Three months ago, President Michael D Higgins said he believed the religious oath he swore on his inauguration should be removed and replaced with an affirmation.
Mr Higgins’s remarks in a BBC interview turn on a question that is before the European Court of Human Rights in a case against the State by Social Democrats co-leader Róisín Shortall and four other people prominent in public life.
Now court submissions reveal how the Government is opposing that action in forceful terms. These long-running proceedings could yet lead to a referendum to change oaths of high office that are laid down in the Constitution if the court finds they breach the European Convention on Human Rights.
Ms Shortall has taken the action with Sinn Féin TD John Brady, Senator David Norris, former Barnardos chief Fergus Finlay and Prof David McConnell, fellow emeritus in genetics at Trinity College Dublin.
At issue are clauses in the Constitution that require the president and members of the Council of State, which advises the president, to swear a declaration referring to “Almighty God” when taking office. Judges are required to make a similar oath.
In their original court application, the five litigants said such declarations “exclude conscientious non-Christians and non-believers, and those who do not wish to violate their consciences, from some of the most senior public offices in the country, unless they are willing to publicly declare and subscribe a formula which goes against their conscience”.
Senior politicians
They noted that they were senior politicians and prominent members of civil society, saying they can legitimately and do aspire to being elected president or appointed to the Council of State. “There is a real personal risk for them that these requirements could prevent them from taking up office or force them to publicly declare allegiance against their conscience,” they said.
In response, however, the Government challenged both their status as litigants and the merits of their argument that the oaths violate their rights under the convention.
First, the Government said none of the litigants could be regarded as “victims” whose rights to freedom of thought, conscience and religion were violated by the oaths.
Citing an earlier ruling of the court, it said they do not fulfil an indispensable condition for putting the protection mechanism of the Convention into motion. “On this basis alone, the application must be deemed inadmissible,” it said.
Even if the case was admissible, the Government said, there was no breach of human rights and the substance of each oath was not in itself religious
None of the applicants had been elected president so they had not been required to make the oath, and none had contested the last presidential election in 2018, the Government said. “Similarly, none of the applicants has served or has been invited to serve as a member of the Council of State and, as a result, been required to make the declaration required.”
As a result, none of the litigants were “directly affected” by any alleged violation of their rights nor were they “potential victims” of any such violation.
“The applicants in the present case are not subject to any threat or risk of sanction simply by reason of the existence of the relevant provisions of the Irish Constitution. The link between the applicants and the alleged violation of the Convention is far from a ‘direct and immediate personal interest’; on the contrary it is, at this stage, remote and hypothetical.”
Directly affected
In the absence of a real and concrete risk of being directly affected by an alleged violation of the convention, the Government said they were not properly considered a victim for its purposes.
Even if the case was admissible, the Government said, there was no breach of human rights and the substance of each oath was not in itself religious.
“The declarations are not, in substance or form, religious and do not exclude non-Christians or non-believers from either the office of president or appointment to the Council of State. Neither the president nor a member of the Council of State is required to swear allegiance to any particular religion. On the contrary, the freedom of conscience and religion of every citizen is expressly guaranteed under [the] Constitution.”
The declarations did not interfere with the freedoms guaranteed under the convention, said the Government. “Even if – contrary to that primary submission – the declarations were regarded as limiting the freedom of thought, conscience and religion, those limitations must be regarded as justified.”
In addition, the Government said the State enjoyed a margin of appreciation in questions concerning the relationship between the State and religion.
By response, the litigants rejected the assertion that they were not victims. Many of the court’s leading cases on victimhood cited by the Government “have little, if any, relevance here”.
They could not be said to be truly threatened or at risk of prosecution but would have to radically modify their conduct in a manner that breaches their rights to become president or a councillor of State.
They added that any intention to contest the next presidential election “would be delusional” as the oaths remain in force.
In practical terms the litigants had to await the outcome of the court proceedings and, if successful, await a referendum to change the Constitution.