# Article 40 of the constitution



## redbhoy (31 Aug 2010)

Quick question for the Legal Eagles on AAM.

I was chatting to someone about an upcoming court appearance recently and they were telling me that their friend was basically screwed as the Judge would always take the word of a Garda above the word of a citizen. This is despite the fact that the Garda has no witnesses to back up his statement.
This got me thinking about the Constitution. In Article 40 (Fundamental Right (Personal Rights)) it states that all citizens shall be held equal before the Law.

If Judges are supposed to administer Justice according to the Facts/Evidence placed before them, how can they deem someone guilty in a case where its one persons word against another? ​


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## mf1 (31 Aug 2010)

"their friend was basically screwed as the Judge would always take the word of a Garda above the word of a citizen."

Once that is the opening line.......................

Perhaps their friend was guilty of the offence? 

mf


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## redbhoy (31 Aug 2010)

Any chance of answering the question?


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## Dachshund (31 Aug 2010)

I would suggest that you read your copy of the Constitution more thoroughly to get the answer to your question.

From the text of Article 40.1

"Article 40
1. All citizens shall, as human persons, be held equal before the
law.
This shall not be held to mean that the State shall not in
its enactments have due regard to differences of
capacity, physical and moral, and of social function."


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## redbhoy (31 Aug 2010)

Dachshund said:


> I would suggest that you read your copy of the Constitution more thoroughly to get the answer to your question.
> 
> From the text of Article 40.1
> 
> ...


 
I have. Is the second sentence basically countermanding the first? 
You're All Equal! Well, Some are more equal than others?


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## Dachshund (31 Aug 2010)

Yes.


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## redbhoy (31 Aug 2010)

Strange how people arent rioting over this or is it?

Ive read somewhere that in a Judges Oath he is sworn to uphold Gods Law. Does the Bible stipulate anywhere that some are more equal than others?


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## Mrs Vimes (31 Aug 2010)

Do you suggest that the word of a convicted conman be given equal weight by a judge to the word of a respected garda? If not then surely you accept that a judge or jury will consider who is giving the evidence.
I seem to recall that the bible considers slaves to be less equal than their masters so yes, it does.


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## redbhoy (31 Aug 2010)

Mrs Vimes said:


> Do you suggest that the word of a convicted conman be given equal weight by a judge to the word of a respected garda? If not then surely you accept that a judge or jury will consider who is giving the evidence.
> I seem to recall that the bible considers slaves to be less equal than their masters so yes, it does.


 
I dont suggest anything. Im questioning whether a Judge taking the word of one person over another with no other witnesses or evidence is Unconstitutional.
And also, whether a Judge is acting upon his Oath if he does this.

I think Slavery was abolished recently! ;-)


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## Mrs Vimes (31 Aug 2010)

Sorry if my phrasing is unclear.

"Im questioning whether a Judge taking the word of one person over another with no other witnesses or evidence is Unconstitutional."
No, of course it's not unconstitutional. Anyone listening to evidence, including judges, has to take into consideration who is giving the evidence.

" I think Slavery was abolished recently! ;-) "
"Does the Bible stipulate anywhere that some are more equal than others? "
Yes, the bible stipulates that slavery is acceptable.

How do you quote in blue?


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## redbhoy (31 Aug 2010)

How does a Garda become a 'Respected Garda'??

But slavery is no more so that part of the Bible is null and void unless theres a slave in the dock?

(not sure how to quote in blue- sorry)


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## Mrs Vimes (31 Aug 2010)

"How does a Garda become a 'Respected Garda'??"
Don't get caught.

"But slavery is no more so that part of the Bible is null and void unless theres a slave in the dock?"
That is where the bible stands on equality, however.

"(not sure how to quote in blue- sorry)"
you quoted me in blue


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## redbhoy (31 Aug 2010)

Mrs Vimes said:


> "How does a Garda become a 'Respected Garda'??"
> Don't get caught.
> 
> "But slavery is no more so that part of the Bible is null and void unless theres a slave in the dock?"
> ...


 
Like this?? Look at my posts and theres a "quote" in bottom right corner. Click on that. Sorry I thought you meant blue text

Very good on respected Garda. Now you mentioned a convicted criminal not being believed by a Judge. What about a Garda who has a besmirched record? Are him and the accused on an equal footing now?

