Documente Academic
Documente Profesional
Documente Cultură
http://www.irishexaminer.com/breakin
gnews/ireland/denis-obrien-claimsdail-remarks-breached-his-rights-toprivacy-766272.html
Teacher strike: Document hammered
out in the early hours set to go to union
committee
Tuesday, November 29, 2016
process," he said.
Full Abolition of
Water Charges is
only acceptable
outcome Broin
28 November, 2016 - by Eoin Broin TD
legal opinion.
However, people should be very weary of any proposal for a
reduced or modest charge, as once introduced, it can be
increased. Waivers can come and go, as we have seen with
domestic waste collection. Once a charge is introduced, we know
that, over time, it will increase; in the end, people will be left
paying the 500 originally proposed by Fianna Fil back in 2010.
The only acceptable solution to the Fine Gael-Fianna Fil water
debacle is to abolish domestic charges and to fund an ambitious
multi-million annual capital programme to upgrade the crumbling
water and sanitation system. This is what Sinn Fin campaigned
for during the general election and this is what we will vote for in
the Dil.
http://www.sinnfein.ie/contents/42604
Treason acts in
Ireland AGAINST
Europe
treason against the state of Rhode Island for his part in the Dorr
Rebellion, but was eventually amnestied. John Brown was
convicted of treason against the Commonwealth of Virginia for
his part in the raid on Harpers Ferry, and was hanged. The
Mormon prophet, Joseph Smith, was charged with treason
against Missouri, at first in front of a state military court, but
escaped to Illinois after his case was transferred to a civilian
court for trial on charges of treason, murder, robbery, and other
crimes. Smith was then later imprisoned for trial on charges of
treason against Illinois, but was murdered by a lynch mob while
in jail awaiting trial.
===Muslim countries=== Early in Islamic history, the only form
of treason was seen as the attempt to overthrow a just
government or waging war against the State. According to
Islamic tradition, the prescribed punishment ranged from
imprisonment to the severing of limbs and the death penalty
depending on the severity of the crime. However, even in cases
of treason the repentance of a person would have to be taken
into account.
Currently, the consensus among major Islamic schools is that
apostasy (leaving Islam) is considered treason and that the
penalty is death; this is supported not in the Quran but in the
Hadith. This confusion between apostasy and treason almost
certainly had its roots in the Ridda Wars, in which an army of
rebel traitors led by the self-proclaimed prophet Musaylima
attempted to destroy the caliphate of Abu Bakr.
In the 19th and early 20th century, the Iranian Cleric Sheikh
Fazlollah Noori opposed the Iranian Constitutional Revolution by
inciting insurrection against them through issuing Fatwahs and
publishing pamphlets arguing democracy will bring vice to the
country. The new government executed him for treason in 1909.
In Malaysia, it is treason to commit offences against the Yang diPertuan Agong's person, waging, attempting to wage war or
abetting the waging of war against the Yang di-Pertuan Agong, a
Ruler or Yang di-Pertua Negeri. All these offences are punishable
by hanging, which derives from the English treason acts (a
former British colony, Malaysia's legal system is based on English
common law).
====Algeria====
In Algeria, treason is defined as the following: * attempts to
change the regime or actions aimed at incitement * destruction
concerning
Communication No. 593/1994 *
Submitted by: Patrick Holland
Victim: The author
State party: Ireland
Date of communication: 8 June 1994 (initial submission)
The Human Rights Committee, established under article 28
of the International Covenant on Civil and Political Rights,
Meeting on 25 October 1996,
Adopts the following:
Decision on admissibility
1. The author of the communication is Patrick Holland, an
Irish citizen, born on 12 March 1939, at the time of
submission of the communication serving a prison term in
Ireland. He claims to be a victim of a violation by Ireland of
articles 14 and 26 of the Covenant. Both the Covenant and
the Optional Protocol entered into force for Ireland on 8
March 1990.
The facts as submitted by the author
2.1 The author was arrested on 6 April 1989 under section
30 of the Offences against the State Act 1939 and charged
with possession of explosives for unlawful purposes. He was
tried on 27 June 1989 by a Special Criminal Court, together
with four co-defendants, found guilty and sentenced to ten
years' imprisonment. On appeal against sentence, the Court
of Appeal, on 21 May 1990, reduced the sentence to seven
years' imprisonment, considering that the judgment of the
http://hrlibrary.umn.edu/undocs/html/
IDEC5935.htm
IRELANDTimeline
IRELAND 1937 - 1949. ... President of Ireland elected
under the 1937 constitution. ... the Offences Against the
State Act making treason
1937December 29 The new constitution written by Eamon
de Valera comes into effect. The Irish Free State is officially
renamed Eire in Gaelic and in English simply, Ireland. The
charter abolishes the Oath of Allegiance to the Crown,
replaces the office of Governor General with a President,
makes Gaelic the first official language, recognizes the
special position of the Roman Catholic Church as the
guardian of the faith professed by the great majority of the
citizens.(also recognizes the Church of Ireland, the
Presbyterian Church in Ireland, the Methodist Church in
Ireland, the Religious Society of Friends in Ireland, as well as
the Jewish Congregations and the other religious
denominations existing in Ireland), prohibits the state from
granting divorce and claims the whole island of Ireland and
surrounding waters as the national territory.
A Presidential Commission headed by Frank Fahy is
appointed to exercise the functions of the office until an
election can be held to fill the office.
1938January De Valera and British Prime Minister Neville
Chamberlain begin talks to end the Economic War. De Valera
supports Chamberlains policy of appeasement during his
tenure as President of the 13th (and last) Assembly of the
League of Nations.
February 9
General election in Northern
Ireland:UNIONISTS 39, NATIONALISTS 8, LABOUR 2,
INDEPENDENTS 1
March 31 Frank Ryan,leader of the Connolly Column of the
International Brigades is captured and imprisoned by Italian
fascists at Calaceite, Spain.
April 25 The Anglo-Irish Accords are signed. The British
Admiralty transfers its rights and property at Berehaven and
the harbor defenses at Berehaven, Cobh and Lough Swilly to
products, coal and gas averages less than 20% of the prewar
norm, textiles 22%, and tea 25%. The British Government
imposes restrictions on trade with Ireland in an effort to
meet its own needs and to ensure that Irish neutrality does
not seriously hamper the Allied war effort.
September
Great Britain appoints its first diplomatic
representative to Ireland. John Maffey, a veteran of the
Indian civil service, is appointed High Commissioner for
Ireland.
October 1 The Government of Ireland announces that it has
uncovered evidence of an Irish Republican Army plot to seize
control of Northern Ireland. IRA leader Sean Russell is
accused of collecting money and arms to carry out
conspiracy during a visit to the United States.
October 22
A bomb is set off outside Dublins Mountjoy
Prison in an attempt to facilitate the escape of political
prisoners. December 1
Justice Gavan Duffy of the Dublin High Court rules provisions
of the Offences Against the State Act allowing detention of
prisoners without arraignment unconstitutional. The
Government releases 70 people held under the Act but
appeals Justice Duffys ruling to the Supreme Court.
December 15
Two men (one an admitted Irish Republican Army member)
are convicted of a planting a bomb that killed 5 people in
Coventry and sentenced to death by a court in Birmingham,
England.
December 23 Irish Republican Army gunmen seize
1,098,099 rounds of small arms ammunition during a raid on
the army depot at Phoenix Park, Dublin. Four of them are
captured after firing on a sentry during the get away
attempt. Police recover 851,000 of the rounds from caches
scattered between Dublin and the northern border by years
end.
December 25 Sixty suspected Irish Republican Army held in
custody at a jail in Derry, Northern Ireland overpower guards
and take control of the prison for several hours.
December
Northern Ireland bans circulation of
Republican Congress, Wolfe Tone Weekly, Irish Freedom, An
Irish cheese.
June The British Government proposes the establishment of
a joint defense committee to include representatives of
Ireland, Northern Ireland and Great Britain.
July 1
Forty alleged members of the Irish Republican
Army are arrested by Belfast police and interned without
trial.
July 14
The Spanish Government releases Frank Ryan,
leader of the Connolly Column of the International Brigade,
from a Burgos Prison where he is serving a 30 year sentence,
into the custody of German intelligence officers who believe
his IRA connections will make him useful to the war effort.
Ryan is taken to Germany where he meets fellow republicans
Francis Stuart and Sean Russell. Russell and Ryan are then
sent to Ireland on a U-Boat but Russell dies on route and
Ryan is brought back to Germany.
July 22
Three hundred alleged members of the Irish
Republican Army are arrested by the Royal Ulster
Constabulary and interned without trial.
July 25
Irish journalist and diplomat Sean Lester succeeds
Joseph Avenol of France as Secretary General of the League
of Nations. Lester remains in Geneva throughout the Second
World War.
July 28
Eighteen alleged members of the Irish Republican
Army are arrested by the Royal Ulster Constabulary and
interned without trial.
July The Government of Northern Ireland rejects Prime
Minister de Valeras demand that it agree to end the partition
and adopt Dublins neutrality policy as condition of
participation in the tri-partite defense council proposed by
Great Britain. August 3
Imperial Airways resumes trans-Atlantic airmail service
between Great Britain and the United States via Foynes,
Ireland.
August 9 The Government bans strikes and lockouts in
Northern Ireland.
August 16The Emergency Powers (Amendment) Act is
further altered. The right to appeal verdicts of the military
tribunal is removed.
United States entry into the war will not change Irelands
neutrality policy.
December
Great Britain supplies Ireland with antiaircraft, artillery and limited quantities of small arms and
ammunition.
During the Year
The Minefield section of the Irish Marine
and Coastwatching Service is established to supervise mine
laying at the entrances to the harbors of Cork and Waterford.
The British Royal Navy lays minefields off the southern coast
of Ireland.
American construction workers arrive in Northern Ireland to
build on new bases.
The Government closes the primary school on the Gaelic
speaking Great Blasket Island off County Kerry. The class is
down to 6 pupils.
Irish Shipping Ltd. is established to provide neutral shipping
to facilitate the importation of wheat. The venture has little
impact on the shortages and 20 Irish ships are sunk with the
loss of 138 lives during the Emergency.
Emigrants from Ireland to Great Britain number 31,800 men
and 3,272 women.
An outbreak of foot-and-mouth disease kills 40,000 cattle.
Irelands cost of living index rises to 131 (June 1939 = base
100). Irelands imports decline by 37% to 29,544,000.
Irelands exports decline by 3.5% to 31,848,000. Foodstuffs
account for 28,000,000 worth of exports.
1942January Prime Minister de Valera admits that Ireland
is receiving additional arms, bit by bit but does not reveal
their source.
January 12
Prime Minister de Valera denies reports that
negotiations are under way to allow the use of Irish ports and
airfields by British forces. He further declares that any arms
delivered to Ireland are received with the understanding that
they will be used to, defend our territory against any
aggressor.
January 26
The first of 300,000 American troops
stationed in Northern Ireland during the war arrive at Derry.
Prime Minister de Valera responds with declaration that the
United States has recognized a, Quisling government and
territorial acquisitions.
During the Year
Irelands export earnings are 1/3 of the
amount spent on imports. The trade deficit with the United
States and Canada reaches a 7 to 1 ratio. 1948
February 4
General election: Prime Minister de Valeras
Fianna Fail remains the largest party in the Dail Eireann.
PARTY - % OF VOTES CAST - SEATS WON - NET GAIN OR LOSS
FIANNA FAIL - 41.9 - 68 - -8
FINE GAEL - 19.8 - 31 - +1
LABOUR - 8.7 - 14 - +6
CLANN na POBLACHTA - 13.3 - 10 - +10
FARMERS - 5.5 - 7 - -4
NATIONAL LABOUR - 2.6 - 5 - +1
INDEPENDENTS - - 12 - +3 February 18
The Dail Eireanns opposition parties combine
to elect John Costello of the Fine Gael Party as prime
minister.
April 16 Ireland joins the Organization for European
Economic Development.
September
Prime Minister Costello announces that
Ireland will repeal the External Relations Act of 1936 and end
the Crowns role in appointing diplomatic representatives
and concluding trade agreements.
November 17 The Costello government introduces the
Republic of Ireland Bill in the Dail Eireann.
November 25 Great Britain, Canada and South Africa agree
to continue trade preferences and reciprocal citizenship
rights after Ireland severs its links with the Commonwealth.
December 14 The British Government turns down a request
from the Government of Northern Ireland to change Northern
Ireland's name to Ulster. The Dominions Office notes that
this would entail changing the full name of the United
Kingdom of Great Britain and Northern Ireland.
December 21 President Sean T. OKelly signs the Republic of
Ireland Act ending the countrys link with the British
Commonwealth. December 21
Sir Gilbert Laithwaite, the British High Commissioner to
Ireland, writes that, Northern Ireland is not Ulster and the
designation is false and dangerous.
new Courts-Martial Rules
as Annex B.
Non-Discrimination and Equal Rights of Women and Men
(Articles 2, 3, 26).
Issue 4
14. Cosc, the National Office for the Prevention of
Domestic, Sexual and Gender-based Violence, was
established in June 2007 as an executive office of the
Department of Justice, Equality and Law Reform with a crossgovernment mandate. Cosc's key responsibility is to ensure
the delivery of a well co-ordinated "whole of Government"
response to domestic, sexual and gender-based violence and
it carries out this responsibility by facilitating action for the
protection of victims as well as the prevention of these
crimes and the provision of services for those affected.
15. To that end, early priorities for Cosc include the
implementation of a Priority Research Programme which will
lay a foundation for effective strategies to address domestic,
sexual and gender-based violence. In particular, the
programme includes a mapping project in relation to
services provided by both State and non-State organisations
to those affected by domestic, sexual and gender-based
violence. This initiative will help to identify gaps in the
provision of services for the protection of women from
violence and should form a solid basis for the actions needed
to address those gaps.
16. In recent years considerable resources have been
devoted to public education at both national and local level.
This work is a major priority for Cosc and its Priority Research
Programme includes a project which entails conducting a
general population attitudinal survey on domestic abuse.
The survey should provide the basis for the effective
implementation of public awareness raising activities
provided for in Coscs Communications Plan for 2008 and
accommodation.
61. In Ireland there are a number of alternative sanctions to
detention. A list is contained in Annex C.
Issue 12
62. Aside from legislative developments, other strategies
have been put in place to assist the process of dealing with
this reprehensible form of criminal activity.
63. The Anti-Human Trafficking Unit has recently been
established in the Department of Justice, Equality and Law
Reform. The Unit will work to ensure that the State response
to trafficking in human beings is coordinated, comprehensive
and holistic. A key element of this strategy will be the
development of a National Action Plan to Prevent and Tackle
Trafficking in Human Beings to be approved by the High
Level Group for submission to the Minister. The Plan will
have a strong focus on preventing trafficking becoming a
major issue in Ireland. It is being developed under four main
headings: Protection of Victims, Child Trafficking, Prevention
and awareness raising and Prosecution of Traffickers. The
objective is to have the plan drafted and ready for
submission to the Minister by the end of 2008 with a view to
publication when approved by the Minister and Government
as soon as possible thereafter.
64. An Interdepartmental High Level Group has been
established to recommend the most appropriate and
effective responses to trafficking in human beings to the
Minister. The Group comprises of representatives from
various Government Departments. The group had its first
meeting in March 2008 and it was agreed that the best way
to proceed would be to engage with NGOs and
representatives of the High Level Group in the manner of
roundtable discussions, to be held on a quarterly basis
initially. The first roundtable discussion was held on 14 May,
Issue 13
69. Resources allocated to the Garda and the Courts have
increased substantially in recent years, in line with an
increase of approximately 50% across the Justice and
Equality sector generally since 2003.
70. Notwithstanding the increase in funding, however, and
bearing in mind the many demands on these services, the
Irish authorities remain satisfied that the maximum period
provided for is necessitated by practical resource and
operational considerations.
71. Ireland currently does not have any specifically
dedicated facilitates for detaining such persons. Persons
held on immigration related matters (whether asylum
seekers or others) are, as far as practicable, detained in
institutions away from convicted prisoners where the regime
is not of a high security nature. Restrictions are kept to a
minimum, consistent with order and control. Our prisons are
governed by the statutory obligations laid down in the
provisions of the Prison Rules 2007 which reflect the
European Prison Rules and modern best practice
internationally.
Imprisonment for Failure to fulfil a Contractual Obligation
(Article 11)
Issue 14
72. Ireland does not have legislation providing for criminal
sanctions or imprisonment for failure to fulfil a contractual
obligation. Imprisonment for non-payment of debt was
abolished in Ireland by the Debtors (Ireland) Act 1872.
However, refusal to fulfil a contractual obligation or pay a
contractual debt may amount to civil contempt of court, for
which imprisonment may be imposed.
Established a more broad based forum to facilitate
engagement with local Traveller representatives (previously
accommodation was the primary focus)
The Department of Justice, Equality and Law Reform
has supported initiatives in Dublin City which have led to the
registration of 15 companies, 3 sole traders, with further
registrations planned. This has supported up to 100 full and
part time jobs and relevant training/licence qualifications for
Travellers.
Issue 1
High Court Decisions in which direct reference is made to the
Covenant
2.
2006 75m
2007 75m
2008 50m
http://www.thejournal.ie/water-commission-report-poll3107949-Nov2016/
Summary
The power of a Minister to make delegated legislation is
limited by Article 15.2.
Delegated legislation must pass the principles and policies
(Cityview) test.
However, the courts have allowed certain flexibility in the
application of the Cityview test, preferring to accept the
presumption of constitutionality of the parent Act (if post
1937) and reply on the ultra vires doctrine.
Henry VIII clauses are invalid, except where necessitated by
EU membership.
Appendix 1: References
[Byrne 2009] Byrne and McCutcheon on the Irish Legal
System,BloomsburyProfessional, 2009
[CRG 1996] Constitution Review Group, Report of the
Constitution Review Group, 1997
[Donovan 2010] Donovan, Dorothy, The Irish Legal System,
Round Hall, 2010
[Doyle 2008] Doyle,Oran, Constitutional Law: Text, Cases and
Materials, Clarus Press Limited, 2008
[Kelly 2003], Kelly J.M., The Irish Constitution, Fourth Edition,
Tottel Publishing Ltd., 2006
[Morgan 1997], Morgan, David Gwynn, Separation of Powers
in the Irish Constitution, Round Hall Sweet and Maxwell,
1997
Appendix 2: List of Cases
Browne v Attorney General [2003]
The Supreme Court found that s 3 of the European
Communities Act 1972 could not be used to make
regulations creating an indictable offence.
