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Petition to President to call for a Referendum on ESM Treaty

Posted by on January 9, 2012 · Leave a Comment 

Dear Sir /Madam

The People’s Association Watchdog have petitioned the President to request that he use the powers of his office to call for a referendum on the ESM treaty.

We are completely opposed to Enda Kenny TD seeking to use the judgement of the Attorney General to define such a crucial issue without the consent of the people of Ireland.

Please find attached a copy of the letter that was sent to President Michael D. Higgins.

Yours Sincerely

Patrick Grant

People’s Association Watchdog
www.paw.ie

His Excellency Michael D. Higgins

Áras an Uachtaráin

Phoenix Park

Dublin 8

A Uachtaráin,

It is my assertion that the current government of the Irish Republic is attempting to initiate changes that will negatively impact the welfare of the people of Ireland.

An Taoiseach, Enda Kenny T.D. is seeking to circumvent the initiation of a referendum by seeking to have a ruling from the Attorney General which will deny the people of Ireland our constitutional right to self determination which is also a principle of international law.

I am hereby petitioning you with respect in your capacity as Uachtarán na hÉireann to invoke your powers under Article 27.5.1 to call a referendum on the ESFS/ESM bill, a proposal I believe is of such national importance that the will of the people should be accordingly ascertained.

Article 15.4.1° The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.

I believe that the proposed bill would be repugnant to Bunreacht na hÉireann with respect to:

Article 1

The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.

Article 5

Ireland is a sovereign, independent, democratic state.

Article 6

  1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
  2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.

Article 9

  1. Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens.

Article 10

  1. All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.

Article 11

All revenues of the State from whatever source arising shall, subject to such exception as may be provided by law, form one fund, and shall be appropriated for the purposes and in the manner and subject to the charges and liabilities determined and imposed by law

Precedence

We would ask you to consider:
Crotty v. An Taoiseach 1987 which established that significant changes to European Union treaties required an amendment to the constitution before they could be ratified by the state. This would require a referendum.

The words of Mr. Justice Hederman in relation to the ratification of the Single European Act

The court held that it is not within the competence of the Government, or indeed of the Oireachtas, to free themselves from the restraints of the Constitution, or to transfer their powers to other bodies, unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution.
(9 April 1987, Supreme Court 1986 No. 12036P):
‘It appears to me that the essential point at issue is whether the State can by any act on the part of its various organs of government enter into binding agreements with other states, or groups of states, to subordinate, or to submit, the exercise of the powers bestowed by the Constitution to the advice or interests of other states, as distinct from electing from time to time to pursue its own particular policies in union or in concert with other states in their pursuit of their own similar or even identical policies.

The State’s organs cannot contract to exercise in a particular procedure their policy-making roles or in any way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers not the disposers of them.’

The court held that it is not within the competence of the Government, or indeed of the Oireachtas, to free themselves from the restraints of the Constitution, or to transfer their powers to other bodies, unless expressly empowered so to do by the Constitution.

Mr Justice Walsh reminded us:
Article 6 of the Constitution refers to the powers of government as being derived from the people, whose right it is to designate the rulers of the State “and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”

It must follow therefore that all the powers of government are to be exercised according to the requirements of the common good… The essential nature of sovereignty is the right to say Yes or to say No.

I would like to draw your particular attention to certain articles of the Treaty Establishing the European Stability Mechanism (ESM) presented in Brussels on July 11th 2011 which clearly show a loss of sovereignty to the people of Ireland should it be ratified:

ARTICLE 3

The purpose of the ESM shall be to mobilise funding and provide financial assistance, under strict economic policy conditionality, to the benefit of ESM Members which are experiencing or are threatened by severe financing problems, if indispensable to safeguard the financial stability of the euro area as a whole. For this purpose, the ESM shall be entitled to raise funds by issuing financial instruments or by entering into financial or other agreements or arrangements with ESM Members, financial institutions or other third parties.

ARTICLE 4

2. The decisions of the Board of Governors and the Board of Directors shall be taken by mutual agreement, qualified majority or simple majority as specified in this Treaty. In respect of all decisions, a quorum of 2/3 of the members with voting rights representing at least 2/3 of the voting rights must be present.

4. The adoption of a decision by qualified majority requires 80 % of the votes cast.

5. The adoption of a decision by simple majority requires a majority of the votes cast.

6. The voting rights of each ESM Member, as exercised by its appointee or by the latter’s representative on the Board of Governors or Board of Directors, shall be equal to the number of shares allocated to it in the authorised capital stock of the ESM as set out in Annex II.

7. If any ESM Member fails to pay any part of the amount due in respect of its obligations in relation to paid-in shares or calls of capital under Articles 8, 9 and 10, or in relation to the reimbursement of the financial assistance under Article 14 or 15, such ESM Member shall be unable, for so long as such failure continues, to exercise any of its voting rights. The voting thresholds shall be recalculated accordingly

ARTICLE 5

6. The Board of Governors shall take the following decisions by

mutual agreement:

(a) to issue new shares on terms other than at par, in accordance with

Article 8(2); T/ESM/en 12

(b) to make the capital calls, in accordance with Article 9(1);

(c) to change the authorised capital stock and adapt the maximum

lending volume of the ESM, in accordance with Article 10(1);

(k) to make adaptations to this Treaty as a direct consequence of the

accession of new members, including changes to be made to the

distribution of capital among ESM Members and the calculation of

such a distribution as a direct consequence of the accession of a new

member to the ESM, in accordance with Article 39

(f) to establish other funds, in accordance with Article 20;

(g) on the actions to be taken for recovering a debt from an ESM

Member, in accordance with Article 21(2) and (3)

(k) to waive the immunity of the Chairperson of the Board of

Governors, a Governor, alternate Governor, Director, alternate

Director or the Managing Director, in accordance with Article 30(2)

(n) any other necessary decision not explicitly provided for by

this Treaty

ARTICLE 8 in its Entirety

ARTICLE 9 in its Entirety

ARTICLE 10 in its Entirety

ARTICLE 11 in its Entirety

ARTICLE 12 in its Entirety

ARTICLE 13

7. The European Commission – wherever possible together with the IMF, and in liaison with the ECB – shall be entrusted with monitoring the compliance with the economic policy conditionality attached to the financial assistance. On the basis of the report of the European Commission, the Board of Directors shall decide, by mutual agreement, on the disbursement of the tranches of the financial assistance subsequent to the first tranche.

