European Constitution

You will no doubt have noticed that the words “irrevocable” and “irreversible” are now being bandied around in political circles.I consider that this an extremely dangerous indication of the wish of the business community to “lock up” the future.It flies directly in the face of the democratic process, which, by means of the recall procedures that some of the more enlightened democracies are endowed with, admit the possibility of human error, and make provision for its correction where necessary.

The recent attempt at a European Constitution, which the French fortunately rejected, followed this principle. Now, Blair is using the same tactic, at first with something relatively minor, schools, but once the precedent has been set you will not be able to follow the progress of the rot – it will spread so fast! See the data at

http://news.bbc.co.uk/2/hi/uk_news/politics/4370446.stm

A French solicitor was influential in the rejection of the European Constitution, and out of curiosity I downloaded the article from his blog. I translated the first part, and attach it in line below for reference.

******************

Marseille, 24th May, 2005.

A bad constitution which reveals a secret (hidden) cancer in our democracy

Dear colleagues and friends,

After 6 months of intensive reflection, an argument crystalized around the constitutional treaty, starting from it but beyond it, an argument which is neither of the right nor the left, and which shows a historical danger for us all, above politics.

For these reasons, this short discussion should interest citizens from all sides.

Six months ago, in September 2004, I was, like everybody else, in favour of this text in order to progress, without having read it, knowing full well that the institutions were very imperfect.

I would not want to be the one to slow Europe down. I truly think that the great majority of Europeans, beyond the left/right divide, love this great idea of a united Europe, more fraternal, stronger. It’s a dream of peace, consensual, for the great majority.

I never read the text, and I had absolutely no time; too much work…. and then Europe was far away, and then with all these politicians, I felt protected by numbers in case of drift, an alliance for our defence was easy…. and I avoided political involvement, that is to say I avoided my rightful affairs.

Before calls started to rise up against the treaty, but they remained at the edges of the political chessboard, and for this simple reason I did not start to read their arguments, confidently staying with the tide of opinion of the largest number, without verifying the strength of ideas presented.

Then suddenly the calls were coming from people not suspected of being anti-European. I set to reading very much, complete books, all sides, Fabius, Strauss-Kahn, Giscard, Jennar, Fitoussi, Genereux, etc. and many articles of the treaty’s supporters, for I wanted to be sure not to make a mistake. The more I read, the more uneasy I became. Finally, today, I don’t think about it more, I hardly sleep, I’m simply afraid of losing the essential : the protection against the arbitrary.

Today I continue to read everything, both for and against, I continue to search for a fault in my reasoning, and this text is an appeal to reflect and make progress : if you find a mistake, please let us talk together quietly and honestly, it is very important. I am afraid of making a mistake, I am sincerely searching for the truth, let us reflect together, if you wouldn’t mind.

I feel that it is my task as a professor of law to speak a little more than the others, to speak with my colleagues, but also to my peers, and to journalists. I would be an accomplice if I remained silent.

I have thus found more than ten serious reasons to oppose this dangerous text, and another ten reasons to reject disagreeable text, not at all brotherly in reality. But the five strongest reasons, the most convincing, those which cover all political opinions because they bluntly challenge the interest to hold a political view, are late appearances for me for it is a lot of work to highlight them. These are the five most important reasons I want to bring to your attention and seek your opinion, for us to talk over together, since the journalists deprive us of public debate.

1. A Constitution must be legible to enable a popular vote – this text is illegible.

2. A Constitution does not impose one political policy or another – this text is partisan.

3. A Constitution is revisable – this text is locked by a requirement for double unanimity.

4. A Constitution protects against tyranny by the separation of powers and by the control of powers – this text neither provides for a true control of powers nor a real separation of powers.

5. A Constitution is not granted by the powers (that be), it is established by the people themselves, precisely to protect itself against arbitrary powers, through a constituent assembly, independent, elected for that purpose and dismissed afterwards – this text ratifies the European institutions which have been written for 15 years by the men in government, together with judges and parties.

Preliminary : Constitution or Treaty?

What is the just qualification for this project?

It should be recalled that this is a Constitution and why one surrounds its elaborations with particular precautions.

A Constitution is a pact between the people and their governors. It is because they have signed this pact that the people accept obedience to the laws. It is through this pact that authority is legitimised. This pact must protect the people against injustice and arbitrary rule. One would say that the principles involved serve to guarantee that the pact plays its role as protector, and that the people are in control.

The Treaty project draws up a Constitution for Europe (TCE) to be executed with no limit of duration, [2], it imposes on nearly all matters essential to the life of the people, [3], its judiciary power is superior to all national norms, (rules, laws, Constitution), [4], it sets in place great powers, (executive, legislative, judiciary) and it regulates their balance.

The TCE is therefore by nature a Constitution, it defines the “right of rights”.

The current debate shows that this preamble is at the centre of the refutation. I therefore support my affirmation with a quotation from Olivier Gohin, professor at the University of Paris –

“The new Treaty is a true Constitution in that it corresponds to the material definition of all constitutions:

organisation of public powers and guarantee of basic freedoms, with definition of a constituent power (…) the new Union of united Europe, from the present, the elements necessary to define the State [5].

Furthermore, the primacy of European right, even of a simple rule, over the combined right of the member states, and over their constitution, is strongly demonstrated by many university professors who are obviously raving against this judicial earthquake knowingly under-evaluated by the constitutional council (see texts from Fr?d?ric Rouvillois and Armel P?cheul, note 4).

The most important therefore, in my view, is not the qualification that the authors themselves have brought to their texts, since the principles of which we speak serve to protect citizens against dangerous institutions: all fundamental text which defines or modifies the powers of institutions must therefore respect these principles, whatever its official denomination.

The first principle of constitutional right: a constitution is a legible text.

A constitution must be accepted, directly, by the people that it subjects. For this acceptation to be meaningful, the text must be legible for those people that are going to sign, (and not only for experts).

From this point of view, the ‘constitutional treaty’ is long and complex [7]: 485 pages A4, that is almost a ream (in the compact version actually available on the site)

This length, unique in the world for a constitution, doubles itself with a multiplicity of cross-references that render it simply illegible for citizens of the rank and file. Certain important points, such as the definition of SIEG, don’t appear in the text [8]. Contradictions appear even between parts removed [9].

To illustrate once again the difficulty of reading this text, one must steadily take notes (relever ?galement), and that’s bad. The absence of a list of domains in which each institution may create law. Thus, one finds nowhere (and one may perfectly ignore its existence) where the European parliament is completely kept away from the right to legislate (this is neither banal nor harmless). To know this distribution it is necessary to scrutinize the hundreds of articles one by one, hoping not to forget anything (see further). Can one talk about legibility?

Other important articles, like article I-33 which institutes “non-legislative acts” (rules and decisions) which allow a Commission (non-elected) to create norms as restrictive as laws without parliamentary control [10], cannot be followed on a controllable list.

This length and this complexity forbid critique by the common run of people [11].

The 75% of Spanish voters that approved the text, as the 60% that abstained, have probably never read it: neither the ministers, nor the parliamentarians, nor the professors, nor the journalists, nor the citizens, who all have other things to do: who has the time to read 500 pages A4?

It’s enough to ask yourself the question; it’s no different for the others.

. . . . . .

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