Cityview Press v An Comhairle Oilina [1980] IR 381
Supreme Court the test as to whether delegated power is
constitutional or not is whether the power is no more than
merely giving effect to principles and policies which are
contained in the parent Act
[Donovan 2010, p26]
Also parliamentary scrutiny
Article 15.2.2
Provision may be made however, by law for the creation r
recognition of subordinate legislatures and for the powers
and functions of these legislatures.
Exhibit C: Extracts from the Provisional Collection of Taxes
Act 1927
Resolutions of the Dil relating to tax and amending Acts of
the Oireachtas to have statutory effect for up to four months.
Extract from the Act follows.
Certain resolutions to have statutory effect.
2.Whenever a resolution (in this Act referred to as a
resolution under this Act) is passed by the Committee on
Finance resolving
(a) that a new tax specified in the resolution be imposed, or
(b) that a specified permanent tax in force immediately
before the end of the previous financial year be increased,
reduced, or otherwise varied, or be abolished, or
(c) that a specified temporary tax in force immediately
before the end of the previous financial year be renewed
(whether at the same or a different rate and whether with or
without modification) as from the date of its normal
expiration or from an earlier date or be discontinued on a
date prior to the date of its normal expiration,
and the resolution contains a declaration that it is
expedient in the public interest that the resolution should
have statutory effect under the provisions of this Act, the
resolution shall, subject to the provisions of this Act, have
statutory effect as if contained in an Act of the Oireachtas.
modifications.
Exhibit D: Extract from the European Communities
Amendment Acts 1972 2009
Annulment procedures are included.
General provision.
(1)
2.
From the 1st day of January, 1973, the treaties governing the
European Communities and the existing and future acts
adopted by the institutions of those Communities and by
bodies competent under the said treaties shall be binding on
the State and shall be part of the domestic law thereof under
the conditions laid down in those treaties.
(2)
Without prejudice to subsection (1) of this section, from the
coming into force of the EEA Agreement, the provisions of
that Agreement and the acts to be adopted by institutions
established by that Agreement which, pursuant to the
treaties governing the European Communities, will be
binding on the State and an integral part of the legal order of
those Communities, shall have the force of law in the State
on the conditions laid down in those treaties and in that
Agreement.
Power to make regulations.
3.
(1)
A Minister of State may make regulations for enabling
section 2 of this Act to have full effect.
(2)
Regulations under this section may contain such incidental,
supplementary and consequential provisions as appear to
the Minister making the regulations to be necessary for the
purposes of the regulations (including provisions repealing,
(a)
make provision for offences under the regulations to be
prosecuted on indictment, where the Minister of the
Government making the regulations considers it necessary
for the purpose of giving full effect to
(i)
a provision of the treaties governing the European
Communities, or
(ii)
an act, or provision of an act, adopted by an institution of the
European Communities or any other body competent under
those treaties,
and
(b)
make such provision as that Minister of the Government
considers necessary for the purpose of ensuring that
penalties in respect of an offence prosecuted in that manner
are effective and proportionate, and have a deterrent effect,
having regard to the acts or omissions of which the offence
consists, provided that the maximum fine (if any) shall not
be greater than 500,000 and the maximum term of
imprisonment (if any) shall not be greater than 3 years.
(4)
Regulations under this section may be made before the 1st
day of January, 1973, but regulations so made shall not
come into operation before that day.
Annulment of an SI which applied EU law and creates an
indictable offence
3.A Every regulation to which subsection (3) (inserted
by section 2(a) of the European Communities Act 2007) of
section 3 of this Act applies shall be laid before each House
of the Oireachtas as soon as may be after it is made and, if a
resolution annulling the regulation is passed by either such
House withinthe next 21 days on which that House sits after
the regulation is laid before it, the regulation shall be
annulled accordingly but without prejudice to the validity of
anything previously done thereunder.
Annulment of and SI which applied EU law
4.
(1)
(a)
Regulations under this Act shall have statutory effect
(b)
If the Joint Committee on the Secondary Legislation of the
European Communities Joint Committee on Foreign Affairs
Joint Committee on European Affairs (1995 amendment)
recommends to the Houses of the Oireachtas that any
regulations under this Act be annulled and a resolution
annulling the regulations is passed by both such Houses
within one year after the regulations are made, the
regulations shall be annulled accordingly and shall cease to
have statutory effect, but without prejudice to the validity of
anything previously done thereunder.
Exhibit E: Extract from the Programme for Government 2011
http://www.finegael.ie/upload/ProgrammeforGovernmentFinal
.pdf
Transposing EU Legislative Measures
The situation can no longer be tolerated where Irish Ministers
enact EU legislation by statutory instrument. The checks and
balances of parliamentary democracy are by-passed. The
parliamentary treatment accorded home-produced draft
legislation must be extended to draft legislation initiated
within the EU institutions.
The Regulatory Impact Assessments prepared for Ministers
on all EU Directives and significant Regulations will be
forwarded automatically to the relevant sectoral Oireachtas
Committees. These Committees should advise the Minister
and the Joint Committee on European Affairs as to whether
the transposition should take place by Statutory Instrument
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2685243_code...
Third List of Amendments / Seanad Report Stage / Planning
and Development (Housing) and Residential Tenancies Bill
2016 Senators Alice-Marie Higgins, Colette Kelleher, Lynn
Ruane
http://www.oireachtas.ie/documents/amendments/2016/b921
6s-sr3.pdf
https://www.facebook.com/photo.php?
fbid=10153831493632504&set=a.10150
870432192504.384370.600887503&typ
e=3&theater
NOTES ON JUDGE
HARDING-CLARKS
REPORT ON THE
SYMPHYSIOTOMY
PAYMENT SCHEME.
November 24, 2016
Judge Maureen Harding-Clarks report on the muchcriticised Symphysiotomy Payment Scheme was
published two days ago. It is 275 pages long 133 of
commentary from the judge, 142 of extracts from medical
literature and hospital records. Judge Harding-Clark was
in an important position. She assessed applications from
almost 600 women who believed that they had been
subject to symphysiotomy. She oversaw searches of
hospital records, and medical tests designed to verify
their claims, and she allocated redress payments
accordingly; 50,000 euro to those who could show they
had had a symphysiotomy, 100,000 euro to those who
could link that symphysiotomy to ongoing health
consequences, and so on. Her report does more than
describe the functioning of that role. It situates the
scheme she oversaw in the context of an extensive
defence of the uniquely Irish practice of non-emergency
symphysiotomy. It is not the independent report
survivors of symphysiotomy are entitled to under human
rights law. The media have read it as diminishing SOSs
claim that the non-emergency substitution of
symphysiotomy for Caesarean section without consent,
as practiced in Ireland, violated many womens human
rights. However, this coverage has been insufficiently
critical of this report. Here are just some of the reports
problematic features:
Lifelong Injury: The judge repeatedly stresses that she
Consent must be voluntary and informed, and in nonemergency circumstances the patient must be given
enough time to consider the treatment, weigh her
options and refuse. Special care must be taken with
patients who are vulnerable; such as women in labour.
Protection of consent goes beyond simply being given the
name of the procedure about to be performed on you, or
having it explained after it has already been performed.
Conclusion. It is a mistake to think of the story of
symphysiotomy as one about bad doctors. It is a story
about bad systems of knowledge, and bad cultures, which
corner women, induce compliance, deny their autonomy
and thereby wound them. Those cases are extraordinarily
difficult to litigate because the assumptions which drive
the old system persist in judicial reasoning and are
exacerbated by an adversarial framing. Outside the
courtroom, we can find the same problems. What is
striking about this report is that it uses constructs from
those systems and cultures valorising reproduction
however painful, stoking a suspicion of women who claim
their human rights, privileging medical literature over first
person testimony to silence protest. It deserves closer,
and more critical reading and discussion.
THE SURGICAL SYMPHYSIOTOMY EX GRATIA
PAYMENT SCHEME REPORT TO MINISTER FOR
HEALTH SIMON HARRIS TD of JUDGE MAUREEN
HARDING CLARK 19th OCTOBER 2016
http://health.gov.ie/wp-content/uploads/2016/11/TheSurgical-Symphysiotomy-Ex-Gratia-Payment-SchemeReport.pdf
http://health.gov.ie/wpcontent/uploads/2014/07/Final-Finalwalsh-Report-on-Symphysiotomy1.pdf
Ireland, Symphysiotomy and the UNHRC
July 21, 2014 by
It is the first time that the fund has taken a stake in a nonbank lender.
Their two children are off at college in the US, so they figured
it was the perfect time to go castle-shopping with help
from professional castle-hunter, Bena Stutchbury who was
involved in bringing Kilcoe Castle to Jeremy Irons attention.
Bena finds properties for anyone looking for castles or
similar buildings that may or may not be on the open
market.
She doesnt have a formal rating for the properties she
sources, but describes Sigginstown Castle as a humdinger
and really special.
(4)
(5)
(6)
(7)
(8)
(9)
JOHN ODOWD
DESSIE DONNELLY
DAWN PURVIS
MONICA WILSON
THE COMMITTEE ON THE ADMINISTRATION OF JUSTICE
THE HUMAN RIGHTS CONSORTIUM
AND
(1) HER MAJESTYS GOVERNMENT
(2) THE SECRETARY OF STATE FOR NORTHERN
IRELAND
(3) THE SECRETARY OF STATE FOR EXITING THE
EUROPEAN UNION
Respondents
________
MAGUIRE J
Introduction
[1]
The court has before it two applications for judicial
review which substantially relate to the same subject matter
the intention of the Government, following the result of the
referendum held in the United Kingdom on 23 June 2016 and
in the light of the result, where a majority of those who
voted, voted in favour of the United Kingdom leaving the EU
to use the Royal Prerogative to invoke Article 50 TEU to
trigger the process by which withdrawal from the EU is
effected.
[2]
The first application has been made by Raymond
McCord, who is a man of 62 years of age. He describes
himself as a British and European citizen and as a resident of
Northern Ireland. He has, as his Order 53 relates, acted as a
victims campaigner following the murder of his son,
Raymond, by Loyalist paramilitaries on 9 November 1997.
[3]
The second application has been made by multiple
applicants and will be referred to herein as Agnew and
(a)
The contention that the prerogative power cannot be
exercised for the purpose of notification in accordance with
Article 50(2) TEU and the allied contention that this is
because it has been displaced by the Northern Ireland Act
1998 read along with the Belfast Agreement and the BritishIrish Agreement and other constitutional provisions. In these
circumstances it is contended that an Act of Parliament is
required to trigger Article 50(2), though in the case of
McCord this argument is taken a step further, as appears
hereafter. This issue will be referred to hereafter as Issue
1.
(b)
The contention that if an Act of Parliament is
required, there is a requirement for a Legislative Consent
Motion to be granted by the Northern Ireland Assembly
before such legislation could be passed authorising
notification in accordance with Article 50(2) TEU. This issue
will be referred to hereafter as Issue 2.
(c)
The contention that there are a variety of public law
restraints on any exercise of prerogative power in any event.
These include issues about the requirement to take all
2.
A Member State which decides to withdraw shall
notify the European Council of its intention. In the light of the
guidelines provided by the European Council, the Union shall
negotiate and conclude an agreement with that State,
setting out the arrangements for its withdrawal, taking
account of the framework for its future relationship with the
Union. That agreement shall be negotiated in accordance
with Article 218(3) of the Treaty on the Functioning of the
European Union. It shall be concluded on behalf of the Union
by the Council, acting by a qualified majority, after obtaining
the consent of the European Parliament.
3.
The Treaties shall cease to apply to the State in
question from the date of entry into force of the withdrawal
agreement or, failing that, two years after the notification
referred to in paragraph 2, unless the European Council, in
agreement with the Member State concerned, unanimously
decides to extend this period.
4.
For the purposes of paragraphs 2 and 3, the member
of the European Council or of the Council representing the
withdrawing Member State shall not participate in the
discussions of the European Council or Council or in
decisions concerning it.
A qualified majority shall be defined in accordance with
Article 238(3)(b) of the Treaty on the Functioning of the
European Union.
5.
If a State which has withdrawn from the Union asks
to rejoin, its request shall be subject to the procedure
referred to in Article 49.
[22]
These judicial review applications are concerned with
notification of intention by a Member State which decides to
withdraw, here the United Kingdom. This involves the
European Council being advised of that intention. This, in
the scheme of the provision, initiates a process by which
there is a negotiation with a view to an agreement being
concluded with the withdrawing State. This agreement will
seats each party had in the Assembly. The First Minister and
Deputy First Minister, inter alia, had the duty of co-ordinating
the work of the Executive Committee. All Ministers,
including the First Minister and Deputy First Minister, were
obliged to affirm the terms of a Pledge of Office.
[31]
The Assembly was, in accordance with paragraphs
26-29, to be given authority to pass primary legislation for
Northern Ireland in devolved areas.
[32]
The first mention of the EU in Strand 1 is paragraph
31 where it is stated that:
Terms will be agreed between appropriate Assembly
representatives and the Government of the United Kingdom
to ensure effective coordination and input by Ministers to
national policy-making, including on EU issues.
[33]
A continuing role for Secretary of State was provided
for at paragraph 32 where it was stated that he/she was to
be responsible for non-devolved matters; was to represent
Northern Ireland interests in the United Kingdom Cabinet;
and was to lay legislation before Westminster on reserved
matters.
[34]
Various functions of the Westminster Parliament were
set out at paragraph 33. These should be viewed against
the backdrop that Parliaments powers to legislate for
Northern Ireland would remain unaffected. Westminster, in
particular, was to legislate for non-devolved issues and was
to ensure that the United Kingdoms international obligations
were met in respect of Northern Ireland. Westminster was
also to be the forum for parliamentary scrutiny of the
responsibilities of the Secretary of State.
[35]
Strand 2 of the Agreement dealt with the
North/South Ministerial Council. It was intended to bring
together those with executive responsibilities in Northern
Ireland and the Irish Government. The object was to
develop consultation, co-operation and action within the
(6)
This section does not affect the power of the
Parliament of the United Kingdom to make laws for Northern
Ireland
[50]
Section 6 relates to the subject of legislative
competence. Under Section 6(1) a provision of an Act is not
law if it is outside the legislative competence of the
Assembly. Section 6(2) explains that a provision is outside
that competence if any of the following paragraphs apply.
There are then stated six outside competence paragraphs
including:
[If the provision] deals with an excepted matter and is not
ancillary to other provisions (whether in the Act or previously
enacted) dealing with reserved or transferred matters.
[52]
Section 7(2) goes on to say that sub-section (1) does
not prevent an Act of the Assembly or subordinate legislation
modifying certain particular provisions in the European
Communities Act 1972. These provisions are of a minor
nature.
[53]
Section 8 of the Act refers to the Secretary of States
consent being required in relation to Bill which contains
(a)
a provision which deals with an excepted matter and
is ancillary to other provisions dealing with reserved or
transferred matters; or
(b)
[54]
[57]
Section 27 deals with quotas for the purpose of
international obligations. It provides:
(1)
A Minister of the Crown may make an order
containing provision such as is specified in subsection
(2)
where
(a)
An international obligation or an obligation under
Community law is an obligation to achieve a result defined
by reference to a quantity (whether expressed as an amount,
proportion or ratio or otherwise); and
(b)
the quantity relates to the United Kingdom (or to an
area including the United Kingdom or to an area consisting of
a part of the United Kingdom which is or includes the whole
or part of Northern Ireland).
(2)
The provision referred to in subsection (1) is
provision for the achievement by a Minister or Northern
Ireland department (in the exercise of his or its functions) of
so much of the result to be achieved under the international
obligation or obligation under Community law as is specified
in the order.
[58]
Part V of the Act is that part dealing with the NorthSouth Ministerial Council and the British-Irish Council. Of
particular interest is Section 55 which is concerned with the
subject of implementation bodies. Such a body is a body
for implementing, on the basis mentioned in paragraph 11 of
Strand 2 of the Belfast Agreement, policies agreed in the
North-South Ministerial Council (see Section 55(3)).
Paragraph 11 deals with policies agreed in the Council for
implementation on an all-island and cross border basis
[59]
Section 98 is an interpretation provision. It contains
a definition of community law for the purpose of the Act. It
means:
(a)
all rights, powers, liabilities, obligations and
restrictions created or arising by or under the Community
Treaties; and
(b)
all remedies and procedures provided for by or under
those Treaties.
The North/South Co-operation (Implementation Bodies)
(Northern Ireland) Order 1999
[60]
Under the proposals for the North/South Ministerial
Council the prospect of implementation bodies coming into
existence was plainly recognised. Those bodies could be on
a cross border or all island basis. A further Agreement was
made between the United Kingdom and the Government of
Ireland in respect of this matter on 8 March 1999. This
agreement provided for the establishment of implementation
bodies and the above Order was made by the Secretary of
State legally to provide for them.
[61]
The Order envisages and establishes a number of
such bodies. The body of most relevance to these
proceedings is called the Special EU Programmes Body. Its
functions were provided for at Part 4 of Annex 1 of the
That the statute must occupy the specific ground
hitherto occupied by the prerogative. The statute, in other
words, must empower the doing of the very thing which the
prerogative has dealt with up to the point of statutory
intervention.
[89]
Additionally, it was asserted that notification under
Article 50 involved, in effect, the beginning of a far reaching
process of amending the 1998 Act which would cut across
domestic, EU and international dimensions. This would
upset the delicate constitutional balance established as a
result the Good Friday Agreement and the 1998 Act.
[90]
Put another way, the operation of EU law should be
viewed as a building block of Northern Irelands
constitutional protections and continued membership is a
necessary element of the North-South and East-West
structures and the relationships which form the kernel of the
constitutional arrangements for Northern Ireland in modern
times. This was illustrated especially in respect of cross
border activities over a wide range of subject matters and, if
these were interfered with by the triggering of Article 50, this
would have momentous consequences for the rights granted
to individuals and for society as a whole. Among the
consequences for society would be the weakening of
constitutional protections, such as those under the European
Convention on Human Rights, by the removal of the
underpinning provided for it in EU law.
[91]
In respect of reliance on specific provisions the court
was shown a large number of provisions which, it was
contended, detailed the direct damage which notification
would have to Northern Irelands constitutional framework.
This damage was the greater because of the interlocking
nature of the major elements in the arrangements.
[92]
(i)
The loss of EU law as a limit to the Assemblys power
to legislate and as a constraint on the use of executive
power (section 6(2)(b) and Section 24(1)(b)).
(ii)
The loss of EU law in connection with the operation of
the North/South Council and the implementation bodies
established in connection with it. The main example in this
area was in connection with the operation of the Special EU
comply with section 75 of the 1998 Act and its own equality
scheme.
[138]
(c)
Between persons with a disability and persons
without; and
(d)
Between persons with dependants and persons
without.
