PATSY McGARRY
Irish Times 5th June 2009

2002 AGREEMENT: THE INDEMNITY element of the 2002 agreement between the State and the 18 religious congregations which ran institutions for children was unconstitutional, according to an article in the latest edition of the Irish Law Times .

Titled The Congregational Indemnity Agreement: An Unconstitutional Endowment of Religion
, it is written by Eoin Daly, a PhD candidate at the faculty of law in UCC and a Government of Ireland research scholar in the humanities and social sciences.

He writes that the indemnity offended Article 44.2.2 of the Constitution, which states that “the State guarantees not to endow any religion”.

In 2002, and in exchange for contributing €128 million in cash and property to a State redress scheme for former residents of the institutions, the 18 congregations were indemnified by the State until the end of 2005 against any legal actions taken against them by the former residents.

December 15th, 2005, was the deadline for receipt of applications from former residents of institutions run by the 18 religious congregations at the Residential Institutions Redress Board.

On foot of the indemnity, €745,000 compensation was awarded by the High Court against the State following actions by three former residents of St Joseph’s orphanage in Kilkenny. It was run by the Sisters of Charity.

Mr Daly argues that “since this constitutional prohibition on the endowment of religion appears to prevent the State from subsidising a religious body, in whatever form, other than for a purpose which is constitutionally mandated, it must be interpreted as precluding a State indemnity for the liabilities of a religious body”.

He continues that “the Constitution cannot be read as mandating, implicitly or otherwise, an indemnity for liabilities of religious bodies which the State would otherwise not bear”.

Article 44.2.2 “must be interpreted as preventing the State from bestowing financial largesse upon favoured religious bodies, in whatever form; the congregational indemnity must be considered equivalent to a subsidy for religious bodies, and therefore as constitutionally unsound”, he says.

He says that “the aim of guaranteeing compensation to abuse victims is of course a legitimate one, but it does not necessitate an indemnity for those bearing liability for abuse”.

 

12 Responses to “Article says indemnity was unconstitutional”

  1. Ann says:

    PS…if that is happening can someone please let me know where I can view the latest on this…as I have a personal interest in this…

  2. Ann says:

    I am new to all the recent attempts at justice, and have no knowledge of what avenues you have all been trying to go down for ‘redress’ but it strikes me that you are wasting your time with the Irish state as they are as culpable as the ‘religious orders’ if you want justice you need to go to the courts of human rights in Europe. I think also any of you who have previously accepted money should attempt to get the ‘gagging’ order overturned in Europe also it can’t be legally binding and is definitely not right…This is Ireland’s holocaust and names need to named and shamed whether dead or alive…there is no justice in secrecy…and buy off’s. I accept people should be compensated, but the perpetrators and their institutions need to be punished and publicly shamed.
    Go to Europe, the Irish state are part of the problem, circumvent them – now.

  3. Paddy says:

    It seems to me that it’s a case of protect the identity of the guilty as outlined by Ryan and don’t worry to much if at all about the innocent.

  4. I can show more Articles offended:-

    “STATE IN BREACH OF 21 OF THE 30 ARTICLES ON THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 1949” as follows.

    The state, from 1949 to the present day was, and remains, in breach of Articles 1 to 13 (inclusive), 19,22,23,25,26,28,29 and 30.

    When one reads the declaration it becomes very clear why. What is going to be done to rectify this situation for all of us unjustly treated?

    Email the author.

    That’s the Government side, now the Religious:-

    THE RELIGIOUS ARE FRAUDSTERS

    The Order of The Daughters of Charity of St Vincent DePaul, an order of Nuns is nothing more than an order of fraudsters and I can prove it.

    I was (on 9th November 2005) absolutely flabbergasted when I accidentally happened upon the following:

    TITLE VI: PHYSICAL AND JURIDICAL PERSONS
    TITLE VI: PHYSICAL AND JURIDICAL PERSONS
    CHAPTER I : THE CANONICAL STATUS OF PHYSICAL PERSONS
    Can. 96 By baptism one is incorporated into the Church of Christ and constituted a person in it, with the duties and the rights which, in accordance with each one’s status, are proper to Christians, in so far as they are in ecclesiastical communion and unless a lawfully issued sanction intervenes.
    Can. 97 ß1 a person, who has completed the eighteenth year of age, has attained majority; below this age, a person is a minor.
    ß2 a minor who has not completed the seventh year of age is called an infant and is considered incapable of personal responsibility; on completion of the seventh year, however, the minor is presumed to have the use of reason.