I thought Law was derived from the Bible? 
Judges swear to uphold Gods Law so who does an atheist go for to get Justice?


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## Mrs Vimes (31 Aug 2010)

redbhoy said:


> Like this?? Look at my posts and theres a "quote" in bottom right corner. Click on that. Sorry I thought you meant blue text


 See if this works.....


redbhoy said:


> Very good on respected Garda. Now you mentioned a convicted criminal not being believed by a Judge. What about a Garda who has a besmirched record? Are him and the accused on an equal footing now?


 Probably, but I wouldn't fancy my chances after bringing it up to the judge.


redbhoy said:


> I thought Law was derived from the Bible?
> Judges swear to uphold Gods Law so who does an atheist go for to get Justice?


I think judges uphold the law under god rather than god's law.


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## TLC (31 Aug 2010)

Surely the situation of 1 person saying something is true & another saying it isn't arises all the time in court cases - the judge/jury then make a "judgement" about who is most believable, especially if there are no witnesses, which is often the case in criminal acts.  As for a Garda being known as a "respected Garda" - the same way as someone who is known as a "career criminal" or "habitual offender" - on their previous record?


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## coolatjc (31 Aug 2010)

Look at any paper and you will find the Gardai always having the confidence of the court regardless of the situation.

Week after week people get jailed or heavily fined for swearing at a Garda. No questions asked.

However how many times have the people been sworn at by a Gardai and do you think for one minute we could raise this issue in a court?


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## Sunny (31 Aug 2010)

coolatjc said:


> Week after week people get jailed or heavily fined for swearing at a Garda. No questions asked.


 
Who gets jailed or heavily fined for swearing at a Garda? There is no offence of swearing at a Garda.


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## demoivre (31 Aug 2010)

Sunny said:


> There is no offence of swearing at a Garda.



Depending on the nature and extent of the swearing I'd say you could be nicked under Section 6 of the Criminal Justice (Public Order) Act 1994 .


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## coolatjc (31 Aug 2010)

Sunny said:


> Who gets jailed or heavily fined for swearing at a Garda? There is no offence of swearing at a Garda.


 
Injured man swore at gardai after punch up in Athy
[broken link removed]

Injured man swore at gardai after punch up in Athy

Punk Rock fan imprisoned for seven days for wearing a Sex Pistols T-shirt
http://www.indymedia.ie/article/77280


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## Mpsox (31 Aug 2010)

The reality is, that unless someone pleads guilty, every case in court comes down to a judge and/or jury making a judgement call as to who they will believe, regardless of whether or not a witness is an expert witness, a Garda, an ordinary member of the public or the accused.

There are plenty of cases where Garda evidence is not accepted, a recent one in Carlow for example where the Court came to the conclusion that one Garda copied his report verbatim (even including spelling mistakes) from another one.


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## Sunny (31 Aug 2010)

coolatjc said:


> Injured man swore at gardai after punch up in Athy
> [broken link removed]
> 
> Injured man swore at gardai after punch up in Athy
> ...


 
What do they show?

One is for contempt of court and the other is for breach of the peace and threatening behaviour, not because he cursed at a guard.


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## coolatjc (31 Aug 2010)

Sunny said:


> What do they show?
> 
> One is for contempt of court and the other is for breach of the peace and threatening behaviour, not because he cursed at a guard.


 
The breach of peace was for the swearing, and the contempt of court was for the mans T-Shirt which the judge felt was swearing.


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## Dachshund (31 Aug 2010)

redbhoy said:


> Strange how people arent rioting over this or is it?
> 
> Ive read somewhere that in a Judges Oath he is sworn to uphold Gods Law. Does the Bible stipulate anywhere that some are more equal than others?




Go and read the Constitution again, specifically Article 35.5.1. That will give you the exact text of a judge's oath. A judge upholds the Constitution and the laws not "God's Law".

If a judge has sworn to uphold the Constitution, then that includes Article 40.1 as outlined in my post above, that Article does permit a judge to make distinctions between a Garda and a member of the public. It is not unconstitutional.


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## Brendan Burgess (31 Aug 2010)

vague title

Letting off Steam

Post closed


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