(2) Without prejudice to its obligations under subsection (1),
a public authority shall in carrying out its functions relating
to Northern Ireland have regard to the desirability of
promoting good relations between persons of different
religious belief, political opinion or racial group.
[139] The detail of the argument is that the NIO is a public
authority for the purpose of the 1998 Act as demonstrated
by its inclusion in the Northern Ireland Act 1998 (Designation
of Public Authorities) Order 2000 and must, for the purpose
of Schedule 9 of the 1998 Act assess the impact on equality
of opportunity of policies adopted in the exercise of its
functions. There is, it is said, no statement from the NIO
indicating that its obligations have been taken into account
in relation to any advice the Secretary of State has given or
might be minded to give in the context of the triggering of
Article 50(2). There is therefore a prima facie case of breach
of section 75 and of the NIOs Equality Scheme in respect of
consultation, screening and the production of an equality
impact assessment.
[140] The intended respondents have sought to meet this
issue in a variety of ways.
[141] The following particular points were made as
alternatives to each other:
(i)
It was submitted that section 75 was not engaged on
the facts of this case. The means by which it is said to enter
the case is in respect of alleged advice given to Her
Majestys Government by the Secretary of State for Northern
Ireland, either in the past or to be given in the future in
relation to the subject of triggering Article 50(2). However,
the Secretary of State is not a designated public authority for
the purpose of section 75, a point clear from the list of public
authorities to which section 75 applies. This has also been
recognised by the courts as is shown by the case of Re
Murphys Application [2001] NI 425 at 435 where Kerr J (as
he then was) stated:
Only those bodies and agencies specified in s75 (3) of the
Act are to be public bodies for the purpose of the section.
The fact that the Secretary of State was performing a
function that, in other circumstances, might have been
carried out by the Assembly, could not bring him within the
provision. In this context it is worthy of note that s76 (7)
provides that a public authority shall include a Minister of the
Crown. If it had been intended that the Secretary of State
should be subject to section 75, that could have readily been
made clear, as it has been in s.76 (see page 435).
In these circumstances Parliament must be viewed as having
deliberately excluded the Secretary of State from the reach
of section 75.
(ii)
Consistently with (i) above, the NIO are not involved
in performing any duty in relation to Northern Ireland which
is relevant for present purposes. But even if this was wrong,
any complaint with regard to a failure to act consistently
(a)
The status of Northern Ireland which formed the
subject matter of provision in the Good Friday Agreement
and the later section 1 of the 1998 Act was concerned with
the question only of whether Northern Ireland was either to
remain in the United Kingdom or join a united Ireland. This is
express in the relevant passages. There was, in contrast, no
reference anywhere to the need for the consent of the
people of Northern Ireland to any particular change in the
arrangements for government. Nor could any such
restriction be implied.
(b)
The sovereignty of the United Kingdom Parliament
was preserved in the new constitutional arrangements for
Northern Ireland, as is clear from the terms of section 5 (6)
of the 1998 Act. It followed that there was no legal
impediment of the sort contended for to the ability of the
United Kingdom to withdraw from the European Union.
(c)
No domestic authority had been cited by the
applicant to support the contention that it is now the case
that the consent of the people of Northern Ireland was
required for the purpose of withdrawing from the EU. The
constitutional relationship between the United Kingdom
Parliament and a devolved area had recently been the
subject of extensive discussion by the Supreme Court in the
case of Axa General Insurance Ltd and others v HM Advocate
and others [2012] 1 AC 868 and there had been no
suggestion that the devolved arrangements entailed any
such requirement or had the effect of limiting the power of
the United Kingdom legislature.
(d)
In the face of the existing and well recognised
constitutional provisions in respect of devolution there was
an absence of material which could establish a legitimate
expectation of the sort now contended for.
(e)
The doctrine of legitimate expectation was not
appropriate, in any event, to a situation where what was
being alleged was a commitment or promise to the
population or a section of the population at large. A
statement at a macro-level, especially in the realm of
politics, was not enforceable by the court: see, for examples,
the judgment of Richards LJ in R (Wheeler) v Office of the
Prime Minister and another [2008] EWHC 1409 (Admin) at
paragraph [44] and R v Secretary of State for Education and
Employment [2000] 1 WLR 1115 per Laws LJ at pages 1130113.
(f)
There could be no basis for suggesting the
Government does not remain committed to the peace
process.
The courts assessment
[152] The court is not aware of any specific provision in the
Good Friday Agreement or in the 1998 Act which confirms
the existence of the limitation which the applicant contends
for and which establishes a norm that any change to the
constitutional arrangements for the government of Northern
Ireland and, in particular, withdrawal by the United Kingdom
from the EU, can only be effected with the consent of the
people of Northern Ireland. Nor can the court identify
material which would cause it to imply any such limitation.
This is not, in the courts estimation, surprising as if such a
limitation exists, it would be reasonable to have expected
this to have been highlighted in the run up to the
referendum held in June of this year. The proposition for
which the applicant contends would, it seems, have the most
unusual result of requiring a second referendum on the issue
of EU membership to be held in Northern Ireland within a
short time of the people of Northern Ireland having gone to
the polls in respect of the same issue in a national
referendum where the national outcome was in favour of
withdrawal.
OSCOLA and the supplement for citing international materials, which you
will need to consult in conjunction with OSCOLA Ireland, from the Oxford
Law
http://legalcitation.ie/wp-content/uploads/2016/04/OSCOLA-Ireland2016.pdf
b)
c)
Children of incognito parents, stateless parents or
parents of unknown nationality;
d)
Children of a foreign father or mother who, being over
seventeen years old, declare their will to become East
Timorese nationals.
3.
The following citizens shall be considered original
citizens of East Timor, even if they are born in a foreign
country:
a)
Children of an East Timorese father or mother living
overseas;
b)
Children of an East Timorese father or mother serving
the State outside the country;
4.
Acquisition, loss and reacquisition of citizenship, as well
as its registration and proof, shall be regulated by law.
Section 4
(Territory)
1.
The territory of the Democratic Republic of East Timor
comprises the land surface, the maritime zone and the air
space demarcated by the national boundaries that
historically comprise the eastern part of Timor Island, the
enclave of Oecussi, the island of Ataro and the islet of Jaco.
2.
The extent and limits of territorial waters and the
exclusive economic zone, and the rights of East Timor to the
adjacent seabed and continental shelf shall be laid down in
the law.
3.
The State shall not alienate any part of the East
Timorese territory or the rights of sovereignty over the land,
without prejudice to rectification of borders.
Section 5
(Decentralisation)
1.
On matters of territorial organisation, the State shall
respect the principle of decentralisation of public
administration.
2.
The law shall determine and establish the
characteristics of the different territorial levels and the
administrative competencies of the respective organs.
3.
Oecussi Ambeno and Ataro shall enjoy special
administrative and economic treatment.
Section 6
(Objectives of the State)
The fundamental objectives of the State shall be:
a)
To defend and guarantee the sovereignty of the
country;
b)
To guarantee and promote fundamental rights and
freedoms of the citizens and the respect for the principles of
the democratic State based on the rule of law;
c)
To defend and guarantee political democracy and
participation of the people in the resolution of national
problems;
d)
To guarantee the development of the economy and the
progress of science and technology;
e)
To promote the building of a society based on social
justice, by establishing material and spiritual welfare of the
citizens;
f)
To protect the environment and to preserve natural
resources;
g)
To assert and value the personality and the cultural
heritage of the East Timorese people;
h)
To promote the establishment and the development of
relations of friendship and co-operation among all Peoples
and States;
i)
To promote the harmonious and integrated
development of the sectors and regions and the fair
1.
The Democratic Republic of East Timor acknowledges
and values the secular resistance of the Maubere People
against foreign domination and the contribution of all those
who fought for national independence.
2.
The State acknowledges and values the participation of
the Church in the process of national liberation of East Timor.
3.
The State shall ensure special protection to wardisabled, orphans and other dependants of those who
dedicated their lives to the struggle for independence and
national sovereignty, and shall protect all those who
participated in the resistance against the foreign occupation,
in accordance with the law.
4.
The law shall define the mechanisms for rendering
tribute to the national heroes.
Section 12
(Relationship between the State and religious
denominations)
1.
2.
The State shall respect the different religious
denominations, which are free in their organisation and in
the exercise of their own activities, to take place in due
observance of the Constitution and the law.
3.
The State shall promote the cooperation with the
different religious denominations that contribute to the wellbeing of the people of East Timor.
4.
The religious denominations have the right to possess
and to acquire assets for the achievement of their
objectives.
Section 13
(Official languages and national languages)
1.
Tetum and Portuguese shall be the official languages in
the Democratic Republic of East Timor.
2.
Tetum and the other national languages should be
valued and developed by the State.
Section 14
(National symbols)
1.
The national symbols of the Democratic Republic of
East Timor shall be the flag, the emblem and the national
anthem.
2.
The emblem and the national anthem shall be approved
by law.
Section 15
(National Flag)
1.
The National Flag is rectangular and is formed by two
isosceles triangles, the bases of which are overlapping. One
triangle is black and its height is equal to one-third of the
length overlapped to the yellow triangle, whose height is
equal to half the length of the Flag. In the centre of the black
triangle there is a white star of five ends, meaning the light
that guides. The white star has one of its ends turned
towards the upper right end of the flag. The remaining part
of the flag is purple-red.
2.
3.
Every child born in or outside the wedlock shall enjoy
the same rights and social protection.
Section 19
(Youth)
1.
The State shall promote and encourage youth initiatives
towards the consolidation of national unity, reconstruction,
defence and development of the country.
2.
The State shall promote education, health and
vocational training for the youth as may be practicable.
Section 20
(Old Age)
1.
Every old age citizen has the right to special protection
by the State.
2.
The old age policy entails measures of economic, social
and cultural nature designed to provide the elderly with
opportunities for personal achievement through active and
signifying participation in the community.
Section 21
(Disabled citizen)
1.
A disabled citizen shall enjoy the same rights and shall
be subject to the same duties as all other citizens, except for
the rights and duties which he or she is unable to exercise or
fulfil due to his or her disability.
3.
The State shall promote the protection of disabled
citizens as may be practicable and in accordance with the
law.
Section 22
(East Timorese citizens overseas)
2.
The State shall recognise and guarantee the right to
life.
3.
4.
Persons who are subjected, on conviction, to a sentence
or a security measure involving loss of freedom remain
entitled to their fundamental rights, subject to the limitations
that necessarily derive from that conviction and from the
requirements for its enforcement.
Section 33
(Habeas corpus)
1.
Everyone who illegally loses his or her freedom has the
right to apply for habeas corpus.
2.
An application for habeas corpus shall be made by the
detainee or by any other person in the exercise of his or her
civil rights, in accordance with the law.
3.
The court shall rule on the application for habeas
corpus within 8 days at a hearing in the presence of both
parties.
Section 34
(Guarantees in criminal proceedings)
1.
Everyone charged with an offence is presumed innocent
until convicted.
2.
An accused person has the right to select, and be
assisted by, a lawyer at all stages of the proceedings and the
law shall determine the circumstances for which the
presence of the lawyer is mandatory.
3.
Every individual is guaranteed the inviolable right of
hearing and defence in criminal proceedings.
4.
Evidence is of no effect if obtained by torture, coercion,
infringement of the physical or moral integrity of the
individual, or wrongful interference with private life, the
home, correspondence or other forms of communication.
Section 35
(Extradition and expulsion)
1.
Extradition shall only take place following a court
decision.
2.
3.
Extradition in respect of offences punishable, under the
law of the requesting State, by death penalty or life
imprisonment or whenever there are grounds to assume that
the person to be extradited may be subjected to torture and
inhuman, degrading and cruel treatment, shall not be
permitted.
4.
An East Timorese national shall not be expelled or
expatriated from the national territory.
Section 36
Section 39
(Family, marriage and maternity)
1.
The State shall protect the family as the societys basic
unit and a condition for the harmonious development of the
individual.
2.
3.
Marriage shall be based upon free consent by the
parties and on terms of full equality of rights between
spouses, in accordance with the law.
4.
Maternity shall be dignified and protected, and special
protection shall be guaranteed to all women during
pregnancy and after delivery and working women shall have
the right to be exempted from the workplace for an
adequate period before and after delivery, without loss of
remuneration or any other benefits, in accordance with the
law.
Section 40
(Freedom of speech and information)
1.
Every citizen has the right to freedom of speech and
the right to inform and be informed impartially.
2.
The exercise of freedom of speech and information shall
not be limited by any sort of censorship.
3.
The exercise of rights and freedoms referred to in this
Section shall be regulated by law based on the imperative of
respect for the Constitution and the dignity of the human
person.
Section 41
(Freedom of the press and mass media)
1.
Freedom of the press and other mass media is
guaranteed.
2.
Freedom of the press shall comprise, namely, the
freedom of speech and creativity for journalists, the access
to information sources, editorial freedom, protection of
independence and professional confidentiality, and the right
to create newspapers, publications and other means of
broadcasting.
3.
4.
The State shall guarantee the freedom and
independence of the public mass media from political and
economic powers.
5.
The State shall guarantee the existence of a public
radio and television service that is impartial in order to, interalia, protect and disseminate the culture and the traditional
values of the Democratic Republic of East Timor and
guarantee opportunities for the expression of different lines
of opinion.
6.
Radio and television stations shall operate only under a
licence, in accordance with the law.
Section 42
(Freedom to assemble and demonstrate)
1.
Every citizen is guaranteed the freedom to assemble
peacefully and unarmed, without a need for prior
authorisation.
2.
Everyone is recognised the right to demonstrate in
accordance with the law.
Section 43
(Freedom of association)
1.
1.
Every citizen has the right to participate in the political
life and in the public affairs of the country, either directly or
through democratically elected representatives.
2.
Every citizen has the right to establish and to
participate in political parties.
3.
The State shall value the contribution of the political
parties to the organised expression of the will of the people
and to the democratic participation of the citizen in the
governance of the country.
4.
The establishment and organisation of political parties
shall be regulated by law.
Section 47
(Right to vote)
1.
Every citizen over the age of seventeen has the right to
vote and to be elected.
2.
The exercise of the right to vote is personal and
constitutes a civic duty.
Section 48
(Right to petition)
Every citizen has the right to submit, individually or jointly
with others, petitions, complaints and claims to organs of
sovereignty or any authority for the purpose of defending his
or her rights, the Constitution, the law or general interests.
Section 49
(Defence of Sovereignty)
1.
Every citizen has the right and the duty to contribute
towards the defence of independence, sovereignty and
territorial integrity of the country.
2.
Serving in the army shall take place in accordance with
the law.
TITLE III
ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND DUTIES
Section 50
(Right to work)
1.
Every citizen, regardless of gender, has the right and
the duty to work and to choose freely his or her profession.
2.
The worker has the right to labour safety and hygiene,
remuneration, rest and vacation.
3.
Dismissal without just cause or on political, religious
and ideological grounds is prohibited.
4.
Compulsory work, without prejudice to the cases
provided for under penal legislation, is prohibited.
5.
The State shall promote the establishment of cooperatives of production and shall lend support to household
businesses as sources of employment.
Section 51
(Right to strike and prohibition of lock-out)
1.
Every worker has the right to resort to strike, the
exercise of which shall be regulated by law.
2.
The law shall determine the conditions under which
services are provided, during a strike, that are necessary for
the safety and maintenance of equipment and facilities, as
well as minimum services that are necessary to meet
essential social needs.
3.
Lock-out is prohibited.
Section 52
(Trade union freedom)
1.
Every worker has the right to form or join trade unions
and professional associations in defence of his or her rights
and interests.
2.
Trade union freedom is sub-divided, namely, into
freedom of establishment, freedom of membership and
freedom of organisation and internal regulation.
3.
Trade unions and trade union associations shall be
independent of the State and the employers.
Section 53
(Consumer rights)
1.
Consumers have the right to goods and services of
good quality, to truthful information and protection of their
health, safety and economic interests, and to reparation for
damages.
2.
Advertising shall be regulated by law, and all forms of
concealed, indirect or misleading advertising are prohibited.
Section 54
(Right to private property)
1.
Every individual has the right to private property and
can transfer it during his or her lifetime or on death, in
accordance with the law.
2.
Private property should not be used to the detriment of
its social purpose.
3.
Requisitioning and expropriation of property for public
purposes shall only take place following compensation in
Section 58
(Housing)
Everyone has the right to a house, both for himself or herself
and for his or her family, of adequate size that meets
satisfactory standards of hygiene and comfort and preserves
personal intimacy and family privacy.
Section 59
(Education and culture)
1.
The State shall recognise and guarantee that every
citizen has the right to education and culture, and it is
incumbent upon it to promote the establishment of a public
system of universal and compulsory basic education that is
free of charge in accordance with its possibilities and in
conformity with the law.
2.
Everyone has the right to equal opportunities for
education and vocational training.
3.
The State shall recognise and supervise private and cooperative education.
4.
The State should ensure the access of every citizen, in
accordance to their abilities, to the highest levels of
education, scientific research and artistic creativity.
5.
Everyone has the right to cultural enjoyment and
creativity and the duty to preserve, protect and value
cultural heritage.
Section 60
(Intellectual Property)
The State shall guarantee and protect the creation,
production and commercialisation of literary, scientific and
artistic work, including the legal protection of copyrights.
Section 61
(Environment)
1.
Everyone has the right to a humane, healthy, and
ecologically balanced environment and the duty to protect it
and improve it for the benefit of the future generations.
2.
The State shall recognise the need to preserve and
rationalise natural resources.
3.
The State should promote, in accordance with its
capacities, actions aimed at protecting the environment and
safeguarding the sustainable development of the economy.
PART III
ORGANIZATION OF POLITICAL POWER
TITLE I
GENERAL PRINCIPLES
Section 62
(Source and exercise of political power)
Political power belongs to the people and is exercised in
accordance with the terms of the Constitution.
Section 63
(Participation by citizens in political life)
1.
Direct and active participation by men and women in
political life is a requirement of, and a fundamental
instrument for consolidating, the democratic system.
2.
The law shall promote equality in the exercise of civil
and political rights and non-discrimination on the basis of
gender for access to political positions.
Section 64
(Principle of Renewal)
No one shall hold any political office for life, or for indefinite
periods of time.
Section 65
(Elections)
1.
Elected organs of sovereignty and of local government
shall be chosen by free, direct, secret, personal and regular
universal suffrage.
2.
Registration of voters shall be compulsory and officially
initiated, single and universal, to be up-dated for each
election.
3.
Electoral campaigns shall be governed in accordance
with the following principles:
a)
Freedom to canvass;
b)
Equality of opportunity and treatment for all
candidacies;
c)
Impartiality towards candidacies on the part of public
bodies;
d)
Transparency and supervision of electoral expenses.
