And on the third day…
…Dermot Ahern publishes an op-ed in the Irish Times explaining his thinking behind proposing the blasphemy amendment.
I would post quotes here, but the IT seems to have turned off copy selection on their site to stop me stealing their pixels and page views. So make Geraldine and Fintan happy, follow the linky and read it there. As a result, I’ll have to resort to Sadly, No-style Shorter format.
Shorter Dermot Ahern:
The Constitution made me do it, but I’m trying to make it as harmless as possible (I mean who can’t afford to drop €100,000 and legal expenses, eh?).
Or
Stop criticising my completely innocuous pet amendment, or Article 40 gets it!
(‘Shorter’ concept created by Daniel Davies and perfected by Elton Beard. Sadly, No and this blog are aware of all Internet traditions.™)
Update: Dr Eoin O’Dell, who so ably tracked the blogsquall during the Cowangate episode, has a professional interest in the status of blasphemy in Irish law. Though he hasn’t posted as yet in reaction to the current proposal, some of his past posts make interesting background reading, particularly this one from March on the Defamation Act 2006, (to which the blasphemy amendment is being attached).
Particularly well worth a read is the Supreme Court judgement on Conway vs Independent newspapers – the only case of an attempted prosecution for blasphemy in the history of the Irish State. Compared to SCOTUS judgements (which tend to be dense and sprawling, if occasionally entertaining), it’s a remarkably clear and easy read (no really!). It gives a history of the crime of blasphemy in English and Irish common and statutory law and a summation of its current state.
Conway vs Independent newspapers is interesting for a couple of reasons. First, it shows that religious people can be offended by seemingly trivial things (hair-trigger offence seems to be a feature rather than a bug of religious belief).
Second, the judgement has a few fascinating facts like, that the Constitution of the Irish Free State in 1922 was entirely secular. No preferential treatment of the Roman Catholic Church, no provisions against blasphemy. Those didn’t sneak in until Eamon De Valera and his BFF, Archbishop John Charles McQuaid, sat down to draft the Constitution of Ireland. Though the special status for Catholicism was amended out of the Constitution in 1972, the blasphemy provision in Article 40 remains.
As I understand it (and though my mammy wished otherwise, I Am Not A Lawyer), the current state of the law is this:
There is a common law offence of blasphemy, which we inherited from English common law. However, in Conway vs Independent newspapers, the Supreme Court appears to say that the common law offence doesn’t really have meaning in a country without an established church (Eoin O’Dell, though, appears to disagree with this in his post).
34. The Constitution [of Ireland] also introduced (in Article 40.I) a specific guarantee of equality before the law to all citizens as human persons. The effect of these various guarantees is that the State acknowledges that the homage of public worship is due to Almighty God. It promises to hold his name in reverence and to respect and honour religion. At the same time it guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, be they Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists. But Article 44.I goes further and places the duty on the State to respect and honour religion as such. At the same time the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality.
35. This constitutional framework is not dissimilar to that mentioned by Lord Scarman as desirable in the passage from his speech in Whitehouse v. Lemon quoted earlier in this Judgment. But as with Lord Scarman’s suggestion, though for different reasons, the implications of it for the crime of blasphemy would need to be worked out in legislation. It is difficult to see how the common law crime of blasphemy, related as it was to an established Church and an established religion could survive in such a constitutional framework. Certainly it is difficult to see how the view of the majority in the House of Lords in Whitehouse v. Lemon that the mere act of publication of blasphemous matter without proof of any intention to blaspheme is sufficient to support a conviction of blasphemy would be reconciled with a Constitution guaranteeing freedom of conscience, and the free profession and practice of religion.
(Emphasis mine.)
However, the court goes onto to say that though the common law offence may be meaningless or difficult to apply in a state where all religions are protected equally by the law, it’s the only game in town as there is no definition of the offence in Irish statutory law.
36. There is no doubt that the crime of blasphemy exists as an offence in Irish Law because the Constitution says so. It says that the publication or utterance of blasphemous matter “is an offence which shall be punishable in accordance with the law”. Yet the researches of the Law Reform Commission would appear to indicate that the framers of the Constitution did not intend to create a new offence. This may explain why there is no statutory definition of blasphemy. The Censorship of Films Act, 1923 S.7 (2) and S.13 (1) of the Defamation Act, 1961 assume that the crime exists without defining it. 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 leads to the court’s much quoted conclusion:
38. In this state of the law, and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists. As the Law Reform Commission has pointed out neither the actus reus nor the mens rea is clear. The task of defining the crime is one for the Legislature, not for the Courts. In the absence of legislation and in the present uncertain state of the law the Court could not see its way to authorising the institution of a criminal prosecution for blasphemy against the Respondents.
(Emphasis mine.)
As the common law interpretation of blasphemy seems unworkable and there’s no definition of the offence in statutory law and as it’s hard to demonstrate proof of fault or blameworthiness in action or mind that would indicate guilt (that’s what actus reus and mens rea mean, if I understand the terms correctly), it’s impossible to say what the offence is.
A couple of things strike me. First – it’s clear that the Supreme Court believes that the Constitution affords religions protection from insult via the offence of blasphemy in Article 40. This seems to unfairly privilege religions with protections from insult that other forms of knowledge, opinion and expression do not have. A religious person can offend my beliefs and intend to offend my beliefs without consequence, however if I offend a religious person’s beliefs and intend to do so, I am at fault. While I have no issue with constitutional protections for religion under freedom of belief and conscience, this preferential treatment of religion at the expense of non-religious expression seems unjust.
Religion is a belief, an opinion about the world. Why is it privileged over other forms of belief or opinion, or for that matter, fact (many religious groups find offence at scientific facts that contradict their beliefs)?
Minister Ahern says he’s introducing his amendment to answer the want in the statutory law referred to in Conway vs Independent newspapers. He is right, to a point, in saying that he is watering down punishment of the offence compared to the terms set out in the Defamation Act 1961. However, that puts us in the position of having to trust that the DPP will not have an religious axe to grind in deciding whether or not to prosecute alleged cases of blasphemy. Also the prospect of having to fork out €100,000 and barrister’s fees for a High Court appearance is scary enough to allow religious groups to intimidate critics with the threat of legal action. I’m not clear whether or not the Gardai would or would not still have the power under the amendment to enter a premises and seize copies of offending media either.
The more I look at it, the more I see that there’s some merit in Pat Rabbitte’s counter-amendment in making the best of a bad situation (though a maximum fine of €1 would be more appropriate, even if it’s €1 too much). However, the better solution would be to amend Article 40 and remove the medieval pimple of blasphemy from the Constitution altogether.
Update II: This episode of the excellent Jesus and Mo seems appropriate:
Which, raises the question – if the blasphemy amendment goes through – does this mean that it will be illegal to view material deemed blasphemous on the Internet? If the Gardai are given the power to seize blasphemous material – will they be able to enter your house and seize computers displaying blasphemous material?
