Is the Blasphemy Law Unconstitutional?

Atheist Ireland has sent a letter to the President of Ireland, outlining our concerns about the constitutionality of the new blasphemy law, for her to consider before she discusses the issue with the Council of State tomorrow. In our letter we argue the following:

  • The law is contrary to the guarantees of equality under the law enshrined in Article 40.1 of the Irish Constitution, and of freedom of conscience and religion enshrined in Article 44.2.
  • The law is contrary to Article 44.2.3 of the Irish Constitution, which says that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
  • The law shifts the burden of proof to the defendant in contravention of Article 38 of the Constitution, and of Schedule 1, Article 6, 2. and 3(a) of the European Convention on Human Rights Act, 2003.
  • The law does not meet the standard of prevention of imminent public disorder that made the old English blasphemy law compatible with the European Convention of Human Rights.
  • The definitions in the law are too vague to allow citizens to regulate their conduct, and it could make it unlawful for a religious citizen to inform his co-religionists about a statement he believes to be blasphemous.

Here is the full content of our letter:

Cover Letter

Dear President McAleese,

I write as Chair of Atheist Ireland, an advocacy group for an ethical and secular Ireland. We ask you to consider our concerns about sections 36 and 37 of the Defamation Bill 2006, to raise them during your consultation with the Council of State, and to refer these sections to the Supreme Court for a decision on their constitutionality.

The contents of our submission are as follows:

1. Preface

2. Section 36(2)
2.1. Equality and Freedom of Conscience
2.2. Outrage versus Public Disorder
2.3. Vagueness of Definitions

3. Section 36(3)
3.1 Burden of Proof

4. Section 36(4)
4.1. Freedom of Religion and from Discrimination

5. Conclusion

We are not seeking to convince you that our arguments are necessarily correct; merely that they raise sufficient concerns to warrant you referring the matter to the Supreme Court, so that all of the arguments for and against can be teased out in appropriate detail.

The Constitutionality of the new Blasphemy Law

1. Preface

Please consider that you as President, the Council of State, and the Supreme Court judges, may have a conflict of interest in this matter. You will be considering the religiously inspired offence of blasphemy, and you have all taken office by making religious declarations which, in the case of you and the judges, include the request that “God direct and sustain” you. Please also consider that this exclusionary declaration precludes any of our members, as conscientious atheist Irish citizens, from holding any of the offices that will ultimately decide on this matter. In this context, we ask you to take particular note of our concerns.

2. Section 36 (2)

This states that a person publishes or utters blasphemous matter if (a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and (b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

2.1. Equality and Freedom of Conscience

We believe this is contrary to the guarantees of equality under the law enshrined in Article 40.1, and of freedom of conscience and religion enshrined in Article 44.2.

The Christian nature of significant parts of the Constitution suggests that its framers, while respecting the right of citizens to believe in no gods or false gods, nevertheless saw the concept of blasphemy as protecting only the Christian religion. The old common law crime of blasphemy seems not to have survived the transition to the new Constitution, as it conflicted with the rights to equality and freedom of conscience and religion.

In the 1999 Corway v Independent case, Barrington J said that: “It would appear that the legislature has not adverted to the problem of adapting the common law crime of blasphemy to the circumstances of a modern State which embraces citizens of many different religions and which guarantees freedom of conscience and a free profession and practice of religion.”

This passage suggests that merely defining the old common law offence, or redefining a similarly discriminatory offence, would not pass constitutional muster: it has to be “adapted” to the circumstances of a modern State. The current Defamation Bill attempts to move towards this by redefining blasphemy as protection from outrage and extending such protection to citizens of any religion. However, in doing so, it arbitrarily excludes such protection from citizens who have a fundamental belief system based on no religion (or indeed based on a religion which a court rules not to be a religion.)

Is this constitutional? Returning to the 1999 Corway v case, the Supreme Court found that the Constitution guarantees freedom of conscience, religion and equality before the law to “all citizens, be they Roman catholics, Protestants, Jews, Muslims, agnostics or atheists.” The 1996 Constitutional Review Group noted that Walsh J had said in 1974 that this includes the right “to have no religious beliefs or to abstain from the practice or profession of any religion.” The Review Group concluded that “the guarantee probably also extends to philosophical beliefs such as humanism and may possibly also extend to other moral and ethical belief systems such as vegetarianism.”