4. Conversion of the votes into mandates shall observe the
principle of proportional representation;
5.
Article 66
(Referendum)
1.
Voters who are registered in the national territory may
be called upon to express their opinions in a referendum on
issues of relevant national interest.
2.
Section 67
(Organs of Sovereignty)
The organs of sovereignty shall comprise the President of the
Republic, the National Parliament, the Government and the
Courts.
Section 68
(Incompatibilities)
1.
The holding of the offices of President of the Republic,
Speaker of the National Parliament, President of the Supreme
Court of Justice, President of the High Administrative, Tax
and Audit Court, Attorney-General and member of
Government shall be incompatible with one another.
2.
Section 69
(Principle of separation of powers)
Organs of sovereignty, in their reciprocal relationship and
exercise of their functions, shall observe the principle of
separation and interdependence of powers established in the
Constitution.
Section 70
(Political parties and the right of opposition)
1.
Political parties shall participate in organs of political
power in accordance with their democratic representation
based on direct and universal suffrage.
2.
The right of political parties to democratic opposition,
as well as the right to be informed regularly and directly on
the progress of the main issues of public interest, shall be
recognised.
Section 71
(Administrative organisations)
1.
The central government should be represented at the
different administrative levels of the country.
2.
Oecussi Ambeno shall be governed by a special
administrative policy and economic regime.
3.
4.
The political and administrative organisation of the
territory of the Democratic Republic of East Timor shall be
defined by law.
Article 72
(Local government)
1.
Local government is constituted by corporate bodies
vested with representative organs, with the objective of
organising the participation by citizens in solving the
problems of their own community and promoting local
development without prejudice to the participation by the
State.
2.
The organisation, competence, functioning and
composition of the organs of local government shall be
defined by law.
Section 73
(Publication of legislation and decisions)
1.
Legislation and decisions shall be published by the
organs of sovereignty in the official gazette.
2.
Failure to publish any of the legislation or decisions
specified in item 1 above or decisions of a general nature
taken by the organs of sovereignty or local government shall
render them null and void.
3.
The form of publication of other legislation and
decisions, and the consequences of the failure to do so, shall
be determined by law.
TITLE II
PRESIDENT OF THE REPUBLIC
CHAPTER I
STATUS, ELECTION AND APPOINTMENT
Section 74
(Definition)
1.
The President of the Republic is the Head of State and
the symbol and guarantor of national independence and
unity of the State and of the smooth functioning of
democratic institutions.
2.
The President of the Republic is the Supreme
Commander of the Defence Force.
Section 75
(Eligibility)
1.
To stand as presidential candidates, East Timorese
citizens should meet cumulatively the following
requirements:
a)
original citizenship;
b)
c)
d)
2.
The President of the Republic has a term of office of 5
years and shall cease his or her functions with the swearingin of the new President-elect.
3.
The President of the Republic's term of office may be
renewed only once.
Section 76
(Election)
1.
The President of the Republic shall be elected by
universal, free, direct, secret, and personal suffrage.
2.
The election of the President of the Republic shall be
conducted through the system based on the majority of valid
expressed votes, excluding blank votes.
3.
Where no candidate gets more than half of the votes, a
second round shall take place on the 30th day following the
first voting.
4.
Only the two candidates obtaining the highest number
of votes shall be eligible to stand in a run-off election,
provided they have not withdrawn their candidacies.
Section 77
(Inauguration and swearing-in)
1.
The President of the Republic shall be sworn in by the
Speaker of the National Parliament and shall be inaugurated
in public ceremony before the members of the National
4.
The Plenary of the Supreme Court of Justice shall issue
a judgement within a maximum of 30 days.
5. Conviction shall result in forfeiture of office and
disqualification from re-election.
6. For crimes not committed in the exercise of his or her
functions, the President of the Republic shall also be
answerable before the Supreme Court of Justice, and
forfeiture of office shall only occur in case of sentence to
prison.
7. In the cases provided for under the previous item,
immunity shall be withdrawn at the initiative of the National
Parliament in accordance with provisions of item 2 of this
Section.
Section 80
(Absence)
1.
The President of the Republic shall not be absent from
the national territory without the previous consent of the
National Parliament or of its Standing Committee, if
Parliament is in recession.
2.
Failure to observe provision of item 1 above shall imply
forfeiture of the office, as provided for by the previous
Section.
3.
The President of the Republic's private visits not
exceeding fifteen days shall not require the consent of the
National Parliament. Nonetheless, the President of the
Republic should notify the National Parliament of such visits
in advance.
Section 81
(Resignation of Office)
1.
The President of the Republic may resign from office by
message addressed to the National Parliament.
2.
Resignation shall take effect once the message is made
known to the National Parliament without prejudice to its
subsequent publication in the official gazette.
3.
Where the President of the Republic resigns from office,
he or she shall not be eligible to stand for presidential
elections immediately after resignation nor in the regular
elections to be held after five years.
Section 82
(Death, resignation or permanent disability)
1.
In case of death, resignation or permanent disability of
the President of the Republic, his or her functions shall be
taken over on an interim basis by the Speaker of the
National Parliament, who shall be sworn in by the Speaker
a.i. of the National Parliament before the Members of the
National Parliament and representatives of the organs of
sovereignty.
2.
Permanent disability shall be declared by the Supreme
Court of Justice, which shall also have the responsibility to
confirm the death of the President of the Republic and the
vacancy of office resulting therefrom.
3.
The election of a new President of the Republic in case
of death, resignation or permanent disability should take
place within the subsequent ninety days, after certification
or declaration of death, resignation or permanent disability.
4.
The President of the Republic shall be elected for a new
term of office.
5.
In case of refusal by the President-elect to take office or
in case of his or her death or permanent disability, the
provisions of this Section shall apply.
Section 83
(Exceptional Cases)
1.
Where death, resignation or permanent disability occur
in the imminence of exceptional situations of war or
protracted emergency, or of an insurmountable difficulty of a
technical or material nature, to be defined by law,
preventing the holding of a presidential election by universal
suffrage as provided for by Section 76, the new President of
the Republic shall be elected by the Parliament from among
its members within the ninety subsequent days.
2.
In the cases referred to in the previous item, the
President-elect shall serve for the remainder of the
interrupted term and he or she can run for the new election.
Section 84
(Replacement and interim office)
1.
During temporary impediment of the President of the
Republic, the presidential functions shall be taken over by
the Speaker of National Parliament or, in case of impediment
of the latter, by his or her replacement.
2.
The parliamentary mandate of the Speaker of the
National Parliament or of his or her replacement shall be
automatically suspended over the period of time in which he
or she holds the office of President of the Republic on an
interim basis.
3.
The parliamentary functions of the replacing or interim
President of the Republic shall be temporarily taken over in
accordance with the Rules of Procedures of the National
Parliament.
CHAPTER II
COMPETENCIES
Section 85
(Competencies)
It is exclusively incumbent upon the President of the
Republic:
a)
To promulgate statutes and order the publication of
resolutions by the National Parliament approving
agreements and ratifying international treaties and
conventions;
b)
Exercise competencies inherent to the functions of
Supreme Commander of the Defence Force;
c)
To exercise the right of veto regarding any statutes
within 30 days from the date of their receipt;
d)
To appoint and swear in the Prime Minister designated
by the party or alliance of parties with the highest number
of members after consultation with political parties sitting in
the National Parliament;
e)
To request the Supreme Court of Justice to undertake
preventive appraisal and abstract review of the
constitutionality of the rules, as well as verification of
unconstitutionality by omission.
f)
To submit relevant issues of national interest to a
referendum as laid down in Section 66;
g)
To declare the state of siege or the state of emergency
following authorisation of the National Parliament, after
consultation with the Council of State, the Government and
the Supreme Council of Defence and Security;
h)
To declare war and make peace following a Government
proposal, after consultation with the Council of State and the
b)
c)
To set dates for presidential and legislative elections in
accordance with the Law;
d)
To request the convening of extraordinary sessions of
the National Parliament, whenever imperative reasons of
national interest so justify;
e)
To address messages to the National Parliament and the
country;
f)
To dissolve the National Parliament in case of a serious
institutional crisis preventing the formation of a government
or the approval of the State Budget and lasting more than
sixty days, after consultation with political parties sitting in
the Parliament and with the Council of State, on pain of
rendering the dissolution null and void, taking into
consideration provisions of Section 100;
g)
To dismiss the Government and remove the Prime
Minister from office after the National Parliament has
rejected his or her programme for two consecutive times.
h)
To appoint, swear in and remove Government Members
from office, following a proposal by the Prime-Minister, in
accordance with item 2, Section 106;
i)
To appoint two members for the Supreme Council of
Defence and Security;
j)
To appoint the President of the Supreme Court of Justice
and swear in the President of the High Administrative, Tax
and Audit Court;
k)
To appoint the Attorney-General for a term of four
years;
l)
To appoint and dismiss the Deputy Attorney-Generals in
accordance with item 6, Section 133;
m) To appoint and dismiss, following proposal by the
Government, the General Chief of Staff of the Defence Force,
the Deputy General Chief of Staff of the Defence Force, and
the Chiefs of Staff of the Defence Force, after consultation
with the General Chief of Staff regarding the latter two
cases;
n)
o)
To appoint one member for the Superior Council the
Judiciary and for the Superior Council for the Public
Prosecution.
Section 87
(Competencies with regard to International Relations)
It is incumbent upon the President the Republic, in the field
of international relations:
a)
To declare war in case of effective or imminent
aggression and make peace, following proposal by the
Government, after consultation with the Supreme Council for
Defence and Security and following authorisation of the
National Parliament or of its Standing Committee.
b)
To appoint and dismiss ambassadors, permanent
representatives and special envoys, following proposal by
the Government;
c)
To receive credential letters and accredit foreign
diplomatic representatives;
d)
Conduct, in consultation with the Government, any
negotiation process towards the completion of international
agreements in the field of defence and security.
Section 88
(Promulgation and veto)
1.
Within thirty days after receiving any statute from the
National Parliament for the purpose of its promulgation as
law, the President of the Republic shall either promulgate the
statute or exercise the right of veto, in which case he or she,
based on substantive grounds, shall send a message to the
National Parliament requesting a new appraisal of the
statute.
2.
If, within ninety days, the National Parliament confirms
its vote by an absolute majority of its Members in full
exercise of their functions, the President of the Republic shall
promulgate the statute within eight days after receiving it.
3.
However, a majority of two-thirds of the Members
present shall be required to ratify statutes on matters
provided for in Section 95 where that majority exceeds an
absolute majority of the Members in full exercise of their
functions.
4.
Within forty days after receiving any statute from the
Government for the purpose of its promulgation as law, the
President of the Republic shall either promulgate the
instrument or exercise the right of veto, by way of a written
communication to the Government containing the reasons
for the veto.
Section 89
Powers of an interim President of the Republic
An interim President of the Republic does not have any of
the powers specified in following items f), g), h), i), j), k), l),
m), n) and o) of Section 86.
CHAPTER III
COUNCIL OF STATE
Section 90
(Council of State)
1.
The Council of State is the political advisory body of the
President of the Republic and shall be headed by him or
herself.
2.
a)
Former Presidents of the Republic who were not
removed from office;
b)
c)
d)
Five citizens elected by the National Parliament in
accordance with the principle of proportional representation
and for the period corresponding to the legislative term,
provided that they are not members of the organs of
sovereignty.
e)
Five citizens designated by the President of the
Republic for the period corresponding to the term of office of
the President, provided that they are not members of the
organs of sovereignty.
Section 91
(Competence, organisation and functioning of the Council of
State)
1. It is incumbent upon the Council of State:
a)
Express its opinion on the dissolution of the National
Parliament;
b)
c)
Express its opinion on the declaration of war and the
making of peace;
d)
Express its opinion on any other cases set out in the
Constitution and advise the President of the Republic in the
exercise of his or her functions, as requested by the
President;
e)
2.
The meetings of the Council of State shall not be open
to the public.
3.
The organisation and functioning of the Council of State
shall be established by law.
TITLE III
NATIONAL PARLIAMENT
CHAPTER I
STATUS AND ELECTION
Section 92
(Definition)
The National Parliament is the organ of sovereignty of the
Democratic Republic of East Timor that represents all
Timorese citizens and is vested with legislative, fiscal and
political decision powers.
Section 93
(Election and composition)
1.
The National Parliament shall be elected by universal,
free, direct, equal, secret and personal suffrage.
2.
The National Parliament shall be made up of a minimum
of fifty-two and a maximum of sixty-five Members.
3.
The law shall establish the rules relating to
constituencies, eligibility conditions, nominations and
electoral procedures.
4.
Members of the National Parliament shall have a term
of office of five years.
Section 94
(Immunities)
1.
The Members of National Parliament shall not be held
liable for civil, criminal or disciplinary proceedings in regard
to votes and opinions expressed by them while performing
their functions.
2.
Parliamentary immunities may be withdrawn in
accordance with the Rules of Procedures of the National
Parliament.
CHAPTER II
COMPETENCE
Section 95
(Competence of the National Parliament)
1.
It is incumbent upon the National Parliament to make
laws on basic issues of the countrys domestic and foreign
policy.
2.
It is exclusively incumbent upon the National Parliament
to make laws on:
a)
The borders of the Democratic Republic of East Timor,
in accordance with Section 4;
b)
The limits of the territorial waters, of the exclusive
economic area and of the rights of East Timor to the
adjacent sea bed;
c)
National symbols, in accordance with item 2 of Section
14;
d)
Citizenship;
e)
f)
The status and capacity of people, family law and
descent law;
g)
Territorial division;
h)
i)
j)
k)
l)
m)
n)
The suspension of constitutional guarantees and the
declaration of the state of siege and the state of emergency;
o)
p)
q)
3.
a)
To ratify the appointment of the President of the
Supreme Court of Justice and of the High Administrative, Tax
and Audit Court;
b)
To deliberate on progress reports submitted by the
Government;
c)
To elect one member for the Superior Council for the
Judiciary and the Superior Council of the Public Persecution;
d)
To deliberate on the State Plan and Budget and the
execution report thereof;
e)
f)
To approve and denounce agreements and ratify
international treaties and conventions;
g)
To grant amnesty;
h)
To give consent to trips by the President of the Republic
in accordance with Section 80;
i)
To approve revisions of the Constitution by a majority of
two thirds of the Members of Parliament;
j)
To authorise and confirm the declaration of the state of
siege or the state of emergency;
k)
To propose to the President of the Republic the
submission to referendum of issues of national interest.
4.
a)
b)
c)
d)
To set up the Standing Committee and establish the
other parliamentary Committees.
Section 96
(Legislative authorisation)
1.
The National Parliament may authorise the Government
to make laws on the following matters:
a)
Definition of crimes, sentences, security measures and
respective prerequisites;
b)
c)
d)
General rules and regulations for the public service, the
status of the civil servants and the responsibility of the
State;
e)
General bases for the organisation of public
administration;
f)
Monetary system;
g)
h)
Definition of the bases for a policy on environment
protection and sustainable development;
i)
General rules and regulations for radio and television
broadcasting and other mass media;
j)
k)
General rules and regulations for requisition and
expropriation for public purposes;
l)
Means and ways of intervention, expropriation,
nationalisation and privatisation of means of production and
soils on grounds of public interest, as well as criteria for the
establishment of compensations.
2.
Laws on legislative authorisation shall define the
subject, sense, scope and duration of the authorisation,
which may be renewed.
3.
Laws on legislative authorisation shall not be used more
than once and shall lapse with the dismissal of the
Government, with the end of the legislative term or with the
dissolution of the National Parliament.
Section 97
(Legislative initiative )
1.
a)
b)
c)
The Government.
2.
There shall be no submission of bills, draft legislation or
amendments involving, in any given fiscal year, any increase
in State expenditure or any reduction in State revenues
provided for in the Budget or Rectifying Budgets.
3.
Bills and draft legislation that have been rejected shall
not be re-introduced in the same legislative session in which
they have been tabled.
4.
Bills and draft legislation that have not been voted on
shall not need to be re-introduced in the ensuing legislative
session, except in case of end of the legislative term.
5.
Draft legislation shall lapse with the dismissal of the
Government.
Section 99
(Parliamentary appraisal of statutes)
1.
Statutes other than those approved under the exclusive
legislative powers of the Government may be submitted to
the National Parliament for appraisal, for purposes of
terminating their validity or for amendment, following a
petition of one-fifth of the Members of Parliament and within
thirty days following their publication. This timeframe shall
exclude the days when the functioning of the National
Parliament is suspended.
2.
The National Parliament may suspend, in part or in full,
the force of a statute until it is appraised.
3.
The suspension shall lapse after the National Parliament
has held 10 plenary meetings without taking a final decision.
4.
Where termination of validity is approved, the statute
shall cease to be in force from the date of the publication of
the resolution in the Official Gazette, and it shall not be
published again in the same legislative session.
5.
The process shall lapse if, after a statute has been
submitted for appraisal, the National Parliament takes no
decision on it, or, having decided to make amendments, it
does not approve a law to that effect before the
corresponding legislative session ends, provided 15 plenary
meetings have been held.
CHAPTER III
ORGANISATION AND FUNCTIONING
Section 100
(Legislative term)
1.
The legislative term shall comprise five legislative
sessions, and each legislative session shall have the duration
of one year.
2.
The regular period of functioning of the National
Parliament shall be defined by the Rules of Procedure.
3.
The National Parliament convenes on a regular basis
following notice by its Speaker.
4.
The National Parliament convenes on an extraordinary
basis whenever so deliberated by the Standing Committee,
at the request of one third of Members or following notice of
the President of the Republic with a view to addressing
specific issues.
5.
Section 103
(Standing Committee)
1.
The Standing Committee shall sit when the National
Parliament is dissolved or in recession and in the other cases
provided for in the Constitution;
2.
The Standing Committee shall be presided over by the
Speaker of the National Parliament and shall be comprised of
Deputy Speakers and Parliament Members designated by the
parties sitting in the Parliament in accordance with their
respective representation.
3.
a)
To follow-up the activities of the Government and the
Public Administration;
b)
To co-ordinate the activities of the Committees of the
National Parliament;
c)
To take steps for the convening of Parliament whenever
deemed necessary;
d)
To prepare and organise sessions of the National
Parliament;
e)
To give its consent regarding trips by the President of
the Republic in accordance with Section 80;
f)
To lead relations between the National Parliament and
similar parliaments and institutions of other countries;
g)
To authorise the declaration of the state of siege or the
state of emergency.
TITLE IV
GOVERNMENT
CHAPTER I
DEFINITION AND STRUCTURE
Section 104
(Definio)
The Government is the organ of sovereignty responsible for
conducting and executing the general policy of the country
and is the supreme organ of Public Administration.
