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The Council of State, Atheists and Impaired Politicians


Michael D Higgins, our esteemed President, is about to convene a meeting of the Council of State to help him decide whether of not he should refer the Protection of Life During Pregnancy Act to the Supreme Court for a test of its constitutionality.  If the court judges that the Act is constitutional, it becomes bullet-proof and can never again be challenged on those grounds.  On the other hand, the court might strike the Act down in its entirety and then we’re all back on the same merry-go-round yet again – the government’s nightmare outcome, and mine too, if I must be honest.  Another six months of listening to the Iona Institute people would just about finish me off.

michael d higgins

The President isn’t obliged to take whatever advice the Council offers him, but he must consult them before he sends an Act to the Supreme Court, so I thought it might be useful to explain how this Council is made up. According to Article 31 of the constitution, it consists of the current Taoiseach and Tánaiste, or, for those unfamiliar with ludicrously pompous feudal Gaelic terms, the prime minister and deputy prime minister.  Likewise, the Chief Justice, the President of the High Court, the Chairmen of the Dáil and the Senate (soon to be abolished if Enda gets his way) and the Attorney General. All former prime ministers are automatically members, though they must be willing and able, which brings up a difficulty I’ll come back to in a minute. In addition, the President can appoint seven nominees at his absolute discretion. The current members are as follows.

Enda Kenny Taoiseach
Éamon Gilmore Deputy taoiseach
Sean Barrett Chairman of the Dail
Paddy Burke Chairman of the Senate
Susan Denham Chief Justice
Nicholas Kearns President of the High Court
Maire Whelan Attorney General
Mary Robinson Former President
Mary McAleese Former President
Liam Cosgrave Former Taoiseach
Albert Reynolds Former Taoiseach
John Bruton Former Taoiseach
Bertie Ahern Former Taoiseach
Brian Cowen Former Taoiseach
John Murray Former Chief Justice
Thomas Finlay Former Chief Justice
Ronan Keane Former Chief Justice
Michael Farrell, Presidential Nominee
Deirdre Heenan, Presidential Nominee
Catherine McGuinness, Presidential Nominee
Gearóid Ó Tuathaigh, Presidential Nominee
Ruairí McKiernan, Presidential Nominee
Sally Mulready, Presidential Nominee
Gerard Quinn Presidential Nominee

The first hurdle occurs with our beloved deputy Prime Minister, Éamon Gilmore.  Éamon, you see, describes himself as an agnostic, but because our constitution is so deeply mired in the confessional swamp that was the Ireland of 1937, every member of the Council must swear an oath, as follows:

In the presence of Almighty God I, Joe Soap, do solemnly and sincerely promise and declare that I will faithfully and conscientiously fulfil my duties as a member of the Council of State.

As a non-believer, Éamon found himself conflicted by this and took legal advice, but it seems he’s happy enough to swear in the presence of a deity he doesn’t believe in, and I suppose he’s right.  After all, the wording seems carefully constructed to give atheists a way out, since it doesn’t require him to swear to Almighty God, as happens in the courts, unless a witness chooses the option toaffirm.  It simply requires him to promise and declare in the presence of the non-existent deity.  Look, he’s a politician, well-used to believing two different things at the same time. Besides, the preamble to the Constitution is far worse.  How’s this for inclusivity?

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking to promote the common good, with due observance of Prudence, Justice and Charity,  so that the dignity and freedom of the individual may be assured, true social order attained, the  unity of our country restored, and concord established with other nations,Do hereby adopt, enact, and give to ourselves this Constitution.

Nice.  How does that work with Jews, Muslims, Hindus and people of no religion who also happen to be Irish citizens?  The most holy trinity from whom all authority derives.  That’s a theocracy, last time I checked. How does our Justice Minister, Alan Shatter, who happens to be a Jew, feel about his constitution acknowledging his obligations to our divine lord, Jesus Christ?

That’s Ireland for you, and Britain too, where the Queen is the head of the established church, lest anyone be too quick to sneer, but let’s get on with the Council of State.

Besides the atheist who’s happy to swear in the presence of a god he doesn’t believe in, we have five former prime ministers, four of whom assiduously dodged the problem of the X Case judgement.  One of them, John Bruton, is already on record as opposing the current Act on religious grounds.  Two others —  Brian Cowen and the man in the cupboard, Bertie Ahern — are responsible for crashing our country into a gigantic brick wall while another, Albert Reynolds, declined to give evidence to a tribunal of inquiry into planning corruption on the grounds of cognitive impairment.  In other words, he couldn’t remember an Irish military helicopter ferrying him to a secret meeting with a property developer and he had no memory of the government Learjet diverting to an unscheduled rendezvous in Bermuda.  Poor man’s mind is gone, sadly.  And yet, here he is, sitting on the Council of State.

Old Liam Cosgrave meanwhile, still hale and hearty at 92 years of age, will go down in history as the Taoiseach who voted against his own government on contraception legislation due to his strong Catholic beliefs.

There isn’t any set procedure laid down for how the meeting will be conducted, however, and Michael D is a wily old guy, so perhaps it will be closely circumscribed.  He might decide simply to ask them a legal question: in your opinion, is this Act constitutional or not?

If we exclude Brian Cowen on the arbitrary grounds that he completed the crash started by Ahern, that he’s only a small-town solicitor who never practised much anyway and that I just don’t like him, we still have eight senior lawyers who should be able to advise Michael D dispassionately. What will the others advise him on?  Who knows? I suppose Da Bert could give him a tip on ahorse and Cowen could offer his opinions on nude portraiture.  Bruton could entertain everyone with his famous party laugh and Cosgrave could re-enact his world-renowned Crossing of the Floor, the original Riverdance but with added hypocrisy.

Let’s not forget the ferment of rage that must be taking place in this assembly of the great and the good.  How does the chairman of the Senate feel about the current prime minister who supports this act and yet who wants to abolish the very House he presides over?  I’m only speaking personally here, but I think I’d feel tempted to shaft Enda one last time before being abolished.  Clearly, Mr Burke is a far more professional individual than I am and would never dream of sinking so low, but still, human nature is what it is.  I’d knife him.

I’m fascinated by the process, since it’s not laid down anywhere that I can find.  Where will they hold the meeting?  What time will it happen?  Will Michael D supply the drink or will they all turn up with slabs?  Will they drive or come in taxis?  Will they have a barbecue?  Will someone make a CD mix? The weather is really great at the moment although you can’t be too careful.  Lately there’s been a lot of thunderstorms but that’s to be expected with all the heat, so maybe they should set up a gazebo and everyone could huddle inside it together if there’s a sudden downpour.  It would make for a cheerful atmosphere, and they’ll get along much better after getting to know each other. I’d say they’ll make burgers and maybe put out some nachos with a cheese dip.  What do you think?  Spare ribs?  Red stuff all over your face?  Send Bruton down to the off-licence for more ice. Michael D might even read them some of his poetry before leading them to the overwhelming question: what’ll we do? Ah, I don’t know.  That’s why I’m not the president, the chief justice or even a spiv in a yellow suit hiding in a cupboard.

Thankfully.

 

VIA

http://bocktherobber.com/2013/07/the-council-of-state-atheists-and-impaired-politicians/

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Fallout from NSA surveillance program disclosures spreads


The fallout from the recent disclosures of the National Security Agency’s secret surveillance programs continues to spread.

Martin Rowson 10.06.2013

On Monday, the European Parliament Civil Liberties Commission voted overwhelmingly to investigate the privacy and civil rights implications of the NSA’s PRISM and other spy programs on European citizens, and demanded more information on the programs from U.S. authorities.

In a resolution, the Parliament called on member nations to also consider suspending any counter-terrorism related data transfer arrangements — such as airline passenger records — they might have with the U.S. until better protections become available for the data.

EPIC asks Supreme Court to stop NSA surveillance

Meanwhile, in a separate development, the Washington-based rights group Electronic Privacy Information Center (EPIC) filed a petition with the U.S. Supreme Court challenging the legal basis that the NSA is using to collect the phone records of tens of millions of Americans.

EPIC’s petition asked the Supreme Court to immediately halt the NSA’s domestic surveillance activities saying the agency has no reasonable basis for conducting such surveillance.

The developments are the latest in a string of events that began when NSA contract worker Edward Snowden leaked documents describing secret U.S. surveillance programs to the media. The documents describe various NSA data collection around the world, and have caused widespread concern about dragnet NSA surveillance activities not just within the United States but outside the country as well.

The EU resolution, which was passed by a margin of 483 votes to 98 (with 65 abstentions), is one measure of the concern stoked by Snowden’s revelations. It strongly condemned the NSA’s alleged activities and urged U.S. authorities to provide the EU with full information on the secret surveillance disclosed by Snowden.

“Parliament’s Civil Liberties Committee will conduct an ‘in-depth inquiry’ into the US surveillance programs, including the bugging of EU premises and other spying allegations, and present its results by the end of this year,” a statement from the Parliament noted. “It will assess the impact of the alleged surveillance activities on EU citizens’ right to privacy and data protection, freedom of expression, the presumption of innocence and the right to an effective remedy.”

The Snowden affair has strained Washington’s relationships with other countries as well. Over the weekend, Brazil for instance, expressed “deep concern” over a report in The Guardian newspaper about U.S. intelligence agencies tapping electronic and phone communications of Brazilian citizens.

In a press statement, the country’s Minister of External Relations, Antonio Patriota, said Brazil’s government has sought clarifications from Washington on the nature of the NSA surveillance activities in that country.

Several other Latin American countries have also expressed displeasure at Washington after a recent incident in which the plane carrying Bolivian President Evo Morales was forced into making an unscheduled stop in Austria on the suspicion that Snowden was on board.

U.S. relations with Russia and China too have taken a hit over the Snowden affair. The U.S. government has accused both countries of not doing enough to extradite Snowden when they have had the ability to do it. Russia’s President, Vladimir Putin, has flatly said his country will not deport Snowden back to the United States.

Snowden is currently believed to be in the transit lounge at Moscow’s Sheremetyevo airport, where he is evading U.S. authorities. He flew into Moscow from Hong Kong more than two weeks ago.

via Fallout from NSA surveillance program disclosures spreads – ComputerworldUK.com.