Also, Article 44.2.3 says that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. This subsection provides for just such disabilities and discrimination against those Irish citizens whose religious status is that they are not religious.

2.2. Outrage versus Public Disorder

In 2007, the English High Court examined whether the (now abolished) common law against blasphemous libel was compatible with Article 10 of the European Convention of Human Rights. The case was R (on the application of Green) v The City of Westminster Magistrates Court [2007] EWHC 2785

In that case, the English High Court held that it was the prevention of imminent public disorder that made the old English blasphemy law compatible with the EHCR. But there is a big difference between the concept of “causing outrage” (which is what our Bill outlaws) and the risk of public disorder. That is particularly so with our Bill, where a potential defence exists of proving that blasphemous matter has artistic or other value.

This could lead to a situation where blasphemous matter was published, and it caused a reaction that went beyond causing outrage and did actually lead to public disorder, yet a defence would exist that could make it irrelevant that actual public disorder had been caused. So clearly this law is not intended to prevent public disorder.

If the Irish Supreme Court applies the same criteria to the constitutionality of this Bill, as the English High Court did to the compatibility of the English law with the EHCR, then this Bill could be unconstitutional.

(Note: thanks to Eoin O’Dell for bringing this argument to our attention.)

2.3. Vagueness of Definitions

This law is too vague to enable citizens to regulate their conduct. Unspecified matter is declared to be “grossly abusive” and “insulting” without clarifying who or what is being “grossly abused” or “insulted”. The phrase “in relation to matters” is an abstraction conveying the victimless concept of blasphemous matter being matter that abuses other matter. How can any citizen possibly know all of the “matters” that may be “held sacred” by “any” or indeed all “religions”?

What is Gross Abuse and Insult?

How are “gross” “abuse” and “insult” and their impact on “outrage” to be measured? Is it based on the sensitivities of a hypothetical reasonable person, or of an aggrieved religious adherent? If the latter, the provisions are self-conflicting in that religions have different gods, each the only true god, so matters held sacred by one religion could cause outrage to adherents of other religions.

(For example, if a fundamentalist Protestant preacher called the Pope the Antichrist, a substantial number of Roman Catholics might be outraged. Yet to charge such a person with blasphemy would surely be contrary to the constitutional guarantees of freedom of conscience and religion.)

What is a Substantial Number?

What is “a substantial number of adherents” of a religion? Is it an actual number, or a proportion? If it is an actual number, then the law discriminates against adherents of smaller religions. If it is a proportion, then the law discriminates against adherents of larger religions. Both are contrary to Article 44.2.3 of the Constitution.

(For example, the latest census lists 504 Baha’is and 3.68m Roman Catholics. If “a substantial number” is an actual number, then the law discriminates against Baha’is by making it much easier to blaspheme against their sacred beliefs, and if the number is higher than 504 then it is actually legal to blaspheme against their beliefs. On the other hand, if “a substantial number” is a proportion of adherents of a religion, say 10%, then fifty Baha’is would have more legal protection than would 350,000 Roman Catholics.)

Who is Deemed to Cause Outrage?

The phrase “intends to cause such outrage” seems to be based on a 1991 suggestion by the Law Reform Commission. They recommended deleting blasphemy from the Constitution, and suggested a fall-back position that defined blasphemy as “matter the sole effect of which is likely to cause outrage…” The definition in this new law excludes the word “sole” and thus makes a far wider range of matter potentially blasphemous.

Using the broader definition in this law, if a religious citizen was outraged by matter that he believed to be blasphemous, he would be outlawed from bringing that matter to the attention of other adherents of his religion, because he in turn would have to publish the matter to them in order to do so. This is contrary to the constitutional right of freedom of expression.

(For example, if the Danish cartoon incident was to be repeated here, and if the cartoons were found to be blasphemous, then the Muslim campaigners who republished the cartoons, by bringing them to the attention of other Muslims, would themselves be guilty of publishing or uttering blasphemous matter. They would not be saved by the defence in section 36(2)(b) as they clearly would have intended to cause outrage among their fellow Muslims. Nor would they be saved by the defence in section 36(3) as that refers to the value being inherent in the matter itself, not in the motivation for publishing or uttering it.)

3. Section 36 (3)

This states that it shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.