Section 105
(Composition)
1.
The Government shall comprise the Prime Minister, the
Ministers and the Secretaries of State.
2.
The Government may include one or more Deputy
Prime Ministers and Deputy Ministers.
3.
The number, titles and competencies of ministries and
secretariats of State shall be laid down in a Government
statute.
Section 106
(Council of Ministers)
1.
The Council of Ministers shall comprise the Prime
Minister, the Deputy Prime Ministers, if any, and the
Ministers.
2.
The Council of Ministers shall be convened and chaired
by the Prime Minister.
3.
The Deputy Ministers, if any, and the Secretaries of
State may be required to attend meetings of the Council of
Ministers, without a right to vote.
CHAPTER II
FORMATION AND RESPONSIBILITY
Section 107
(Appointment)
1.
The Prime Minister shall be designated by the political
party or alliance of political parties with the highest number
of votes and shall be appointed by the President of the
Republic, after consultation with the political parties sitting in
the National Parliament.
2.
The remaining members of the Government shall be
appointed by the President of the Republic following proposal
by the Prime Minister.
Section 108
(Responsibility of the Government)
The Government shall be accountable to the President of the
Republic and to the National Parliament for conducting and
executing the domestic and foreign policy in accordance with
the Constitution and the law.
Section 109
(The Programme of the Government)
1.
Once appointed, the Government should develop its
programme, which should include the objectives and tasks
proposed, the actions to be taken and the main political
guidelines to be followed in the fields of government activity.
2.
Once approved by the Council of Ministers, the Prime
Minister shall, within a maximum of 30 days after
appointment of the Government, submit the Programme of
Government to the National Parliament for consideration.
Section 110
(Consideration of the Programme of Government by the
National Parliament)
1.
The Programme of the Government shall be submitted
to the National Parliament for consideration. Where the
National Parliament is not in session, its convening for this
purpose shall be mandatory.
2.
Debate on the programme of the Government shall not
exceed five days and, prior to its closing, any parliamentary
group may propose its rejection or the Government may
request the approval of a vote of confidence.
3.
Rejection of the programme of the Government shall
require an absolute majority of the Members in full exercise
of their functions.
Section 111
(Request for vote of confidence)
The Government may request the National Parliament to
take a vote of confidence on a statement of general policy or
on any relevant matter of national interest.
Section 112
(Vote of no confidence)
1.
The National Parliament may, following proposal by
one-quarter of the Members in full exercise of their functions,
pass a vote of no confidence on the Government with
respect to the implementation of its programme or any
relevant matter of national interest.
2.
Where a vote of no confidence is not passed, its
signatories shall not move another vote of no confidence
during the same legislative session.
Section 113
(Dismissal of the Government)
1.
a)
b)
The President of the Republic accepts the resignation of
the Prime Minister;
c)
The Prime Minister dies or is suffering from a
permanent physical disability;
d)
Its programme is rejected for the second consecutive
time;
e)
f)
A vote of no confidence is passed by an absolute
majority of the Members in full exercise of their functions;
2.
The President of the Republic shall only dismiss the
Prime Minister in accordance with the cases provided for in
the previous item and when it is deemed necessary to
ensure the regular functioning of the democratic institutions,
after consultation with the Council of State.
Section 114
(Criminal liability of the members of Government)
1.
Where a member of the Government is charged with a
criminal offence punishable with a sentence of imprisonment
for more than two years, he or she shall be suspended from
his or her functions so that the proceedings can be pursued.
2.
Where a member of the Government is charged with a
criminal offence punishable with a sentence of imprisonment
for a maximum of two years, the National Parliament shall
decide whether or not that member of the Government shall
a)
To define and implement the general policy of the
country, following its approval by the National Parliament;
b)
To guarantee the exercise of the fundamental rights and
freedoms of the citizens;
c)
d)
To prepare the State Plan and the State Budget and
execute them following their approval by the National
Parliament;
e)
f)
To prepare and negotiate treaties and agreements and
enter into, approve, accede and denounce international
agreements which do not fall under the competence of the
j)
k)
To guarantee the defence and consolidation of the
public domain and the property of the State;
l)
To lead and co-ordinate the activities of the ministries
as well as the activities of the remaining institutions
answerable to the Council of Ministers;
m) To promote the development of the co-operative sector
and the support for household production;
n)
o)
To take actions and make all the arrangements
necessary to promote economic and social development and
to meet the needs of the Timorese people;
p)
To exercise any other competencies as provided by the
Constitution and the law.
2.
It is also incumbent upon the Government in relation
with other organs :
a)
To submit bills and draft resolutions to the National
Parliament;
b)
To propose to the President of the Republic the
declaration of war or the making of peace;
c)
To propose to the President of the Republic the
declaration of the state of siege or the state of emergency;
d)
To propose to the President of the Republic the
submission to referendum of relevant issues of national
interest;
e)
To propose to the President of the Republic the
appointment of ambassadors, permanent representatives
and special envoys;
3.
The Government has exclusive legislative powers on
matters concerning its own organisation and functioning, as
well as on the direct and indirect management of the State.
Section 117
(Competencies of the Council of Ministers)
It is incumbent upon the Council of Ministers:
a)
To define the general guidelines of the government
policy as well as those for its implementation;
b)
To deliberate on a request for a vote of confidence from
the National Parliament;
c)
d)
To approve statutes, as well as international
agreements that are not required to be submitted to the
National Parliament;
e)
To approve actions by the Government that involve an
increase or decrease in public revenues or expenditures;
f)
To approve plans.
Section 118
a)
b)
c)
To lead and guide the general policy of the Government
and co-ordinate the activities of all Ministers, without
prejudice to the direct responsibility of each Minister for his
or her respective governmental department.
d)
To keep the President of the Republic informed on
matters of domestic and foreign policy of the Government;
e)
To perform other duties conferred by the Constitution
and the law.
2.
a)
To implement the policy defined for their respective
Ministries;
b)
To ensure relations between the Government and the
other organs of the State in the area of responsibility of their
respective Ministries.
3. Government statutes shall be signed by the Prime
Minister and the Ministers in charge of the respective subject
matter.
TITLE V
COURTS
CHAPTER I
COURTS AND THE JUDICIARY
Section 119
(Jurisdiction)
1.
Courts are organs of sovereignty with competencies to
administer justice in the name of the people.
2.
In performing their functions, the courts shall be
entitled to the assistance of other authorities.
3.
Court decisions shall be binding and shall prevail over
the decisions of any other authority.
Section 120
(Independence)
Courts are independent and subject only to the Constitution
and the law.
Section 121
Review of unconstitutionality
The courts shall not apply rules that contravene the
Constitution or the principles contained therein.
Section 121
(Judges)
1.
Jurisdiction lies exclusively with the judges installed in
accordance with the law.
2.
In performing their functions, judges are independent
and owe obedience only to the Constitution, the law and to
their own conscience.
3.
Judges have security of tenure and, unless otherwise
provided for by law, may not be transferred, suspended,
retired or removed from office.
4.
To guarantee their independence, judges may not be
held liable for their judgements and decisions, except in the
circumstances provided for by law.
5.
The law shall regulate the judicial organisation and the
3.
The President of the Supreme Court of Justice shall be
appointed by the President of the Republic from among
judges of the Supreme Court of Justice fora term of office of
four years.
Section 126
(Functioning and Composition)
1.
a)
In sections, like a court of first instance, in the cases
provided for in the law;
b)
In plenary, like a court of second and single instance, in
the cases expressly provided for in the law;
2. The Supreme Court of Justice shall consist of career
judges, magistrates of the Public Prosecution or jurists of
recognised merit in number to be established by law, as
follows:
a)
b)
And all the others designated by the Superior Council
for the Judiciary.
Section 127
(Electoral and Constitutional Competence)
1.
It is incumbent upon the Supreme Court of Justice, on
legal and constitutional matters:
a)
To review and declare the unconstitutionality and
illegality of normative and legislative acts by the organs of
the State;
b)
To provide an anticipatory verification of the legality
and constitutionality of the statutes and referenda;
c)
d)
To rule, as a venue of appeal, on the suppression of
norms considered unconstitutional by the courts of instance;
e)
To verify the legality regarding the establishment of
political parties and their coalitions and order their
registration or dissolution, in accordance with the
Constitution and the law;
f)
To exercise all other competencies provided for by the
Constitution or the law.
2.
It is incumbent upon the Supreme Court of Justice, in
the specific field of elections:
a)
To verify the legal requirements for candidates for the
office of President of the Republic;
b)
To certify at last instance the regularity and validity of
the acts of the electoral process, in accordance with the
respective law;
c)
To validate and proclaim the results of the electoral
process;
Section 128
(Eligibility)
1.
Only career judges or magistrates of the Public
Prosecution or jurists of recognised merit of East Timorese
nationality may become members of the Supreme Court of
Justice.
2.
In addition to the requirements referred to in the
preceding item, the law may define other requirements.
Section 129
b)
c)
d)
One elected by the judges of the courts of law from
among their peers;
3.
The law shall regulate the competence, organisation
and functioning of the Superior Council for the Judiciary.
Section 130
(High Administrative, Tax and Audit Court)
1.
The High Administrative, Tax and Audit Court is the
highest body in the hierarchy of the administrative, tax and
audit courts, without prejudice to the competence of the
Supreme Court of Justice.
2.
The President of the High Administrative, Tax and Audit
Court is elected from among and by respective judges for a
term of office of four years.
3.
It is incumbent upon the High Administrative, Tax and
Audit Court as a single instance to monitor the lawfulness of
public expenditure and to audit State accounts.
1.
It is incumbent upon the High Administrative, Tax and
Audit Court and the administrative and tax courts of first
instance:
a)
To judge actions aiming at resolving disputes arising
from legal, fiscal and administrative relations;
b)
To judge contentious appeals against decisions made by
State organs, their respective office holders and agents;
c)
Section 131
(Military Courts)
1.
It is incumbent upon military courts to judge in first
instance crimes of military nature.
2.
The competence, organisation, composition and
functioning of military courts shall be established by law.
Section 132
(Court Hearings)
Court hearings shall be public, unless the court hearing a
matter rules otherwise through a well-founded order to
safeguard personal dignity or public morality and national
security, or guarantee its own smooth operation.
CHAPTER II
PUBLIC PROSECUTORS
Section 133
(Functions and Status)
1.
Public Prosecutors have the responsibility for
representing the State, taking criminal action, ensuring the
5.
The Attorney-General shall request the Supreme Court
of Justice to make a generally binding declaration of
unconstitutionality of any law ruled unconstitutional in three
concrete cases.
6.
Deputy Attorney-Generals shall be appointed, dismissed
or removed from office by the President of the Republic after
consultation with the Superior Council for the Public
Prosecution.
Section 135
(Superior Council for the Public Prosecution)
1.
The Superior Council for the Public Prosecution is an
integral part of the office of the Attorney-General.
2.
The Superior Council for the Public Prosecution shall be
headed by the Attorney-General and shall comprise the
following members:
a)
b)
c)
d)
One elected by the magistrates of the Public
Prosecution from among their peers.
3. The law shall regulate the competence, organisation and
functioning of the Superior Council for the Public Prosecution.
CHAPTER III
LAWYERS
Section 136
(Lawyers)
1.
Legal and judicial aid is of social interest, and lawyers
and defenders shall be governed by this principle.
2.
The primary role of lawyers and defenders is to
contribute to the good administration of justice and the
safeguard of the rights and legitimate interests of the
citizens.
3.
Section 137
(Guarantees in the activity of lawyers)
1.
The State shall, in accordance with the law, guarantee
the inviolability of documents related to legal proceedings.
No search, seizure, listing or other judicial measures shall be
permitted without the presence of the competent magistrate
and, whenever possible, of the lawyer concerned.
2.
Lawyers have the right to contact their clients
personally with guarantees of confidentiality, especially
where the clients are under detention or arrest in military or
civil prison centres.
TITLE VI
PUBLIC ADMINISTRATION
Section 138
(Public Administration general principles)
1.
Public Administration shall aim at meeting public
interest, in the respect for the legitimate rights and interests
of citizens and constitutional institutions.
2.
The Public Administration shall be structured to prevent
excessive bureaucracy, provide more accessible services to
the people and ensure the contribution of individuals
interested in its efficient management.
3.
The law shall establish the rights and guarantees of the
citizens, namely against acts likely to affect their legitimate
rights and interests.
PART IV
ECONOMIC AND FINANCIAL ORGANISATION
TITLE I
GENERAL PRINCIPLES
Section 139
(Economic organisation)
The economic organisation of East Timor shall be based on
the combination of community forms with free initiative and
business management, as well as on the co-existence of the
public sector, the private sector and the co-operative and
social sector of ownership of means of production.
Section 140
(Natural resources)
1.
The resources of the soil, the subsoil, the territorial
waters, the continental shelf and the exclusive economic
zone, which are essential to the economy, shall be owned by
the State and shall be used in a fair and equitable manner in
accordance with national interests.
2.
The conditions for the exploitation of the natural
resources referred to in item 1 above should lend themselves
to the establishment of mandatory financial reserves, in
accordance with the law.
3.
The exploitation of the natural resources shall preserve
the ecological balance and prevent destruction of
ecosystems.
Section 141
(Investments)
The State shall promote national investment and establish
conditions to attract foreign investment, taking into
consideration the national interests, in accordance with the
law.
Section 142
(Land)
Ownership, use and development of land as one of the
factors for economic production shall be regulated by law.
TITLE II
FINANCIAL AND TAX SYSTEM
Section 143
(Financial system)
The structure of the financial system shall be determined by
the law in such a way as to guarantee that savings are
encouraged and built up with security and that the financial
resources necessary for economic and social development
are provided.
Section 144
(Central Bank)
1.
The State shall establish a national central bank jointly
responsible for the definition and implementation of the
monetary and financial policy.
2.
The Central Bank functions and its relationship with the
National Parliament and the Government shall be established
by law.
3.
The Central Bank shall have exclusive competence for
issuing the national currency.
Section 145
(Tax System)
1.
The State shall establish a tax system aimed at meeting
the financial requirements of the State and the fair
distribution of national income and wealth.
2.
Taxes shall be established by law, which shall determine
the incidence, tax benefits and the guarantees of taxpayers.
Section 146
(State Budget)
1.
The State Budget shall be prepared by the Government
and approved by the National Parliament.
2.
The Budget law shall provide, based on efficiency and
effectiveness, a breakdown of the revenues and
expenditures of the State, as well as preclude the existence
of secret appropriations and funds.
3.
The execution of the Budget shall be monitored by the
High Administrative, Tax and Audit Court and by the National
Parliament.
PART V
NATIONAL DEFENCE AND SECURITY
Section 147
(Defence Force)
1.
The East Timor defence force, FALINTIL-ETDF, composed
exclusively by national citizens, has the responsibility of
providing military defence for the Democratic Republic of
b)
c)
The Attorney-General, based on the refusal by the
courts, in three concrete cases, to apply a statute deemed
unconstitutional;
d)
e)
f)
The Ombudsman.
Section 152
(Unconstitutionality by omission)
The President of the Republic, the Attorney-General and the
Ombudsman may request the Supreme Court of Justice to
review the unconstitutionality by omission of any legislative
measures deemed necessary to enable the implementation
of the constitutional provisions.
Section 153
(Appeals on constitutionality)
1.
The Supreme Court of Justice has jurisdiction to hear
appeals against any of the following court decisions:
a)
Decisions refusing to apply a legal rule on the grounds
of unconstitutionality;
b)
Decisions applying a legal rule the constitutionality of
which was challenged during the proceedings.
2.
An appeal under paragraph (1) (b) may be brought only
by the party who raised the question of unconstitutionality.
3.
Section 154
(Decisions of the Supreme Court of Justice)
Decisions of the Supreme Court of Justice shall not be
appealable and shall be published in the official gazette.
They shall have a general binding effect on processes of
abstract and concrete monitoring, when dealing with
unconstitutionality.
TITLE II
CONSTITUTONAL REVISION
Section 155
(Initiative and time of revision)
1.
It is incumbent upon Members of Parliament and the
Parliamentary Groups to initiate constitutional revision.
2.
The National Parliament may revise the Constitution
after six years have elapsed since the last date on which a
law revising the Constitution was published.
3.
The period of six years for the first constitutional review
shall commence on the day the present Constitution enters
into force.
4.
The National Parliament, regardless of any timeframe,
may take on powers to revise the Constitution by a majority
of four-fifths of the Members of Parliament in full exercise of
their functions.
5.
Proposals for revision should be submitted to the
National Parliament one hundred and twenty days prior to
the date of commencement of debate.
6.
b)
c)
d)
e)
f)
The multi-party system and the right of democratic
opposition;
g)
The free, universal, direct, secret and regular suffrage
of the office holders of the organs of sovereignty, as well as
the system of proportional representation;
h)
i)
The principle of administrative deconcentration and
decentralisation;
j)
k)
Acts committed between the 25th of April 1974 and the 31st
of December 1999 that can be considered crimes against
humanity shall be liable to criminal proceedings with the
national or international courts.
Section 162
(Illegal appropriation of assets )
Illegal appropriation of mobile and fixed assets that took
place before the entry into force of the present Constitution
is considered crime and shall be resolved as provided for in
the Constitution and the law.
Section 163
(Reconciliation)
It is incumbent upon the Commission for Reception, Truth
and Reconciliation to discharge functions conferred to it by
UNTAET Regulation No. 2001/10.
The competencies, mandate and objectives of the
Commission shall be redefined by the Parliament whenever
necessary.
Section 164
(Transitional judicial organisation)
1.
The collective judicial instance existing in East Timor,
integrated by national and international judges with
competencies to judge serious crimes committed between
the 1st of January and the 25th of October 1999, shall
remain operational for the time deemed strictly necessary to
conclude the cases under investigation.
2.
The judicial organisation existing in East Timor on the
day the present Constitution enters into force shall remain
operational until such a time as the new judicial system is
established and starts its functions.
Section 165
(Transitional competence of the Supreme Court of Justice)
1.
After the Supreme Court of Justice starts its functions
and before the establishment of courts as laid down in
Section 129, the respective competence shall be exercised
by the Supreme Court of Justice and other courts of justice.
2.
Until such a time as the Supreme Court of Justice is
established and starts its functions all powers conferred to it
by the Constitution shall be exercised by the highest judicial
instance of the judicial organisation existing in East Timor.
Section 166
(Previous Law)
Laws and regulations in force in East Timor shall continue to
be applicable to all matters except to the extent that they
are inconsistent with the Constitution or the principles
contained therein.
Section 167
(Transformation of the Constitutional Assembly)
1.