Racism’s Big Comeback In America by MICHAEL D’ANTUONO


America is returning to what it once was. Unfortunately, I’m not referring to its former dominance as the world’s only super power or its economic peak, but rather its racist roots. How can I say that when we have a (half) black president? Just read the news.

The Supreme Court just undid 48 years of racial progress by dismantling the 1965 Voting Rights Act. It took the great state of Texas less than two hours to enact the most stringent voter ID law in the country. And now they are working furiously at redistricting their voting maps to further disenfranchise minorities. These measures were previously considered in violation of the now defunct Voting Rights Act.

Turn the page of your newspaper (or nook) and you can read about the George Zimmerman trial. Unless you are one of the 6 women jurors in the case, you’ll recall that an armed man (Zimmerman) told 911 that he was pursuing an unarmed teenager (Trayvon Martin) who happened to have wound up dead by Zimmerman’s gun. He also happened to be black. Incredulously, the police did not hold Zimmerman or even take his gun until a month of public outrage embarrassed them into arresting him.

Now the prosecution is claiming self-defense and trying to paint the 17-year-old victim as a dangerously aggressive drugged out hoodlum. I admit that I’ve been accused of painting the situation too far in the other direction in my piece “A Tale Of Two Hoodies.” But then I’m an artist visually representing the overall problem of racism, not a lawyer in a court of law distorting facts to misrepresent the actual events.

The fact that Zimmerman called Martin “a suspicious person” with nothing more to go on other than he was a black youth wearing a hood suggests racial profiling by an individual. The fact that the police initially chose not to even charge Zimmerman suggests racism in the police force. The fact that the Supreme Court made it possible for Texas, along with many other states, to create voting restrictions aimed to suppress minorities from voting suggests a racist government. Sadly, it seems America is becoming a shining example of backwards progress in social and racial justice.

-Michael D’Antuono

http://www.ArtandResponse.com

via Racism’s Big Comeback In America by MICHAEL D’ANTUONO | The Everlasting GOP Stoppers.

Senator David Norris seriously ill with cancer


SENATOR DAVID NORRIS is undergoing medical treatment for a serious cancer, he revealed today.

The Dublin-based politician issued a statement in response to a number of media inquiries concerning his health and well-being.

He thanked the team of consultants at St. Vincent’s Private Hospital for the “superb treatment” he has received and confirmed that the illness appears to be related to an initial incidence of viral hepatitis contracted in eastern Europe in the mid-1990s.

The 68-year-old said he will return to work in the coming days.

The statement in full:

My office has been contacted in recent days by sections of the press making inquiries concerning my state of health and general medical condition. The following statement will I hope provide an adequate response.

I am currently undergoing medical management for a serious cancer condition. I am extremely grateful for the superb treatment I have received from the team of consultants at St. Vincent’s Private Hospital as well as the nursing and general hospital staff.

The cancer appears to be related to the initial incidence of viral hepatitis which I contracted from tainted drinking water while I was on unpaid Government business in Eastern Europe in 1994.

I have no difficulty in making this information public in response to press queries because I believe that there should be no stigma attaching to cancer as a disease. I continue to enjoy life and am looking forward to returning to my duties in Seanad Eireann over the next few days.

Senator David Norris.

Footnote:

The Man who nearly became Ireland’s first Gay President

The move to make homosexual acts no longer illegal followed a 16-year-old legal battle which began in 1977, when Senator David Norris began a case against Ireland’s draconian laws. Norris’s case came before the High Court in 1980, where it was rejected, and before the Supreme Court in 1983, where it was also rejected by five judges who found that the laws which made homosexual acts a crime did not contravene the Constitution.

Norris then took the case to the European Court of Human Rights, with the help of Mary Robinson, where judges finally ruled that Irish laws contravened the Convention on Human Rights. Five years later, the laws were changed.

“The passage of the Bill was one of the most important steps in the liberation of gay people in Ireland,” said Rose. “It led to new generations of lesbian and gay people able to live their lives more openly.”

via Senator David Norris seriously ill with cancer · TheJournal.ie.

Supreme Court rules for Monsanto in Indiana farmer’s GM seeds case


The US Supreme Court came down solidly on the side of the agricultural giant Monsanto on Monday, ruling unanimously that an Indiana farmer could not use patented genetically modified soybeans to create new seeds without paying the company.

The case – which was cast by the farmer’s supporters as a classic tale of David vs Goliath – could well dictate the future of modern farming.

In an unanimous ruling written by Justice Elena Kagan, the court ruled that the farmer, Vernon Bowman, had infringed on Monsanto’s patent for its GM soybeans when he bought some of those seeds from a local grain elevator and planted them for a second, late-season crop. Monsanto sued, arguing that Bowman had signed a contract when he initially bought the Roundup Ready soybeans in the spring, agreeing not to save any of the harvest for replanting. The seeds are genetically modified to be resistant to Roundup Ready weedkiller.

By the start of this year, Monsanto had filed 144 lawsuits against 466 farmers and small farm businesses alleging patent infringement, according to a report from the Centre for Food Safety which has championed Bowman’s case.

The report noted that three big companies now control more than half of the global seed market – a position that has sent prices soaring. The report said the average cost of planting an acre of soybeans had risen 325% between 1995 and 2011.

via Supreme Court rules for Monsanto in Indiana farmer’s GM seeds case | Environment | guardian.co.uk.

via Supreme Court rules for Monsanto in Indiana farmer’s GM seeds case | Environment | guardian.co.uk.

GAP Files Supreme Court Amicus as Detained, Tortured Whistleblowers take on Rumsfeld – Government Accountability Project


On March 11, 2013, GAP filed an amicus brief in support of a petition for certiorari to the Supreme Court in the case of Vance v. Rumsfeld. Petitioners Donald Vance and Nathan Ertel are U.S. citizens who worked as private security contractors in Iraq. Beginning in 2005, they witnessed corruption by U.S. and Iraqi officials and, from October 2005 until April 2006, reported these abuses to the FBI. When U.S. officials learned in April 2006 that Vance and Ertel had blown the whistle, the two were arrested and held at a U.S. military prison in Iraq.

Vance was imprisoned for more than three months, and Ertel for six weeks. During that time, the U.S. military detained them incommunicado in solitary confinement and subjected to enhanced interrogation techniques (aka torture), which then-Secretary of Defense Donald Rumsfeld had approved for use against detainees. Specifically, Vance and Ertel were not permitted to sleep, kept in extremely cold cells, forced to listen to loud music, deprived of food and water, denied medical care, hooded, slammed into walls, and threatened. After their torture and detention for months at hands of our government, the military eventually released them without charge. Vance and Ertel brought a lawsuit for damages against the officials responsible for their torture.

In November 2012, the United States Court of Appeals for the Seventh Circuit dismissed the suit holding that U.S. citizens are not entitled to bring constitutional damages claims against military officials. On Feb. 5, 2013, Loevy & Loevy, a Chicago-based civil rights law firm representing Vance and Ertel, submitted a petition for certiorari to the U.S. Supreme Court. GAP submitted an amicus brief – prepared in conjunction with the Emory Law School Supreme Court Advocacy Project and signed by seven other organizations – urging the high Court to grant the petition.

The brief points out the dangers in refusing to permit individual-capacity actions. Primarily, it argues that the Seventh Circuit decision leaves U.S. citizens – working abroad or at home – with no means of redress if the government tortures them, thereby granting the military absolute immunity. Given other federal statutes in place, the Seventh Circuit’s decision also means that U.S. citizens who are tortured would have less access to judicial review than non-citizens. The brief warns that if civilians are not afforded adequate judicial protections, they may choose not to serve their country abroad as military contractors. It notes that the United States relies heavily upon contractors and cannot afford to create such a disincentive. Finally, GAP’s brief argues that overturning the Seventh’s Circuit decision will reinforce the military’s adherence to the Constitution and ensure military discipline.

via GAP Files Supreme Court Amicus as Detained, Tortured Whistleblowers take on Rumsfeld – Government Accountability Project.

via GAP Files Supreme Court Amicus as Detained, Tortured Whistleblowers take on Rumsfeld – Government Accountability Project.

Supreme Court to rule on eating shellfish


THE US Supreme Court is debating whether America should follow Biblical laws on eating shellfish.

Right or wrong?

The ban on ‘whatever is in the seas and waters that does not have fins or scales’ is passionately supported by conservatives.

However it faces opposition from Americans who experimented with shellfish in their youth, or have relatives or friends who have eaten shrimp.

Meanwhile, Republicans are accused of making political capital by fomenting hatred against so-called ‘Godless big-city mollusc-munchers’.

Norman Steele, from Dallas, said: “The Lord had it right, these are detestable things. Like it says on my t-shirt, flag and car – GOD HATES CRABS.”

But Tom Booker, from Pasadena, said: “We’re not forcing anyone to do anything they don’t want to. Why can’t you enjoy your chicken just because I’m lustily devouring a big shiny red lobster?”

Nikki Hollis, from Chicago, added: “If my friends and I want to munch on a juicy oyster, that’s what we’re going to do.

“These small-minded people are just losing their shit because secretly they want to feast on bivalves.”

The pro-shellfish lobby has accused their opponents of ignoring other verses of Leviticus which prohibit tattoos, wearing garments of mixed fabric, and homosexuality.

Norman Steele said: “Shit, I don’t care if a couple o’ dudes want to ride each other’s assholes all night – ain’t none of my beeswax. Long as they ain’t eatin’ no scallops at the same time.”

via Supreme Court to rule on eating shellfish.

via Supreme Court to rule on eating shellfish.

Supreme Court Rejects Goldman Sachs Appeal in Mortgage-Backed Securities Case |


Here’s a bit of positive news for a class-action lawsuit against Goldman Sachs:

The U.S. Supreme Court on Monday refused to consider an appeal by subsidiaries of Goldman Sachs Group Inc. (GS) that sought to derail a class-action lawsuit alleging the company provided false and misleading information about mortgage-backed securities it underwrote and issued.

