Blasphemy or Racial Hatred Laws?
Submission to the Constitutional Convention
Jennifer Kavanagh Lecturer in Law Waterford Institute of Technology
[email protected]
Blasphemy or Racial Hatred Laws? ......................................................................................................... 1
Introduction .......................................................................................................................................... 2
The Irish Constitution and Blasphemy ................................................................................................. 2
Blasphemy in Legislation ..................................................................................................................... 5
Reform of Blasphemy .......................................................................................................................... 5
Is Blasphemy consistent with a Secular Ireland? ................................................................................ 6
The Constitution and the Protection of Religion .................................................................................. 8
Is the use of Racial Hatred Laws the better option? .......................................................................... 10
Cultural Change and the Legal Position of Religion............................................................................... 15
Defamation Act 2009 changes to the law on blasphemy ....................................................................... 17
Conclusion ............................................................................................................................................. 18
1
Introduction
In 1949, Lord Denning, stated in a lecture entitled “Freedom of Mind and Conscience” dealt in particular
with freedom of religion, stating that the “offence of blasphemy is a dead letter!1”. Drawing from the
judgment of Lord Sumner in the case of Bowman v. Secular Society Ltd he quoted the following
passage:
The attitude of the State towards all religions depends fundamentally on the safety of the
State and not on the doctrines or metaphysics of those who profess them…In the present
day men do not apprehend the dissolution or downfall of society because religion is
publicly assailed by methods not scandalous.2
Lord Denning concluded on the point of blasphemy by stating that “whilst the Christian beliefs still from
the foundation of our way of life…they are not to be enforced by law but by teaching and example”3.
The Irish Constitution and Blasphemy
Article 40.6.1 is the main Constitutional Provision for freedom of expression and states that citizens are
granted the right to freely express their convictions and opinions. However, the exercise of this right is
restricted if the expression in question is blasphemous and can be punished in law. The article, in itself
does not define what is blasphemous. The Defamation Act of 2009 sets out the definition of what is
considered to be blasphemous under the provisions of s. 36 (2) which states that:
(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
The defences contained in s. 36 (3) allows for a 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.
Prior to this the definition of blasphemy had to be teased out from case law and legal dictionaries4.
In Corway v. Independent Newspapers5, the applicant sought leave to commence criminal proceedings
against the Independent Group and the Sunday Independent’s Editor for blasphemous libel. In the
affidavit the applicant stated that because of the publication of the cartoon in the Sunday Independent
he suffered “offence and outrage by reason of the insult, ridicule and contempt shown towards the
1 Sir
Alfred Denning, Freedom under the Law, The Hamlyn Lectures, First Series (1949) p. 46
v. Secular Society Ltd. [1917] A.C. 406 at pp. 466 – 467 as discussed by Sir Alfred Denning in Freedom under the
Law, The Hamlyn Lectures, First Series (1949) p. 46
3 Sir Alfred Denning, Freedom under the Law, The Hamlyn Lectures, First Series (1949) p. 47
4 For example Murdoch’s Dictionary of Irish Law defined the offence as “The crime which consists (emphasis added) of
indecent and offensive attacks on Christianity, or the Scriptures, or sacred persons or objects calculated to outrage the
feelings of the community. The Constitution declares that the publication or utterance of blasphemous matter is an offence
which shall be punished in accordance with law…The mere denial of Christian teaching is not sufficient to constitute the
offence.” As given in the Supreme Court judgment in the case of Corway v. Independent Newspapers [1999] 4 I.R. 484 at p.
495 where this definition was not accepted. Blackstone defined blasphemy as “against the Almighty, by denying his being or
providence; or by contumelious reproaches of our saviour Christ. Whither also may be referred all profane scoffing at the holy
scripture, or exposing it to contempt or ridicule …[F]or Christianity is part of the laws of England.” W. Blackstone,
Commentaries *59 as discussed in Blasphemy, Columbia Law Review, Vol. 7, No. 4. (Apr., 1970), p.694
5 [2000] I.L.R.M. 426 and [1999] 4 I.R. 484
2 Bowman
2
sacrament of the Eucharist”6 The offending element of the Sunday publication was a Cartoon, by
Wendy Shay, with the title “Hello Progress – Bye Bye Father” with an article questioning the influence
of the Catholic Church in Ireland after the successful campaign to allow for Divorce The tag line used
for the caption was a play on the posters that were used in opposition to the Referendum to allow for
divorce. These posters had the tag line of “Hello Divorce – Bye Bye Daddy”.
