Archive for the ‘Lisbon Treaty research’ Category

Summary of the Lisbon Treaty research

April 25, 2008

In each EU member state where the Lisbon Treaty, a new constitution, is ratified without an electorate base (i.e.without referendum), the government has committed the unconstitutional act of overthrowing the constitution.

A constitution by its own definition never allows the act of overthrowing it. Not even a sovereign parliament with elected representatives and legislative supremacy has been authorised by the electorate to overthrow and invalidate the constitution under any circumstances, unless such parliament and the domestic law specifically claim to foster a system of “rule of man” rather than “rule of law”.

By overthrowing the constitution that has been the basis of their mandates with electorate legitimacy, the elected representatives have invalidated the basis of their legitimacy, thus terminated their mandates and elected status.

Abstract

This research is based on directly comparing the Lisbon Treaty to a theoretical (generic) constitution. The conclusion of the research is that a referendum on the Lisbon Treaty should be a requirement in each EU-state because:

1) The Lisbon Treaty has all the substance to satisfy the criteria of being a new constitution, [Article 1]
2) A constitution never allows the act of overthrowing it [Article 2]
3) Democratic constitutionalisation process requires referendum as the basis of accepting a new constitution. [Article 3]

This approach is built on the objective definitions of political concepts, such as “democracy”, “constitutionalism” and “rule of law”; therefore the objective meanings of these political concepts are matched with the case of adopting a constitutional treaty of a new federal state, the “European Union” [Article 1], which claims to be guided by -both as per its existing treaties and in the Lisbon Treaty itself- democracy and rule of law. (10A). The first study [Article 1] provides a conceptual map between the contents of a theoretical constitution and the Lisbon Treaty itself. The findings in this article are that the Lisbon Treaty contains all the elements (provisions) of a generic constitution. Among the treaty’s provisions we find that the treaty abolishes our national borders, and this is just one of the main constitutional aspects.

Following the first conclusion that the Lisbon Treaty is a constitution, the second article [Article 2] provides conceptual evidence that the parliamentary ratification of the Lisbon Treaty – as an attempt to replace (overthrow) the national constitution – is an act of treason, an equivalent of coup d’état. Therefore the legal aspect of adopting the Lisbon Treaty – which has made the issue of the Lisbon Treaty a very complicated legal issue in the member states – should also be examined from the perspective of the condition if the law and certain parliamentary decisions satisfy the criteria of the concepts of democracy, rule of law and constitutionalism. [Article 3]

The democratic constitutional requirement is a concept that has primacy over the legal aspect, for the following reasons:

1. The constitutional requirement is not per se the written laws of a constitution – especially if a constitution is not codified, partly written and/or subject to change – but the very fact that a constitution, and the political system founded upon it, are not supposed to be altered in a manner that contradicts the fundamental concepts of constitutionalism and the mandate legitimacy of parliamentary sovereignty.

2. A constitution by its own definition never allows the act of overthrowing it. Not even a sovereign parliament with elected representatives and legislative supremacy has been authorised by the electorate to overthrow itself and the constitution under any circumstances, unless such parliament and the domestic law specifically claim to foster a system of “rule of man” rather than “rule of law”. (Regarding the specific case of the UK: the former promises of the PM are irrelevant, because a former promise of not overthrowing the constitution is be considered self-evident.)

3. The domestic laws can serve the constitutional aim to satisfy the principle of rule of law only as long as the laws support the principles of parliamentary democracy, i.e., as long as the laws do not undermine the most fundamental law of the constitution, which is the guarantee of the constitution to be the constitution and to maintain the current constitutional state of matters, i.e.
1) to be the law for all other laws
2) the guarantee that the parliament is obliged to act upon the constitution rather than overthrow it. These constitutional guarantees stand above all other laws, and it is not a legal but a conceptual guarantee, because it is a guarantee inherent in and derived from the objective, scientific principles of constitutionalism.