Institutional investor NECA-IBEW Health & Welfare Fund alleged Goldman Sachs’ investment materials for 17 offerings of mortgage-backed certificates provided a variety of misleading information, including on the practices of mortgage lenders and the appraisals of the properties backing the securities.

Goldman Sachs argued that NECA didn’t have the right to bring legal claims on all 17 offerings because it made an investment in only two of them.

Last year, the New York-based Second U.S. Circuit Court of Appeals ruled that NECA had legal standing to bring a class action against Goldman Sachs on several of the other 15 offerings even though it didn’t invest in them.

The appeals court noted that several of the Goldman Sachs’ offerings had attributes common to the ones NECA purchased.

The Supreme Court, in a short written order, let that ruling stand and rejected Goldman Sachs’ appeal without comment.

via Supreme Court Rejects Goldman Sachs Appeal in Mortgage-Backed Securities Case | Fox Business.

via Supreme Court Rejects Goldman Sachs Appeal in Mortgage-Backed Securities Case | Fox Business.

How One 75-Year-Old Soybean Farmer Could Deal A Blow To Monsanto’s Empire Today | ThinkProgress


On Tuesday, the U.S. Supreme Court will hear a 75-year-old soybean farmer’s appeal against biotech giant Monsanto, in a case that could permanently reshape the genetically modified (GM) crop industry. Victor “Hugh” Bowman has been battling the corporation since 2007, when Monsanto sued him for violating their patent protection by purchasing second-generation GM seeds from a grain elevator. An appeals court ruled in favor of Monsanto, and despite the Obama administration’s urging to let the decision stand, the nine justices will hear Bowman make his case today.

Monsanto is notorious among farmers for the company’s aggressive investigations and pursuit of farmers they believe have infringed on Monsanto’s patents. In the past 13 years, Monsanto has sued 410 farmers and 56 small farm businesses, almost always settling out of court (the few farmers that can afford to go to trial are always defeated). These farmers were usually sued for saving second-generation seeds for the next harvest — a basic farming practice rendered illegal because seeds generated by GM crops contain Monsanto’s patented genes.

Monsanto’s winning streak hinges on a controversial Supreme Court decision from 1981, which ruled on a 5-4 split that living organisms could be patented as private property. As a result of that decision, every new generation of GM seeds — and their self-replicating technology — is considered Monsanto’s property.

Unfortunately, second- and third-generation seeds are very hard to track, which may explain why Monsanto devotes $10 million a year and 75 staffers to investigating farmers for possible patent violations. Seeds are easily carried by birds or blown by the wind into fields of non-GM seeds, exposing farmers who have never bought seeds from Monsanto to lawsuits. Organic and conventional seeds are fast becoming extinct — 93 percent of soybeans, 88 percent of cotton, and 86 percent of corn in the US are grown from Monsanto’s patented seeds. A recent study discovered that at least half of the organic seeds in the US are contaminated with some genetically modified material.

Bowman’s appeal gives the Supreme Court an opportunity to determine whether or not Monsanto is using patent enforcement to control their monopoly on a vital resource. As GM seeds become more ubiquitous, farmers who want to avoid Monsanto’s strict patents have few alternatives. As a recently released Center for Food Safety report notes, the concentration of market power among Monsanto and a handful of other companies has led to skyrocketing seed prices and less innovation by smaller firms:

USDA data show that since the introduction of GE seed, the average cost of soybean seed to plant one acre has risen by a dramatic 325 percent, from $13.32 to $56.58. Similar trends exist for corn and cotton seeds: cotton seeds spiked 516 percent from 1995-2011 and corn seed costs rose 259 percent over the same period.

[…] USDA economists have found that seed industry consolidation has reduced research and likely resulted in fewer crop varieties on offer: “Those companies that survived seed industry consolidation appear to be sponsoring less research relative to the size of their individual markets than when more companies were involved… Also, fewer companies developing crops and marketing seeds may translate into fewer varieties offered.”

Furthermore, emerging evidence indicates that Monsanto has hardly perfected the technology. A core argument for GM seeds in the 1990s claimed they would reduce chemical pesticide use because the plants themselves would repel pests and weeds. But studies have confirmed the spread of so-called “superweeds” that have developed a resistance to Monsanto’s gene, leading farmers to deploy even heavier doses of herbicides like Monsanto’s own product, Roundup. Another new report debunked the company’s argument that GM seeds would have higher yields; in fact, two of Monsanto’s most popular genes caused yields to drop.

Despite the mounting evidence against their products, the biotech industry enjoys a cozy relationship with government regulators. In December, the Justice Department abruptly dropped their investigation into anti-competitive practices in the industry without so much as a press release. The stalled Farm Bill also contains generous provisions that would allow these companies to put their products on the market with cursory or no review by the USDA.

Today’s oral argument is a study in these intertwined interests: the Obama administration is presenting their own defense of Monsanto, and Supreme Court Justice Clarence Thomas was once a Monsanto lawyer (but will not recuse himself from Bowman’s case). Still, the same high court that enabled the current state of American agriculture in 1981 now finds itself in a position to check Monsanto’s power — or help them tighten their hold on the industry.

via How One 75-Year-Old Soybean Farmer Could Deal A Blow To Monsanto’s Empire Today | ThinkProgress.

via How One 75-Year-Old Soybean Farmer Could Deal A Blow To Monsanto’s Empire Today | ThinkProgress.

A History of Iniquity, II: How Irish Governments behaved unconstitutionally, serving the EU agenda


We will fix that Stalinist body” … Comment by the late Brian Lenihan TD on the then Referendum Commission, Autumn 2001, in the lead-up to the second Nice Treaty referendum. 

Comment from Misebogland: Unfortunately as it transpired he got the wrong body

images

And How They Fixed It:

In December 2001 the Fianna Fail Government then in office put a Bill through the Oireachtas (Legislature) amending the 1998 Referendum Act so as to remove from the statutory Referendum Commission its function of setting out in a fair and neutral manner the relevant arguments for and against any proposed constitutional amendment. This was done on the last day before the Oireachtas rose for the Christmas holidays that year, when all stages of the relevant Bill were pushed through the Dail and Seanad in one day, with two days notice to the Opposition. Because of these circumstances this move went virtually unnoticed by the Irish media at the time.

1. Irish Citizens as Legislators:

Irish constitutional referendums are a form of direct legislation in which citizens are voting either to accept or to reject a Bill to amend the Constitution which has been put before them by the Government of the day.  Citizens voting on a Referendum Bill are in an analogous position to TDs and Senators voting on Bills put before the Oireachtas by the Government.

Once the Government has put a Bill before the People by instituting a referendum it is clearly illogical, unfair and undemocratic for that same Government to use public money, which comes from citizens on both sides on any referendum issue, to advance the point of view of one side.  International best practice in referendums recognizes this.

For Governments to act otherwise is like using public money to induce parliamentarians to vote in a particular way, or offering a metaphorical box of chocolates to each voter at general election time in return for their votes. It is constitutionally quite legitimate of Governments to spend public money on the independent Referendum Commission to enable it ensure that citizens are properly informed of the referendum issues, as was the case before the Commission was emasculated by the Fianna Fail Government in 2001 when its function of setting out the pros and cons of proposed constitutional changes was taken from it.

2. No Publically Funded Government “Information Campaigns” in the 11 Referendums Held Between 1937 and 1987:

In the 11 constitutional referendums which the Irish State held between the adoption of the Constitution by popular referendum in 1937 and the Single European Act referendum in 1987, no Irish Government spent public money advocating a particular result.

Government Ministers and TDs were and are entitled to campaign individually in referendums and to spend their personal and party funds in support of the constitutional change which the Government they belong to wishes to bring about.  But that is quite different from spending taxpayers’ money for that purpose. Most people will agree that it would be quite undemocratic and unconstitutional of a government to use public money, in principle without limit, to try to persuade citizens in a referendum to vote to restore the death penalty, to extend its own lifetime indefinitely or to abolish the judiciary.

Yet if public money can be spent in pursuit of a Government desire to change the Constitution, such spending would in principle be valid.  Clearly once a constitutional amendment has been put before the People for decision the Government which does that should be scrupulous in respecting the rights of citizens in their legislative role and not try metaphorically to twist their arms, or to confuse or mislead them regarding the implications of the constitutional change which it is within the People’s absolute right to accept or reject.

3. The Haughey Government Was the First to Act Unconstitutionally in Referendums:

The first time that an Irish Government spent public money in a one-sided fashion in a referendum was in the Single European Act(SEA) referendum in May 1987. This came about as a result of the Crotty judgement of the Supreme Court. The FitzGerald-Spring Government of the time had attempted to ratify the SEA without a referendum.

The Supreme Court forbade that and laid down the any EU treaty which provides for a significant further surrender of sovereignty to the EU had to be put to referendum, for the Irish people are the repositories of State sovereignty and only they can therefore surrender it.

The constitutional amendment to permit the ratification of the SEA would quite probably have gone through without difficulty at the time, but to make assurance doubly sure the then Haughey Government spent large sums of public money on newspaper and billboard advertisements setting out “Ten Reasons for Voting Yes”. These were placed by the Government Information Bureau.

4. The McKenna Case 1995… Citizens’ Rights to Fairness, Equality and Democracy in Referendums:

In the 1992 Maastricht Treaty referendum on the adoption of the euro-currency and related matters the Albert Reynolds-led Fianna Fail Government of the time farmed out its “Vote Yes” campaign to a private advertising agency. This plastered the country with publicly financed billboards urging a Yes vote, among them one which proclaimed: “A Vote No Disempowers Women” !

Patricia McKenna, who had supported Raymond Crotty in his case on the SEA Treaty, challenged the constitutionality of this one-sided taxpayer-financed expenditure.  Her case was dismissed by Mr Justice Declan Costello in the High Court.  As this judgement came virtually on the eve of the Maastricht referendum, she did not appeal it.

With remarkable public-spiritedness Ms McKenna revived her case on the unconstitutionality of spending public money in a one-sided fashion in referendums when it came to the Divorce Referendum three years later, even though she personally and her then party, the Greens, were on the same Yes-side on the divorce issue as the then Bruton-Spring Government.

