have a life of poverty if they dont emigrate, and by then i think that if fianna fail is in power they will be taxing irish people who have emigrated for emigrating, thats how pathetic they are

Long Onion

twinytwo wrote: »

emmmm open to correction on this .. but 40 of the countires top ecomimists tell the government that this wont work the way they have but the government who cant tell their ass for their elbow are going to do it anyway.... i for one dont want my grandkids paying for this

It was 46 economists - out of 250 approached, many commentators would disagree with the fact that they are the "top economists", the most esteemed names do not appear on the correspondance.

Leitrim Lad, you are anti-everything, from car dealerships to government. If you hate the country so much, why not emigrate.

My name is URL

Can anyone summarise in a couple of lines what NAMA actually is? No?

Then it's probably not constitutional

Long Onion

My name is URL wrote: »

Can anyone summarise in a couple of lines what NAMA actually is? No?

Then it's probably not constitutional

By that reasoning my good sir, I would like you to summarise, in a couple of lines, what our constitution actually is, if you can't, then "Huston, we have a ... "

TheZohanS

My name is URL wrote: »

Can anyone summarise in a couple of lines what NAMA actually is? No?

Then it's probably not constitutional

This article outlines what NAMA is and also gives the stance of political parties and economists.

It also outlines what other countries have done or propose to do.

My name is URL

Long Onion wrote: »

By that reasoning my good sir, I would like you to summarise, in a couple of lines, what our constitution actually is, if you can't, then "Huston, we have a ... "

Well at the very least, there should be lines of accountability as in all Parliamentary systems. And if people don't even understand what NAMA is even though they're funding it, then how can they hold someone accountable?

leitrim lad

Long Onion wrote: »

It was 46 economists - out of 250 approached, many commentators would disagree with the fact that they are the "top economists", the most esteemed names do not appear on the correspondance.

Leitrim Lad, you are anti-everything, from car dealerships to government. If you hate the country so much, why not emigrate.

and we all know why im anty everything now ,because the party i wasted my time canvassing for turned on me when i needed them most,

my vote is now independent,and im not the only one to leave the party because of the lack of leadership in hard times, and the corruption which is causing poverty to the poor innocent people who are queing for svdp food, people who worked during the boom ,very hard and are now homeless because of a barrister, a solicitor, and a few dodgy bankers, who ****ed up and the likes of the ordinary working class person is left carrying the bucket because of this major **** up

no to lisbon and NO TO NAMA

Long Onion

My name is URL wrote: »

Well at the very least, there should be lines of accountability as in all Parliamentary systems. And if people don't even understand what NAMA is even though they're funding it, then how can they hold someone accountable?

I believe that we need more transparency, but the lack of a clear line of perecptability does not per se make something unconstiutional. There are a myriad of grey areas in the constitution and almost every article has been the subject of some kind of challenge.

The thought that a document can be framed at a particular point in time and be relied on for ever after, is amiss. Human society is fluid, the documents governing or lives have to contain the subtlety to take account of changing times. Given the reluctance to hold referenda at will, the judiciary have often played on the possible interpretations which can be given to any group of words.

The Constitution itself is neither clear nor precise, to contend that any legislation which lacks clarity is repugnant, is not realistic. As mentioned earlier, I think the lack of transparency is undemocratic and undesireable, but this does not mean that it is unconstitutional.

Euro_Kraut

Why is this in After Hours? It has nothing to do with Roma Beggars or people wearing pyjamas.

Long Onion

Euro_Kraut wrote: »

Why is this in After Hours? It has nothing to do with Roma Beggars or people wearing pyNAMAs.

