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    • CommentAuthoradmin
    • CommentTimeOct 22nd 2008
    File this against TGA's goal of 'law'.

    A fundamental principle of the law is that the law applies to all. Unfortunately, the fundamental principle has been much maligned. Not only do the laws within member countries have 'special cases' of persons to which the law does not apply or different laws apply, the EU itself has structures which do the same.

    Here are a few examples:-
    - Military law - crimes by military members tried by military courts, human rights are strictly limited, members permitted to kill and injure
    - Immigrant law - immigrants are often not given the full benefits as accorded by law
    - Presidential and other political immunity - whereby senior members of governments are not subject to the due process of law
    - Governmental and civil service immunities - for example, exemption of government agencies from small claims court proceedings for money claims in the UK
    - Political immunity - the inability in many member countries to sue a politician in the performance of his duties, or for failing to deliver upon a manifesto
    - Diplomatic laws - exempting diplomats from many local laws when stationed abroad, even simple ones such as parking regulations

    I believe that as a centerpiece of EU policy, every single on of these should be made illegal. The commonality of law should be made an overriding legal right, without exceptions.

    I welcome the contributions of the forum on this issue. Should this be part of any new European Constitution?
    • CommentAuthoradmin
    • CommentTimeOct 22nd 2008
    Military law is necessary because it is created for wartime. I dont know what immigrant law is but I think you are referring to illegal immigrants. In that case, they should be happy to have any rights at all in my opinion. When they arrive in Italy, Spain etc, they are being sheltered, fed, and in most cases shipped onto the mainland where they are not welcome anyhow. Would you treat an intruder to a cup of tea?
    Political & Civil Service - In serious cases, political immunity can be revoked.
    Diplomatic law - would you rather go to Iran with diplomatic immunity or without?
    Also, none of these laws allow the killing of other people as a punishment. It goes without saying that you can't blame a soldier for killing his enemy.
    • CommentAuthoradmin
    • CommentTimeOct 22nd 2008
    I agree with some of vince's points on the need of equality in face of the law, though I wouldn't go so far as to say it goes against TGA's position. He never claimed the EU or its members had one law, just that we live in a state of general abidance of the law. However, vince is right, there are too many exceptions.

    I especially agree with him in condemning exceptions for immigrants and authorities.

    Immigrant laws don't discriminate against ilegal immigrants, those are subject to immigration laws, which is something quite different. I don't see why legal immigrants which pay taxes and other contributions shouldn't benefit from the same rights that nationals do, including the right to vote and to run for public office. It's inexcusable that often immigrants are denied even the rights the immigrant laws do grant them!

    As for authorities, they should set the example, and often their actions are the exacte opposite, incurring in all sorts of violations, on one hand, and using intimidation tactics towards citizens, on the other. This generates a widespread feeling of suspicion towards authorities.

    Gheryando would be right if military law were limited to military matters. I agree that military matters should be tried in military courts. Civil offenses should be dealt in civil courts. But there is another side to the military law. In some countries, the military are denied some of their civil rights, as for example freedom of speech (outside confidentiality issues) and, once again, the right to run for public offices.
    • CommentAuthoradmin
    • CommentTimeOct 22nd 2008
    Gheryando, Martial law and Military law, so far as I know, are different concepts altogether. Martial law applies to the whole population during times of war and provides for things such as curfews, security restrictions, and blackouts. On the other hand, Military law applies to members of the armed services at all times, whether at war or at peace, whether deployed or not. It is Military law which I believe falls foul of equality and the fundamental principles of law. As Seileach points out, Military law is also about removing rights accorded to the rest of the population, such as the right to resign, the right not to be intimidated or to face verbal abuse at work, the right to unionise and the right to participate in politics. None of these are right and are a hangover from a bygone age where it was acceptable to treat people like animals.

    By laws and rights for immigrants, I wasn't referring necessarily to illegal immigrants. There are many situations where those who have recently arrived within an EU member country are discriminated against. This can take the form of disqualifying them from access to social support or subsidised education, and in some cases even more serious issues relating to employment and workers rights.

    Political and civil service immunities, although you are right about them being revoked in serious circumstances, place the persons above the law in a way that nobody should ever be. Politicians and civil servants are there to serve the public and if they have wronged the public it is only proper that the public should be able to take them to the courts to seek redress for all damages caused. If a politician undertakes an illegal action or acts outside the best interest of the population, then he should be personally and criminally liable for any loss or damage caused those his actions.

    Finally, it doesn't "go without saying that you can't blame a soldier for killing his enemy". If a solider is in Iraq and kills someone, I believe that solider should be subject to criminal charges in an Iraqi court on the charge of murder. That is what the solider has done and that is the crime he should answer for. Would it be right for a member of a foreign military force to come to the EU, shoot someone, and then claim to be immune from the local law and only liable under the Military law of his own country?

    Seileach, glad that you agree with some of my points, I was worried that I was all alone! I was not suggesting one law for the whole of the EU, but that our abidance of the law within EU countries be fair and proper.

