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Your Constitution
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01-09-2009 9:58am#1
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Long Onion wrote: »A bit holier than thou sir. Am I not correct in saying that one of the fundamental principles of the rule of law is that laws should be clear and precise. This should apply regardless of whether or not one has studied Kelly on the Constitution. A muddle of judicial interpretations all bound by judicial precedence lead to conflicts eventually......Long Onion wrote: »For what it's worth, I have studied law myself.....
What exactly did you study?
. Seems to me you missed the first class about what our legal system is. Common Law v Civil Law is fairly basic stuff tbh. 0 -
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if funding and media time (constitutionally) should be equal. shouldn't the current administrations considering their influence?
What's the question
Edit: I think you're mixing up the Referedum Commission and the Government. Saying the government should be equally disposed to both sides is about as useful as saying Libertas should be equal to both sides.0 -
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What's the question
Edit: I think you're mixing up the Referedum Commission and the Government. Saying the government should be equally disposed to both sides is about as useful as saying Libertas should be equal to both sides.
fair enough, but nothing has ever been said on the matter and with previous precedence on media airing and funding, would you not think they would thhink the same of leading political leaders saying the Irish voted wrong?
With that, and the re-vote, do you not think thats terribly undemocratic?0 -
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Long Onion wrote: »
Have you read it? I reckon that everyone should from time to time, it touches all aspects of our lives. On a recent reading the following occured to me;
Yes, as part of a Third Level project, but more from a political perspective, not a bone fide legal one. I am trying here, however, to analyse it from an apolitical perspective as much as I can.
The Preamble:[/LEFT]
In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,
Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,
And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,
Do hereby adopt, enact, and give to ourselves this Constitution.Does this mention of the catholic religion have any place in the Constitution anymore?
I think this is generally regarded as an ode to God and not catholocism per se, and nothing more. Am i right in saying this?
Didn't the post-Apartheid South African government use Bunreacht as a template for their new constitution? If so, it would suggest that it is a fine example of a 'water-tight constitution' - as mentioned before.
However, it is generally perceived that Bunreacht falls short in referring to the explicit rights of certain vulnerable groups of society i.e. gender equality, rights of the child, elderly and disabled.
It is interesting that questions re the Irish media have come up here - that's another area that Bunreacht could be said to be weak in clarifying.
Some of the above issues are clarified explicitly by the EU's Charter of Fundamental Rights, which will only become legally binding if Lisbon is passed.
Not trying to stir a Lisbon free-for-all here. Just think this is a good way of assessing where Bunreacht is at the moment, and where it could potentially be improved.
Anyway, I believe (not qualified legal opinion) that if the EU Charter of Fundamental rights becomes a legally-binding document, the Irish court may come under some difficulty in relation to issues regarding home affairs and domestic security -
The EU Charter explicitly identifies the right to asylum under conditions of the Geneva Convention (A.18) and also identifies the right of EU citizens to move freely within the EU’s boundaries (A.45). These provisions could make it more difficult for the Irish government, through the processes of the Irish Court, to deport asylum seekers or to refuse entry to other EU citizens.
In its equality provision, unlike Bunreacht no hEireann, the EU Charter of Fundamental Rights gives special emphasis to equality between men and women, the rights of the child, the elderly and the disabled (A.23-26). If it is felt that certain rights are being denied, the adoption of this charter could result in the respective groups being given an added leverage to their claims for equal rights within the Irish Court.
It is also explicitly stated in the EU Charter that the freedom and pluralism of the media shall be respected (A.11.2). This provision could potentially influence libel and defamation cases against sections of the Irish media. It could also be argued that this provision could give the Irish media more freedom with regards to their content, that could potentially be detrimental to the social and moral considerations made explicit in Bunreacht na hEireann (A.40.1).
Would the Blasphemy Bill be open to legal challenge on the above grounds?
However the key caveat of all the above is that it is subject to the respective national laws of each individual.
Another interesting point is that the word 'neutrality' is not referred to even once in Bunreacht, contrary to popular belief.0 -
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No. Its fine. A constitution is only as good as the the Constitutional Courts interpretation. No text is set in stone, it evolves with the times as the Courts give new judgements and offer elaborations on the textlegal texts have to be precise. they can't be vague and ambiguous just so that you can understand it more easily. 0
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Long Onion wrote: »Well done on your first class hons sir, no doubt the only such mark handed out that year, it obviously makes you brilliant.:rolleyes:
Well it's pretty obvious you don't have one as you seem to have difficulties in grasping the basics here.Long Onion wrote: »Are you honestly saing to me that there have been no conflicting judgements passed on matters constitutional since the drafting of the constitution?
No that's not what he said.Long Onion wrote: »Prinz, could you elaborate on your earlier comment re civil v common law and me missing the first class? Are you tring to state that common law should not have to be clear and precise nor accord with teh basic principle of the rule of law?
Ireland is a common law jurisdiction, therefore your claim that all laws be "clear and precise", updated to suit the times etc doesn't apply here in the context of the Constitution. The Constitution is open to interpretation subject to the facts of the case, appeal, or amendment before the courts. We do not live in a Civil Law jursidiction where the law is the law as it is written ( clear and precise I believe is how you'd put it ) and it is not open to interpretation on a case by case basis.
Therefore the Constitution is just as relevant today as it was in 1937. It does not need to be rewritten every 5 or 10 years to "update" it. Rewriting specific laws to allow for societal/technological... etc changes is something more prevalent in Civil Law countries, not ours. Enacting a new law is different.Long Onion wrote: »
Pretty simple really. The Constitution stands, it is there for anyone to read, and for the courts to interpret. A constantly evolving and changing Constitution is impossible. Just because it is open to interpretation does not make it vague or ambiguous.