FYP

leitrim lad

im not fine geal, but i think george lee and richard brutan have some valid points which could rescue our sinking ship,

why in say mid 2008 when the country started to feel the pinch, or even go back to june 2007 when the exchequer figures were down, and share prices started to fall, did the government not set up a state agency to provide loans and capital to ordinary people to keep the economy going and keep job creation going,

no they sat back with not a clue what was happening, and ate 16oz t bone steaks and 250 euro bottles of wine at our expence, and let the people loose their jobs,

now they are in denial, and still havent figured out where they ****ed up , so they decide to bail out the people who created this whole mess ,rather than helping the ordinary working person who will pay taxes and do a weeks shopping and pay a mortgage, and help the economy, which would make more sence,

but no dermot gleeson and eugene sheehey crawling into kildare street last september because they ****ed up means more to fianna fail than the other 4 million people in this staet,
and dont get me started on the other prick who on national television didnt know what his salary was for last year he thought it was about 3 million after the accounts were drawn up,

well its time to execute the brian goggins and dermot gleesons and brian lenehans of this country with their own medicine, life sentences in hard labour, like north korea

Long Onion

leitrim lad wrote: »

and we all know why im anty everything now ,because the party i wasted my time canvassing for turned on me when i needed them most,

The very fact that you canvassed for them and that they turned their back on you "in the hard times" suggests that you were a member right the way through "the good times" - the times when the money was squandered, the tribunals were convened, the land was re-zoned, the envelopes were handed out, the tent was erected in Galway, the HSE was created, the Gravy train was packed to capacity.

Take some responsibility for supporting them because, by doing so, you helped them become the very thing you are now bemoaning about. As a canvasser and supporter during the corrupt times, you have no right to complain about a morally bankrupt government, it is partially your doing - take your medicine like a man.

leitrim lad

Long Onion wrote: »

The very fact that you canvassed for them and that they turned their back on you "in the hard times" suggests that you were a member right the way through "the good times" - the times when the money was squandered, the tribunals were convened, the land was re-zoned, the envelopes were handed out, the tent was erected in Galway, the HSE was created, the Gravy train was packed to capacity.

Take some responsibility for supporting them because, by doing so, you helped them become the very thing you are now bemoaning about. As a canvasser and supporter during the corrupt times, you have no right to complain about a morally bankrupt government, it is partially your doing - take your medicine like a man.

are you trying to be smart or take the piss altogether, i have every right and you wont deny me my rights, 3 quarter of the country are the same as me, derelict ex supporters, but i can tell you one thing you will count your self very lucky if you never meet me in person, i seen your smart alic comments in the other thread, and this thread, and pray to god your online ,because if you were in person youd be on your way to a and e now in a good many pieces

Long Onion

resorting to threats of physical violence now sir - I applaud you, very good stuff.:rolleyes:

Euro_Kraut

Long Onion wrote: »

Take some responsibility for supporting them because, by doing so, you helped them become the very thing you are now bemoaning about. As a canvasser and supporter during the corrupt times, you have no right to complain about a morally bankrupt government, it is partially your doing - take your medicine like a man.

That’s very harsh. I don't think you forfeit your right to complain about the Govt just because you previously supported it. He had recognised his mistake and has moved on.

At least he is being honest about being a previous supporter - of which there were very many.

Long Onion

Euro_Kraut wrote: »

That’s very harsh. I don't you forfeit your right to complain about the Govt just because you previously supported it. He had recognised his mistake and has moved on.

At least he is being honest about being a previous supporter - of which there were very many.

Personally, I don't find it harsh when one takes it in the context of the posters many previous posts. I agree that many people are disillusioned with our government, including many party members. That is fine of course and people should be free to voice their disapproval.

What I take issue with is ill-thought nonsense being posted at every available opportunity, spouting populist nonsense and throwing Lisbon into the debate. I am fully open to any argument - if a modicum of thought is put into it, but not the nonsensical drivel in the posts here and in the motors forum. Of course it's every man's choice to post his thoughts, but one has to be prepared to take onboard the criticism's of others.

FF's corruptness has been well documented for the past 10 years or more, so why do people who suppoted them with this knowledge feel they have the right to cry "unfair" from the rooftops now?

Personally, I don't find my retort as harsh as the threats of violence that followed it.

javaboy

leitrim lad wrote: »

but i can tell you one thing you will count your self very lucky if you never meet me in person, i seen your smart alic comments in the other thread, and this thread, and pray to god your online ,because if you were in person youd be on your way to a and e now in a good many pieces

Banned for threatening violence against another user.