    Here's another example of unfair immunity - judicial immunity means that judges in some EU countries cannot be taken to court for actions taken in the course of their duties. That means that those who are wronged by improper actions in a court case by the judge cannot obtain their legal right to compensation, and leaves judges free to become involved in corrupt and self-interested practices.

    Wouldn't it be great of the EU constitution guaranteed no person or group of people to be exempted from or specifically targetted by any part of the law? Wouldn't that be a nice chapter in the EU story?
    • CommentAuthoradmin
    • CommentTimeOct 22nd 2008

    "go without saying that you can't blame a soldier for killing his enemy", I think this sentence needs a little clarification. If two soldiers from opposing armies meet each other walking on patrol then it is reasonable for both of them to believe that the other is going to kill them, therefore they kill their enemy to protect themselves.

    Soldiers are (or at should be) governed by international law (the Geneva Convention) not just their own national military law.

    I understand that your religious position is that all killing is murder but it is normally possible to construct a situation were killing someone is the "best" thing to do (you know the what if I killed Hitler when he was 15 sort of argument).
    • CommentAuthoradmin
    • CommentTimeOct 22nd 2008
    Thank you Gary for the clarification, this was, indeed, my point.
    Vincex3, you are right I mixed the definitions of martial and military law. I still believe, however, that the military needs a different type of law. I also want to reiterate my point already made in an other thread that Europeans nowadays seem to take peace for granted and don't seem willing to defend it through risking their lives. Fortunately, there are soldiers who are being trained to face the problems that the 21st century will hold for Europe but by joining the military they also know that they will not be accomodated at the Ritz. Imagine soldiers went on strike because they believe they are paid too little to defend the country. This would put the government in a bad situation as it has no choice and will automatically have to agree. I am not saying soldiers do not have a right of representation but I believe that it should be limited. I also believe that a soldier throughout his training needs to be physically and mentally trained in order to endure eventual hardship. Verbal and physical abuse are part of a soldiers training and he will thank his instructor later. I also do not believe that soldiers should have the right to participate in politics because the military.

    "There are many situations where those who have recently arrived within an EU member country are discriminated against. This can take the form of disqualifying them from access to social support or subsidised education, and in some cases even more serious issues relating to employment and workers rights."
    If the immigrant is not illegal then he/she does not face substantial problems in the EU for he/she is legal and entitled to certain services by the state. If the immigrant is illegal and expects the same rights as a citizen then what is the advantage of being an EU citizen at all i ask. It would not make a difference between an Italian and an illegal alien from marocco. We are not the charity for the whole world and neither are we Brangelina who adopt a new third world child every other day.
    • CommentAuthoradmin
    • CommentTimeOct 22nd 2008
    My vision of European law is that it should be entirely horizontal in that it applies equally to all EU citizens regardless of origin. This is certainly not the case at the moment.

    What I believe Vince3 is talking about is vertical law where there are distinctions between different groups WITHIN a society. This would include immigration law.

    As examples of law not being horizontal I offer the following:
    The Spanish Constitution refers throughout to Spanish citizens and makes no mention of (and therefore grants no rights to) EU citizens.
    The AndalucĂ­a Constitution refers solely to Andaluzs and makes no mention of citizens from outside (same again).

    Both are cleary directly against the spirit (if not the letter) of EU law. The only problem is that to take either the Spanish government or the Junta de AndalucĂ­a to either the ECJ or ECHR is not within the means of any private citizen I know.

    This means that national and regional governments can ride roughshod over the rights of other EU citizens sure in the knowledge that they will never be taken to task over it.

    This is I believe, the biggest challenge to the EU for the future.
    • CommentAuthoradmin
    • CommentTimeOct 22nd 2008
    El CI, you make a good point regarding vertical and horizontal law. My point is based on what should be a fundamental part of all vertical systems of law (i.e. a horizontal provision), which is that the law should have universal applicability. Your point about the difficulty in enforcing horizontal law is very interesting. In some ways the EU can deal with this by putting law in place which states equality before the law and in all government provisions such that all references to those of a particular nationality in national law are automatically to be interpretted as references to any citizen of any EU member country or anyone who is normally resident within an EU member country.
    • CommentAuthoradmin
    • CommentTimeOct 22nd 2008
    I'm a bit sceptical about the idea of "one law for all" because laws inevitably contain exceptions. I do like the points made regarding vertical and horizontal law. In other words, there should be no discrimination of any EU nationals and residents in any EU member state on grounds of nationality or residency in any area of human activity. To the extent that such principles would not be sufficiently enforced by member states' authorities, EU authorities and notably the ECJ should have the power to enforce them and private individuals should have direct legal remedies to enforce such rights at both the member states' and EU level. There have been attempts to put this in practise but unfortunately these mechanisms currently don't work that well in practise and need to be significantly improved and strengthened. However, I'm afraid that political support for these laudable goals is lacking in many member states.