The Declaration of independence by the Second Continental Congress of the Union of the American States (4 July 1776) said it like this:
“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, …”.
For the subjects of parliamentary sovereignty it may be difficult to understand that right is might, not the other way around.
The Federal Constitutional Court (Bundesverfassungsgericht) in Germany has, again, scrutinized an EU reform treaty with the rights of the citizens as its yardstick, under the German Basic Law (Constitution; Grundgesetz).
As long as the European Union remains an organization based on sovereign states, the equality and the rights of citizens have to be safeguarded by the member states, by the national constitutional bodies which act on behalf of the peoples.
At the current stage of development, including the Treaty of Lisbon, these bodies are the Bundestag and Bundesrat (the German Parliament), and their participation needs to be enhanced.
If and when a uniform European people is constituted as the subject of legitimisation, and it is able to express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the road to a European federation is clear.
This would naturally require a change of the national Constitutions, in Germany and elsewhere.
The Federal Constitutional Court has closed no doors to the future. It just requires that the rights of the citizens are respected, to the extent possible under the Lisbon Treaty, or in a future federation based on EU citizens.
Ralf Grahn
P.S. For comparison, read the divergent conclusions by Nosemonkey: German Constitutional Court Lisbon Treaty ruling (30 June 2009).
Showing posts with label basic law. Show all posts
Showing posts with label basic law. Show all posts
Tuesday, 30 June 2009
Tuesday, 12 May 2009
European Union: A short and readable basic law?
Is a short and readable basic law for the European Union pure fantasy, or could it become a reality?
***
Piecemeal amendments and minute compromises between member states under veto threat have resulted in detailed treaties. They are unsystematic, hard to read and contain redundant material.
The draft Constitution by the European Convention and the Constitutional Treaty by the intergovernmental conference made an attempt at reform of the institutions, but they produced updated and more systematic texts as well.
The Treaty of Lisbon meant a backward step, but many of the substantial and systematic improvements were preserved. In the end, the Lisbon Treaty is more readable than the existing treaties.
***
Structure
The Lisbon Treaty is structured in a more logical way than the current treaties. Basic provisions are situated in the amended Treaty on European Union (TEU), while more technical details and policy areas are found in the Treaty on the Functioning of the European Union (TFEU), which replaces the Treaty establishing the European Community (TEC).
Clarity is added by abolishing the distinction between the European Union and the European Community.
But the latest intergovernmental conference (IGC 2007) baulked at placing the whole of external action into the TFEU. Not only did it preserve the intergovernmental character of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP); the provisions remained in the TEU, together with general provisions on the European Union’s external action.
The substantial limitations mean that, despite incremental improvements, the European Union will remain unable to speak with one voice in the world.
But here we are more interested in the supposition that the European Union could have a short and readable basic law.
***
Technically possible
Leaving the Table of Contents outside, and shifting the external action including the CFSP and the CSDP to a second order document would leave us with us with a basic document of less than twenty pages.
Even as it is, the TEU text proper is only about thirty pages long.
As a literary document the TEU is nowhere near the level of the US Constitutions, but tolerably readable if ridded from the references to the TFEU and Protocols.
If the US Constitution could be re-written today, including the amendments, it would get rid of redundant provisions, and it would be even more elegant the existing one.
***
Political difficulties
The main problem is not technical, but political. The European Union is based on international treaties between member states, not a union by the people.
About 200 pages of treaty text and about 160 pages of protocols and declarations follow from the member states’ desire to control events in minute detail.
This is the old covenant, European Union 1.0 based on diplomats and technocrats.
The Lisbon Treaty is version EU 1.1 with added powers for the European Parliament and other reforms.
To demand, as Libertas does, a strong TREATY, but short and readable, is not realistic. Where should the detailed provisions be placed? Would the member states suddenly let go their grip?
As long as the basic documents are international treaties between member states, I see no inherent reason to accept the calls for referendums. (Ireland, due to a domestic constitutional interpretation, happens to be the odd man out.)
***
Solution
If the power is vested in the people, the European Union could have a strong, short and readable basic document.