Again she lost in the High Court before Mr Justice Ronan Keane, who declined to overthrow Justice Costello’s High Court judgement of 1992. On appeal to the Supreme Court however Patricia McKenna won her case and that Court laid down the “McKenna principles” setting out clearly the rights of Irish citizens to fairness, equality and democracy in constitutional referendums.

5. The Coughlan Case on Referendum Broadcasts:

The Supreme Court judgement  in McKenna  was given just one week before the 1995 Divorce poll and the Government had to pull its extensive taxpayer-financed Yes-side advertisements on the weekend prior to the voting.

This made political party broadcasts on radio and TV all the more important for the Yes-side in the last days of that referendum campaign.  As all the Oireachtas political parties were on the Yes-side on divorce, this led to a situation in which 42 minutes of free broadcasting time on RTE were given to the Yes-side in the five days leading up to the poll, as against 10 minutes to non-party groups on the No-side. A similar imbalance had occurred in previous EU and other referendums when all or most Dail political parties were on the Yes side in these.

Although Anthony Coughlan was not involved in the Divorce referendum, he believed that this imbalance in free broadcasting time was in breach of the statutory obligation on RTE and other broadcasters under the Broadcasting Acts to be objective, balanced and “fair to all interests concerned” in their coverage of all issues of public controversy and debate at all times.  In a referendum every citizen is naturally an “interest concerned”.

Accordingly he complained to the Broadcasting Complaints Commission that RTE was in breach of its statutory obligations by permitting this 42-minute/10-minute imbalance of time in the days leading up to the Divorce poll. The Broadcasting Complaints Commission rejected his complaint. He sought judicial review of this rejection on the grounds that the Complaints Commission had erred in law. Mrs Justice Catherine McGuinness granted him this in the High Court.

In the subsequent trial of the action in that Court Mr Justice Paul Carney found that RTE had indeed breached its obligations under both the Broadcasting Acts and the Constitution and ruled that there should be broad equality in the broadcast treatment of both sides in referendums so far as free or uncontested broadcasts were concerned.

6. Dr. Garret Fitzgerald and Mr. Bob Collins… No “Stop-Watch Principle” Required:

RTE had no particular love of party political broadcasts and RTE management under its then Director-General Mr Bob Collins had no desire to appeal Mr Justice Carney’s judgement in the Coughlan case.

However Dr Garret FitzGerald, supported by Mr Billy Attley and Mr Desmond Geraghty, who were members of the RTE Authority at the time and old political opponents of Anthony Coughlan’s on EU matters, persuaded the Authority to insist that RTE Management should lodge an appeal. Their  reasons are described by Mr Bob Quinn, who was also on the RTE Authority, in his book “Maverick: A Dissident View of Broadcasting Today” (Brandon Press, 2001).   In the event RTE’s appeal failed and the Supreme Court upheld Justice Carney’s High Court judgement in favour of Coughlan.

Commentators sometimes misrepresent the Coughlan judgement as requiring RTE and other broadcasters to allocate exactly equal time as if by stop-watch between Yes-side and No-side proponents in referendums. This is a misunderstanding of what the judgement requires. The Coughlan case related to free or uncontested broadcasts – “party political” broadcasts as they are often called. Broadcasters are statutorily required to be balanced and fair as between all interests concerned in all their current affairs programming at all times, and not just in referendums.

Since the Coughlan case RTE has carried no free broadcasts in referendums, thus ensuring equality of treatment for both sides, although there is nothing legally to prevent it allocating such broadcasts equally between leading proponents of each side on these occasions or to umbrella groups on each side if such should exist.

7. The Original Referendum Commission… The 1998 Referendum Act:

The establishment of the Referendum Commission under the 1998 Referendum Act was not a necessary consequence of the McKenna judgement. Strictly speaking all that that judgement required was a return to the 1937-1987 situation when political parties, non-party groups and individual citizens did their own referendum campaigning and spent their own money without the Government using public money for the side which Ministers supported.

The Referendum Commission was however a piece of creative institutional engineering which had the potential of making Ireland an international pioneer in the democratic political education of its citizens in referendums.  Section 3(1) of the 1998 Referendum Act gave the Commission three principal functions:

(a) to prepare and publicise a statement or statements informing citizens what the proposal to change the Constitution entailed;

(b) to prepare and publicise a statement or statements setting out the arguments for and against the proposal, based on submissions solicited from members of the public; and

(c) to foster and facilitate public debate and discussion on the proposal.

The Act laid down that these three functions should be carried out by the Commission in a manner which was “fair to all interests concerned”.

For the Referendum Commission to do a proper job in carrying out these statutory functions it needed to be given enough time to do its work properly and to be set up well in advance of any particular referendum.  It needed sufficient public resources to finance that work, and common sense suggests that it should not be overloaded with different unrelated referendum propositions which it had to publicise at the same time. However the politicians in the then Fianna Fail Government, having put through the 1998 Referendum Act, had second thoughts about the Commission’s remit when it came to its first outing, for they set the Commission an impossible task from the start.

8. The Referendum Commission’s First Outing… The Amsterdam Treaty and Good Friday Agreement Rerendums 1998:

The first Referendum Commission was called into being with retired Chief Justice T. A. Finlay as its chairman to publicise the Amsterdam Treaty referendum in May 1998. The secretary of the Commission informed A.Coughlan some years later that Mr Justice Finlay had in mind to fulfil the Commission’s task of fostering debate and discussion by holding a grand national debate on the Amsterdam Treaty in Dublin Castle between leading proponents of the Yes and No sides and using clips from that debate for subsequent TV adverts illustrating the two points of view. This would have made the adverts realistic and might have engaged citizens’ attention.

But then Taoiseach Bertie Ahern’s Government gave the Referendum Commission the Good Friday Agreement referendum – a wholly different issue –  to publicise on the same day and such imaginative plans had to be scrapped. Similarly in the first Nice Treaty referendum in June 2001 the proposal to amend the Constitution to permit the ratification of that treaty was coupled with two other proposed amendments, one on the death penalty and one on the International Criminal Court.

Former Taoiseach Dr Garret FitzGerald remarked in one of his Saturday Irish Times columns at the time: “Is not the Government looking for another constitutional amendment to give to the Referendum Commission?”  This idea of a fourth proposition was dropped as the Labour Party would not support it.

There is little doubt that the Government’s motivation in having multiple referendum propositions was to hamper the Commission in carrying out its functions as laid down in the 1998 Act, for the Commission had to explain to citizens what each of these three different constitutional amendments entailed and to put forward the main arguments for and against in each case. Its task was virtually impossible when there was insufficient time and multiple referendums, sometimes on contentious issues.

In their reports following each referendum Mr Justice Finlay and his fellow Referendum Commissioners expressed their frustration at the conditions in which Governments expected them to carry out their statutory functions.

9.  Removing the Referendum Commission’s Function of Setting Out the Relevant Pros and Cons of Constitutional Change … The 2001 Referendum Act:

Following the victory of the No-side in the first Nice Treaty referendum in June 2001 Mr Bertie Ahern’s Fianna Fail Government decided to remove altogether the Yes/No function from the Referendum Commission and to remove also the Commission’s function of fostering and facilitating public discussion of the issues.   They saw the Commission’s Yes/No function as an obstacle to reversing the People’s vote on the Nice Treaty.

Taoiseach Ahern gave a commitment to do this to the other EU Governments at the European Council meeting in Gothenburg, Sweden, in the week following the referendum when he urged them to continue with ratifying the treaty  – for most EU countries had not yet done that – despite Irish voters’ No.

“We will fix that Stalinist body,” said Brian Lenihan TD to Anthony Coughlan following a debate on the Nice Treaty in Athlone College of Technology in autumn 2001. The “Stalinism” seemingly consisted in the Referendum Commission having to be satisfied that the arguments for and against in referendums had to be validly rooted in the actual amendment proposed.

To minimize public attention to their assault on the Referendum Commission the Government chose the last day before the Oireachtas rose for the Christmas holidays in December 2001 on which to do this. On that day, 14 December, with just two days notice to the Opposition, it put all stages of the Referendum Bill 2001 through the Dail and Seanad in a couple of hours.

This removed from the Commission its function of preparing and publicizing a statement setting out the relevant Yes-side and No-side arguments in referendums.  It left the Commission with its original function of publicizing a statement on what the referendum was about.  And it substituted for the function of facilitating debate on the issues a new function of promoting public awareness of the referendum and encouraging citizens to vote at the poll. These are the two functions the Referendum Commission still has.

The Referendum Bill 2001 was passed by 58 votes to 40 on its second reading. Fine Gael, Labour, the Green Party and Sinn Fein voted against the Fianna Fail Government’s proposal. Those voting against included 10 deputies who became Ministers in the Fine Gael-Labour Government which assumed office in 2011.

10. The Democratic Value of the Referendum Commission’s Yes/No Function:

The democratic value of the Referendum Commission having to set out the main pros and cons of any proposed constitutional change fairly and impartially was that false, irrelevant or extraneous arguments on the pros and cons of the referendum proposition had necessarily to be excluded from the Commission’s information material.

The Commission had to be satisfied that the arguments put forward on each side were validly grounded in the actual constitutional amendment being proposed and in legitimate hopes or fears which citizens might have with regard to it.  Obvious fallacies, irrelevancies or “ad hominem” arguments such as urging a Yes or No vote because some allegedly obnoxious person or party was on the other side could not be publicized by the Referendum Commission, although these are commonplace among private contestants in referendums and elections.

In Irish referendums the Government and Yes-side forces are seeking to change the Constitution, while the No-side elements are seeking to conserve it, to prevent change.  From a democratic standpoint it is presumptuous to seek to prejudge the referendum result and predetermine the outcome by effectively taking money from one side for the benefit of the other.

There are always valid pros and cons to any proposal for constitutional change. At the extreme, even if opinion polls show a change to be desired by an overwhelming majority of citizens, there will always be some who will oppose any referendum on such grounds as cost.

A further consequence of the Referendum Commission having the function of setting out the relevant pros and cons of proposed constitutional amendments was that when private interests on each side were aware that the main arguments for and against would be put fairly and honestly before the public through the Commission’s advertisements, big-league private money had no incentive to intervene.  At the same time the political parties and civic interests on each side continued to spend their own money as they had done in all Irish referendums since 1937.

