THE CONSTITUTION:PRESIDENT MICHAEL D Higgins could face his first major decision on whether to refer the new European Union fiscal treaty to the Supreme Court.
If the Government decides not to have a referendum on the treaty, after legal advice from Attorney General Máire Whelan, it will go to the Dáil for approval.
It is expected the key elements of the Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union, to give it its formal title, will be put into legislative form and put to the Dáil in the form of a Bill.
It will then go on to the Seanad and, if passed by both Houses of the Oireachtas, will go to the President for signature.
Routine international treaties and conventions only require approval by the Dáil and do not go to the Seanad or the President.
However, the budgetary implications of the fiscal compact treaty mean that it is almost certain it will need to be transposed into legislation and will require the approval of both Houses of the Oireachtas.
In that case, the President will have to decide whether to sign it into law or refer the Bill to the Supreme Court for adjudication.
Under article 26 of the Constitution, the President is entitled to refer any Bill to the Supreme Court after consultation with the Council of State.
While the President is required to summon the Council of State for purposes of consultation, the final decision on whether to refer a Bill remains his alone. If the President refers the Bill and it is approved by the Supreme Court it will then be immune to further challenge.
A number of groups opposed to the treaty have already indicated their intention of issuing a court challenge if a referendum is not held, and so the issue is likely to come before the Supreme Court irrespective of the President’s decision.
With Sinn Féin and left-wing TDs opposed to the EU spearheading a campaign for a referendum, it is possible that an attempt may be made to force the President to refer the Bill to the Supreme Court.
Under article 27 of the Constitution, a petition supported by a majority of the Seanad and one-third of the Dáil can be presented to the President, asking him to refer a Bill to the Supreme Court.
With Fianna Fáil supporting the campaign to have a referendum, there is a possibility that the required number of Senators and TDs could be found to sign such a petition.