So what did you study again? I'm confused.0 -
Long Onion wrote: »
these are quoted out of context. one was speaking in the context of a short constitutional text which is reliant on interpreation. the other was in relation to european treaties, regulations, directive which seek to be as clear as possible so that there are no disparities throughout EU Member States (as, of course, the creation of a single european market is the goal and disparities can distort competition. or in this case the laws relate, in part, to lawmaking and procedure and certainty is necessary in these areas.)0 -
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Long Onion wrote: »I accept this, but am simply wondering if the possibilities for conflict could be reduced by a re-drafting of the Constitution more suited to the times in which we now live....
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..Long Onion wrote: »This comes back to my main point, if exactly the same case is taken to the courts today and in 30 years time, is it desireable that the outcome could be different, even if the law has not been altered, does this stray too close to judicial law making? A re-drafting of the text may remove this danger...
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. 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.Long Onion wrote: »I was really only interested in starting a general debate on the issue which, assumptions about my academic credentials aside, I am actually enjoying - my genuine thanks for this..
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
Long Onion wrote: »I would believe that in light of a number of decisions, there is no longer a need for the reference to the Holy Trinity in the Preamble, I believe that basing rights on the family 'based on marriage' has lost it's relevance, the blasphemy reference is no longer warranted. The current position on the protection of the unborn child does nothing to accord with recent advances in genetics and medicine (stem cell research) and is certain to throw up anomalies in the near future. I also believe that the whole issue of unenumerated rights and how they sit within the current framework could greatly benefit froma an overhaul.
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.Long Onion wrote: »You are quite right on this one defence acknowledged, though on this reading, I cannot see any significant salience to your point.
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.0 -
Kalashnikov_Kid wrote: »Yes, as part of a Third Level project, but more from a political perspective, not a bone fide legal one. I am trying here, however, to analyse it from an apolitical perspective as much as I can.
I think this is generally regarded as an ode to God and not catholocism per se, and nothing more. Am i right in saying this?
Didn't the post-Apartheid South African government use Bunreacht as a template for their new constitution? If so, it would suggest that it is a fine example of a 'water-tight constitution' - as mentioned before.
However, it is generally perceived that Bunreacht falls short in referring to the explicit rights of certain vulnerable groups of society i.e. gender equality, rights of the child, elderly and disabled.
It is interesting that questions re the Irish media have come up here - that's another area that Bunreacht could be said to be weak in clarifying.
Some of the above issues are clarified explicitly by the EU's Charter of Fundamental Rights, which will only become legally binding if Lisbon is passed.
Not trying to stir a Lisbon free-for-all here. Just think this is a good way of assessing where Bunreacht is at the moment, and where it could potentially be improved.
Anyway, I believe (not qualified legal opinion) that if the EU Charter of Fundamental rights becomes a legally-binding document, the Irish court may come under some difficulty in relation to issues regarding home affairs and domestic security -
The EU Charter explicitly identifies the right to asylum under conditions of the Geneva Convention (A.18) and also identifies the right of EU citizens to move freely within the EU’s boundaries (A.45). These provisions could make it more difficult for the Irish government, through the processes of the Irish Court, to deport asylum seekers or to refuse entry to other EU citizens.
In its equality provision, unlike Bunreacht no hEireann, the EU Charter of Fundamental Rights gives special emphasis to equality between men and women, the rights of the child, the elderly and the disabled (A.23-26). If it is felt that certain rights are being denied, the adoption of this charter could result in the respective groups being given an added leverage to their claims for equal rights within the Irish Court.
It is also explicitly stated in the EU Charter that the freedom and pluralism of the media shall be respected (A.11.2). This provision could potentially influence libel and defamation cases against sections of the Irish media. It could also be argued that this provision could give the Irish media more freedom with regards to their content, that could potentially be detrimental to the social and moral considerations made explicit in Bunreacht na hEireann (A.40.1).
Would the Blasphemy Bill be open to legal challenge on the above grounds?
However the key caveat of all the above is that it is subject to the respective national laws of each individual.
Another interesting point is that the word 'neutrality' is not referred to even once in Bunreacht, contrary to popular belief.
hi
with regard to the European Charter, in fairness, ireland is complying with Geneva and the European Union regulations regarding with the minium standards for refugee law - now, of course there is a lot of problems with how the irish system is based (transparency, qualification of decision makers etc) ECtHR cases have a lot of influence too. No one is prohibited (bar EU citizens - but that was an EU ruling) from entering this country and asking to apply for asylum. It then depends on the facts of the case whether its credible, plausible and falls within the very strict definition of refugee status. If a person is granted status in Ireland after this, they are allowed to apply for family reunification (you know this) Of course the huge problems is in the delay. Also Ireland, UK and Denmark have co opted out of one or two European legislation in relation to Thrid Nationals.
With regard to rights of EU citizen and freemovement, this is already protected in the Treaty and Directives like 2004 / 38 EC (and of course just as importance ECJ case law). Again, as seen in cases like Chen and Carpenter,Baumast, Metock and Jia the European Convention on Human Rights has influence and the premable of Directive 2004 / 38 EC expresses the aim to reduce all obstacles to the right to free movement.
As you know, an EU citizen's rights to reside in an EU country are not absolute and are conditional (Art 18 Treaty) on basis they comply with limitations and conditions ie - Directive 2004 /38 EC. If a person feels that their rights are being infringed they can freely make their complaints at the national courts and furture to the ECJ itself.
THe problem has not always being the laws itself, the problems as you know are often that members of member states have breached the laws despite clear (and sometimes unclear) provisions of EU law and ECHR - thus the need for the judiciary and vechiles like Judicial Review
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?)
anyone with a brain knows that neutrality is not mentioned. 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?0 -
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