[Comment] The conundrum of the constitution: cutting the Gordian knot
PETER SAIN LEY BERRY
02.02.2007 @ 09:18 CET
EUOBSERVER / BRUSSELS - A very long time ago, when dragons still roamed these hills, there lived in Turkey a gentleman farmer whose name was Gordius. He comes down to us as famous for two things: being the inventor of the unlooseable knot that bears his name, and as the father of Midas - the king with the taste for gold.
Midas himself arrived as a kind of thank-you gift from his mother, the headstrong goddess Cybele. She happened to be touring the rural hinterland of Anatolia, for some reason, in a chariot pulled by lions, not the easiest of carriage animals at the best of times.
Even if you are a goddess this isn't exactly a sensible thing to do, especially alone, and I suppose the roads then were no better than they are today. Anyway, the young Cybele soon found herself sitting helpless by the roadside, surrounded by a broken chain of harness, a bent chariot and two hungry and vexed lions.
No doubt she was already regretting that streak of impetuosity with which she had embraced chariot driving in the first place when over the hill came cavalry in the handsome shape of Gordius. Thus were the lions tamed and the harness mended, sealed in fact with his trademark Gordian knot.
Cybele's gratitude now descended into another reckless outbreak of divine impetuosity as a result of which the infant Midas emerged nine months later. He later was to prove every bit as impulsive as his mother; but that is another story.
The purpose of writing this excessive introduction is not to remind readers of the extraordinarily large volume of European legend that originates in Turkey - even the abduction of Europa herself is essentially a Turkish tale - but to introduce, in the only way I know, the subject of the Gordian knot.
Or rather not the knot, but the untying of the knot; or rather still, if you remember your history, the cutting of the knot. For in an improbable synthesis of fact and legend we are told that Alexander simply cut it through with his sword. No, it wasn't playing the game, but, yes, it worked.
The ratification knot
The European constitution is something else tied with a Gordian knot. That knot is called ratification or rather the principle whereby each and every member state can hold the others to ransom in regard to its entry into effect.
Eighteen member states have already ratified the existing constitutional treaty; three more would probably have little difficulty in doing so, but six remain. Of those six it might be reasonably assumed that three (France, Netherlands and Denmark) could be accommodated with concessions and safeguards. But the other three (the United Kingdom, Poland and the Czech Republic) seem to have grown potentially hostile to the whole constitutional enterprise.
The German Presidency has begun its heroic task of salvaging as much of the existing constitutional treaty as it can before proposing a resumed ratification process. But we are still bound by the Gordian knot - it will only take one single state to say 'no' for the whole process to come grinding to a halt once again.
Which would be an 'historic failure' as Mrs Merkel said recently and explains why the German Presidency has come out strongly against further referenda like those in France and the Netherlands that caused such grief two years ago. Nevertheless, the faint outline of the words 'dream-on' continues to pass fleetingly across my lips.
The German Chancellor has argued that as the present constitutional text was carefully negotiated as an integrated package and signed by 15 governments amid pomp and ceremony; and further endorsed by 12 other states in the context of their accession negotiations, that text must have something going for it.
To amend the text substantially, including filleting out anything remotely substantial or challenging and leaving just a clause or two dealing with the technicalities of voting arrangements, would defeat the whole object of the exercise - to have a more transparent, efficient, democratic and capable European Union. Nevertheless this 'technical minimum' is what has been widely touted, though not by Mrs Merkel.
Herein lies a conundrum of large proportion. While it may be possible to secure the ratification of a limited technical treaty without referenda, there would be no chance whatsoever of doing so with the kind of full blown text that Mrs Merkel (and the group of eighteen ratifiers) are hoping for. Moreover, neither would it be right.
Either you have a mini-treaty without referenda or you have a full treaty with referenda (and probable rejection). Given the Gordian knot of ratification, there ain't a middle way.
Can the knot be cut?
But might it be possible to cut this knot? I merely pose the question. I know that many people who opposed the treaty objected to being bound by its provisions, indefinitely and with no escape. In such circumstances one has to consider the worst possible case, possibly vote 'no.'
Suppose we were to contrive a situation such that while everyone agreed to adhere to the constitution's provisions for practical and everyday purposes, it would have no permanent legally binding status? This is not a novel concept, after all this is where we are now with the Charter of Fundamental Rights.
Supposing it were agreed that for a certain period of time - say three years - those states that had not ratified the treaty would nevertheless follow its provisions except in cases of overwhelming national interest? To give it a go in the popular phrase? After three years - a so-called 'sunset clause' could be written in - the matter could be reviewed. Indeed a referendum promised for that point.
No doubt such would be a legal nightmare - but that is a problem for our learned friends to resolve. Once implemented the constitution would start to work to the benefit of all. I doubt very much whether any state would then wish to bring it down, to change the proven status quo.
Indeed by the review point the constitution would have been tested. A referendum then could deal in facts rather than fancies. We could look forward to an amended text with more states ratifying. But again the text could be provisional for those states that might otherwise have difficulty.
Having a voluntary constitution, a temporary constitution, a not-ratified-by-everyone constitution, may not be the ideal way to proceed, but if the hold of the Gordian knot is loosed, who will worry about a few frayed edges to the rope?
The author is editor of EuropaWorld
