Farmer loses Lisbon challenge

A farmer has been refused leave to bring a High Court challenge to the government’s decision to hold a second referendum on the Lisbon Treaty.

John Burke had claimed the government was not entitled under the Constitution to put an “identical” proposal before the people on October 2nd next when they had already rejected the Lisbon Treaty last year.

“In my business, a deal is a deal,” Mr Burke said. “A vote is a vote, a result of a referendum is a result, No is not Yes and that’s the Ireland I come from.” It is the people who “call the shots” in a democracy, he added.

The Taoiseach had said the people had to vote again because they were “misinformed” when they voted last year but this “borders on weird” as the Taoiseach had admitted he had not read the Treaty, Mr Burke said. The Treaty cannot co-exist with the Constitution, he argued.

Donal O’Donnell SC, for the Attorney General, Taoiseach, Minister for Justice and the DPP, argued there was nothing in the Constitution preventing the people voting on the Treaty a second time.

Two referendums were held in 1958 and 1967 in an effort to change the system of election by proportional

representation and the people were twice asked to rermove the constituiinal ban on divorce, he noted.

Counsel also argued the procedure under Article 46 for holding a referendum was already in train, Mr Burke’s objection was to the content of the referendum, not that procedure, and the court could not intervene to halt the procedure.

In his decision, Mr Justice Liam McKechnie ruled Mr Burke, Duncummin House, Emly, Co Tipperary, had failed to show he had an arguable case and therefore was not entitled to bring his judicial review challenge.

On the application of Mr O’Donnell, the judge also awarded costs against Mr Burke, who represented himself. A small number of supporters of Mr Burke were in court.

Mr Justice McKechnie found the court could not prevent, in the circumstances of this case, the implementation of the legislative and constitutional procedures associated with the referendum.

Article 46 of the Constitution provides any provision may be amended in the manner provided for by that Article, those procedures had been put into effect and no illegality was suggested in that regard, he said. The court could not embark on a consideration of the Bill being put before the people.

In the past 50 years, other issues, including proportional representation, divorce, abortion and the Nice Treaty had been put before the people on more than one occasion, he noted.

While that history in itself “would not be absolutely conclusive”, it was “strongly indicative of a legal acceptance, if not a view, that the putting of an identical question more than once is permitted by the Constitution”.

The judge noted the State, while stating there were important changes of significance since the people last voted on the Lisbon Treaty, had said it was prepared to meet Mr Burke’s case on the basis the question being put on October 2nd was the same as that put in June 2008.

The State’s argument the people could be asked more than once to vote on an issue was “compelling” because, if the people could decide a matter only once, that would effectively disenfranchise people in the future from expressing their view.

Issues change and it would be “highly surprising” to read the Constitution as preventing people expressing a view on an issue previously voted upon. The Constitution contained no such provision.

The people are “well capable” of deciding an issue on a second occasion and it was for the people to express their view on October 2nd next, he concluded. That was democracy working at its “most fluid”.