3.1. Burden of Proof

This subsection shifts the burden of proof to the defendant in contravention of the accepted interpretation of Article 38 of the Constitution, and of Schedule 1, Article 6, 2. and 3(a) of the European Convention on Human Rights Act, 2003. It makes the defendant, in a criminal case, prove his or her innocence by reference to the imagined thoughts of a non-existent person.

On the other hand, if this burden of proof were to be set very low, even to the extent of being in effect reversed, then, ultimately, the crime that this law would create is that of publishing or uttering matter that has no genuine literary, artistic, political, scientific, or academic value. Otherwise, you could cause outrage or even public disorder, and you would not be convicted under this law.

So the higher the burden of proof, the more the presumption of innocence is undermined; and the lower the burden of proof, the more the requirement to prevent public disorder (as a reason for restricting freedom of expression) is undermined.

4. Section 36 (4)

This states that “religion” does not include an organisation or cult (a) the principal object of which is the making of profit, or (b) that employs oppressive psychological manipulation (i) of its followers, or (ii) for the purpose of gaining new followers.

4.1. Freedom of Religion and from Discrimination

Article 44 guarantees freedom of religion, whilst Article 44.2.3 says that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. Yet this subsection specifically imposes disabilities and discriminates against some citizens of minority or no religions, on exactly these grounds.

This subsection also arbitrarily describes some religions as cults, without defining either religion or cult (In our opinion, ‘cult’ is a label that adherents of a large religion give to a small religion). In the context of examining “matters held sacred”, it should not be the role of the Courts to determine what is or is not a religion.

In the 1979 McGrath and O Ruairc v Maynooth college case, Henchy J found that “the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion”. In the 1999 Corway v Independent blasphemy case, the Supreme Court ruled that, under the Constitution, “the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality”.

Making profit is not contrary to public order or morality. Why should a religion not have the principal object of making profit, if its God reveals a divine instruction to do so? Article 44.2.5 of the Constitution says that every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions.

The final clause could see Roman Catholicism deemed to be not a religion. Its Church employs oppressive psychological manipulation by, for example, threatening children who have yet to reach the age of reason with psychologically terrifying ideas such as the Devil and Hell, both in its teachings and as part of compulsory instruction in our schools.

5. Conclusion

Finally, we ask you to consider that all judges of the State have the same conflict of interest as yourself on this matter. In principle, how is it possible for a person charged with blasphemy in Ireland to get a fair trial, when all of the available judges have asked a specific God to direct them in their work?

In spite of the numerous conflicts, contradictions and illogicalities in the Bill, on behalf of Atheist Ireland, I ask that you refer this Bill to the Supreme Court to rule on its constitutionality.

20 Comments

  1. Avatar
    Theloh Slobus July 23, 2009

    I am an Irish citizen living in Ireland. I normally describe myself as ‘some sort of agnostic’. I have views expressed on the Internet (in law, is that ‘published’?) that arguably make me a potential victim of the new blasphemy law. My views on Christianity can be found at http://groups.yahoo.com/group/Christianity_As_Unwitting_DevilWorship and http://groups.yahoo.com/group/Christianity_As_Unwitting_DevilWorship/messages/240 . That site also eventually gives my similar views on Islam. These views are bound to offend many Christians and Muslims, even though it is not my intention to offend, but merely to express what I see as important truths. But the DPP might decide that it was up to a court to decide what my intention was, since my denial could be a lie.

    A point seemingly not made in your excellent submission to President McAleese, is that anybody charged with blasphemy probably only risks a relatively minor punishment upon conviction if the offence is against Christians, Buddhists, Jews, etc. But if it’s against Muslims, he/she may well in practice be risking the death penalty for him/her (and possibly also anybody associated with him/her), whether convicted or not. Indeed, especially if he or she is acquitted (or shown any kind of leniency – and in Muslim fundamentalist eyes the E25,000 maximum penalty is ridiculously lenient, as Sharia law demands death for blasphemers), everybody in Ireland may be at risk from retaliation by Muslim suicide bombers (most of whom would quite likely be unaware of the ‘offence’ until a court prosecution publicised it).

    Or a writer may reasonably fear that that is what’s being risked, which in practice may silence him/her even if the fear turns out to be mistaken. And the resources of the State are then available to remove whatever protection the anonymity of a pen-name may offer him/her (and people associated with him/her), by finding out the person’s real name so as to publicly charge him/her under that name.