The first referendum to be held following the removal of the Referendum Commission’s function of setting out the pros and cons was the second Nice Treaty referendum in October 2002. The Irish Government held this second referendum to reverse the result of the first, for the Nice Treaty itself remained unchanged.  On this second occasion private funders, including private and public companies, weighed in in a big way, such that it has been reliably estimated that the cost of advertising by the Yes-side outweighed that on the No-side by a factor of ten to one.

On this second time round, moreover, the amendment to permit the ratification of the Nice Treaty was coupled with an amendment precluding the State from joining an EU common defence – both issues being put forward as one consolidated proposition to which citizens had to vote either Yes or No, for they could not vote on each of its elements separately.  If citizens wished to prevent the State joining an EU defence pact, they had to vote Yes to ratify the Nice Treaty. If they wished to vote No to the Nice Treaty they also had to vote No to the amendment preventing the State joining an EU defence pact. The Referendum Commission then had to inform citizens how this dual proposition would affect the Constitution.

Quite possibly this two-propositions-in-one amendment was itself unconstitutional, but no one came forward to challenge it. The Commission carried out its new functions fairly, but the dual character of its explanations necessarily helped pile up votes for the Yes side. This was how the No vote of Nice One in 2001 was turned into the Yes vote of Nice Two in 2002.

11. Tax-payer Financed Government “Information Campaigns” Separate from the Referendum Commission’s … The 2008 and 2009 Lisbon Treaty Referendums:

In the 11 constitutional referendums which were held between the Supreme Court’s 1995 judgement on one-sided Government expenditure in McKenna and the 2008 and 2009 Lisbon Treaty referendums, no Irish Government attempted to run information campaigns parallel to the independent Referendum Commission’s statutory-based campaigns to inform citizens what the referendums were about.

The first breach of the McKenna principles by an Irish Government occurred in the 2008 Lisbon Treaty referendum. On that occasion the then Fianna Fail Government through the Department of Foreign Affairs issued a booklet with the title “EU Reform Treaty”. The ”Reform Treaty” was the Department’s name for the Lisbon Treaty which the booklet purported to describe.  This was a highly selective and tendentious document which carried the following slogans on its cover that clearly amounted to implicit advocacy: “effective democratic union”, “progress and prosperity”, “peace and justice in the wider world”, “a union of values”.

Inside it summarised the provisions of the Lisbon Treaty under such headings as “increased democratic controls” and “equality between Member States”.  The Foreign Affairs Department also placed newspaper advertisements featuring the booklet’s cover. These possibly had more influence on voters than the booklet itself.  There was also a Foreign Affairs web-site which like the booklet implicitly pointed to the desirability of a Yes vote in the referendum even if neither booklet nor web-site urged explicitly “Vote Yes”.

Similar material was produced for Lisbon Two in 2009.  Presumably the then Attorney General, Mr Paul Gallagher SC, advised the Fianna Fail Government of the time that these actions did not breach the McKenna principles. Presumably too its Fine Gael-Labour successor decided to follow the Fianna Fail Government’s partisan “information campaign” when it came to the next Irish referendums.  And presumably its Attorney-General, Ms Maire Whelan, decided to follow her predecessor Mr Gallagher’s advice in relation to the taxpayer-financed information booklet, brochure and web-site which sought to influence the “Fiscal Treaty/Fiscal Compact.” referendum in May 2012 and the Children’s referendum in November that same year.

The booklet issued by the Department of Foreign Affairs in the Fiscal Treaty/Fiscal Compact referendum in May 2012, which was posted at public expense to all households in the State, was tendentiously selective like its Lisbon Treaty predecessor.  It purported to describe the so-called “Stability Treaty”, even though the Treaty in question was generally referred to across the EU as the “Fiscal Treaty” or the “Fiscal Compact”, its full title being the “Treaty on Stability, Coordination and Governance in the Economic and Monetary Union”.

The first page of this booklet was titled “What is the Stability Treaty?”.  Inside it was described as a Treaty which aimed “to support growth and employment…to protect the public’s money… and to be part of a toolkit to avoid another economic crisis”.   Again these were tendentious phrases which clearly amounted to advocacy rather than objective information and were legitimately open to being questioned by No-side proponents who took a different view to the Government’s on the content and effects of that treaty.

12. Re-Affirmation of the McKenna Principles as Best International Practice … The 2012 McCrystal Case:

These partisan Government “information campaigns” using public money unconstitutionally were not challenged in the Courts at the time of the 2008 and 2009 Lisbon Treaty and the 2012 “Fiscal Treaty” referendums. They were successfully challenged by Mr Mark McCrystal in the 2012 Children’s referendum.

On the eve of that referendum the Supreme Court ruled  unanimously that the booklet, advertisements and web-site issued by the Government on that occasion were in breach of the Court’s 1995 judgement in McKenna. In setting out their reasons the Supreme Court judges strongly reaffirmed the McKenna principles.  Irish Governments could certainly spend public money in informing citizens of the main arguments for and against particular referendum propositions, but any partisan presentation was a violation of citizens’ rights to fairness, equality, and democracy on these occasions.

The Referendum Commission was clearly the most competent body to provide citizens with neutral information which accorded with the McKenna principles. As Chief Justice Mrs Susan Denham put it:

“It is questionable whether it is wise to ask a Minister, who is promoting a referendum on behalf of the Government, to publish neutral information on the referendum. It may be that it is itself inherently unfair to ask a Minister, and indeed her Department, which are promoting a referendum, and who clearly believe in its merit, and wish for a ‘Yes’ vote, to draft and publish neutral information. This role may be best performed by a body not invested in the referendum.”

The Chief Justice noted favourably the recommendation of previous Referendum Commissions for the establishment of “a permanent and ongoing body which would have ample time to prepare and promote public awareness of important constitutional amendments.”

The Supreme Court made clear in the McCrystal case that the McKenna principles accorded with best international practice regarding referendums. In their judgements the Chief Justice and Mr Justice John Murray referred to the “Code of Good Practice in Referendums” which was adopted by the Venice Commission for Democracy through Law, an advisory body of the Council of Europe, and the Council for Democratic Elections in 2006 and 2007.

This Code included the statement that

“Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on.  This entails a neutral attitude by administrative authorities, in particular with regard to … public funding of a campaign and its actors.”

And again:

“There must be no use of public funds by the authorities for campaigning purposes in order to guarantee equality of opportunity and the freedom of voters to form an opinion.”

The Chief Justice also referred to Australia, where pamphlets distributed to citizens by that country’s Electoral Commissioner set out the arguments for and against proposals to amend the Australian Constitution. And she referred to UK referendum practice where an Electoral Commission can provide equal sums of public money to umbrella groups on each side in referendums.  By challenging the Government’s brazen flouting of the Supreme Court’s McKenna judgement Mark McCrystal, like Ms McKenna before him, has clearly struck a significant blow for Irish democracy.

_____

Note on Author:  Anthony Coughlan was a supporter of the late Raymond Crotty and Patricia McKenna in their constitutional actions on Irish referendums in 1987 and 1995 respectively. He was himself plaintiff in the 2000 Coughlan case on partisan referendum broadcasts. He has been involved on the No side in EU-related referendums but was not involved in the other referendums mentioned above. He is Director of the National Platform EU Research and Information Centre and is former Senior Lecturer in Social Policy, TCD.

via A History of Iniquity, II: How Irish Governments behaved unconstitutionally, serving the EU agenda – Indymedia Ireland.

A History of Iniquity, II: How Irish Governments behaved unconstitutionally, serving the EU agenda – Indymedia Ireland


Irish Referendum Practice from McKenna (1995) to McCrystal (2012).

This is part two of a two part series. 

By Anthony Coughlan

“We will fix that Stalinist body” … Comment by the late Brian Lenihan TD on the then Referendum Commission, Autumn 2001, in the lead-up to the second Nice Treaty referendum.

And How They Fixed It:

In December 2001 the Fianna Fail Government then in office put a Bill through the Oireachtas (Legislature) amending the 1998 Referendum Act so as to remove from the statutory Referendum Commission its function of setting out in a fair and neutral manner the relevant arguments for and against any proposed constitutional amendment. This was done on the last day before the Oireachtas rose for the Christmas holidays that year, when all stages of the relevant Bill were pushed through the Dail and Seanad in one day, with two days notice to the Opposition. Because of these circumstances this move went virtually unnoticed by the Irish media at the time.

1. Irish Citizens as Legislators:

Irish constitutional referendums are a form of direct legislation in which citizens are voting either to accept or to reject a Bill to amend the Constitution which has been put before them by the Government of the day.  Citizens voting on a Referendum Bill are in an analogous position to TDs and Senators voting on Bills put before the Oireachtas by the Government.

Once the Government has put a Bill before the People by instituting a referendum it is clearly illogical, unfair and undemocratic for that same Government to use public money, which comes from citizens on both sides on any referendum issue, to advance the point of view of one side.  International best practice in referendums recognizes this.

For Governments to act otherwise is like using public money to induce parliamentarians to vote in a particular way, or offering a metaphorical box of chocolates to each voter at general election time in return for their votes. It is constitutionally quite legitimate of Governments to spend public money on the independent Referendum Commission to enable it ensure that citizens are properly informed of the referendum issues, as was the case before the Commission was emasculated by the Fianna Fail Government in 2001 when its function of setting out the pros and cons of proposed constitutional changes was taken from it.

2. No Publically Funded Government “Information Campaigns” in the 11 Referendums Held Between 1937 and 1987:

In the 11 constitutional referendums which the Irish State held between the adoption of the Constitution by popular referendum in 1937 and the Single European Act referendum in 1987, no Irish Government spent public money advocating a particular result.

Government Ministers and TDs were and are entitled to campaign individually in referendums and to spend their personal and party funds in support of the constitutional change which the Government they belong to wishes to bring about.  But that is quite different from spending taxpayers’ money for that purpose. Most people will agree that it would be quite undemocratic and unconstitutional of a government to use public money, in principle without limit, to try to persuade citizens in a referendum to vote to restore the death penalty, to extend its own lifetime indefinitely or to abolish the judiciary.