The cartoon caricatured three government ministers, rejecting the host and chalice being offered by a
priest. This application was refused by Geoghegan J. in the High Court as there was no prima facie
case to be answered in the opinion of Geoghegan J who further stated in the High Court that even if
there was a case to answered leave would not have been granted as it was felt that there would be no
public interest for such proceedings to take place, however this fact was never fully explained. In the
Supreme Court, in a short application of the rules of blasphemy, all the judges agreed with the
judgment of Barrington J., even though “it was impossible to say what the offence of blasphemy
consisted of”, he was able to say that it did not happen in this case. This unusual as the corollary of
saying what something is, is the ability to say what it is not. Therefore, the fact that Barrington J. was
able to state what did not constitute what blasphemy was not would naturally suggest that he knew
what it was7. However, this was a unanimous decision in favour of the respondents and now an
extremely strong precedent for the future of the law of blasphemy in Ireland in its current state.
Since 1880 the ancient meaning of the word “blasphemy” has been misused and the use of a “specific
ancient term to cover a related modern problem is deeply problematic.”8 The use of any word that does
not lend itself to precise translation from Irish is more problematic indeed9. Causing even some cynics
to say “No one knows that blasphemy is…., but all know that they are vague words which can be fitted
to any meaning that shall please the ruling powers.”10
Canon 2323 of the Roman Catholic Church is then proffered for a definition of what blasphemy is, this
states that “blasphemy is spoken or written words of insult to God or His Saints or scared things”11,
which is further criticised by O’Higgins stating that this definition does not include a breach of the peace
and is irrelevant unless the meaning of blasphemy in the Constitution has altered to the meaning
proffered in Canon 2323.
It is important to consider provisions of the European Convention on Human Rights12. Under Article 10
of the European Convention of Human Rights allows for restrictions to be placed on freedom of
expression for the “protection of health or morals”13 and therefore the right to freedom of expression
[1999] 4 I.R. 484 at p. 484
point was also raised by Cox, commenting on the Corway Case, in Case and Comment, (2000) 22 D.U.L.J 201 at p. 205
stating that “First, the court concluded that it was unable to give definition to the crime of blasphemy, yet it had already referred
to the definition given in Murdoch’s Dictionary of Irish Law, without any suggestion that the definition there in offered was
deficient. It is unclear why, having been cited with apparent approval it was then rejected. Secondly, the court was able to
conclude that this particular cartoon was not blasphemous – a curious feat if the actus reus of the crime could not be defined.”
8 Cox, Blasphemy and the Law in Ireland (2000) p. 2
9 It is even pointed out by O’Higgins that there may be a clash between the Irish meaning of the word blasphemy being
“diamhaslach” and its literal English translation from older Irish dictionaries. O’Higgins is of the opinion that meaning in the old
Irish dictionaries “differs from that accorded to blasphemy, in English law today” Could this also be a stumbling block to a
crime that knows no definition? For further details see O’Higgins, P. Blasphemy in Irish Law, 23 Mod. Law Rev. 166 (1960) at
p. 154
10 Quote from Walter Bagehot as discussed in O’Higgins, P. Blasphemy in Irish Law, 23 Mod. Law Rev. 166 (1960)
11 O’Higgins, P. Blasphemy in Irish Law, 23 Mod. Law Rev. 166 (1960) fn. 82 at p. 166
12 As part of the provisions of the European Convention of Human Rights 2003 the decisions of the Strasbourg Court have a
binding effect on Irish Law
13 Article 10 (2) European Convention on Human Rights
6
7 This
3
“may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society”14. In Murphy v. Ireland15 the right of the applicant to place
advertisements of a religious nature on national and local media, held was in contravention of the
Broadcasting Act in the Irish Courts. Before the European Court of Human Rights it turned whether the
interference was necessary. The court drew from the previous domestic court decisions that focused on
the history of sectarian violence in Ireland and Northern Ireland. Stating “Irish people with religious
beliefs tended to belong to a particular church so that religious advertising from a different church might
be considered offensive and open to the interpretation of proselytism” and that “the very fact that an
advertisement was directed towards a religious end which might have been potentially offensive to the
public”.16 On application of the margin of appreciation in Ireland’s favour the court stated that
“it….agreed that the Government had been entitled to take the view that Irish citizens would resent
having advertisements touching on these topics broadcast into their homes and that such an
advertisement could lead to unrest”17. As such speech is generally deemed to have a low value a wider
margin of application is afforded to the contracting state.