    I can justify making the accusation I have because, given that at just under age 3 I was, on a voluntary basis, accepted by the Daughters of Charity of St Vincent De Paul at Drogheda Industrial School for Junior Boys.
    From documents, I have discovered that I was there for some 5 weeks before I was hauled in front of a Mullingar District Court Judge and charged under the Children Act 1908, Guardianship, and ordered to be detained until the age of 16. I was transferred to Artane at age 10 and remained there until age 12, at which point I was discharged in 1968.
    If the Daughters of Charity are not liars and fraudulent, they may wish to explain the following:
    1. As stated above in Can 97, B2,
    A minor who has not completed the seventh year of age is called an infant and is considered incapable of personal responsibility; on completion of the seventh year, however, the minor is presumed to have the use of reason.
    2. Why did they allow the Courts to charge me fully knowing that “I am incapable of personal responsibility”? – they needed the conviction to secure the child allowance.
    3. Why did they wait until after the court appearance to have me Baptised at St Peters Church in Drogheda? – I cannot stay with them if I am not Baptised, they would lose the funding for me.
    4. In documents in now in my possession from the Courts (Detention Order) it clearly states “And whereas this child appears to the Court to be a Catholic” – Who told the court this, given that I am not yet Baptised? – The Daughters of Charity, who else.
    How many of you out there were unjustly accused, based on the fact that you were under age 7? – A lot I should imagine. How many Religious Orders had a hand in your detentions?
    Keep in mind, if these people say they did nothing wrong, why did they not fight the judicial system for the younger children on the grounds of being incapable due to age?
    I think I have made my case.
    Writers email address: martin1956_1959@yahoo.com

    I rest my case, m’lud.

  5. M says:

    Paddy
    My name appears in a footnote in Volume 5 of the Commissions report,contrary to the Commission’s general policy. .I am very concerned about this as the date I was taken to Court, my age at the time. what I was charged with and my name was given as a footnote by a Professor D.Morgan of U.C.C.
    he used a letter I had sent to the Department of Justice where I was asking that the convictions to be expunged
    The Item comes under the heading ******* *.
    None of the abusers names were given I should have had more consideration than these people . All I am receiving from the Commission is a half-hearted apology. It seems my life started in the Court and will end in a Court
    M

  6. Paddy says:

    Ah May! You’re a hard woman, leaving those nice people penniless! I spoke to Minister Dermot Ahern after he tried to convince me that these Detention Orders had been expunged. He says they have and I say “No they have not Minister”. My understanding is that what has happened is that Government is just messing around with words, trying to get themselves of the hook they now hang on.
    Keep going May!

  7. May Cornish -Henderson says:

    Paddy. It’s about time they got their comeuppance. I hope they are left penniless.
    All that’s left now to give all of us Justice is to have the Conviction expunged.
    May

  8. Paddy says:

    And when the s**t interfaces with the fan who has to duck?

  9. Paddy says:

    Thanks for the message Martin. There is a gathering anger about the way people have been treated by the State and by the Redress Board which was set up by the State to make Redress to those people who were brutally treated and even tortured while under the care of religious orders all of whom were paid by the state to ‘look after’ children.

    It’s time the Redress Board was abandoned it secrecy blown open. I long held the view that abuse thrives on secrecy. Many of us who appeared before the Redress Board feel we were being abused all over again and that we were not being believed when we spoke about the horror visited on us by religious orders.

    There has to be a better way of treating people rather than humiliating them and making them feel degraded before the Redress Board.

    Paddy

  10. Hi Paddy:
    I note the comments above about unconstitutionality and while I agree, there are several more articles in this same document that could be used positively to undercut the continuing “cover up” and secret deals that are and have been part of Irish political and hence social and business life since the Civil War.

    Its time the all people in Ireland were released from the cost of keeping ALL these secrets.

    Its time the Irish State released the all of the documents on various topics that have been, and remain, deliberately excluded from the public domain.

    The main impact of this work may be that we all reach the position of having a more open and just society.

    Now we need to find someone with the courage of their belief to seek redress under the Constitution.
    MM

  11. Lilith Barrett says:

    Paddy, it is going to be BIG.!!!!!

    S**t is hitting the fan, and the question is who is in for the Garfield Splat.??

    Sit back, relax, Lady Justice is in charge this time.

  12. Paddy says:

    “This could be the start of something big” or perhaps something is about to interface with the fan!!! Curiouser and Curiouser!!!

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