The Constitutional Assembly shall be transformed into a
National Parliament with the approval of the Constitution of
the Republic.
2.
In its first term of office, the National Parliament shall
be comprised of eighty-eight members on an exceptional
basis.
Section 168
(Presidential Election of 2002)
The President Elected under UNTAET Regulation No. 2002/01
shall take on the competencies and fulfil the mandate
THE-STORY-OF-PARLIAMENT History of
Parliament 1045 ... by the abolition of the
monarchy and the House of Lords. Oliver
Cromwell, ... supremacy of Parliament.
https://www.parliament.uk/documents/c
ommons-informationoffice/Publications-2015/THE-STORYOF-PARLIAMENT-web.pdf
An Irish homeless man has died after
sleeping out in sub zero temperatures
http://www.tcd.ie/iiis/docu
ments/discussion/pdfs/iiisd
p237.pdf
7
opinion is that the Irish courts willingly acknowledge the
supremacy and direct effect of European law, and are willing
to disapply substantive provisions of national law to give
effect to EU obligations in Ireland.16
In the ordinary course of events, as shown by Pigs and Bacon
Commission, national laws which are contrary to Community
law obligations will not be applied by Irish judges. The
concern of this paper, however, is with the availability in Irish
law of mechanisms for elected Irish politicians to legislate
contrary to directly effective European Community law and
thus avoid the application of part of EC law (what J.H.H.
Weiler would term selective exit from EU obligations17) in
the national legal order.
This paper addresses the question by answering three
questions on the relationship of Community and national law
in Ireland: Do Irish courts recognise an Irish law obligation to
apply treaty obligations in place of contrary Irish law (Pacta
sunt servanda)? Do Irish courts recognise a direct
Community law obligation to apply Community law and
disapply contrary Irish law? And, do Irish courts recognise an
Irish law obligation to apply Community law in place of Irish
legislation expressly contrary to Community law? The paper
then concludes with brief comments on the relationship
16 The following references are typical, as are the frequent
references to a possible exception in the Grogan case
(considered below). F Murphy, 'Community Law in Irish
Courts 1973-1981' (1982) 7 European Law Review 331-345
342: The first general conclusion that may be drawn from
these cases is that the Community legal order with its
attendant doctrine of supremacy has been accepted almost
without question in the Irish legal order.. Hogan and Whyte,
J M Kelly: The Irish Constitution 533: Save for one isolated
and inconclusive instance dealing with abortion [Walsh J in
Society for the Protection of Unborn Children (Ire) Ltd v
Grogan [1989] IR 713] the Irish courts have unhesitatingly
acknowledged the supremacy of Community law.. DR Phelan
and A Whelan, 'National constitutional law and European
integration: FIDE Report' (1997) 6 Irish Journal of European
11
Do Irish courts recognise a direct Community law obligation
to apply European Community law and disapply contrary
national law?
The European Court of Justice claims that European
Community law itself determines the place of European
Community law obligations in the national legal order and
that national judges have a European Community law
obligation to apply European Community law in place of
contrary national law. According to European Community
law, this European Community law obligation on national
judges is direct and unmediated by national statutes and
constitutional provisions27. Irish judges, however, have
repeatedly disagreed with the ECJs claims about the basis of
supremacy and direct effect of European Community law in
the Irish legal order. Rather, Irish judges conceive of the
supremacy and direct effect of European Community law in
the Irish legal order as derivative of the European
Communities Act and the provisions of the Irish Constitution
which introduce European Community law into the Irish legal
order.
Barrington J, in Crotty v An Taoiseach28 in the High Court,
makes clear that Community law is effective in the Irish legal
order only because of Irish legislation in the form of the
European Communities Act:
These acts [the Third Amendment and the deposit of the
instrument of ratification] may have been sufficient to make
Ireland a member of the European Community in
international law as from 1 January 1973. ... But these acts
were not sufficient in themselves to make Ireland an
effective member of the Community. To make Ireland an
effective member as of 1 January 1973 it was necessary to
make the Treaty part of the domestic law of Ireland. To
achieve this it was necessary to pass an Act of the
Oireachtas pursuant to the provisions of Article 29.6 making
the Treaty of Rome part of the domestic law of Ireland and
giving the institutions of the Community a status in Irish
domestic law. Had the Oireachtas not passed the European
Communities Act 1972 Ireland
263-300 299.
15
High Court under the provisions of Article 34.3.2 of the
Constitution. I cannot see on what basis jurisdiction to decide
what is, essentially, a question as to the validity of a law
having regard to the Constitution can be conferred on or
exercised by any other court.33
Again, the implication is that the domestic law basis for the
operation of Community law in Ireland is Irish law, here Irish
constitutional law, as interpreted by the Supreme Court of
Ireland, and not by the European Court of Justice.
Clear statements of the limited and contingent relationship
between Community law obligations and Irish legal
provisions which make European law effective in national law
are less common than the pervasive reliance on those
national acts of reception in adjudicating European
Community law questions in Irish Courts, or on Irish case
law, such as Crotty, which in turn relied on those national
acts of reception. Every time an Irish judge states that they
are applying directly effective Community law because of the
European Communities Act and the Third Amendment to the
Irish Constitution, they derive the basis of European law from
a national legal source which has both the potential for
incompatibility with European Community law and can be
unilaterally changed by the Oireachtas, or, in the case of an
amendment to the Irish Constitution, by the Oireachtas
together with the Irish people.
This conclusion is supported by other Irish court judgments
such as Teresa Tate v Minister for Social Welfare Ireland, and
the Attorney General,34 in which Carroll J stated: This
section [section 2 of the European Communities Act] is the
conduit pipe through which community law became part of
domestic law.35
From the perspective of European Community law, directly
effective European Community law requires no conduit pipe
to become part of domestic law. From the
33 TF O'Higgins, 'The Constitution and the Communities Scope for Stress?' in J O'Reilly (ed) Human Rights and
Constitutional Law: Essays in Honour of Brian Walsh (Round
28
Temple Langs second proposal, a reference to the
importance of the referendum, may reveal a lack of
confidence about what the text of the Third Amendment
specifically provides. All provisions of the Irish Constitution
are important. Surely it could not be argued that an
amendment which provided constitutional immunity for the
application of European Community law in the Irish legal
order but which did not, as Temple Lang put it, confer any
other special status was unimportant. The obligations
that derive from Irish constitutional provisions depend on
their specific meaning. A basic element in establishing the
specific meaning of constitutional and other legal provisions
involves distinguishing whether the matter regulated is
permitted or, alternatively, required. Ireland could have
amended its Constitution to require that European law would
prevail over subsequent legislation inconsistent with the Act
enacting the Treaty, but it did not do so, as Temple Langs
discussion of the amendment itself conceded.
It is worth noting, in this regard, that the Irish government at
the time originally proposed a constitutional amendment
which would have protected from constitutional challenge
measures which were consequent on Irelands membership
of the European Union. When the proposed amendment was
criticised as too broad, the amendment was revised to
protect only measures necessitated by the obligations of
membership.53 Irish courts have maintained a restrictive
view concerning the scope of measures necessitated by the
obligations of membership which benefit from the Third
Amendments protection from constitutional challenge. In
Crotty, the courts found that ratifying the Single European
Act was not necessitated by Irelands obligations of
membership of the EU, with the result that a further
constitutional amendment and thus a referendum was
required for Ireland to ratify the Single European Act and
53 Temple Lang, 'Legal and Constitutional Implications for
Ireland of Adhesion to the EEC Treaty' 169-170.
29
subsequent European treaties.54 Some, like former
would be.68
The reference by Temple Lang to his 1972 article concedes
the traditional view that Ireland would be able to legislate
contrary to Community law, even after the coming into force
of the Draft Treaty establishing the European Union with its
explicit claim of the supremacy of national law, unless the
Irish courts accepted one of Temple Langs three contrary
arguments described above. For the reasons advanced
above, these three arguments are unpersuasive.
Temple Lang was prescient in expecting that Irish legislation
to implement a proposed European treaty containing an
explicit provision on the supremacy of European law would
be likely to replicate the legislation used to implement prior
European treaties. The Irish governments proposed
constitutional legislation the Twenty-eighth Amendment of
the Constitution Bill 2005 to implement the Treaty
Establishing a Constitution for Europe replicates the
structure established by the Third Amendment, with
immunity from constitutional review provided for laws
enacted etc. that are necessitated by obligations of
membership of the European Union.69
On that basis, the relationship of European Community law
and the Irish legal order would remain unchanged, just as
the relationship of European Community law and the Irish
legal order was unchanged in this respect by the passage of
earlier statute legislation and constitutional amendments,
consequent on earlier European treaties, which replicated
the language of the European Communities Act 1972 and the
Third Amendment to the Irish Constitution. The acts of the
European institutions would
68 Temple Lang, 'The Draft Treaty establishing the European
Union and the Member States: Ireland' 248
69Twenty-eighth Amendment of the Constitution Bill [No. 15
of 2005] available at
http://www.europeanconstitution.ie/constitution/TextofBill.pdf
.
41
continue to derive their status in Irish domestic law from the
European Communities Act.
the broadest possible claim implied by omnipotent lawmaking power of the sovereign jurisdictions of the member
states. In the jurisdictions of EU member states, such as
Ireland, it is not so much the constitutional claims of
European Community law that prevent the member states
from legislating contrary to Community law but rather the
fact that the member states persistently refrain from
legislating to limit the effect of Community law in the
national jurisdictions which gives European Community law
its constitutional character.
12,432 Words.
44
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http://www.francisbennion.c
om/pdfs/non-fb/1969/1969001-nfb-is-the-parliamentact-ultra-vires.pdf
Terms of Reference set for independent
investigator to review allegations made in
connection with Banking Inquiry investigation
The terms of reference have been set for the investigation by Mr
Senan Allen SC into allegations made by a member of staff
under the Protected Disclosures Act 2014.
22nd July 2015
Mr Allen has been appointed to conduct an independent review of the
issues raised in a report made by a member of staff of the
Investigation Team, particularly in relation to allegations of irregularity
and that false information was provided to the Banking Inquiry
Committee. It also alleges that investigators assisted participants to
obtain favourable treatment and that conflicts of interest were not
dealt with appropriately. Further, it alleges that information or
documents were leaked to a named journalist.
Under the terms of reference of his investigation, Mr Allen is required
to consider the allegations made by the staff member in the context of
the legislation underpinning the Banking Inquiry, as well as its Terms
of Reference, the time limit on its work and any other relevant factors.
In the context of an agreed Ireland, the GAA would consider curbing the
widespread use of the Irish flag and national anthem. Photograph: Cathal
Changing world
Simon Coveney
I understand Coveney anticipates that what is most likely to
emerge is a system of charges whereby a generous
allowance per person will apply, with usage above that
allowance having to be paid for.
The allowance would be determined by the United Nations
figures of what western adults and children require each day
in terms of water usage.
Michel Martin
Barry Cowens belated openness to a return of charges, as
shown by his interview with Mary Wilson on RT earlier this
week, was illustrative of the divergence of opinion.
In light of the Confidence and Supply deal between Fine Gael
and Fianna Fil, which is underpinning the minority Coalition,
Enda Kenny
As this was a deliberative process between the two parties
and part of the Confidence and Supply arrangement..., it is
obviously necessary to have somebody who is competent,
objective and capable of chairing deliberations, on a
complex issue such as this, as chairman of the Oireachtas
committee, he said.
An Seanadir Cidigh is an outstanding person, a
businessman who is used to seeing clearly through complex
issues and making decisions. I am sure he will fulfil his remit
in this regard in a very clear, objective and fulfilling way. In
that sense, the minister and his opposite number in the
Fianna Fil party discussed who would be appropriate to
chair the committee, Kenny told Adams.
The opposition cried foul. On Thursday, the Dil was
suspended amid complaints from Sinn Fins Eoin Broin
and AAA-PBP TD, Mick Barry.
Mr Barry opposed Government attempts to sneak through a
motion to impose a hand-picked chairperson on the water
committee.
He said: This is an attempt at a stitch-up by Fianna Fil and
the government to sneak through a motion on the chair of
the water committee. It is an attempt to impose a handpicked chairperson.
There is no doubt the opposition to water charges in the Dil
is considerable and such venom is undoubtedly likely to
dominate the airwaves in the wake of the reports
publication next week.
Bottom line is that if Fine Gael and Fianna Fil can agree a
compromise then the opposition from Sinn Fin and the
other hard left TDs may be noisy but irrelevant when the
time to vote comes.
Coveney and the government are hopeful that the past five
months or so will not be in vain and that the expert-led
commission report will give sufficient political cover to
enable them to finally put the thorny issue of water charges
to bed.
But, the stakes are high and the chances of an election as
Follow
Juno McEnroe
Water report recommends funding for normal usage should
come from taxation. Method must be decided though.
Exemptions proposed.
10
2 2 Retweets1 1 like
The report states that Irish Water can play a key role in this
regard not only through educational and information
campaigns but also through providing advice and access to
water conserving devices.
Further measures should also be considered, such as a
requirement that new domestic buildings incorporate water
conserving fittings and an extension of the Building Energy
Rating (BER) Scheme to incorporate water conservation, it
adds.
The Expert Commission recommended that this be reviewed
http://www.irishexaminer.com/breakingnews/ireland/antiausterity-alliance-calls-for-water-protesters-to-polish-theirboots-saying-massive-protests-loom-766239.html
enquiry.
Again thank you for contacting us and we will
be in touch in the near future.
Marie Sutton"
THE FIRST IS THE USUAL YOU EXPECT...
BUT THE LATTER SHOWS THEY HAVE NOT
STUDIED THE SAFETY ASPECTS
THOROUGHLY AND WILL BE HELD IN
NEGLIGENCE IF THEY DON'T ACT... QUICK.
YES, SUCCESS IS NOT FAR...
IT SEEMS THEY DIDN'T FACTOR BABIES
INTO THEIR SAFETY RESEARCH.
Well done. it breaks my heart to think of the
babies being poisoned. Also it is a violation of
the right to bodily integrity. The judge who let
this through knew it at the time but still
compromised our constitution and national
health. It must stop at once. I call on the water
workers to refuse to do this any more.
Seems some one may not like this post and it
was removed. "FG Kate O'Connell how are you
doing?" Still poisoning babies. Best rethink
there.
Nothing to do with fluoride.
We are all going to take the time to watch the
game this evening?
Now. No excuses sing this evening LOUD AND
PROUD.
Sinne Fianna Fil
A t f gheall ag irinn,
buion dr slua
forum.
But charges for commercial customers should
remain in place, the report states.
Special provision should be made for those
with special needs, the reports says.
It adds that there should be an exceptional
waiver scheme administered by the
Department of Social Protection.
It is recommended that the funding model for
investment may have to be "fundamentally"
reassessed given the ongoing need to pay for
infrastructure.
In relation to the hundreds of thousands of
households who have paid, the commission
recommends that "necessary measures"
should be introduced to ensure those who
have paid to date "will be treated no less
favourably than those who have not."
However, the commission - led by Kevin Duffy
- does not state whether this should involve
refunds or the introduction of tax credits.
Those on group water schemes and
households using private wells are also
specifically mentioned. It is stated that these
schemes have proven effective in reducing
consumption and addressing leakage and that
such groups should be assisted through
"greater subsidy or other means".
In relation to metering, the commission states
that meters have been "highly effective" in
detecting leakages.
http://www.constituencycommission.ie/docs/Const
ituency-Commission-Public-Notice.pdf
http://www.irishstatutebo
ok.ie/eli/2013/act/7/enact
ed/en/pdf
Back in 2009, Mayor Ted Clugston was actively opposing the
policy, which pledges to give any person who spends ten
days on the street a home. Today, he has come to realize
that not only does the policy work for the people, but it
works for the govenrnment, too.
"This is the cheapest and the most humane way to treat
people," he told CBC.
Louise Bradley, President and CEO of the Mental Health
Commission of Canada, helped conduct a study that
supported Clugston's claim. The study cost $110 million and
looked at 2,000 people over five different cities, but its
results were invaluable.
What they found was that when homeless people were told
to "get clean" or find other ways to get their lives together
before applying for housing, they inevitably fell back into
cycles of drug use and poverty. That landed them back in
emergency rooms, hospitals, detention centers and shelters
all things that cost tax money.
1
Households will no longer face water charges and will have to pay
bills only if they use the resource in a "wasteful" manner. Stock Image
http://www.independent.ie/irish-news/newwater-tax-to-replace-hated-bills35252950.html
1
Households will no longer face the burden of water charges and will
only have to pay bills if they engage in 'wasteful usage'.
The Dil will then vote in the spring in relation to the options
put forward.
http://www.independent.ie/irish-news/politics/householdswill-not-pay-for-water-except-for-wasteful-usage35252821.html
1
Michel Martin Photo: Colin O'Riordan
1
Thousands of small and medium-sized businesses face hikes in their
water bills. (Stock photo)
1
Fianna Fil leader Michel Martin. Picture: Arthur Carron
said.
Mr Doherty also outlined plans to refund householders who
have already paid their bills.
But he signalled that this refund would not be paid until
January 1, 2018. In the meantime, householders who have
paid a combined 162m in charges will be asked to register
for a refund.
The Donegal TD hit out at Fianna Fail and Fine Gael who he
said are responsible for meters being installed which will
now turn to rust.
But asked what Sinn Fin proposes to do in relation to the
metering programme, Mr Doherty replied:
They will join the voting machines and other disastrous
policies...We are not proposing to dig them up and put them
on display.
Mr Doherty said that under Sinn Fins plans, 130m that
has not been spent on water meters will go towards
improving infrastructure.
Domestic water charges will also be made free for everybody
on water schemes, the party says.
The issue of water charges was raised at Sinn Fins prebudget submission in Dublin City today.
The party says its proposals would raise 1bn in net taxes to
fund spending in the likes of childcare ,health and education.
Key tax proposals include a series of measures aimed at
tackling gold plated pensions, a new 7 per cent higher rate
of tax on incomes of 100,000 and above and the abolition
of property tax.
The partys pre-budget document also proposes to take
workers earning less than 19,572 out of the USC net and
increasing tax credits for the self-employed.
A second home tax would be brought in and set at 400,
while capital acquisition tax would be increased by 3pc to
36pc.
A betting pf 3pc would be brought in by Sinn Fin, while the
party also proposes to scrap the 9pc special VAT rate for
hotels but leave it in place for restaurants. And stamp duty
would also be increased by the party if in government.
The party also claims it would raise over 101m through a
volumetric sugary sweetened drinks tax at a rate of 24.64
per hectolitre.
Other measures announced include reducing TDs salaries to
75,000 and senators salaries to 60,000.
Maternity benefit would rise and there would be a 111m
subsidised childcare scheme for children aged six monthsthree years at a cost.
