This paper’s front page last Saturday included a striking photograph of new gardaí swearing their attestation oath, copies of the Holy Bible: New International Edition held aloft. There were nine Bibles in all, and all their holders likely swore to uphold their duty “before God”. There is, though, an option to leave out that phrase. They can do that while holding a copy of the Constitution, even though that document is itself busy with theism.
The photograph was a curious reminder of how much of Irish public service remains underpinned by the clasping of a Bible and the uttering of a few words in the presence of an “Almighty God”.
The nonbelievers’ version of the attestation was added in 2005; there has been recurring discussion about what form an oath should take and what options should be available.
The question then, and now, is whether it is anachronistic to have options at all. Why continue with the whatever-suits-you approach? Twenty-three years ago, the Law Reform Commission recommended that oaths generally be done away with in judicial proceedings. That document proves a surprisingly zippy popular history of the concept in law, writing of how it originated as a self-curse, then lost that independent power as belief in divinities became more popular, until, finally, a god of the monotheistic religions became “executor” of a person’s oath.
Examining the multitude of possibilities in a pluralistic society, it recommended a simple solution: “The oath offers little or no greater security for the truth than a statutory affirmation, [and] the Commission considers that the potential prejudice to witnesses and jurors who choose to affirm, together with the great attraction of providing for a universal and simplified procedure which would place all persons on an equal footing, weighs in favour of the abolition of the oath generally.”
The oath wasn’t abolished. Already, under an 1888 Act, there was a provision for nonbelievers to make an affirmation over a religious oath, and what has developed instead is a flexible approach. Want to include God? Go for it. Don’t believe in all that stuff? Then don’t worry about it.
There is no evidence that the Law Reform Commission’s concerns about subsequent bias has been borne out. However, it has led to a situation in which the Department of Justice, in its explanations of the standing of religious oaths versus nonreligious affirmations, comes close to the spirit of that Law Reform report.
“An affirmation is a verbal, solemn and formal declaration, which is made in place of an oath,” it says. “A person may choose to make an affirmation rather than taking an oath. An affirmation has the same effect as an oath.”
There is also this curious diversion into the power, or otherwise, of the supernatural. “If an oath has been properly administered and taken, the fact that the person to whom the oath was administered had no religious beliefs at that time does not affect the validity of the oath.” In other words, the religious oath works even if the witness doesn’t believe in the religion. A doctorate in theology to whoever worked that one out.
Meanwhile, the Minister for Justice last year announced a referendum that would reorganise the courts system, and included in that was the possibility of proposing changes to the current oaths. At present, according to the Constitution, judges – and the President – begin their oaths with, “In the presence of Almighty God,” and end with, “May God direct and sustain me.”
The dereliction of any sworn duty cannot be blamed on the oath the individual took. Still, this week we received yet another reminder of how the swearing of oaths – and they would have been religious oaths – was a hollow affair. The “cruel and pitiless” Ireland described by Enda Kenny was built on such oaths.
The Law Reform Commission suggested the removal of all oaths and affirmations from judicial proceedings, and that radical proposal is perhaps why its recommendations were ignored. But if we were to agree that an oath should still hold some power – that it should at the very least be a contract with the State, the courts, the people – then why should it continue to be à la carte?
Strip religion from oaths. Make them entirely inclusive. Remove the notion that a person’s duty to the people is bound to his or her personal relationship with a deity. The State already agrees that all oaths are equal. One is all you need.
@shanehegarty
