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'Empty Formula’ -the end of legal oaths?

Published on 27 July 2020 at 11:16

A proposal by the new Minister for Justice Helen McEntee to abolish religious oaths for written testimony is surprising only for its tardiness. The Law Society has welcomed the development while detractors have labelled it “an attack on genuine pluralism”. Regardless this development has been coming down the tracks for decades, with the Law Reform Commission advocating a change in the state of the law in 1990 and the UN Human Rights committee urging change some 6 years ago.

The oath developed in the Common Law as a way of ensuring credibility in Jewish and Christian witnesses: “The purpose of the oath is not to call the attention of God to the witness, but the attention of the witness to God; not to call upon him to punish the false-swearer, but on the witness to remember that he will assuredly do so. By thus laying hold of the conscience of the witness, and appealing to his sense of accountability, the law best insures the utterance of truth”. The law eventually developed to allow non-Christians to swear in 1744 provided they believed in God and afterlife. In the 19th century, secular ‘affirmations’ were introduced for the benefit of groups such as Quakers who were prevented from swearing oaths by their beliefs. The administrator of the oath had to be sure of the swearer’s sincerity and conscious, thus atheists were excluded. The Oaths Act 1888 finally abolished this incongruity and allowed anyone to affirm. A 1909 amendment proscribed the form of the oath for Christians and Jews. This 1888 Act and its 1909 Amendment still form the current law in Ireland. The 1976 Juries Act transposed these procedures to the swearing of juries.

Oaths underpin the legal process in the Common Law world. Anyone who gives evidence in a trial must be sworn. Refusing to swear an oath or affirmation is contempt of court and incurs a fine or imprisonment. Provisions are in place for blind, deaf, dumb, illiterate and foreign deponents and witnesses. A ‘deponent’ is someone who provides evidence by writing their account of events in an ‘affidavit’. Much like a witness giving evidence orally in court, the deponent must swear an oath or affirmation that their account is truthful otherwise it cannot be admitted as sworn evidence in the trial. Lying under oath is perjury, a Common Law offence. This means it is technically illegal, but no statutes explicitly criminalise it. Accordingly, it is rarely prosecuted. A 2018 Bill sought to enshrine perjury as a serious offence but lapsed with the dissolution of the Oireachtas in 2020.

 

While ubiquitous in Common Law jurisdictions, many legal systems do not use oaths such as in Poland, Switzerland and China. In many jurisdictions, the accused and often his/her family and indeed the alleged victim are exempt from oath. Under Chinese law, witnesses merely sign a contract-like document to acknowledge they are aware of the ramifications of perjury. Common Law courts have struggled with swearing more exotic faiths, especially faiths from regions in which swearing oaths is not custom. This has led to often outlandish and often ineffectual oaths being sworn by Buddhists and other minority beliefs. The Common Law operates on the crux that the oath is subjectively binding on the swearer. This was seen in R v Kemble where the Appellants attempted to have evidence deemed invalid as main witness had sworn on bible despite being muslim. However, on cross examination the witness in question made clear he deemed any oath on a holy book binding on his conscience. The Court ruled that the veracity of oaths is independent of theological intricacies and hinges on whether the individual swearer finds the oath binding.

 

Under Irish law a deponent or witness must swear an oath unless he decides to affirm, and then he must satisfy the court on his grounds to do so. Unless he can provide a binding way of swearing, his testimony is null and void. Similarly, impractical methods of swearing are not accepted. However even to affirm one must have a similar stock in truthfulness and integrity as a religious person has in the religious consequences of their oath. The limitations of the Irish law were seen in a bail application to the High Court when it emerged that the affidavit had not be sworn upon with a bible, rendering it invalid. The solicitor responsible expressed regret she did not simply instruct the deponent to affirm instead. However, Kelly P stated this was not possible under the legislation; "An affirmation was only appropriate where the deponent either had no religious belief or had a religious belief which does not permit him or her to make an oath in religious terms".

 

This area of law has been examined and revised in many Common Law jurisdictions. In 1982 Canada decided on keeping the options of swearing an oath or affirmation on the basis that is the oath is more binding on those with any belief in supreme being, even agnostics. The Canadian report recommended that neither option be given prominence and no reasons for choosing either should be required. The threat of perjury was also deemed insufficient incentive for sincerity as most people realise prosecutions for perjury are rare. Duty and good conscience serve as the gatekeepers of truth. In 1990 the Law Reform Commission recommended that the oath be abolished and that jurors, deponents and witnesses in criminal and civil cases take the affirmation from the 1888 Act annexed with an acknowledgement of the consequences of perjury.

 

The state of the Irish law has not only been threatened from within, however. In 1999 the European Court of Human Rights ruled against San Monaco for its parliamentary oath which required MPs to swear on the "holy Gospels". San Monaco argued that the wording of the oath was not religious but, rather, historical and social in significance and based on tradition but the Court found in favour of the applicants who claimed it was an infringement on their religious freedom and conscience. In 2014 the UN Human Rights committee expressed concern “at the slow pace of progress” in changing Ireland’s Christian oath for judicial and presidential office. More recently in 2018 the ECHR ruled Greece’s oath laws were a breach of the religious freedom provisions of the UDHR. Like Ireland, Greek law presumes one is an Orthodox Christian unless one explicitly affirms otherwise and requires them to request to take a secular affirmation.

While many proponents of the oath argue that eternal damnation serves as greater incentive to sincerity than a hollow threat of a perjury charge, many dispute the oath’s efficacies. The critics maintain that pious individuals are likely to be truthful regardless of oaths and the unscrupulous will take the oath and lie anyway. Even religious individuals who intend to lie can opt out of the oath if they wish. The requirement of a request to take a secular affirmation is also criticised as a breach of privacy. Furthermore, they point out that the existence of the oath creates a two-tier system of evidence, where evidence adduced under affirmation is viewed less favourably, perhaps even unconsciously. Some religious people also feel the swearing of oaths is trivialised by their use in less serious cases such as traffic violations. CJ Bratton of the US Court of Appeal lamented their “indecorous” use in the US legal system: “If the oath is to be more than an empty gesture; if it is a pledge to tell the truth with the help of God under penalty of vengeance of the law of God and man, it ought to be done at a time and place and in a manner which befits the sanctity and solemnity of the ceremony.”

 

Despite the bluster, the new Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020 is limited in its scope; it provides inter alia for a secular “statement of truth” in place of oaths, but only in the contexts of affidavits, which can now be signed electronically and remotely. Lying in such a statement incurs an offence punishable by fine or imprisonment.

The Law Society, which has campaigned for a change in the law claims the Irish oaths procedure is “contrary to the right to privacy and contrary to a person’s dignity in legal proceedings”. Senator and barrister Rónán Mullen has bemoaned the new proposal as “a meaningless formula” because the law can “provide for the prosecution of those who knowingly make false statements or averments in affidavits”. Elsewhere, the regional group of TDs has called for the reintroduction of the 2018 Perjury Bill to committee stage. Following the removal of blasphemy from the Constitution, many view the abolishment of oaths as the next step in the separation of church and state in Ireland and with a view to international precedent, it is difficult to imagine oaths surviving in the Irish legal system for much longer. When they are gone it will spell the end of a legal legacy stretching back all the way to Ancient Rome. However, it appears not many people here will lament their passing.


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