Responding to suggestions that the childcare scheme is very
similar to Childrens Minister Katherine Zappones proposed
version, Sinn Fin deputy Mary Lou McDonald said there
has been various and mixed messages coming from Cabinet.
But she signalled her party would be prepared to support the
Governments plan if it had merit and is fair.
In terms of housing, Sinn Fin says it will roll out a 491m
social housing programme.
And it says it will build 7,066 additional homes than the
number pledged by the coalition.
http://www.independent.ie/irish-news/water/irish-water-crisis/michelmartin-sinn-fin-playacting-on-water-charges-and-we-wont-supportmotion-to-abolish-35060947.html
1
The EU Environment Commissioner Karmenu Vella
dublin_wastewater EX POST EVALUATION OF INVESTMENT PROJECTS COFINANCED BY THE EUROPEAN REGIONAL DEVELOPMENT FUND (ERDF) OR
COHESION FUND (CF) IN THE PERIOD 1994-1999 DUBLIN WASTE WATER
TREATMENT
http://ec.europa.eu/regional_policy/sources/docgener/evaluation/pdf/projects/dublin_wast
ewater.pdf
I'm not buying it, just as I don't buy the claim that
the Vartry tunnel will collapse or that we will all
have lead poisoning due to old and dilapidated
pipes. One thing the Victorians did well was build
infrastructure. Just like the canals, the grand
houses, lighthouses and railroads they were built to
last and last they will with a bit of maintenance.
Dont' need to be rebuilt, that's just a red herring.
They could come up with any number from 500m to
5 trillion to back up their rationale for continued
existence. But I wouldn't believe a word of any of it.
There is plenty of money to fund water
infrastructure, and if not (which I doubt) they have
1.5bn a year profit as bank shareholders as well as
a corporate tax regime that yields a tiny fraction of
the 12.5% corporation tax that should be paid. They
could do something about that but prefer not to,
because Paddy is a much easier target. They could
have negotiated a deal to eliminate the 2,000
million a year we pay on bank debt that is not ours,
that would fund a lot of houses, water infrastructure
or whatever - but they didn't even ask for it. They
don't want 13,000m from Apple which they could
claim as being part of the EU ruling we must follow,
but they don't. So no, I'm not buying any of this and
I'm not paying a 3rd time for what I already paid for.
The last election gave numerous TD's a mandate to
abolish Irish Water and water charges They have
tried to slither out of it. The main purpose of the
commission is to get people registered by promising
them they will be "exempt" if people accept that the
quango has a contract with them then Irish Water
high five in their spanking new offices
The commission is a stitch up and was so ever
before it was even appointed
http://www.europarl.europa.eu/meetdocs/2009_20
14/documents/envi/pr/892/892948/892948en.pdf
http://www.engineersirelandcork.ie/downloads/8.
%20Katherine%20Walshe%2020-3-13.pdf
Irish Water: Phase 1 Report ... organisational form for
water services delivery in Ireland, ... which will absorb the
National Pension Reserve Commission.
http://www.housing.gov.ie/sites/default/files/migra
tedfiles/en/Publications/Environment/Water/FileDow
nLoad,29194,en.pdf
Report reveals
Irish Water
consultancy
overspend
Updated / Jan. 12, 2014
replacement values.
CERdecisionsprescribetheelementsonwhichIrishWatersregul
atedrevenues are based. Those revenues determine the
profitability of the Irish Water business. As the value of Irish
Waters assets is derived from expected economic returns in
the future, this regulatory regime is critical to valuing the
transferred assets.
Thevalueattributedtoopeningproperty,plantandequipmentisb
asedonthe future return provided for in the regulatory
regime - which consists mostly of liabilities linked to the
opening assets assumed by Irish Water, for which the
regulator has allowed a future return.
1 SI No. 112 of 2015
2 The Minister for the Environment, Community and Local
Government, the Minister for Communications, Energy and
Natural Resources, the Minister for Finance and the Minister
for Public Expenditure and Reform.
Financial Assets
11.11 Financial assets to be transferred to Irish Water mainly
comprise unallocated development levies collected by local
authorities. The Water Services (No. 2) Act 2013 provides for
development levies received by local authorities for the
purpose of investment in water services to be transferred to
Irish Water. A Ministerial Order provided for the transfer from
the local authorities to Irish Water of development levies
received or due to be received.1 Due diligence work is
underway to determine the amounts to be transferred.
Amounts have been agreed with some local authorities and
Irish Water is engaging with the remaining local authorities.
Water Services Related Loans
11.12 Most local authorities had borrowed funds to invest in
water services. Such loans were not transferred to Irish
Water. The Local Government Fund provided local authorities
with 47 million in respect of the service cost of those loans
in 2014.
11.13 The Water Services Act 2014 provided that payments
of up to 460 million may be made to local authorities from
centralgovernmentgrants(intheformofanoperatingsubvention
),capital
contributions and loans
receiptsfromdomesticandnon-domesticcustomers
commercialborrowings.
11.17 The Water Services (No.2) Act 2013 provides that the
Minister for the Environment, Community and Local
Government may make grants to Irish Water from moneys
provided by the Oireachtas and that the Minister for Finance
may make advances to Irish Water from the Central Fund,
subject to such conditions as may be determined. The Act
also provides that Irish Water may borrow up to 2 billion
subject to the approval of relevant Ministers.2
11.18 In 2013 and 2014, Irish Water received a total of 1.2
billion in grants, loans and capital contributions from central
government. Further funding of 1.4 billion is anticipated in
2015 and 2016 (see Figure 11.1).
133 Central Government Funding of Irish Water
134 Report on the Accounts of the Public Services 2014
Figure 11.1 Central Government Funding of Irish Water,
2013 to 2016
Estimated
2015
2016
58
184
399
663
246
58
Total 251 950
645
721
1 General purpose grants were replaced by local
property tax allocations in 2015.
2 Section 6 (2CA) of the Local Government Reform Act 2014
provides for payments from the Local Government Fund to
Irish Water.
Local Government Fund Subvention
11.19 The Local Government Fund provides local authorities
with general purpose grants for funding day-to-day activities.
Up to 2013, the funded activities included water services but
the water-related element of the grants was not specified.
date data.
138 Report on the Accounts of the Public Services 2014
139 Central Government Funding of Irish Water
Conclusion
11.41 The most significant element of central government
funding of Irish Water is a subvention from the Local
Government Fund. The 2014 subvention of 439 million was
based on the amount previously provided to local authorities
for the provision of water services which have transferred to
Irish Water. The audit of the 2014 Local Government Fund is
examining whether the conditions attached to that funding
were met.
11.42 The total subvention from the Local Government Fund
in 2015 and 2016 is expected not to exceed 878 million.
The calculation of the actual amount of the subvention in
each year will be complex as it will depend on the actual
volume of water used by Irish Waters domestic customers,
the number of customer households and the number of
children in respect of whom a water allowance is due. The
payment of the subvention will be examined as part of the
audit of the Local Government Fund from 2015.
140 Report on the Accounts of the Public Services 2014
Annex A Net book value of local authority water services
assets, 2013 to 2014
Local Authority County Councils
Carlow
Cavan
Clare
Cork
Donegal
Fingal
Dun Laoghaire Rathdown Galway
Kerry
Kildare Kilkenny
Laois
Leitrim Limerick Longford
Louth
Mayo
Meath Monaghan North Tipperary Offaly Roscommon Sligo
In the first weeks that I was employed at the bank I already saw
a chaotic situation. Some days we operated within the law, while
on other days we went entirely off limits. Initially, the managing
director and other managers ignored my concerns. They
mentioned technical problems in our information systems and
that there was not a real problem with our liquidity. They claimed
that because I was new in the job, I could not understand these
problems. On the days that we were off limits, we explained in
our daily report that this had happened because of technical
problems, and of course we never informed the Regulator, as we
should have done. After repeated breaches of the limit, I
announced to the managing Director that I did not intend to
pretend that I was blind, and that we should send an official
report to the Central Bank of Ireland. This actually happened at
the end of July, when I personally delivered an official notification
of a liquidity breach, to the office of the financial regulator.
So did the bank face any sanctions?
There was no reaction whatsoever. And this happened when we
had gone as low as 20 per cent below the required minimum
liquidity, while Irish law required us to immediately report a
breach of 1 per cent! In other words, I confessed to the banks
police that I had broken the law, and they, instead of sending
immediately their officers to thoroughly investigate what was
happening in the bank, [the regulator] sent us a letter that
essentially told us that since you confirmed to us that the the
crime had stopped, we are satisfied!
So what did you do then?
Then I tried to find out what these technical problems were. A
banks information system is its Bible. A bank does not keep its
accounts on loose pieces of note paper. If we could not trust the
information systems results, then we would be unable to know
whether we really had sufficient liquidity, or not. As a result, I
called in a company that specialised in [banking] information
systems.
And what was the result of their checking?
They called me at my home one night, in September 2007, and
said You complained to us that you were anxious about your
liquidity falling to 70 per cent, they told me. In fact, your liquidity
is 50 per cent! The next morning I went to the managing director
and handed in my resignation letter.
But what was the cause of low liquidity?
I suspect that our activities were not being accounted for
correctly. Some days we accounted them correctly, on other
days we did not.
But if the cause really was a technical problem, and not some
fraud or some high risk transactions, then why did you not solve
the problem yourself, instead of resigning?
The existence of such a problem shows how amenable to fraud
is the whole system. Recent scandals with non-authorised deals
by traders in the London offices of the Swiss bank UBS, or in
Socit Gnrale in France, prove exactly this fact. If the bank
had failed next day, I would have been held responsible for it,
and according to the law I would go to prison for five years. Put
very simply, I did not want to go to prison.
Why do you believe that you were the only one to have been
afraid of this?
was going on. So, I wonder Is it that your child in Dublin did not
tell you what really happened? Or, even worse, did the Central
Bank of Ireland not tell Banca dItalia the central bank of Italy,
what had happened?
So is your opinion that the central bank of Italy knew about this?
I cannot answer this question. If you want an answer, you might
ask Mario Draghi, who at the time was governor of the Banca
dItalia. This is a very simple question: While you were Governor
of Italys central bank, did you know that the biggest bank in your
country did not know what its Irish child was doing? And if you
were not informed about it, how do you explain that?
Do you believe that the Irish banks failed for similar reasons?
A year after my resignation, within a single night, Irelands
government had to guarantee all of its banks. Perhaps they did
not all face exactly the same problems, but finally they arrived at
the same point. Of course, I wonder where all the risk managers
of these banks are now?
Really, where are they?
They are at a silent moment in time.
And why is all this happening, in your opinion?
It is all part of the big lie which we are all living through. No one
wants to be the first one to admit the problem. Even if we leave
aside the performance of any particular risk manager, the
banking system still has a set of other controls. These include
auditing companies that co-sign the the annual financial reports
and the regulating authorities, the central banks.
So you say that it is not only the banks fault?
It simply cannot be that it is no bankers fault. There are people
who are responsible for signing that everything complies with the
law. Every bank has at least one risk manager; every bank has
at least one chartered accountant; every bank has an external
auditing company. Every country has a central bank, just as
Ireland has the Central Bank of Ireland. Therefore, there are
specific people who are responsible for the fact that the banks in
Ireland needed to be re-capitalised, and these people have a
name and surname. We cannot say, It just happened! or
Daddy, the toy broke! Who broke it? I dont know, it broke by
itself!
But why isnt your story better known?
It is a story that brings discomfort to many people in key
positions at various places.
Can I suppose then that the Central Bank of Ireland did not ask
you what had happened, even after the banks had requested to
be bailed-out?
No, in fact they did call me, twice. The first time, in the month
Now I have greater faith in humanity, and much less faith in the
established authorities, be they politicians, judges, or
functionaries. We, common people, take too seriously all those
people who do nothing to protect small investors or the small tax
payers. They only care for saving the banks.
You sound like a disappointed golden boy who has turned
against a capitalist system that once fed him.
I am not going to enter into this discussion. Whether I am for
capitalism, socialism, or the Left, has nothing to do with the
discussion we are having now. Nineteenth century ideologies
cannot be used to face a twenty-first century crisis. In Ireland at
this moment we have a socialist government that is safeguarding the monetary interests of the capitalist bondholders.
While in Austria, it was the extreme Right wing party that brought
my case to the parliament. Do you see any ideology here?
So you are against the financial system?
This is an interesting question if we wanted [this interview] to be
a philosophical discussion; but this question is not relevant at the
moment. We might barter a kilo of olive oil with a television set,
actually I have seen this with my own eyes and it functions.
However, at the end of the day, if you want a smartphone, you
cannot simply barter for it with olive oil. Therefore, we must have
a common currency. We return then to the starting point of this
discussion. You either have rules and abide by them, or you
have no rules, and everybody does whatever they want. If the
latter is the case, then it would be better if we all knew that.
So what might help create a sound financial system, in your
opinion?
To abide by the law. And enforce the law when it is broken.
Do you remember the day that you handed in your resignation?
I hardly slept the night before. Perhaps we have lost the sense of
what a billion Euro means by now, but up to that day I used to
sign for amounts like that; only in reality they did not exist! I was
sad, and at the same time I felt relieved that I had stopped
participating in a crime. The managing director tried to make me
change my mind, but I would not go back. Also he faced huge
pressure from the dealing room, so at the end the story it
https://www.centralbank.ie/regulation/poldocs/dispapers/Doc
uments/Liquidity%20paper%20%207%20October
%20%2011.pdf
EUROPEAN UNION THE EUROPEAN PARLIAMENT THE
COUNCIL ... (European Banking Authority), ... 2 Opinion of
22 January 2010 .
http://register.consilium.europa.eu/doc/srv?l=EN&f=PE
%2040%202010%20INIT
Follow
Jonathan Sugarman
Care to comment ? ?
wrote THE book abt t collps of
Nice one Ian. Given what I have been told by some of
the great and the good based in Dublin there are no
surprises here. Regulations were routinely ignored
Expert commission
says most should not
pay for water
Updated / Nov. 29,
Water ......................................................................................
.... 49 A5. Irish Water Treatment
Plants ....................................................................................
50 A6. Leakage Comparisons Ireland and the
UK ............................................................... 51 A7. EPA
Remedial Action List Sites and Priority Areas for Waster
Water Enforcement .... 52 A8. Consumption Data from Irish
Water Consumption Research Project ......................... 53 A9.
Comparison of European Tariff
Systems .................................................................... 54 A10.
Combined Volumetric Charges for Non-Domestic
Customers .................................. 56 A11. Financing of Water
Infrastructure Costs in Various
Countries .................................. 57 A12. List of Consultations
................................................................................................
58 A13. Drivers of Household Consumption in
Ireland ......................................................... 60 A14. Letter
from European Commission Directorate General
Environment .................. 61
Summary of Recommendations
The detailed recommendations of the Expert Commission are
set out in Chapter 5 of this report. The principal
recommendations can be summarised as follows:
Public Ownership
As part of the overall approach to settling the issues
addressed in this report, the Expert Commission
recommends that the adoption of a suitable constitutional
provision on public ownership of water services be more fully
addressed by the Special Oireachtas Committee, as part of
its deliberations.
Funding Domestic Water and Wastewater Services
The funding of water services for normal domestic and
personal use should be out of taxation. The question of
whether there should be a dedicated tax, a broadly-based
fiscal instrument, or an adjustment to existing taxes to fund
this requirement would be a matter of budgetary policy.
Special provision should be made for those with special
medical or other needs.
The volume of water necessary to meet the normal
Regulator;
Dr Sarah Hendry, academic lawyer specialising in water and
environmental law,
University of Dundee, Scotland;
Dr Andrew Kelly, CEO of EnvEcon Decision Support;
Dr Xavier Leflaive, Water Team leader, OECD Environment
Directorate;
Ms Gritta Nottelman, strategy consultant for Waternet, The
Netherlands;
Mr Brendan OMahony, Chair of the National Federation of
Group Water
Schemes; and
Mr Peter Peacock, Chair of the Customer Forum for Water
Scotland and former
Scottish Minister
1.3 The Expert Commission formally met on 10 occasions in
the period from July to November 2016.
the Minister for
the Environment, Community and Local Government on 29
June 2016 announced
the establishment of the Expert Commission on the funding
of domestic public water
services in Ireland. The terms of reference of the Expert
Commission were to:
4
1.4 The Expert Commission invited submissions from
interested parties. The Expert Commission also had
presentations from a number of bodies and interested
parties. The total number of parties with whom the Expert
Commission met or from whom submissions were received
was 70.
1.5 Secretarial and research support was provided by the
Institute of Public Administration.
1.6 This report, for submission to the Special Oireachtas
Committee, is set out as follows:
Chapter 2 Chapter 3 Chapter 4
Chapter 5 Chapter 6
sets out some relevant background to water services, water
infrastructure and funding of services in Ireland.
(b)
A proposal to provide or allow for such alienation is
submitted by Plebiscite
for the decision of the People, and
A majority of votes cast in such Plebiscite shall have been
cast in favour of
the proposal.
There was no evidence available to the Expert Commission
that any party is in favour
of privatisation of Irish Water now or in the future. However,
in the course of our
deliberations, including through the process of consultation,
it also became clear to
the Expert Commission that the issue of Irish Water staying
in public ownership
remains critical for many stakeholders and that the
aforementioned provision in the
Water Services Act was not sufficient to allay concerns
about possible future
privatisation. It is also clear that this issue has contributed
to the creation of a
climate of uncertainty and mistrust and represents a barrier
to making progress.
4.3.3 The Expert Commission is also cognisant of the overall
water policy environment and, in particular, the obligations
imposed on Ireland as a member state of the EU arising from
a variety of regulation and directives, including the Water
Framework Directive. Ireland also faces serious challenges in
meeting its obligations under the Urban Waste Water
Treatment Directive and the Drinking Water Directive, and
the consequences of non-compliance are material.
International Law and the Human Right to Water
4.3.4
4.3.5
4.3.6
A number of submissions received by the Expert
Commission advanced the
proposition that there is right to access clean water
enshrined in international law.
currently established.
Figure 1. Overview of Governance and Accountability for Irish
Water
Department of Housing, Planning, Community and Local
Government
Suppliers
Funding
Sources (inc. lenders)
GWS
GWS
GWS
Independent Consumer Consultative Forum (Public Water
Forum)
Environmental and Drinking Water Quality Regulator (EPA)
End Users
Source: Adapted from Figure 39 (p70) in PWC (2011)
28
4.6 Efficiency
4.6.1 In a situation where Irish Water is effectively operating
as a monopoly provider, it is essential to ensure everimproving efficiency in its operation so that the overall costs
of water services are minimised. The UK Walker Report notes
that it is essential that incentives in the system as a whole
are designed to minimise the total costs of providing water
and sewerage services (2009: 120). The role of the
regulator is critical in this regard. A key part of the remit of
the CER is to ensure that water services are provided
economically and efficiently in the interests of the citizen
and taxpayer. In its engagement with the CER as part of this
review, the Expert Commission was informed of the
challenging efficiency targets that have already been set for
Irish Water. The Expert Commission was reassured by the
steps being taken to ensure the ever-improving efficiency of
the utility in the provision of water services but recognises
that there is still significant progress to be made and many
challenges to be met.