Yet if public money can be spent in pursuit of a Government desire to change the Constitution, such spending would in principle be valid.  Clearly once a constitutional amendment has been put before the People for decision the Government which does that should be scrupulous in respecting the rights of citizens in their legislative role and not try metaphorically to twist their arms, or to confuse or mislead them regarding the implications of the constitutional change which it is within the People’s absolute right to accept or reject.

3. The Haughey Government Was the First to Act Unconstitutionally in Referendums:

The first time that an Irish Government spent public money in a one-sided fashion in a referendum was in the Single European Act(SEA) referendum in May 1987. This came about as a result of the Crotty judgement of the Supreme Court. The FitzGerald-Spring Government of the time had attempted to ratify the SEA without a referendum.

The Supreme Court forbade that and laid down the any EU treaty which provides for a significant further surrender of sovereignty to the EU had to be put to referendum, for the Irish people are the repositories of State sovereignty and only they can therefore surrender it.

The constitutional amendment to permit the ratification of the SEA would quite probably have gone through without difficulty at the time, but to make assurance doubly sure the then Haughey Government spent large sums of public money on newspaper and billboard advertisements setting out “Ten Reasons for Voting Yes”. These were placed by the Government Information Bureau.

4. The McKenna Case 1995… Citizens’ Rights to Fairness, Equality and Democracy in Referendums:

In the 1992 Maastricht Treaty referendum on the adoption of the euro-currency and related matters the Albert Reynolds-led Fianna Fail Government of the time farmed out its “Vote Yes” campaign to a private advertising agency. This plastered the country with publicly financed billboards urging a Yes vote, among them one which proclaimed: “A Vote No Disempowers Women” !

Patricia McKenna, who had supported Raymond Crotty in his case on the SEA Treaty, challenged the constitutionality of this one-sided taxpayer-financed expenditure.  Her case was dismissed by Mr Justice Declan Costello in the High Court.  As this judgement came virtually on the eve of the Maastricht referendum, she did not appeal it.

With remarkable public-spiritedness Ms McKenna revived her case on the unconstitutionality of spending public money in a one-sided fashion in referendums when it came to the Divorce Referendum three years later, even though she personally and her then party, the Greens, were on the same Yes-side on the divorce issue as the then Bruton-Spring Government.

Again she lost in the High Court before Mr Justice Ronan Keane, who declined to overthrow Justice Costello’s High Court judgement of 1992. On appeal to the Supreme Court however Patricia McKenna won her case and that Court laid down the “McKenna principles” setting out clearly the rights of Irish citizens to fairness, equality and democracy in constitutional referendums.

5. The Coughlan Case on Referendum Broadcasts:

The Supreme Court judgement  in McKenna  was given just one week before the 1995 Divorce poll and the Government had to pull its extensive taxpayer-financed Yes-side advertisements on the weekend prior to the voting.

This made political party broadcasts on radio and TV all the more important for the Yes-side in the last days of that referendum campaign.  As all the Oireachtas political parties were on the Yes-side on divorce, this led to a situation in which 42 minutes of free broadcasting time on RTE were given to the Yes-side in the five days leading up to the poll, as against 10 minutes to non-party groups on the No-side. A similar imbalance had occurred in previous EU and other referendums when all or most Dail political parties were on the Yes side in these.

Although Anthony Coughlan was not involved in the Divorce referendum, he believed that this imbalance in free broadcasting time was in breach of the statutory obligation on RTE and other broadcasters under the Broadcasting Acts to be objective, balanced and “fair to all interests concerned” in their coverage of all issues of public controversy and debate at all times.  In a referendum every citizen is naturally an “interest concerned”.

Accordingly he complained to the Broadcasting Complaints Commission that RTE was in breach of its statutory obligations by permitting this 42-minute/10-minute imbalance of time in the days leading up to the Divorce poll. The Broadcasting Complaints Commission rejected his complaint. He sought judicial review of this rejection on the grounds that the Complaints Commission had erred in law. Mrs Justice Catherine McGuinness granted him this in the High Court.

In the subsequent trial of the action in that Court Mr Justice Paul Carney found that RTE had indeed breached its obligations under both the Broadcasting Acts and the Constitution and ruled that there should be broad equality in the broadcast treatment of both sides in referendums so far as free or uncontested broadcasts were concerned.

6. Dr. Garret Fitzgerald and Mr. Bob Collins… No “Stop-Watch Principle” Required:

RTE had no particular love of party political broadcasts and RTE management under its then Director-General Mr Bob Collins had no desire to appeal Mr Justice Carney’s judgement in the Coughlan case.

However Dr Garret FitzGerald, supported by Mr Billy Attley and Mr Desmond Geraghty, who were members of the RTE Authority at the time and old political opponents of Anthony Coughlan’s on EU matters, persuaded the Authority to insist that RTE Management should lodge an appeal. Their  reasons are described by Mr Bob Quinn, who was also on the RTE Authority, in his book “Maverick: A Dissident View of Broadcasting Today” (Brandon Press, 2001).   In the event RTE’s appeal failed and the Supreme Court upheld Justice Carney’s High Court judgement in favour of Coughlan.

Commentators sometimes misrepresent the Coughlan judgement as requiring RTE and other broadcasters to allocate exactly equal time as if by stop-watch between Yes-side and No-side proponents in referendums. This is a misunderstanding of what the judgement requires. The Coughlan case related to free or uncontested broadcasts – “party political” broadcasts as they are often called. Broadcasters are statutorily required to be balanced and fair as between all interests concerned in all their current affairs programming at all times, and not just in referendums.

Since the Coughlan case RTE has carried no free broadcasts in referendums, thus ensuring equality of treatment for both sides, although there is nothing legally to prevent it allocating such broadcasts equally between leading proponents of each side on these occasions or to umbrella groups on each side if such should exist.

7. The Original Referendum Commission… The 1998 Referendum Act:

The establishment of the Referendum Commission under the 1998 Referendum Act was not a necessary consequence of the McKenna judgement. Strictly speaking all that that judgement required was a return to the 1937-1987 situation when political parties, non-party groups and individual citizens did their own referendum campaigning and spent their own money without the Government using public money for the side which Ministers supported.

The Referendum Commission was however a piece of creative institutional engineering which had the potential of making Ireland an international pioneer in the democratic political education of its citizens in referendums.  Section 3(1) of the 1998 Referendum Act gave the Commission three principal functions:

(a) to prepare and publicise a statement or statements informing citizens what the proposal to change the Constitution entailed;

(b) to prepare and publicise a statement or statements setting out the arguments for and against the proposal, based on submissions solicited from members of the public; and

(c) to foster and facilitate public debate and discussion on the proposal.

The Act laid down that these three functions should be carried out by the Commission in a manner which was “fair to all interests concerned”.

For the Referendum Commission to do a proper job in carrying out these statutory functions it needed to be given enough time to do its work properly and to be set up well in advance of any particular referendum.  It needed sufficient public resources to finance that work, and common sense suggests that it should not be overloaded with different unrelated referendum propositions which it had to publicise at the same time. However the politicians in the then Fianna Fail Government, having put through the 1998 Referendum Act, had second thoughts about the Commission’s remit when it came to its first outing, for they set the Commission an impossible task from the start.

8. The Referendum Commission’s First Outing… The Amsterdam Treaty and Good Friday Agreement Rerendums 1998:

The first Referendum Commission was called into being with retired Chief Justice T. A. Finlay as its chairman to publicise the Amsterdam Treaty referendum in May 1998. The secretary of the Commission informed A.Coughlan some years later that Mr Justice Finlay had in mind to fulfil the Commission’s task of fostering debate and discussion by holding a grand national debate on the Amsterdam Treaty in Dublin Castle between leading proponents of the Yes and No sides and using clips from that debate for subsequent TV adverts illustrating the two points of view. This would have made the adverts realistic and might have engaged citizens’ attention.

But then Taoiseach Bertie Ahern’s Government gave the Referendum Commission the Good Friday Agreement referendum – a wholly different issue –  to publicise on the same day and such imaginative plans had to be scrapped. Similarly in the first Nice Treaty referendum in June 2001 the proposal to amend the Constitution to permit the ratification of that treaty was coupled with two other proposed amendments, one on the death penalty and one on the International Criminal Court.

Former Taoiseach Dr Garret FitzGerald remarked in one of his Saturday Irish Times columns at the time: “Is not the Government looking for another constitutional amendment to give to the Referendum Commission?”  This idea of a fourth proposition was dropped as the Labour Party would not support it.

There is little doubt that the Government’s motivation in having multiple referendum propositions was to hamper the Commission in carrying out its functions as laid down in the 1998 Act, for the Commission had to explain to citizens what each of these three different constitutional amendments entailed and to put forward the main arguments for and against in each case. Its task was virtually impossible when there was insufficient time and multiple referendums, sometimes on contentious issues.

In their reports following each referendum Mr Justice Finlay and his fellow Referendum Commissioners expressed their frustration at the conditions in which Governments expected them to carry out their statutory functions.

9.  Removing the Referendum Commission’s Function of Setting Out the Relevant Pros and Cons of Constitutional Change … The 2001 Referendum Act:

Following the victory of the No-side in the first Nice Treaty referendum in June 2001 Mr Bertie Ahern’s Fianna Fail Government decided to remove altogether the Yes/No function from the Referendum Commission and to remove also the Commission’s function of fostering and facilitating public discussion of the issues.   They saw the Commission’s Yes/No function as an obstacle to reversing the People’s vote on the Nice Treaty.

Taoiseach Ahern gave a commitment to do this to the other EU Governments at the European Council meeting in Gothenburg, Sweden, in the week following the referendum when he urged them to continue with ratifying the treaty  – for most EU countries had not yet done that – despite Irish voters’ No.

“We will fix that Stalinist body,” said Brian Lenihan TD to Anthony Coughlan following a debate on the Nice Treaty in Athlone College of Technology in autumn 2001. The “Stalinism” seemingly consisted in the Referendum Commission having to be satisfied that the arguments for and against in referendums had to be validly rooted in the actual amendment proposed.