ARTICLE 21

Coverage of losses

1. Losses arising in the ESM operations shall be charged:

(a) firstly, against the reserve fund;

(b) secondly, against the paid-in capital; and

(c) lastly, against an appropriate amount of the authorised unpaid

capital, which shall be called in accordance with Article 9(3)

2. If an ESM Member fails to meet the required payment under a capital call made pursuant to Article 9(2) or (3), a revised increased capital call shall be made to all ESM Members with a view to ensuring that the ESM receives the total amount of paid-in capital needed. The Board of Governors shall decide an appropriate course of action for ensuring that the ESM Member concerned settles its debt to the ESM within a reasonable period of time. The Board of Governors shall be entitled to require the payment of default interest on the overdue amount.

ARTICLE 22

The Board of Directors shall approve the ESM budget annually

ARTICLE 23

1. The Board of Governors shall approve the annual accounts of the ESM.

ARTICLE 27

  1. To enable the ESM to fulfil its purpose, the legal status and the privileges and immunities set out in this Article shall be accorded to the ESM in the territory of each ESM Member. The ESM shall endeavour to obtain recognition of its legal status and of its privileges and immunities in other territories in which it performs functions or holds assets.
  2. The ESM shall have full legal personality; it shall have full legal capacity to:

(a) acquire and dispose of movable and immovable property;

(b) contract;

(c) be a party to legal proceedings; and

(d) enter into a headquarter agreement and/or protocols as necessary for ensuring that its legal status and its privileges and immunities are recognised and enforced.

  1. The ESM, its property, funding and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that the ESM expressly waives its immunity for the purpose of any proceedings or by the terms of any contract, including the documentation of the funding instruments.
  2. The property, funding and assets of the ESM shall, wherever located and by whomsoever held, be immune from search, requisition, confiscation, expropriation or any other form of seizure, taking or foreclosure by executive, judicial, administrative or legislative action.
  3. The archives of the ESM and all documents belonging to the ESM or held by it, shall be inviolable.
  4. The premises of the ESM shall be inviolable.
  5. The official communications of the ESM shall be accorded by each ESM Member and by each state which has recognised the legal status and the privileges and immunities of the ESM, the same treatment as it accords to the official communications of an ESM Member.
  6. To the extent necessary to carry out the activities provided for in this Treaty, all property, funding and assets of the ESM shall be free from restrictions, regulations, controls and moratoria of any nature.
  7. The ESM shall be exempted from any requirement to be authorised or licensed as a credit institution, investment services provider or other authorised licensed or regulated entity under the laws of each ESM Member.

ARTICLE 30

  1. In the interest of the ESM, the Chairperson of the Board of Governors, Governors, alternate Governors, Directors, alternate Directors, as well as the Managing Director and other staff members shall be immune from legal proceedings with respect to acts performed by them in their official capacity and shall enjoy inviolability in respect of their official papers and documents.
  2. Each ESM Member shall promptly take the action necessary for the purposes of giving effect to this Article in the terms of its own law and shall inform the ESM accordingly.

ARTICLE 31

  1. The ESM Members shall, wherever possible, take the appropriate measures to remit or refund the amount of indirect taxes or sales taxes included in the price of movable or immovable property where the ESM makes, for its official use, substantial purchases, the price of which includes taxes of this kind.
  2. No taxation of any kind shall be levied on any obligation or security issued by the ESM including any interest or dividend thereon by whomsoever held:

(a) which discriminates against such obligation or security solely because

of its origin; or

(b) if the sole jurisdictional basis for such taxation is the place or currency

in which it is issued, made payable or paid, or the location of any office or

place of business maintained by the ESM.

ARTICLE 36

  1. Without prejudice to paragraph 2, payment of paid-in shares of the amount initially subscribed by each ESM Member shall be made in five annual instalments of 20 % each of the total amount. The first instalment shall be paid by each ESM Member within fifteen days of the date of entry into force of this Treaty, but not earlier than 2 January 2013. The remaining four instalments shall each be payable on the first, second, third and fourth anniversary of the payment date of the first instalment.
  2. During the five-year period of capital payment by instalments, ESM Members shall provide, in a timely manner prior to the issuance date, appropriate instruments in order to maintain a minimum 15 % ratio between paid-in capital and the outstanding amount of ESM issuances.

ARTICLE 37

Temporary correction of the contribution key

  1. At inception, the ESM Members shall subscribe the authorised capital stock on the basis of the initial contribution key as specified in Annex I. The temporary correction included in this initial contribution key shall apply for a period of twelve years after the date of adoption of the euro by the ESM Member concerned.

A Uachtaráin, this Treaty Establishing the European Stability Mechanism is planned to be deposited with the General Secretariat of the Council of the European Union no later than 31 December 2012, once deposited it will come into force on the 1st day of February 2013.

It is beyond all doubt that such measures as mentioned above are of paramount importance to the people of Ireland and as such should be put to referendum with clear unbiased detailed information made widely available to every citizen in order to ensure informed consent is given or withheld in this matter.

Yours Sincerely with respect and in honour

____________________________­­­­

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