Advertisement
If you have a new account but are having problems posting or verifying your account, please email us on hello@boards.ie for help. Thanks :)
Hello all! Please ensure that you are posting a new thread or question in the appropriate forum. The Feedback forum is overwhelmed with questions that are having to be moved elsewhere. If you need help to verify your account contact hello@boards.ie
Hi all,
Vanilla are planning an update to the site on April 24th (next Wednesday). It is a major PHP8 update which is expected to boost performance across the site. The site will be down from 7pm and it is expected to take about an hour to complete. We appreciate your patience during the update.
Thanks all.

COE European Court Challange to Irish Religious oaths

Options
  • 06-10-2019 9:58am
    #1
    expectationlost
    Registered Users Posts: 11,753 ✭✭✭✭


    Two TDs and a senator have initiated a challenge in the European Court of Human Rights to the requirement that the president and members of the judiciary swear an oath to God upon taking office.

    David Norris, an independent senator, has joined Róisín Shortall, co-leader of the Social Democrats, and John Brady, a Sinn Fein TD for Wicklow, in taking the case to the Strasbourg court.

    The two other plaintiffs are David McConnell, chancellor of Trinity College Dublin and honorary president of the Humanist Association of Ireland, and Fergus Finlay, a former government adviser.
    https://www.thetimes.co.uk/edition/ireland/swearing-thin-presidential-oath-to-god-faces-court-challenge-l0kjvngsc great, its kind of come from nowhere, wonder who is paying for this, can anyone find any paperwork on it at the court website? https://www.echr.coe.int/Pages/home.aspx?p=home

    some rightly pointed out that your supposed to take a national case before going to the COE court.


Comments

  • Options
    #2
    Cabaal
    Moderators, Technology & Internet Moderators, Regional South East Moderators Posts: 28,462 Mod ✭✭✭✭Cabaal


    Personally I wouldn't care who is paying for it, the Irish state is supposed to allow religious freedom and by having this outh they are not having this freedom.


  • Options
    #3
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    expectationlost wrote: »
    https://www.thetimes.co.uk/edition/ireland/swearing-thin-presidential-oath-to-god-faces-court-challenge-l0kjvngsc great, its kind of come from nowhere, wonder who is paying for this, can anyone find any paperwork on it at the court website? https://www.echr.coe.int/Pages/home.aspx?p=home

    some rightly pointed out that your supposed to take a national case before going to the COE court.
    You have to "exhaust your domestic remedies" before going to the ECHR. That usually means taking and losing a case in the national courts. But in this case the requierment for a theistic oath is contained in the Constitution, and you can't really challenge the Constitution in the Irish courts. So the argument, I think, will be along the lines that "we have no domestic remedy available to us, so we can't be required to exhaust it".

    This issue has already come before the ECHR, in the 1999 case of Buscarini. Buscarini and della Balda were elected to the parliament of San Marino, and were required by law to take an oath of office "on the holy Gospels". They both took a version of the oath which omitted the reference to the Gospels, but this was rejected by the Parliament which passed a resolution directing them to take the oath in the form laid down by law. They took the oath in that form, under protest, but made a complaing to the European Commission of Human Rights, which investigated the matter and concluded that their right to freedom of religion and conscience had been infringed, and the matter moved on from there to the Court, which also concluded that there had been an infringement.

    By the time of the court judgment, the law had already been changed to allow members of parliament to make the oath either "on the holy Gospels' or "on my honour", so the court didn't make any order for damages or other remedies, apart from the simple declaration that the former law had been in breach of the Convention.

    The problem in this case will be, I think, that unlike Buscarini and della Bosca none of the plaintiffs has ever been elected to a position in which they are required to take a theistic oath. So the question becomes "is their right to freedom of religion and conscience infringed by the fact that someone else is required by law to take a theistic oath?" Which, obviously, is not a question that came up in Buscarini's case.


  • Options
    #4
    Hotblack Desiato
    Registered Users Posts: 33,872 ✭✭✭✭Hotblack Desiato


    About fecking time.

    Members of the judiciary are not elected.

    My human right to freedom of religion is violated by this article of the constitution whether I seek such office or not - simply by the fact that it unfairly deters me and other atheists from doing so. If we had a law which said "no black people can be elected to the Dail" it would be a violation of human rights, even if no black person had ever stood in a Dail election never mind won one.

    Life ain't always empty.