To minimize public attention to their assault on the Referendum Commission the Government chose the last day before the Oireachtas rose for the Christmas holidays in December 2001 on which to do this. On that day, 14 December, with just two days notice to the Opposition, it put all stages of the Referendum Bill 2001 through the Dail and Seanad in a couple of hours.

This removed from the Commission its function of preparing and publicizing a statement setting out the relevant Yes-side and No-side arguments in referendums.  It left the Commission with its original function of publicizing a statement on what the referendum was about.  And it substituted for the function of facilitating debate on the issues a new function of promoting public awareness of the referendum and encouraging citizens to vote at the poll. These are the two functions the Referendum Commission still has.

The Referendum Bill 2001 was passed by 58 votes to 40 on its second reading. Fine Gael, Labour, the Green Party and Sinn Fein voted against the Fianna Fail Government’s proposal. Those voting against included 10 deputies who became Ministers in the Fine Gael-Labour Government which assumed office in 2011.

10. The Democratic Value of the Referendum Commission’s Yes/No Function:

The democratic value of the Referendum Commission having to set out the main pros and cons of any proposed constitutional change fairly and impartially was that false, irrelevant or extraneous arguments on the pros and cons of the referendum proposition had necessarily to be excluded from the Commission’s information material.

The Commission had to be satisfied that the arguments put forward on each side were validly grounded in the actual constitutional amendment being proposed and in legitimate hopes or fears which citizens might have with regard to it.  Obvious fallacies, irrelevancies or “ad hominem” arguments such as urging a Yes or No vote because some allegedly obnoxious person or party was on the other side could not be publicized by the Referendum Commission, although these are commonplace among private contestants in referendums and elections.

In Irish referendums the Government and Yes-side forces are seeking to change the Constitution, while the No-side elements are seeking to conserve it, to prevent change.  From a democratic standpoint it is presumptuous to seek to prejudge the referendum result and predetermine the outcome by effectively taking money from one side for the benefit of the other.

There are always valid pros and cons to any proposal for constitutional change. At the extreme, even if opinion polls show a change to be desired by an overwhelming majority of citizens, there will always be some who will oppose any referendum on such grounds as cost.

A further consequence of the Referendum Commission having the function of setting out the relevant pros and cons of proposed constitutional amendments was that when private interests on each side were aware that the main arguments for and against would be put fairly and honestly before the public through the Commission’s advertisements, big-league private money had no incentive to intervene.  At the same time the political parties and civic interests on each side continued to spend their own money as they had done in all Irish referendums since 1937.

The first referendum to be held following the removal of the Referendum Commission’s function of setting out the pros and cons was the second Nice Treaty referendum in October 2002. The Irish Government held this second referendum to reverse the result of the first, for the Nice Treaty itself remained unchanged.  On this second occasion private funders, including private and public companies, weighed in in a big way, such that it has been reliably estimated that the cost of advertising by the Yes-side outweighed that on the No-side by a factor of ten to one.

On this second time round, moreover, the amendment to permit the ratification of the Nice Treaty was coupled with an amendment precluding the State from joining an EU common defence – both issues being put forward as one consolidated proposition to which citizens had to vote either Yes or No, for they could not vote on each of its elements separately.  If citizens wished to prevent the State joining an EU defence pact, they had to vote Yes to ratify the Nice Treaty. If they wished to vote No to the Nice Treaty they also had to vote No to the amendment preventing the State joining an EU defence pact. The Referendum Commission then had to inform citizens how this dual proposition would affect the Constitution.

Quite possibly this two-propositions-in-one amendment was itself unconstitutional, but no one came forward to challenge it. The Commission carried out its new functions fairly, but the dual character of its explanations necessarily helped pile up votes for the Yes side. This was how the No vote of Nice One in 2001 was turned into the Yes vote of Nice Two in 2002.

11. Tax-payer Financed Government “Information Campaigns” Separate from the Referendum Commission’s … The 2008 and 2009 Lisbon Treaty Referendums:

In the 11 constitutional referendums which were held between the Supreme Court’s 1995 judgement on one-sided Government expenditure in McKenna and the 2008 and 2009 Lisbon Treaty referendums, no Irish Government attempted to run information campaigns parallel to the independent Referendum Commission’s statutory-based campaigns to inform citizens what the referendums were about.

The first breach of the McKenna principles by an Irish Government occurred in the 2008 Lisbon Treaty referendum. On that occasion the then Fianna Fail Government through the Department of Foreign Affairs issued a booklet with the title “EU Reform Treaty”. The ”Reform Treaty” was the Department’s name for the Lisbon Treaty which the booklet purported to describe.  This was a highly selective and tendentious document which carried the following slogans on its cover that clearly amounted to implicit advocacy: “effective democratic union”, “progress and prosperity”, “peace and justice in the wider world”, “a union of values”.

Inside it summarised the provisions of the Lisbon Treaty under such headings as “increased democratic controls” and “equality between Member States”.  The Foreign Affairs Department also placed newspaper advertisements featuring the booklet’s cover. These possibly had more influence on voters than the booklet itself.  There was also a Foreign Affairs web-site which like the booklet implicitly pointed to the desirability of a Yes vote in the referendum even if neither booklet nor web-site urged explicitly “Vote Yes”.

Similar material was produced for Lisbon Two in 2009.  Presumably the then Attorney General, Mr Paul Gallagher SC, advised the Fianna Fail Government of the time that these actions did not breach the McKenna principles. Presumably too its Fine Gael-Labour successor decided to follow the Fianna Fail Government’s partisan “information campaign” when it came to the next Irish referendums.  And presumably its Attorney-General, Ms Maire Whelan, decided to follow her predecessor Mr Gallagher’s advice in relation to the taxpayer-financed information booklet, brochure and web-site which sought to influence the “Fiscal Treaty/Fiscal Compact.” referendum in May 2012 and the Children’s referendum in November that same year.

The booklet issued by the Department of Foreign Affairs in the Fiscal Treaty/Fiscal Compact referendum in May 2012, which was posted at public expense to all households in the State, was tendentiously selective like its Lisbon Treaty predecessor.  It purported to describe the so-called “Stability Treaty”, even though the Treaty in question was generally referred to across the EU as the “Fiscal Treaty” or the “Fiscal Compact”, its full title being the “Treaty on Stability, Coordination and Governance in the Economic and Monetary Union”.

The first page of this booklet was titled “What is the Stability Treaty?”.  Inside it was described as a Treaty which aimed “to support growth and employment…to protect the public’s money… and to be part of a toolkit to avoid another economic crisis”.   Again these were tendentious phrases which clearly amounted to advocacy rather than objective information and were legitimately open to being questioned by No-side proponents who took a different view to the Government’s on the content and effects of that treaty.

12. Re-Affirmation of the McKenna Principles as Best International Practice … The 2012 McCrystal Case:

These partisan Government “information campaigns” using public money unconstitutionally were not challenged in the Courts at the time of the 2008 and 2009 Lisbon Treaty and the 2012 “Fiscal Treaty” referendums. They were successfully challenged by Mr Mark McCrystal in the 2012 Children’s referendum.

On the eve of that referendum the Supreme Court ruled  unanimously that the booklet, advertisements and web-site issued by the Government on that occasion were in breach of the Court’s 1995 judgement in McKenna. In setting out their reasons the Supreme Court judges strongly reaffirmed the McKenna principles.  Irish Governments could certainly spend public money in informing citizens of the main arguments for and against particular referendum propositions, but any partisan presentation was a violation of citizens’ rights to fairness, equality, and democracy on these occasions.

The Referendum Commission was clearly the most competent body to provide citizens with neutral information which accorded with the McKenna principles. As Chief Justice Mrs Susan Denham put it:

“It is questionable whether it is wise to ask a Minister, who is promoting a referendum on behalf of the Government, to publish neutral information on the referendum. It may be that it is itself inherently unfair to ask a Minister, and indeed her Department, which are promoting a referendum, and who clearly believe in its merit, and wish for a ‘Yes’ vote, to draft and publish neutral information. This role may be best performed by a body not invested in the referendum.”

The Chief Justice noted favourably the recommendation of previous Referendum Commissions for the establishment of “a permanent and ongoing body which would have ample time to prepare and promote public awareness of important constitutional amendments.”

The Supreme Court made clear in the McCrystal case that the McKenna principles accorded with best international practice regarding referendums. In their judgements the Chief Justice and Mr Justice John Murray referred to the “Code of Good Practice in Referendums” which was adopted by the Venice Commission for Democracy through Law, an advisory body of the Council of Europe, and the Council for Democratic Elections in 2006 and 2007.

This Code included the statement that

“Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on.  This entails a neutral attitude by administrative authorities, in particular with regard to … public funding of a campaign and its actors.”

And again:

“There must be no use of public funds by the authorities for campaigning purposes in order to guarantee equality of opportunity and the freedom of voters to form an opinion.”

The Chief Justice also referred to Australia, where pamphlets distributed to citizens by that country’s Electoral Commissioner set out the arguments for and against proposals to amend the Australian Constitution. And she referred to UK referendum practice where an Electoral Commission can provide equal sums of public money to umbrella groups on each side in referendums.  By challenging the Government’s brazen flouting of the Supreme Court’s McKenna judgement Mark McCrystal, like Ms McKenna before him, has clearly struck a significant blow for Irish democracy.

_____

Note on Author:  Anthony Coughlan was a supporter of the late Raymond Crotty and Patricia McKenna in their constitutional actions on Irish referendums in 1987 and 1995 respectively. He was himself plaintiff in the 2000 Coughlan case on partisan referendum broadcasts. He has been involved on the No side in EU-related referendums but was not involved in the other referendums mentioned above. He is Director of the National Platform EU Research and Information Centre and is former Senior Lecturer in Social Policy, TCD.

January 2013

via A History of Iniquity, II: How Irish Governments behaved unconstitutionally, serving the EU agenda – Indymedia Ireland.

via A History of Iniquity, II: How Irish Governments behaved unconstitutionally, serving the EU agenda – Indymedia Ireland.

