Lisbon by any other name is still a constitution

ONE of the world’s most famous surrealist paintings, by Belgian artist René Magritte, depicts a pipe with the words underneath: “ceci n’est pas une pipe” — this is not a pipe.

Similarly, the Lisbon treaty is more or less the same in substance as the European Constitution but has been presented to voters with the declaration: “ceci n’est pas un constitution”.

“The substance of what was agreed in 2004 has been retained. What is gone is the term ‘constitution’,” said former Foreign Minister Dermot Ahern, when the Lisbon treaty was negotiated between member states in June 2007.

The then taoiseach Bertie Ahern said: “90% of it is still there. These changes haven’t made any dramatic change to the substance of what was agreed back in 2004.”

The Lisbon treaty differs from the constitution in that it drops reference to the traditional nation-state symbols of the flag, the anthem and the motto, although these still exist.

The main difference is that the constitution attempted to replace all earlier EU treaties and start afresh, whereas Lisbon amends the Maastricht treaty (1992) and the treaty of Rome (1958).

Former taoiseach and leader of Fine Gael, Dr Garret FitzGerald, best articulated it when he said, in June 2007: “The most striking change is perhaps that in order to enable some governments to reassure their electorates that the changes will have no constitutional implications, the idea of a new and simpler treaty containing all the provisions governing the union has now been dropped in favour of a huge series of individual amendments to two existing treaties.”

The idea that the Lisbon treaty is a constitution in all but name has been used by no campaigners in Ireland as proof that it will have primacy over the Irish constitution, and thus lead to a situation where abortion and same-sex marriage are permitted.

One of the most striking campaign posters shows a picture of the Irish Proclamation of Independence, with the slogan: “People died for your freedom. Don’t throw it away.”

The poster belongs to no side, Cóir, who argue the Lisbon treaty “is not just another treaty, it’s a whole new constitution for Europe”.

So what changes will be made to the Irish constitution if we vote for the Lisbon treaty?

The first sentence to be inserted into the Irish constitution says Ireland “will become a member of the European Union established by virtue of that treaty”.

The second sentence that would be incorporated into the Irish constitution is: “No provision of this constitution... prevents laws enacted, acts done or measures adopted by the said European Union.”

Anthony Coughlan of the National Platform, which is campaigning for a no vote, said the first sentence proves that a new EU is being “established” by the Lisbon treaty. He said this “constitutes” a new union, and so it is a constitution, whether it is called that or not.

The Trinity College social policy lecturer said the second sentence in the amendment would give the EU supremacy over the Irish constitution in “laws, acts and measures” and this will cause a “constitutional revolution”.

The part of the amendment which says the Irish constitution will not prevent laws and measures adopted by the European Union, is not entirely new.

When the Irish people voted yes in a referendum to join the European Community in 1972, they agreed to insert into the Irish constitution: “No provision of the constitution invalidates laws enacted... by the State necessitated by the obligations of membership of the communities or prevents laws enacted...by the communities....from having the force of law in the State”.

Fine Gael senator Eugene Regan said: “It is quite absurd to suggest that the primacy of EU law is something new and to call into question that principle after 35 years of membership of the EU. It is not a question of denying it, it just does not have the significance Mr Coughlan is attributing to it.”

Cóir says the Charter of Fundamental Rights contained in the treaty will mean abortion and same- sex marriage will be permitted here under the European Court of Justice.

Mr Regan said the explanation of Article 9 which covers this states: “This article neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex”.

“Furthermore, any legislation adopted at EU level on any aspect of family law must be adopted by unanimity, therefore giving Ireland a veto,” he said.

The treaty provides in a protocol that: “Nothing... shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland”. That is the article in our constitution on the right to life of the unborn.

The charter will supersede Irish law. But Mr Regan said in most cases, this will not be relevant: “The charter sets a minimum standard and there are no restrictions on members states having higher standards. In Ireland, fundamental rights have already been well-developed by the Supreme Court.”


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