Enoch Burke’s refusal to snatch the olive branch handed to him by the courts last week will only confirm the opinion of his most ardent critics that the imprisoned teacher is the sole author of his own misfortune.
He is in prison for contempt of court after refusing to return to the school he taught at and from which he was expelled for refusing to call a student who described himself as “non-binary ‘ (i.e. neither masculine nor feminine) identifies ‘they’ rather than ‘they’.
All he has to do, it has been said all along, is promise not to go back there and he would be free immediately.
That is of course correct. He could. Actually he should.
For more than three months he has shown himself willing to stand up for his principles.
There would be no shame in putting a spanner in the works.
But he clearly has no intention of doing so, and last week he made just as clear that he has no intention of agreeing to a proposal that would have temporarily released him from Mountjoy Prison because schools are closed over Christmas anyway .
Most people would probably have taken this legal compromise to spend some time at home with their loved ones; but Burke says he has no interest in playing a justice game, describing it as an “insult to justice.”
Whether he is right or wrong is irrelevant. The moral dilemma remains exactly the same.
He’s not the only character in this story, after all. It’s also about us and our values. At some point we have to decide how long we’re willing to see him languish behind bars.
A year? ten years? The rest of his natural life? Burke says he’s willing to stay there until he dies, which, as a young man, one would sincerely hope wouldn’t stay that way for long.
Presumably most people, including those who otherwise find his views monstrous, would agree that this would be unconscionable and tyrannical.
Big. Now we’re going somewhere. It’s about negotiating how long is appropriate. So let’s do that.
And since we’ve embarked on this path, let’s also have a broader debate on the use of contempt of court. As it stands, contempt of court is largely a feature of common law systems like India and Ireland, which are based on the UK’s colonial model.
There are two kinds. A criminal contempt occurs when a person has, for example, disrupted the smooth running of the court by yelling or, worse, disturbing witnesses.
This law is punishable. It punishes you for what you have done.
The second way in which Enoch Burke was deprived of his liberty is civil contempt, and it comes into effect when a person refuses to consent to an order from the same court.
This is compelling in that it is meant to compel you to behave in a certain way in the future.
Ultimately, the idea derives from kingship, where “the chief must be obeyed.” It was then enacted into law as other institutions took on that role “to protect their own dignity and supremacy.”
Many countries get by without such a law without falling into anarchy, and there has been much evidence for years that the contempt law, as one judgment said, is “notoriously complex and adamantly resists judicial clarification.”
The Supreme Court has repeatedly asked for such clarification.
Many have argued that civil contempt should be abolished altogether because imprisoning a person for something that has not happened and may never happen tilts the balance too far against the individual and in favor of the state.
That is the dilemma we face regarding Enoch Burke.
However, most people seem fine with using arbitrary power to break his will just because they don’t like him or what he stands for, and don’t want to believe his argument that the state and he are acting outrageously will not condone the abuse, gratefully accepting his generous grace over Christmas.
Can a decent person really reconcile such cruelty?
It is recalled that the so-called Rossport Five were jailed after refusing to guarantee that they would not interfere with construction work on a gas pipeline project in Co Mayo, they were supported by many high profile political figures in the Dáil.
So it was when veteran anti-war activist Margaretta D’Arcy was jailed for three months in 2013 at the age of 79 for refusing to sign a pledge to stay out of unauthorized zones at Shannon Airport, where US warplanes fly were fueled. She was visited in prison by the President’s wife, Sabina Higgins, and then-Sinn Fein leader Gerry Adams.
Protests took place on Dublin’s Spire in support of a woman who, the placards said, had been “imprisoned by the Irish state for peacefully protesting”. This was supported by Richard Boyd Barrett TD and People Before Profit.
The following year, protesters against water pricing were jailed for refusing to stand within 20 meters of contractors installing meters.
Every Saturday there were protests in support of them outside Mountjoy Prison, with speakers including Paul Murphy TD. Many condemned the verdicts as politically motivated.
There was no similar outcry from the usual suspects in defense of Enoch Burke’s right to take a stand. What is the difference?
Using contempt of court to prevent the possibility of future disobedience is always, as one legal writer puts it, “directed at a resisting will.”
The trigger for this resistance should not alter or dilute respect for fundamental democratic principles.
Still, those who claim to be anti-establishment shrug smugly and are glad Burke’s fundamental rights shouldn’t count because his face doesn’t fit.
It’s hard to imagine anything more illiberal, and Burke agrees that, at bottom, his imprisonment is really his moral belief that those who think the idea of being able to change gender is absurd and dangerous should not be forced to go along with a fiction just because the state allows trans advocates to project radical gender ideologies onto children in the name of “tolerance.”
If he were protesting about anything else, Enoch Burke would be a poster boy for civil liberties. Instead, he is smeared as Public Enemy #1.
Hero or villain, we as a society will still have to decide how long we want to keep him behind bars. At some point he has to be released. That decision won’t get any easier if it’s postponed indefinitely.
https://www.independent.ie/opinion/comment/how-long-are-we-going-to-keep-enoch-burke-locked-up-in-jail-42227280.html How long are we going to keep Enoch Burke locked up in prison?