Shell, the Supreme Court, and Corporate Liability


Royal Dutch Shell (NYSE: RDS-A) is the respondent in a landmark case currently before the U.S. Supreme Court. The outcome of Kiobel v. Royal Dutch Petroleum will have significant implications for the oil and gas sector, and potentially for other extractive companies operating in sensitive regions.

This, among other factors, could signal a new era of costly corporate liability for human rights and environmental violations around the world. The days of corporate impunity are drawing to a close, and companies that hope for sustained access to critical resources must deal better with the communities where they operate. Investors would do well to pay attention.

What’s this all about, precisely?

Here are the two questions at the heart of Kiobel v. Royal Dutch Petroleum, according to the official Supreme Court docket:

Whether the issue of corporate civil tort liability under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.

Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides [sic], or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the Eleventh Circuit has explicitly held.

In plain English, the court is considering whether it has jurisdiction to hear lawsuits regarding international law violations on foreign soil, and whether corporations can be sued for those violations in the same way that individuals can be.

The curse of the black gold

Like many oil companies, Shell has operations in the ecologically and politically sensitive Niger River Delta. The Niger River Delta exists in a complicated landscape of political instability, ethnic conflict, extreme poverty, and rich biodiversity. Ed Kashi, a photojournalist and National Geographic contributor, says the discovery and exploitation of oil in the region has only exacerbated its problems. A common refrain is that the Niger River Delta has suffered “the curse of the black gold.” Mr. Kashi actually wrote a book with co-author Michael Watts entitled, “Curse of the Black Gold, 50 years of Oil in the Niger Delta.”

When Shell entered the region more than half a century ago, the company did little to obtain the support of the local communities. To be fair, no other companies considered local communities’ needs in their extractive projects in those days either. This is changing. In modern times, we have a concept called “social license to operate,” and it is at the heart of why Shell is now the defendant in a landmark human rights case.

Social license to operate

Generally speaking, a company has a social license to operate when the communities its project affects accept its presence; feel that their needs and concerns have been understood and addressed; perceive that they benefit from the company’s operations in some way; and welcome the company’s continuing operations. Let’s be honest: While this is essential, it’s also incredibly difficult to achieve. Imagine trying to earn community consent when the stakes are high, and the affected parties come with widely varied concerns and agendas.

What we are seeing now, though, is that the cost of failure to obtain community consent is higher than previously understood, and may be growing considerably. This theme is turning up repeatedly around the world across various extractive sectors, from oil to mining to – most recently – agribusiness. Companies’ ability to manage this issue will increasingly affect their bottom line.

Oil spills and murdered activists

Oil has leaked from Shell’s pipelines into the ground and water of Ogoniland, the Niger River Delta region at the forefront of the Supreme Court case. Experts reviewing aerial footage of Ogoniland estimate that the spilled oil volume rivals that of the notorious Exxon Valdez spill of 1989, when 10 million gallons of oil gushed along the Alaskan coastline. Until 2011, Shell had estimated the impact at less than 40,000 gallons. While Shell now discloses spill volume in Nigeria, the company makes no public estimates of cleanup costs.

We’re talking here about numerous small spills in Ogoniland, not one massive spill as in ExxonMobil‘s  (NYSE: XOM  ) Valdez case. The causes vary. Shell has long asserted that the majority of spills are caused by theft and sabotage, even as it acknowledges that some are the result of operational failures, accidents, or corrosion. This strikes me as a distinction without a difference. If sabotage is at play, then it necessarily implies Shell’s failure to maintain good relations with local communities, and reveals the cost of that failure. Ultimately, the company is responsible for securing its supply chain.

The environmental devastation these spills have caused is hard to overstate. Local fisheries have been destroyed, groundwater has become unsafe to drink, communities have collapsed, and people have sunk even further into poverty. They are aware that someone is profiting handsomely from the oil on their land, but it’s not them. They are angry, and they have been for a while.

Some have turned that anger to activism. Nigeria’s first mass protest against the oil industry originated in Ogoniland with writer Ken Saro-Wiwa and his Movement for the Survival of Ogoni People. Nearly half the Ogoni population rallied in 1993 to support Saro-Wiwa’s movement. The backlash was so significant that Shell pulled out of Ogoniland in 1993, leaving behind only pipelines moving oil from other areas. That is what it looks like to lose social license to operate. It’s not good for people, and it’s not good for business.

The Nigerian government was so alarmed by Saro-Wiwa and others’ activities – and the threat they posed to oil revenues – that it arrested Saro-Wiwa and some of his colleagues and subjected them to a trial that was widely viewed as a sham. The trial concluded with the public hanging of Saro-Wiwa and eight others in 1995. The world reacted with horror, and the name Ken Saro-Wiwa has come to be synonymous with gross injustice.

Many believe that Shell was complicit in the proceedings. Shell denies this. It’s up to courts of law to settle the matter, but public perception that Shell had a hand in the activists’ murder has stubbornly endured.

Kiobel

Bringing us back to the present, you may have noted earlier that Ken Saro-Wiwa was among nine people executed in 1995. One of the others was named Dr. Barinem Kiobel, and his wife brought the current case against Shell all the way to the Supreme Court. The outcome is likely to be significant not just for Shell, but for all other extractive companies.

The Center for Constitutional Rights summarizes the lawsuit as seeking “… relief for crimes against humanity, including torture and extrajudicial executions, and other international law violations committed with defendants’ assistance and complicity between 1992 and 1995 against the Ogoni people.”

The Supreme Court is currently deliberating as to whether it has jurisdiction in this case, and a decision is not expected until next year.

Then there is the environmental side of things. In 2011, the United Nations Environment Programme (UNEP) released a blistering report on the damage that oil companies have done in Ogoniland, and what they must do to rectify the situation. UNEP estimates that the cleanup will take 25-30 years, and recommends that it begin with a $1 billion cleanup reserve for Ogoniland, to be funded by the government and oil companies. Shell said at the time that it would comply fully with the recommendations, but a Reuters investigation one year later found little evidence of progress.

Corporate liability

Activists have sought legal relief in various jurisdictions. Beyond Kiobel v. Royal Dutch Petroleum in the U.S. Supreme Court, Shell has been sued in the Netherlands, the United Kingdom, and Nigeria. In October 2012, four Nigerian farmers and the Dutch arm of environmental group Friends of the Earth filed suit against Shell in a Dutch court in mid-October. The plaintiffs in that case seek compensation for damage from oil spills, as well as a thorough cleanup. It is the first time that a Dutch firm has been sued in a Dutch court over damage that took place abroad. Radio Netherlands says that a verdict in this case is expected at the end of January 2013.

Meanwhile, the British law firm of Leigh Day & Co. filed papers in March 2012 against Shell on behalf of 11,000 Nigerians of the Bodo community for compensation for oil spill damages. As in the Dutch case, Leigh Day says that this is the first time any oil company has faced a claim on U.K. soil for damage done abroad.

The Sustainable Investments Institute (Si2) conducted a recent study (link opens a PDF) attempting, among other things, to calculate a dollar amount for which corporations could be liable if they were held to account for the damage they’ve done in the broader Niger River Delta region. In the assessment, Shell would not be the only company at risk. Total (NYSE: TOT  ) , Chevron (NYSE: CVX  ) , and ConocoPhillips (NYSE: COP  ) all have significant interests in the region. Si2 concluded that “… total liabilities, excluding punitive damages, could range anywhere from $16 to $51 billion. With punitive damages, the costs could be far higher. For several of the companies analyzed, the potential costs of addressing oil spill damage in the Niger Delta could wipe out a significant portion of annual earnings—more than 40 percent of 2011 net income in some cases.”

Those are sobering numbers. Of course, the question is whether Si2′s estimates are likely to come to fruition. I asked Peter DeSimone, Si2′s co-founder and deputy director, to offer his thoughts:

In the short term, it’s very likely that some of these potential liabilities will be realized, especially those in connection with UNEP’s proposed $1 billion cleanup and remediation fund for Ogoniland. Beyond this time horizon, it’s difficult to tell. Continued violence, community organizing, government sentiment, spill activity, and the outcomes of pending lawsuits will all be variables in determining whether potential liabilities end up on companies’ books. … The upper end of our estimates uses the UNEP Ogoniland study as a proxy for the entire region, but investors and other key stakeholders will not know the true extent of the damage until a scientific assessment is made public. One element of certainty is that international attention to this issue is growing, as is anger over the spills in Nigeria. At the same time, all of the present operators have big plans to continue to develop assets in Nigeria. If they are going to maintain their licenses to operate there, I would put my money on many of these companies increasing cleanup and remediation activities and realizing these liabilities sooner rather than later.

Chickens coming home to roost

Global momentum for greater accountability is building. No matter what you think of BP (NYSE: BP  ) , the company’s proactive response to the Macondo spill drew attention to the comparatively dismal efforts of oil companies in other regions of the world. There are significant court cases playing out right now against various oil majors for poor management of their effects on the communities in which they operate. In a future article, I will cover the astonishing story of a case against Chevron for its actions in Ecuador.

Regardless of any single court decision, though, companies ignore their social licenses to operate at their own peril. You’ll note from Shell’s story that the company’s claim that much of the oil spilled in the Niger Delta was the result of sabotage. The community’s rejection of Shell is costing the company its primary resource. Consider the cost, too, of the necessary increase in security for company facilities and staff. Finally, severely eroded community relationships contribute to a real risk of resource nationalization, which can effectively sink the company’s entire investment.

Simon Billenness, president of the CSR Strategy Group and co-chair of the Business and Human Rights Group of Amnesty International USA, summed this situation up perfectly in a recent interview:

The result of Kiobel v. Royal Dutch Petroleum will have a major impact on Shell and other companies in extractive industries. Irrespective of the outcome of that one case, however, it is clear that the days of corporate impunity in remote regions of the world are coming to an end. Companies that wish to have ongoing access to critical resources will have to deal openly and fairly with the communities affected by their operations. Companies that fail to do so risk becoming shut out of opportunities to expand their reserves and increase their shareholder value.

via Royal Dutch Shell Plc .com.

via Shell, the Supreme Court, and Corporate Liability.

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