    I expect that at least some of these points are relevant to the Bill’s constitutionality, as they affect the right to life, liberty, equal treatment, etc. It’s probably too late to add that to the letter to the President, but not too late to add them to any Supreme Court (and European Court Of Human Rights) challenge whether initiated by the President now, or by the lawyers of some future defendant.

    Reply
  2. Avatar
    Eoin Madden July 23, 2009

    Unfortunately this fell on deaf ears. The President has signed the bill.

    Reply
  3. Avatar
    Mujaahid July 23, 2009

    I think Ms McAleese has shown you what most Irish people think of AI.

    Reply
  4. Avatar
    Gareth July 23, 2009

    I’m opposed to the blasphemy law, but I find that some people have been dishonest in reporting it.

    The current law is much much better than the law we had before:

    Under the Defamation Act 1961, any person who composes, prints or publishes any blasphemous or obscene libel is liable to a fine and up to seven years in jail.

    However the new Defamation Bill replaces the threat of a prison sentence with a €100,000 fine.

    http://www.irishtimes.com/newspaper/breaking/2009/0520/breaking59.html

    Of course the amount is now €25,000. It’s not the best solution, but it is certainly an improvement on the previous law. At least we know nobody can be put in jail for it.

    Reply
  5. Avatar
    Mujaahid July 23, 2009

    At every turn you guys have been beaten, I did tell you from the start – it was written. My only hope now is that you will begin to act like mature, civilized adults by rationally discussing issues with some decorum. It’s time to leave the childish, venom spitting tantrums to one side and grow up boys and girls.

    Reply
  6. Avatar
    Michael Nugent July 23, 2009

    Gareth, the Supreme Court found in 1999 that the blasphemy part of the 1961 Act was inoperable, because the Act did not define what the offence of blasphemy consisted of.

    So the situation before this new Act was that it was impossible for anybody to be punished in any way for blasphemy. Now it will be (whenever the Minister signs the statutory instrument making it law).

    Reply
  7. Avatar
    Gareth July 23, 2009

    Mujaahid:

    At every turn you guys have been beaten, I did tell you from the start – it was written. My only hope now is that you will begin to act like mature, civilized adults by rationally discussing issues with some decorum. It’s time to leave the childish, venom spitting tantrums to one side and grow up boys and girls.

    Indeed it appears that this has been legalised.

    As for acting like mature, civilized adults, I think that is what we should be aiming for in religious dialogue. However, I at the same time don’t think it is possible for the law to stop people blaspheming. I personally think that we live in a pluralistic society, and we need to have thicker skin when people offend us.

    Personally, I’d much rather have an atheist or an agnostic come up to me and let me know how they feel about Christianity so that I could perhaps offer my opinion and clear up some misconceptions in return. Do you really want to bottle peoples feelings about religion up, or do you want to deal with them head on.

    I’ve an interesting link for you to take a look at. In the UK they recently tried to remove the free speech clause on Homophobic Hate Laws, however when it reached the House of Lords they voted against it, due to the fact that it could potentially deny religious freedoms, and deny comedic efforts and so on. Don’t you think this is rather similar to the notion of criminalising blasphemy?

    http://www.christian.org.uk/news/20090709/lords-back-free-speech-shield-in-gay-hate-law/

    As I say, I’d love to get into a really good discussion with people about religion without having it slandered, but the fact is people will and we can’t stop them.

    Michael Nugent:

    Gareth, the Supreme Court found in 1999 that the blasphemy part of the 1961 Act was inoperable, because the Act did not define what the offence of blasphemy consisted of.

    Thanks a lot for this. I didn’t know this.

    So the situation before this new Act was that it was impossible for anybody to be punished in any way for blasphemy. Now it will be (whenever the Minister signs the statutory instrument making it law).

    I understand your objection more clearly. Do you actually think the the law will actually be effectively used though? Given the interpretation of the terms it could conceivably never be enforced. If we look to many other European countries, they have blasphemy laws, but they are very rarely used.

    I suppose the mere possibility should be enough to be opposed to?