4. The requirement of constitutionalism exists even prior to founding a state and before recording any laws, because this requirement determines if the very process of adopting a new constitution is constitutional at all. [Article 3]

5. Another reason why the fundamental political principles and the conceptual/ philosophical basis of a political system has primacy over the legal aspects is because the domestic law itself in any country can be designed or altered to foster a totalitarian (rule of man) establishment as well.

Conclusions

Since this approach is based on the objective definitions of political concepts, such as “constitutionalism” and “rule of law”, to satisfy the objective meanings of these political concepts, i.e. to satisfy the constitutional criteria of the process of adopting a new federal constitution, in each EU-state, a referendum would be required. This is a general requirement and holds true with or without any member states actually observing these principles.

A referendum on the Lisbon Treaty is required in all EU-member states also because the concept of national sovereignty and citizens’ rights/obligations are attached to the legally binding state-founding concepts, such as the legally binding agreements on new common borders, and the Lisbon Treaty is the first EU treaty that includes constitutional provisions, such as common borders and other legally binding state-founding provisions [Article 1]. Without a referendum the citizens would be arbitrarily deprived of their current voting and other citizens’ rights and would be arbitrarily exposed to new obligations toward the authorities of a new state.
The justification of parliamentary ratification of the EU-elites stating
1) that the act of surrendering the member states’ sovereignty to the EU has been a gradual process rather than an abrupt action
2) that the former EU-treaties have been accepted without referendums

is invalid for the following reasons:

Within the new common borders of the new state, the citizens of the member states, would for the first time be legally bound to obey the directives of the new federal state (EU) that is being founded by the Lisbon Treaty, even though many of these directives will be imposed upon the citizens in the future and gradually -as projected by the self-amending nature of the treaty, and unnoticeably, via the mediation of the national parliament, which -as per the treaty- will be obliged to follow the EU’s decisions. Furthermore, many of these new citizens’ rights and obligations will be subject to future amendments by the EU’s authorities, due to the Treaty’s general self amending competence.

[Article 1] Conceptual map proving that the Lisbon Treaty is a constitution

[Article 2] Lisbon Treaty explained by political science: an equivalent of coup d’état

[Article 3] The main constitutional aspect of constitutionalisation: the requirement of referendums on a new constitution

Selected links and references:
http://howardh.wordpress.com/selected-references/

Lisbon Treaty: explained by political science

April 25, 2008

an equivalent of coup d’état

I. Initial statements supported by scientific knowledge of political concepts

1. The Lisbon Treaty is a constitution; it is the same as the text of the rejected EU Constitution after omitting the state symbols of the new federal state. The Lisbon Treaty is a federal constitution granting essential powers to the federal EU-state (superstate) over the EU-member states.

2. A country can have only one constitution in effect at a time, the provisions of which have primacy over all other laws. In the case when a state is arranged as a federal union, the federal constitution enjoys primacy over the provision of the dependent state constitutions.

3. A constitution is the fundamental set of laws, a social contract concluded between citizens and the state. Being the fundamental set of laws, the provisions of a constitution should be strictly followed by both the state officials and by the citizens.

4. It is the absolute requirement of democracy, rule of law and people’s sovereignty that a state’s constitution, as the foundation of all other laws, institutional arrangements and state powers of a country, is NOT to be replaced without a referendum, without the approval of the citizens themselves.

5. Being the fundamental set of laws, a constitution does not allow being replaced with another set of fundamental laws, i.e. does not allow the act of overthrowing it. On the contrary, such act is normally known and punished as treason. (Britannica: “treason = offence of attempting to overthrow the government of one’s country or of assisting its enemies in war.) Overthrowing a constitution can take different forms, as a gradual process known as “constitutional/institutional engineering”, or sudden, (violent or non-violent) forms of power-grab. When the unconstitutional status needs to be sustained by military force, it is called coup d’état. This act – both in violent and non-violent forms – may also be called revolution, describing a significant change that usually takes place in a short period of time. Aristotle described two types of political revolution: 1. complete change from one constitution to another, 2. modification of an existing constitution. Note: the very act of overthrowing a constitution and replacing it with another makes the consideration of the actual content of the overthrown constitution irrelevant.