  • Options
    #5
    is_that_so
    Registered Users Posts: 32,136 ✭✭✭✭is_that_so


    Peregrinus wrote: »
    You have to "exhaust your domestic remedies" before going to the ECHR. That usually means taking and losing a case in the national courts. But in this case the requierment for a theistic oath is contained in the Constitution, and you can't really challenge the Constitution in the Irish courts. So the argument, I think, will be along the lines that "we have no domestic remedy available to us, so we can't be required to exhaust it".

    This issue has already come before the ECHR, in the 1999 case of Buscarini. Buscarini and della Balda were elected to the parliament of San Marino, and were required by law to take an oath of office "on the holy Gospels". They both took a version of the oath which omitted the reference to the Gospels, but this was rejected by the Parliament which passed a resolution directing them to take the oath in the form laid down by law. They took the oath in that form, under protest, but made a complaing to the European Commission of Human Rights, which investigated the matter and concluded that their right to freedom of religion and conscience had been infringed, and the matter moved on from there to the Court, which also concluded that there had been an infringement.

    By the time of the court judgment, the law had already been changed to allow members of parliament to make the oath either "on the holy Gospels' or "on my honour", so the court didn't make any order for damages or other remedies, apart from the simple declaration that the former law had been in breach of the Convention.

    The problem in this case will be, I think, that unlike Buscarini and della Bosca none of the plaintiffs has ever been elected to a position in which they are required to take a theistic oath. So the question becomes "is their right to freedom of religion and conscience infringed by the fact that someone else is required by law to take a theistic oath?" Which, obviously, is not a question that came up in Buscarini's case.
    If it's in the Constitution then it requires a referendum and that could be lost.


  • Options
    #6
    expectationlost
    Registered Users Posts: 11,753 ✭✭✭✭expectationlost


    Peregrinus wrote: »
    You have to "exhaust your domestic remedies" before going to the ECHR. That usually means taking and losing a case in the national courts. But in this case the requierment for a theistic oath is contained in the Constitution, and you can't really challenge the Constitution in the Irish courts. So the argument, I think, will be along the lines that "we have no domestic remedy available to us, so we can't be required to exhaust it".

    This issue has already come before the ECHR, in the 1999 case of Buscarini. Buscarini and della Balda were elected to the parliament of San Marino, and were required by law to take an oath of office "on the holy Gospels". They both took a version of the oath which omitted the reference to the Gospels, but this was rejected by the Parliament which passed a resolution directing them to take the oath in the form laid down by law. They took the oath in that form, under protest, but made a complaing to the European Commission of Human Rights, which investigated the matter and concluded that their right to freedom of religion and conscience had been infringed, and the matter moved on from there to the Court, which also concluded that there had been an infringement.

    By the time of the court judgment, the law had already been changed to allow members of parliament to make the oath either "on the holy Gospels' or "on my honour", so the court didn't make any order for damages or other remedies, apart from the simple declaration that the former law had been in breach of the Convention.

    The problem in this case will be, I think, that unlike Buscarini and della Bosca none of the plaintiffs has ever been elected to a position in which they are required to take a theistic oath. So the question becomes "is their right to freedom of religion and conscience infringed by the fact that someone else is required by law to take a theistic oath?" Which, obviously, is not a question that came up in Buscarini's case.
    Fergus should went for the aras. surely laws can be challenged on the basis that they are laws, and can effect people.


  • Advertisement
  • Options
    #7
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    Hotblack Desiato wrote: »
    About fecking time.

    Members of the judiciary are not elected.

    My human right to freedom of religion is violated by this article of the constitution whether I seek such office or not - simply by the fact that it unfairly deters me and other atheists from doing so . . .
    expectationlost wrote: »
    Fergus should went for the aras. surely laws can be challenged on the basis that they are laws, and can effect people.
    Yes to both. And this is presumably the argument that will be run, or at least one of them.

    FWIW, I see two independent lines of argument here. One is the argument you suggest - my religious liberty is infringed by the imposition of an effective religious test for this office, since that is an obstacle to my seeking or accepting the office.

    The other is a broader argument, which is that the character of the state is injured, and therefore all of society suffers, by tests of this kind. The injury here is not to the people who seek or might seek office, but to the society which the office is supposed to serve, including people who would never in a fit seek office themselves, or expect to obtain it.

    The second argument is hard to ground in terms of individual human rights, so I suspect it wouldn't find much traction in the ECHR. But, as a matter of political principle, it seems to me to be the stronger argument. Offices like judge and president aren't created for the benefit of their occupants, but for the benefit of the rest of us, and if those offices are degraded by the needless imposition of exclusionary tests and conditions of this kind, then we are all entitled to complain about it. Ultimately the injury here is not to those individuals who object to taking religious oaths, but to the republic.


Advertisement