It would not be a treaty, but a basic law or constitution. This would be the new covenant, EU 2.0.
The shift from the old covenant to the new – from EU 1.0 (or 1.1) to EU 2.0 – would leave the detailed legislation to be approved by the European Parliament and the policies to be pursued by an accountable government.
The federation’s Constitution could be short and clear for all to understand.
The move from EU 1.0 (or 1.x) to EU 2.0 would be groundbreaking. Therefore, as a union of people, the new European Union would need the consent of the governed.
In my view, the willing electorates would form the new union, and the states with negative referendum results would stay outside the new union.
But afterwards the Constitution could be amended by the Parliament, probably by a qualified majority. Representative democracy is the norm; referendums the exception.
Ralf Grahn
***
Piecemeal amendments and minute compromises between member states under veto threat have resulted in detailed treaties. They are unsystematic, hard to read and contain redundant material.
The draft Constitution by the European Convention and the Constitutional Treaty by the intergovernmental conference made an attempt at reform of the institutions, but they produced updated and more systematic texts as well.
The Treaty of Lisbon meant a backward step, but many of the substantial and systematic improvements were preserved. In the end, the Lisbon Treaty is more readable than the existing treaties.
***
Structure
The Lisbon Treaty is structured in a more logical way than the current treaties. Basic provisions are situated in the amended Treaty on European Union (TEU), while more technical details and policy areas are found in the Treaty on the Functioning of the European Union (TFEU), which replaces the Treaty establishing the European Community (TEC).
Clarity is added by abolishing the distinction between the European Union and the European Community.
But the latest intergovernmental conference (IGC 2007) baulked at placing the whole of external action into the TFEU. Not only did it preserve the intergovernmental character of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP); the provisions remained in the TEU, together with general provisions on the European Union’s external action.
The substantial limitations mean that, despite incremental improvements, the European Union will remain unable to speak with one voice in the world.
But here we are more interested in the supposition that the European Union could have a short and readable basic law.
***
Technically possible
Leaving the Table of Contents outside, and shifting the external action including the CFSP and the CSDP to a second order document would leave us with us with a basic document of less than twenty pages.
Even as it is, the TEU text proper is only about thirty pages long.
As a literary document the TEU is nowhere near the level of the US Constitutions, but tolerably readable if ridded from the references to the TFEU and Protocols.
If the US Constitution could be re-written today, including the amendments, it would get rid of redundant provisions, and it would be even more elegant the existing one.
***
Political difficulties
The main problem is not technical, but political. The European Union is based on international treaties between member states, not a union by the people.
About 200 pages of treaty text and about 160 pages of protocols and declarations follow from the member states’ desire to control events in minute detail.
This is the old covenant, European Union 1.0 based on diplomats and technocrats.
The Lisbon Treaty is version EU 1.1 with added powers for the European Parliament and other reforms.
To demand, as Libertas does, a strong TREATY, but short and readable, is not realistic. Where should the detailed provisions be placed? Would the member states suddenly let go their grip?
As long as the basic documents are international treaties between member states, I see no inherent reason to accept the calls for referendums. (Ireland, due to a domestic constitutional interpretation, happens to be the odd man out.)
***
Solution
If the power is vested in the people, the European Union could have a strong, short and readable basic document.
It would not be a treaty, but a basic law or constitution. This would be the new covenant, EU 2.0.
The shift from the old covenant to the new – from EU 1.0 (or 1.1) to EU 2.0 – would leave the detailed legislation to be approved by the European Parliament and the policies to be pursued by an accountable government.
The federation’s Constitution could be short and clear for all to understand.
The move from EU 1.0 (or 1.x) to EU 2.0 would be groundbreaking. Therefore, as a union of people, the new European Union would need the consent of the governed.
In my view, the willing electorates would form the new union, and the states with negative referendum results would stay outside the new union.
But afterwards the Constitution could be amended by the Parliament, probably by a qualified majority. Representative democracy is the norm; referendums the exception.
Ralf Grahn
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