6. Representatives elected to perform the duties on behalf of the state are elected on the basis of the provisions of a state’s constitution. Representatives of democratic countries have been elected to act according to their constitution rather than overthrowing it. If elected representatives commit overthrowing a constitution, their status of having been elected does not justify their deed, on the contrary. By overthrowing the constitution that has been the basis of their mandates with electorate legitimacy, the elected representatives have invalidated the basis of their legitimacy, thus terminated their mandates and elected status. By accepting a new constitution they have abolished the constitutional status of their country and introduced a status that lacks electorate legitimacy.

7. The constitutional duty of the independent courts would be to ensure that the fundamental laws of the constitution are followed by the state and are not replaced with a new constitution. Their duty also includes preventing governments to gradual constitutional engineering altering the fundamental laws of a constitution. If the courts do not perform their constitutional duty, the lack of their act does not validate the new constitution. This merely indicates that in such case the courts are collaborators in the unconstitutional transformation of a state.

8. The EU, according to existing treaties, is an international organisation that commits itself “to develop and consolidate democracy and the rule of law and respect for human rights and fundamental freedoms. “The main EU’s institutions are the European Commission, European Council, Council, European Parliament and European Court. The European Council is an EU institution comprising the country leaders of the EU member states (prime ministers and presidents). The Council of Ministers is an EU institution comprising selected ministers of the EU member states.

9. The members of the European Council and Council have agreed in advance to ratify the Lisbon Treaty in each member state without referendums – with one exception: Ireland.

II. Conclusions from above regarding the parliamentary ratifications of Lisbon Treaty

1. To satisfy the principles of democracy, constitutional status and rule of law and people’s sovereignty in any EU member state, it is a requirement that the Lisbon Treaty is ratified by referendum in each state.

2. If a member state’s elected representatives accept a new constitution on behalf of the state’s citizens without the approval of its citizens, it is an act of overthrowing the nation’s constitution, a non-military equivalent of coup d’état. The ratification of the Lisbon Treaty on behalf of a member state means a complete change from one constitution to another.

3. Elected representatives who have been using their election period for overthrowing their states’ constitution, have committed treason and breached the constitution on the basis of which they had obtained their election mandates. The very act of overthrowing a national constitution and replacing it with the Lisbon Treaty makes it irrelevant to consider the actual content of the overthrown constitution. By the act itself, regardless of the content of the overthrown constitution and their formerly elected status, the national governments have given up their electorate legitimacy-based mandates, invalidated their elected status and have terminated the constitutional status of their country.

4. The members of the European Council and Council have agreed in advance to pursue parliamentary ratification of the Lisbon Treaty because the referendums hold the “danger of a negative outcome“. Such an agreement is a premeditated plan to organise overthrowing constitution in the EU member states (in all except Ireland). The European Commission’s hastening, encouraging and greeting the parliamentary ratification in the member states is an act of collaborating in the state-level coup d’état and promoting the abolishing democracy in the member states.

5. The EU, which in theory commits itself “to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms“ is the organisation under which the plan of the EU-wide power-grab is being executed. The members of the European Parliament who ratified the Treaty without referendums and the members of the Commission, who have encouraged the unconstitutional power-grab in the member states, are collaborators in this plan. The Lisbon Treaty was drafted and translated in a manner that would facilitate the process of constitutional engineering, i.e. altering the existing constitutions of the member states. The EU has even started to implement the Treaty in the member states, and exercises its arbitrary powers even without the appearance of legitimacy. The premeditated constitutional engineering, the acceptance and implementation of the Lisbon Treaty by the Union’s institutions long before the ratification is completed in all member states, are all parts of the prearrangement (or conspiracy) of the dictatorial transformation of the EU member states. The assumption of conspiracy is also reflected in the fact that the European Parliament itself takes it for granted that the result of the Irish referendum will be ‘yes’ and the EP has ratified the treaty long before the ratification is completed in all of the member states. From both the perspectives of the states and of the Union, the acceptance of the Lisbon Treaty by parliamentary means is by definition a revolution or arbitrary power-grab over the EU-countries of Europe.