4.6.2 It is of utmost importance that all consumers and
taxpayers can be reassured of the ongoing focus on the
efficient provision of water services and that consumers are
30
5. Recommendations
5.1 After reviewing the background evidence from Ireland
and other countries, taking account of the consultations, the
analysis provided in Chapter 4, and the necessity for public
acceptability, the following are the recommendations of the
Expert Commission:
5.1 Public Ownership
5.1.1 Despite the safeguards put in place to date, the issue
of the utility, Irish Water, continuing in public ownership
remains a concern for many. This is creating an obstacle to
making progress on important issues, such as addressing the
serious infrastructural deficit. It is implicit in the Expert
Commissions terms of reference that the utility will remain
in state ownership, and the terms of reference mandate the
Expert Commission make its recommendations on that basis.
5.1.2 It is also abundantly clear from our consultations and
engagement with stakeholders that there is overwhelming
support, including amongst political parties, for retaining
Irish Water in public ownership. Nevertheless, as part of the
overall approach to settling the issues addressed in this
report, further measures are required to alleviate the
concerns of those who believe that the eventual privatisation
of Irish Water remains a possibility.
5.1.3 A number of submissions received by the Expert
Commission urged that the alienation of Irish Water out of
public ownership be made constitutionally impermissible.
While the precise legal mechanism by which clarity and
certainty on this question can be achieved is properly a
matter for the Irish Government and legislature, the Expert
Commission sees considerable merit in that approach.
5.1.4 Accordingly, the Expert Commission recommends that
the adoption of a suitable constitutional provision on public
ownership of water services be more fully addressed by the
Special Oireachtas Committee in its deliberations on this
report.
5.2 The Funding of Domestic Water and Wastewater Services
5.2.1 Having considered various options and the background
to the current situation, the Expert Commission has reached
45
A2. September 2014 Water Charges Plan
In September 2014, the CER decided on and confirmed the
water charges tariffs (taking account of the Ministerial Policy
Direction) that came into effect on 01 October 2014. The
main aspects of the charging regime were:
For households fitted with a meter, charges were based on
usage above a free allowance. Each household would receive
a free allowance of 30,000 litres of water (and a
corresponding amount of wastewater treated) a year.
Households would receive a free allowance to cover a
childs normal consumption of water supplied and
wastewater treated so that charges only apply to adults in
households. The CER determined an allowance of 21,000
litres per child, the figure based on the evidence emerging
from metered consumption data.
The domestic metered tariffs were 2.44 per cubic meter of
water supplied and 2.44 per cubic meter of wastewater.
Households without a meter would be charged on an
assessed basis, using occupancy as the criteria for
assessment.
The following unmetered tariffs (per year) applied:
No. of adult occupants
123456
Water charge 87.84 139.08 190.32 241.56 292.80
344.04
Wastewater Combined charge charge
87.84 $175.68 139.08 278.16 190.32 380.64 241.56
483.12 292.80 585.60 344.04 688.08
In addition:
To help customers transition from assessed charges to
metered charges, there was provision for retrospective
adjustment of charges (including a rebate) where assessed
charges were above a reasonable threshold by comparison
to the subsequent metered usage.
Domestic water charges were to be fixed until the end of
2016.
Customers with a medical condition that required increased
water consumption would have their charges capped at the
A7. EPA Remedial Action List Sites and Priority Areas for
Waster Water Enforcement
52
A8. Consumption Data from Irish Water Consumption
Research Project
Household Water Usage by Occupancy (2014 estimates)
No. of occupants
123456
Litres per person
Litres per household
Per day 181 119 99 88 82 78
Per year 66,228 43,557 36,000 32,222 29,954 28,443
Per day 181 239 296 353 410 468
Per year 66,288 87,114 108,000 128,886 149,772 170,658
Source: Commission for Energy Regulation
(2014: 9)
53
A9. Comparison of European Tariff Systems
54
Table 1. Household Tariff Structures for Drinking Water in
European Countries
55
Table 2. Domestic Wastewater Charge Structures in European
Countries
A10. Combined Volumetric Charges for Non-Domestic
Customers
56
Combined (Water Supply and Wastewater Service)
Volumetric Unit Rate (/m3) for Non-Domestic Customers by
Local Authority Area Source: Department of Housing,
Planning, Community and Local Government submission to
the Expert Commission
A11. Financing of Water Infrastructure Costs in Various
Countries
Financing of Water Infrastructure in Various Countries
(Estimated %)
Investment for Water Sector Development
Water Users & Government Municipalities
Operation and Maintenance Costs
Government 50
Source: Estimates for Spain, France, Canada, Japan, and USA
are from Table 2.2 (p45) in OECD (2012). Estimates for
Ireland are 2015 estimates provided by the Department of
Housing, Planning, Community and Local Government.
Water Users & Municipalities
Spain
France
Canada
Japan
USA 70 30 50 50 Ireland 52 48
70 30 50 50 75 25
0 50-70 0
50 100 50-30 100
100 0
57
A12. List of Consultations
Below is a list of the parties with whom the Expert
Commission met or from whom submissions were received.
Anti-Austerity Alliance People Before Profit Apartment
Owners Network
Athlone Municipal District
Blue Planet Project
Commission for Energy Regulation
Community Group Ballyphenane / South Parish Says No
Dundalk Right2Water
Engineers Ireland
Environmental Pillar
Environmental Protection Agency
EurEau
European Commission Directorate General Environment
European Water Movement
Fine Fil
Fine Gael
Green Budget Europe
Green Party
Gurranabraher Meter Watch
IBEC
IMPACT
http://bdsitalia.org/images/stories/pdfs/letter-ec.pdf
RTE, shows the Government expected Irish ... The
report sets out how Irish Water ... Bord Gais criticizes the
Governments
met.
December 7, 2007: Siteserv posts a 97% increase in
operating profit to 6.3million for the six months
to the end of October reportedly due to its
recent acquisitions. Revenue rose 118% to
35.5million.
February 5, 2008: Siteserv enters British building
market by acquiring a leading UK construction
support services group, called Deborah Services
Ltd., in a 64million deal.
July 15, 2008: Siteserve defies the downturn in
construction to report a 131% rise in pre-tax profit
for its latest year to April 30, 2008. The group
made 12.25million before tax, compared with
5.3million the previous year.
November 11, 2008: Chair of Siteserv Hugh Cooney
is appointed the new chair of Enterprise Ireland.
Its reported he donated 1,000 to Fianna Fils
former Taoiseach Brian Cowens campaign before
the previous general election.
January 30, 2009: Sitservs revenue trebles to
128million, for the six months to the end of
October, up from 35.5million for the same period
last year. Operating profit rose from 6.3m to
13.2m.
July 24, 2009, Irish Independent: Siteservs full-year
profits fell 24%, with pre-tax profits falling to
9.3million in the 12 months to April.
July 26, 2009: Its reported Siteservs net debt is
149million.
donation.
The tribunal sided with Ms Careys account of
events.
A second donation of IR4,000 was made to the
Fine Gael Golf Classic in October 1995. Mr Hogan
was chair of the events organising committee.
Ms Carey told the tribunal Mr OBrien specifically
instructed there be no advertising at the gold
classic. She wrote a letter to Mr Hogan saying: I
understand Denis has requested that there are no
references made to his contribution at the event.
The tribunal found that bank drafts used for the
Wicklow and golf classic payments were
indicative of a desire for secrecy over the
donations.
Before the golf classic, auctioneer Mark
FitzGerald, son of former Taoiseach Garret
FitzGerald, said he got a phone call from Mr
OBrien asking him to come to a meeting at
Lloyds Brasserie in Dublin.
Mr FitzGerald told the tribunal that he was
surprised that, when he arrived, Mr OBrien was
sitting with the late TD Jim Mitchell and Mr Hogan.
He has said that when he arrived he was asked by
Mr OBrien if hed heard anything about the
mobile phone licence competition, which was then
nearing conclusion.
Before he died, the late Mr Jim Mitchell told his
solicitor that he had no memory of any such
meeting.
Mr Hogan told the tribunal the meeting, as
described by Mr FitzGerald, did not take place and
2015.
IBM will receive 44.8m, Accenture will receive
17.2m, Ernst & Young will get 4.6m, while KPMG
and Financial Panel Works will be paid 2.2m. Two
legal firms will receive 3.87m, while 13.3m will
be paid to another 18 contractors.
Its reported that the Government will bring Irish
Water under Freedom of Information legislation
for a period. Its also reported that its likely to be
withdrawn from FOI once its an independent
entity and has built up a track record of accessing
funding itself, which is planned to happen in 2017,
similar to how Bord Gis is excluded.
A series of parliamentary questions reveals that
9.7m was paid to consultant to carry out a range
of reports on policy issues for ministers.
Environment Minister Phil Hogan had the highest
bill, spending 3.4m on 31 reports since Mar 2011
including 179,584 paid to
PricewaterhouseCoopers for consultancy
services on the establishment of Irish Water. A
further 51,789 was paid to the Economic and
Social Research Institute for a report on the
affordability aspects of the provision of water
services in Ireland.
Its reported Irish Water awarded four major
contracts without putting them out to public
competition. Irish Water used exemptions in EU
procurement rules to award contracts for
computer services to four suppliers already
working for parent company Bord Gis, including
CORE Software based in Mitchelstown in Cork, IBM
meters installed.
On the same day, Hilary Quinlan resigns as a
director of Irish Water in order to remove[s] any
doubt or confusion of any potential conflict of
interest.
On the same day, Elizabeth Hourihane, of
Malbaun, Passage West, Cork, is given leave to
commence proceedings challenging the
constitutionality of the decision to set up Irish
Water, on the basis that the government failed to
take account of public and common good acted
wrongly.
On the same day, Sinn Fein leader Gerry Adams,
speaking in the Dail, draws attention to the fact
that under the 1997 Taxes Consolidation Act all
Government Ministers who maintain a second
residence will pay reduced water charges.
October 2, 2014: Michael Noonan announces that
the second residence water charges reduction for
Government Ministers will be removed.
October 3, 2014: Phil Hogan defends sending the
employment CVs of three of his constituents to
Irish Water.
On the same day it is announced that the
Environmental Protection Agency (EPA) is suing
Irish Water over the water standard in
Letterkenny.
October 8, 2014: Fianna Fail leader Micheal Martin,
speaking in the Dail, calls for an amendment to
the legislation to include an ability to pay clause,
something strongly opposed by the government.
Taoiseach Enda Kenny acknowledged a general
http://www.irishexaminer.com/ireland/homelessdeveloping-frostbite-and-trench-foot-432759.html
Dragon's Den businessman Barry OSullivan is selling a home
on the Aran Islands and donating the proceeds to two
homeless charities.
The sale will provide deposits to purchase at least 15 homes
Sen Moran
In the context of an agreed Ireland, the GAA would consider curbing the
widespread use of the Irish flag and national anthem. Photograph: Cathal
Noonan/Inpho
inclusive in that.
Further questioned on what type of agreements he had in
mind, he replied that circumstances were changing.
Changing world
INSTEAD NO WAY
European and
Canadian civil
society groups call
for rejection of CETA
November 28, 2016
GEORGINA O'HALLORAN
said.
Giving evidence on Monday, Det Sgt Brennan said Mr
Foster resisted arrest and said the force used by garda
was proportionate to overcome the resistance offered by
Foster.
The inquest continues today.
https://www.irishtimes.com/news/garda%C3%ADpunched-suspect-who-later-died-inquest-told1.647947
Well done Wayne ! Be prepared for their dirty tricks because they will
try pull every trick in the book to get out of this one.
Why are none of the Lame Stream Media taking Simon and the rest of
Fine Gael to task over this video?
We keep hearing that Irish Water is a National Utility. It's all over the
media even today.
Well according to Simon, Irish Water is not a National Utility at all....
This video was taken back in 2009, at the launch of Simon's brainchild,
NewERA. NewERA outlined a wholesale privatisation agenda for all the
natural resources under State ownership and one such resource was
the water.
So to just let it sink in. Fine Gael had a plan to create a commercial
company from the assets of the State and is driven and run on the
basis of a commercial return and they even knew the NAME of the
company one year before the Troika had even arrived on our shores.
Oh they had a plan for our water alright but it was as a cash cow for
the wealthy banks and financiers and not for the good of the people...
Run on the basis of a commercial return can mean only one thing....
Profits for banks and higher bills for us once the cap is lifted...
An Irish Water commercial Company Pdf doc
https://www.facebook.com/RevolutionIreland
/
Irish Water Programme ... 6.5.1 IWP
Commercial & SLA ... COMPANY
CONFIDENTIAL Irish Water Establishment
Costs Stage 2
https://www.cer.ie/docs/000979/CER14371a
%20%20-%20C4%20-%20Halcrow%20Report
%20-%20Irish%20Water%20Establishment
%20Costs.pdf
http://www.citizensinformationboard.ie/downloads/relate
/relate_2015_11.pdf
http://www.citizensinformationboard.ie/downloads/relate/eu_supplement_2
015_08.pdf
Follow
Paul Murphy
Expert Water Commission recommends water charges under
guise of excessive use. People aren't stupid. If FF go for this
will pay heavy price.
4:41 PM - 29 Nov 2016
14
9 9 Retweets13 13 likes
Source: Oireachtas.ie
and of water.
That, if you reach those European norms, you may then look
at a process whereby people may pay for water over and
above their general taxation.
Martin had said last week that he believed water charges
would not be returning.
He said: We said before the election we were against water
charges. We didnt want water charges. We wanted to abolish
water charges.
Sinn Fin had claimed that Michel Martins party had
more positions than the Kama Sutra on the issue of paying
for water.
In an interview with TheJournal.ie in October of this year,
Fianna Fil TD Thomas Byrne also said the charges were
gone for good.
ES),
[00:41:00-00:45:50] Martin Hasling (Greens/EFA, DE). Before
entering politics, Husling managed his family's 75 hectare
organic farm near Kassel,
[00:45:50-00:47:35] Giulia Moi (EFDD/Movimento 5 Stelle, IT),
[00:47:35-00:49:50] douard Ferrand (ENF/Front National, FR),
[00:49:50-00:53:05] Jan Huitema (ALDE, NL). Together with his
father Huitema owns a dairy farm with 130 cows based in
Makkinga. His slogan for entering the European Parliament was:
"Brussels could use some farmers wisdom",
[00:53:05-00:55:15] Clara Eugenia Aguilera Garca (S&D, ES),
[00:55:15-00:57:45] Marc Tarabella (S&D, BE),
[00:57:45-01:00:30] Michel Dantin (EPP, FR),
[01:00:30-01:02:40] Richard Ashworth (ECR, UK). Before being
elected in 2004 he was a dairy farmer in East Sussex for over
thirty years and during this time operated his own dairy business.
He has also acted as chairman of United Milk Plc and of NFU
Corporate,
[01:02:40-01:05:05] Herbert Dorfmann (EPP/South Tyrolean
People's Party, IT/German speaking),
[01:05:05-01:06:10] Jrn Dohrmann (ECR, DK),
[01:06:10-01:09:15] Marijana Petir (EPP, HR),
[01:09:15-01:11:00] Elisabeth Kstinger (EPP, AT),
[01:11:00-01:13:05] Annie Schreijer-Pierik (EPP, NL),
[01:13:05-01:14:55] Gabriel Mato (EPP, ES),
[01:14:55-01:17:20] Luke Ming Flanagan (GUE/NGL, IE),
https://www.youtube.com/watch?
v=SEZkNIXn5UQ
https://www.youtube.com/watch?
v=ld8jeWawYcY
http://www.ejil.org/pdfs/3/2/2044.pdf
8
of European and national law in the national legal orders of
the member states in general, and on the significance of any
subsequent European treaty which would unlike the
existing European treaties, but like the proposed Treaty
Establishing a Constitution for Europe make explicit
provision for the supremacy and direct effect of European
Community law.
Do Irish courts recognise a Irish law obligation to apply treaty
obligations in place of contrary Irish law (Pacta Sunt
Servanda)?
Article 29.6 of the Irish Constitution states: No international
agreement shall be part of the domestic law of the State
save as may be determined by the Oireachtas.
As a result of Art 29.6, the Irish legal order adopts a dualist
approach to international treaty obligations: international law
is only effective in domestic law as a result of domestic
legislation.
Michael Forde summarises as follows:
Dualism, which is the political-legal tradition in Britain and
in Ireland, may be described as a doctrine of legal
insularity. ... Dualism distinguishes sharply between
international law and municipal law, and holds that
international legal standards become part of national law
only when they are incorporated by legislation into the
states legal system. The fact that a state becomes bound by
a particular treaty has no significance for its own laws; for
the treatys standards to become part of state law requires
that legislation be enacted that contains the treaty
provisions.18
Irish courts therefore do not apply international treaty
obligations in domestic law in the absence of domestic
legislation incorporating treaty obligations.19 Domestic
18 M Forde, Constitutional Law (Second edn, First Law,
Dublin 2004) 235.
19 See for example Phelan and Whelan, 'National
constitutional law and European integration: FIDE Report' 26;
CR Symmons, 'Irlande Ireland' in PM Eisemann (ed)
L'Intgration du droit international et communautaire dans
28
Temple Langs second proposal, a reference to
the importance of the referendum, may
reveal a lack of confidence about what the text
of the Third Amendment specifically provides.
All provisions of the Irish Constitution are
important. Surely it could not be argued that
an amendment which provided constitutional
immunity for the application of European
Community law in the Irish legal order but
which did not, as Temple Lang put it, confer
any other special status was unimportant.
The obligations that derive from Irish
constitutional provisions depend on their
specific meaning. A basic element in
establishing the specific meaning of
constitutional and other legal provisions
involves distinguishing whether the matter
regulated is permitted or, alternatively,
required. Ireland could have amended its
Constitution to require that European law
would prevail over subsequent legislation
inconsistent with the Act enacting the Treaty,
but it did not do so, as Temple Langs
discussion of the amendment itself conceded.
It is worth noting, in this regard, that the Irish
government at the time originally proposed a
constitutional amendment which would have
protected from constitutional challenge
measures which were consequent on
Irelands membership of the European Union.