    Reply
  8. Avatar
    Mujaahid July 23, 2009

    Michael, I have no beef with you personally, though I do find your insistence on separating religion from the individual somewhat disingenuous. From all accounts I have heard you seem a reasonable fellow, why not sit down with religious adherents and talk this through instead of publicly insulting them? Why not debate in public forums, iron out contentions in a civil manner? Abuse and insult have never benefited any society and I would humbly ask you to reconsider your promised blasphemous statement. It is a concern to us, not only on account of its negative impact on religious adherents but also because of the how others might view Ireland. If there was a law that condemned incitement to religious hate, we might find some agreement – as it is we don’t.

    Reply
  9. Avatar
    Mujaahid July 23, 2009

    I’ve looked at the Christian site Michael and yes there are similarities. I believe the issue is one of decorum, you can oppose something without resort to gratuitous insult. As a practicing Muslim I am opposed to homosexuality, but that doesn’t negate the necessity of civility and decorum in discussions on that topic. The easy option is to resort to insult, but as I’m sure you will agree it is rather base and only attracts the neanderthal-like goons in society. One thing I miss is the affability and decorum that defined argumentation in the past.

    Reply
  10. Avatar
    Michael Nugent July 23, 2009

    Mujahid, there is already a law that prohibits incitement to hatred based on religion. It is the Prohibition of Incitement To Hatred Act, 1989.

    Under this Act it shall be an offence for a person to publish or distribute written material, to use words, behave or display written material, or to distribute, show or play a recording of visual images or sounds, that may be or are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred.

    The Act defines “hatred” as hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.

    I will try to reply to your other comments later.

    Reply
  11. Avatar
    Mujaahid July 23, 2009

    Michael – I’m aware of the incitement to hatred law, however you will agree that it has done little to protect religious adherents from the abject harm that insult and offense bring, which is why I support the Blasphemy bill. But let’s talk about this and work to allay fears and anxieties on both sides.

    Reply
  12. Avatar
    Derek the heretic July 23, 2009

    Michael, an excellent letter. Hard luck though.

    Here are a few general thoughts I’d like to share.
    If AI is to achieve critical mass and gain some political influence (as Libertas did in barely a few months albeit with millions to spend) it must tackle the public perception that Atheism is extreme or dogmatic rather than just being a moderate philosophy of religion. It will also need to work with other groups depending on the issue at hand such as ET and the humanists while not replicating their work. But beware your fellow travellers. There are, as I’m sure you well know, fantasists out there who call themselves atheists with a capital “A” but are nothing of the sort. They are ideologues who place their faith in political religions which have in fact retarded the atheist cause. Hard left groups such as the SWP or Black Flag will seek to infiltrate in order to recruit and could damage the credibility of AI. This is Dublin 2009, not Paris 1968. Ill conceived situationist public acts should not even be considered by any organisation which seeks to convince rather than polarise. AI would do best to adopt a militant centrist approach and publicly distance itself from the far right and left. Then ape like journalists would not be able to make monkeys of you and I might even join.

    Reply
  13. Avatar
    Mujaahid July 23, 2009

    That’s a useful contribution Derek, I sincerely hope Michael and Co. will rethink their plan to release a blasphemous statement, don’t be sidelined by the O’Doherty’s of this world whose abject hatred for Islam blinds them to the greater good. You have nothing to gain from a public pronouncement and everything to lose.

    Reply
  14. Avatar
    Talia Al Ghul July 23, 2009

    I agree with derek about not getting Involved with fringe lefty groups

    But i think AI should still go ahead and Issue a blasphemous statement asap
    If no statement is issued,its gonna look like caving into Intimidation of threats of boycotts
    if the boycot threat wasnt made it be one thing.
    But since its being made I think AI Should go ahead with the blasphemous statement
    and show AI wont be Intimidated with threats

    And Heres what some may call a blasphemous statement

    The Newist pat Condell Video up online

    http://www.youtube.com/watch?v=G4FpTvp0tgs

    Reply
  15. Avatar
    Saidhbhin Bhreatnach July 29, 2009

    Thank you for putting together this intelligent and well-balanced letter. I only hope that it has some effect on the situation. I am very disappointed that Ireland continues to shift her policies towards the suppression of civil rights and I feel many of these policies are born of ignorance. I wonder if all MPs back-packed around the world would they be a bit more open-minded?

    Reply
  16. Avatar
    Garlandgreen August 05, 2009

    Mujaahiid,

    Doth the lady protest too much?

    If you think this law is worth anything I’m sure you can just complain to thye police since it’s now a criminal offence

    Regards

    G,G

    Reply

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