6. In order to restore democracy, rule of law and the constitutional status in Europe, all national governments which took part in the unconstitutional takeover of Europe as described above are required to immediately invalidate the parliamentary ratifications and commit themselves to referendums, or immediately resign from both national and/or EU-level political office.

7. If the political leaders collaborating in the EU-takeover remain in office sustaining the parliamentary ratification of the Treaty, it is the duty of the peoples of Europe to restore democracy and constitutional status of Europe by forming temporary governments to replace their unconstitutional regimes, immediately terminate membership with the EU and defy the officials of the EU, i.e. any members of any institution thereof, legislative and executive acts, laws, law-enforcements, regulations, military duties, taxes and any other measures pertaining to EU membership.

8. In lack of performing step 7, after the state-level power-grab has been performed in all member states, the dictatorial transformation would be realised on the level of the whole European Union and EU-takeover would be completed, which would result in the foundation of the federal EU-state as a dictatorial federal regime. The political oligarchy of the EU would occupy the nations under their federal control by unconstitutionally imposing the Lisbon Treaty on Europe’s nations. By exploiting the self-amending features of the Lisbon Treaty, the European political class would continue the ongoing process of constitutional and institutional engineering, dictatorial transformation of the EU-institutions, and concentration of the EU powers.
In case of protests the EU would most likely use military forces, security measures and other dictatorial powers it vested in itself by the Lisbon Treaty to stabilize its totalitarian rule with a justification of its rule “to ensure internal security“.

The main constitutional aspect of constitutionalisation

April 25, 2008

the requirement of referendums on a new constitution

Experience suggests that the consolidation of democracy occurs if [*]:

1. An assembly is convoked for the explicit purpose of drafting a constitutional document;

2. The members of this assembly are elected, not selected, but not automatically empowered to convert themselves into a regular parliament;

3. The decisions of this body are taken by the largest possible margin and not by some “minimal winning majority” according to the short-term, a historical logic of individualistic rational choice;

4. Its product is widely publicized and ratified by the citizenry as a whole, usually in a referendum;

5. Once it has been popularly ratified, the constitution is ceremonially promulgated, placed on public display and subject to periodic interpretation by a specialized juridical process.

In contrast with the case of democratic constitutionalisation, in the case of the Lisbon Treaty we find the following:

1. An assembly has NOT been convoked for the explicit purpose of drafting a constitutional document. None of the EU’s institutions have been publicly authorised to act so. The product of the former constitutional convent was rejected and it has never been declared that with the Lisbon Treaty the EU constitution will be redrafted in a new form. The drafting of the constitutional Lisbon treaty has been carried out in secrecy, not even revealing the very fact that it is a constitution.

2. The members of the assembly drafting the Lisbon Treaty were NOT elected but selected.

3. Neither the European Parliament nor any other body of the EU has been elected or specifically authorised by public voting to act as a constitutional assembly and to pass a decision regarding a constitution on behalf of the affected citizens.
None of the bodies of the EU have been authorised by the public to act as a constitutional assembly.

4. It is NOT publicised at all that the product drafted and accepted by the EU -the Lisbon Treaty- is a constitution. What is widely publicised by the “official” sources of the EU are statements desperately hiding the fact of the federal constitutionalisation by the Treaty. The presentation of this constitution hides its constitutional content and hides the system it designs.

5. Since the Lisbon Treaty has not been popularly ratified -on the contrary, it has been ratified against the popular will of the French and Dutch- any related ceremony is only to “celebrate” the abolition of Europe’s democracy.

[*] “Contrasting approaches to political engineering: Constitutionalisation & Democratization“, by Philippe C. Schmitter (European University Institute February 2001)

Conceptual map: the Lisbon Treaty is a constitution

April 25, 2008

Fact 1: The definition of the word “constitution”:
Set of doctrines and practices that form the fundamental organizing principle of a political state. It may be written (e.g., the Constitution of the U.S.) or partly written and uncodified (e.g., Britain’s constitution). Its provisions usually specify how the government is to be organized, what rights it shall have, and what rights shall be retained by the people. A constitution is also referred to as a social contract between a state and its citizens.

Fact 2: The definition of a political “state”:
Political organisation of society, or the body politic, or -more narrowly- the institutions of government. The state is distinguished from other social groups by its purpose (establishment of order and security), methods (its laws and their enforcement), territory (its area of jurisdiction), and sovereignty. In some countries (e.g., the U.S.), the term also refers to non-sovereign political units subject to the authority of the larger state, or federal union.

Fact 3: The definition of “federal union” :
Federal: 1) of or relating to a compact or treaty, 2 a): formed by a compact between political units that surrender their individual sovereignty to a central authority but retain limited residuary powers of government b): of or constituting a form of government in which power is distributed between a central authority and a number of constituent territorial units c): of or relating to the central government of a federation as distinguished from the governments of the constituent units.
Union: the formation of a single political unit from two or more separate and independent units; a political unit constituting an organic whole formed usually. from previously independent units, which have surrendered their principal powers to the government of the whole or to a newly created government (as the U.S. in 1789).

Fact 4: The definition of “state’s rights” within a federal union:
All government rights or powers held by the individual states of a federal union under the provisions of a federal constitution. In some federally organized countries, these powers are those that remain after the powers of the central government are enumerated in the constitution. In others, the powers of both levels of government are defined in their respective constitutions. The federal government can influence state policy even in areas that are constitutionally the purview of the states (e.g., education, local road construction) through withholding funds from states that fail to comply with its wishes.
(All definitions are from the Encyclopædia Britannica.)

After matching the Lisbon Treaty to the definitions above the result is the following:

Fact 1: The Lisbon Treaty is a constitution, because it is a written set of doctrines and practices that form the fundamental organizing principle of a political state . The Lisbon Treaty is a constitution because its provisions specify how the EU-state as a federal government is to be organized, what rights it shall have, and what voting and other rights shall be retained by the people. The Lisbon Treaty lays down the provisions for the political organization of the society of the current member states, the body politic of, or -more narrowly- the institutions of a new government. The Lisbon Treaty is a social contract between the EU as a state and its citizens, the citizens of the Union. A country can have only one constitution in effect at a time, the provisions of which have primacy over all other laws. In the case when a state is arranged as a federal union, the federal constitution enjoys primacy over the provision of the dependent state constitutions.

Fact 2: As per the constitution called Lisbon Treaty, the European Union is to become a state because it is distinguished from other social groups by its purpose, by its establishment of order and security, by its methods, by its own laws and their enforcement, by its own territory or area of jurisdiction, by the borders specified as per the Schengen agreements, and its sovereignty. The European Union will be a sovereign state in terms of its physical borders, its sovereign foreign policy representation in international matters by the “high representative”, its own domestic market regulated by the Union, its own currency and central bank, its own monetary policy regulating the Union’s economy as a whole, its own citizens with obligations to the EU as a central authority, by its own representation of the Union citizens, by the European Parliament, by its own security policy, its own defence strategies based on its own perception of “international threats and security”, etc. This treaty gives the EU the constitutional form of a state. These are the ten most important things the Lisbon Treaty does: 1. It establishes a legally new European Union in the constitutional form of a supranational European State. 2. It empowers this new European Union to act as a State vis-à-vis other States and its own citizens. 3. It makes us all citizens of this new European Union. 4. To hide the enormity of the change, the same name – European Union – will be kept while the Lisbon Treaty changes fundamentally the legal and constitutional nature of the Union. 5. It creates a Union Parliament for the Union’s new citizens. 6. It creates a Cabinet Government of the new Union. 7. It creates a new Union political President. 8. It creates a civil rights code for the new Union’s citizens. 9. It makes national Parliaments subordinate to the new Union. 10. It gives the new Union self-empowerment powers.” [1]

Fact 3: The Lisbon Treaty is a federal constitution establishing a new political organisation in the form of a federal union and on the basis of an international agreement, incorporating 27 currently sovereign nations. As per the provisions of the federal constitution called Lisbon Treaty, the new state to be established is a federal union (note: “superstate” is a term the EU denies to cover the issue of federalisation ) by a compact between political units that surrender their individual sovereignty to a central authority but retain limited residuary powers of government. The EU constitutes a form of government in which power is distributed between a central authority (the EU institutions) and a number of constituent territorial units (the member states). The central government of the federation is called “federal“, as distinguished from the governments of the constituent units (“states“).
The federal hierarchy of laws is established by the FINAL ACT (2007/C 306/02) Declaration 17 (“Declaration concerning primacy”), which contains a declaration that the Union laws enjoy primacy over domestic laws due to precedence and due to the inherent nature of community laws. The further extension of the Union laws in the future as a specific consequence of the general self-amending feature of the Treaty is possible as well. Declaration 18 of the Final Act: “in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, the EU authorities may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.”

Fact 4: In accordance with the above, if the Lisbon Treaty would be ratified, the member states would lose their national sovereignty , and accordingly, the citizens would lose their current citizen rights and would be subject to obligations to a new authority. In such context the term “state“, whenever used for the EU member states, would refer to non-sovereign political units (e.g., similarly to the states of the U.S.) subject to the authority of the larger state, the federal European Union. The Lisbon Treaty, as a federal constitution, stipulates all government rights and powers held by the individual states of the European Union. Typical of the federally organized countries, these powers are those that remain after the powers of the central government are enumerated in the constitution. (In others, the powers of both levels of government are defined in their respective constitutions.) The federal government of the EU can influence state policy even in areas that are constitutionally the purview of the states (e.g., education, local road construction) through withholding funds from states that fail to comply with its wishes.

Conclusions: The Lisbon Treaty is a constitution laying down the foundations of a new political state under the name of “European Union”. This new political state founded by the Lisbon Treaty is a federal union, in which the member states would become non-sovereign political units. A nation’s constitution stipulates the rights and obligations pertaining to the status of being a citizen of the respective nation. When national sovereignty is surrendered to a higher authority than the one representing the nation, this implies the direct and indirect, gradual or abrupt loss of rights and privileges attached to a particular citizenship of a formerly sovereign state. The concept of national sovereignty is attached to the legally binding state-founding concepts, such as the legally binding agreements on common borders.

Note that the rights and obligations specified for the citizens of the Union are not only specified in the Charter of Fundamental Rights but also in the Lisbon Treaty, one of the footnotes of which stipulates the primacy of the Union law over the state laws, which implies that the rights and obligations pertaining to the Union citizenship will indeed override the current national citizens’ rights and obligations. Therefore, in order to meet the minimal requirement of a lawful and democratic process of the establishment of a new federal state, i.e. in order to respect the rights of the citizens as per the current social contracts (national constitutions) between the citizens and their state, the citizens -whose new voting rights and other constitutional rights would be enforced by law under the Lisbon Treaty within new borders of a new state -should be asked by a referendum if they approve of surrendering their current constitutional rights to those specified by the new constitution, the Lisbon Treaty.


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