Regarding religious speech the most notable is case of the Otto – Preminger – Institut18. There were to
be six public showings of a satirical film on a religious subject matter. However, it was seized and
subsequently subject to a forfeiture order by the trial court. When the case was brought before the
European Court of Human Rights the Austrian Government relied on the protection of Article 10(2)
arguing this course of action was carried out to protect the rights of others. This was accepted by the
court but indicated that the aim came very close to the concept of morals19. The court also stated that
“The demands of a democratic society mean that freedom of expression included the freedom to
express ideas or to communicate information that shocks, offends or disturbs the state or any sector of
the population”20. In referring to the duties and responsible of freedom of expression the court stated
that:
Amongst them – in the context of religious opinions and beliefs – may legitimately be
included an obligation to avoid as far as possible expressions that are gratuitously
offensive to other and thus an infringement of their rights, and which therefore do not
contribute to any form of public debate of furthering progress in human affairs.21
With regard to the application of the margin of appreciation to the case the court stated as follows:
Since there is no discernible consensus throughout Europe of the significance of religion
in society, it is impossible to define comprehensively what interferences with anti–
religious speech are permissible. A certain margin of appreciation is therefore to be left to
the national authorities in assessing the existence and extent of the necessity of such
interference. This margin is not unlimited, and in cases such as the present one,
supervision of a state must be strict because of the importance of the freedoms in
question, and the necessity for any restriction must be convincingly established.22
14 ibid
[2004] 38 EHRR 212 and http://cmiskp.echr.coe.int/ (25 February 2007)
Judgment of 10 July 2003 http://cmiskp.echr.coe.int/ (25 February 2007)
17 ibid
18 Otto – Preminger – Institut v. Austria [1995] 19 EHRR 34
19 Van Dijk and Van Hoof, Theory and Practice of the European Convention of Human Rights Third Edition, (1998) p.578
20 Otto – Preminger – Institut v. Austria at p. 35
21 ibid p.19 as discussed in Van Dijk and Van Hoof, Theory and Practice of the European Convention of Human Rights Third
Edition, (1998) p.578
22 ibid pp. 35 - 36
15
16
4
Blasphemy in Legislation
The 2009 Defamation Act was to take Blasphemy from a Constitutional offence without supporting
legislation to a powerful criminal offence punishable by a fine of up to €25,000. The creation of a clear
criminal offence was met with much criticism. Irish law went from a situation where blasphemy was a
vaguely defined transgression to a criminal offence with a severe bite. Blasphemy here is defined as
the publication or utterance of matters which 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,…(where
that person ‘intends, by the publication or utterance of the matter concerned, to cause
such outrage23.
Even though the offence does allow for a literary, artistic, political, scientific, or academic value
defence, the mere fact that such an offence is created in the statue books it creates a chilling effect
whereby citizens may be afraid of exercising their constitutional right to freedom of expression because
of the impact of blasphemy. The reason presented for the creation of blasphemy was due to it being
mentioned in the Constitution. However in the preceding section of the Defamation Act 2009, the
offence of sedition was repealed. This is rather strange as both sedition and blasphemy are created as
constitutional crimes in the same article, yet sedition was abolished and blasphemy reinforced.
Reform of Blasphemy
The Irish Law Reform Commission recommended that blasphemy should be removed from the
Constitution and if this recommendation was not accepted then a new offence of the publication of
blasphemous matter should be created. On the idea of retaining blasphemy and creating a new
offence, they were of the opinion that:
A new and reformed offence of blasphemy might be regarded as simply encouraging the
retention of a law which is anachronistic and anomalous. We also observed that, having
regard to the considerable difficulty that exists in reaching any acceptable definition of
what constitutes a religion in the context of a modern law of blasphemy, any legislation we
proposed might be arguably in contravention of those provisions of the European
Convention on Human Rights, as interpreted by the court, which require a law restricting
freedom of expression to be formulated with sufficient precision to enable a citizen to
regulate his conduct.24
In the report of the Constitutional Review Group they acknowledged that this area has been extensively
dealt with in the Report of the Law Reform Commission. They saw no reason to diverge from their
findings and agreed with the position of the Commission in the “retention of the present constitutional
offence of blasphemy is not appropriate”25. The reason they supported this recommendation was due to
the unclear nature of the offence, the possible interference with freedom of expression in a “pluralistic
society”, the scarcity of prosecutions for the offence and the fact that the protection of religious beliefs
and sensibilities could be best protected by legislation such as the Prohibition of Incitement to Hatred
Act 1989 which achieves its aim of protecting minorities from hatred and yet balancing this protection
with the right to freedom of expression26. The Report of the Legal Advisory Group on Defamation in
Section 36 (2) Defamation Act 2009
of the Constitution Review Group, (1996) pp. 296 - 297
25 ibid
26 ibid 297
23
24Report
5
2003 supported the recommendations of the Law Reform Commission Report as to the abolishment of
the crime of blasphemy stating that “the Group has formed the view that matters such as
blasphemy…should not be dealt with in the context of a defamation statute even if they should be
criminalised in their own terms in another statutory vehicle”27.
Is Blasphemy consistent with a Secular Ireland?
The first attempt at creating an ecumenical approach to the blasphemy laws was in Lord Macaulay’s
Indian Penal code which “prohibited words and actions deliberately intended to wound the religious
feelings of others”28. In the Lemon case, Lord Scarman’s criticism of the blasphemy laws was with
regard to the insufficiency of the laws as they stood and supported any move to extend this protection
because of the emerging religious pluralism in the United Kingdom at the time of the case29.
In an increasingly pluralist and multi – faith society which activity seeks the incorporation of all cultures
into its society cannot seek the retention of a law that protects one religion and its tenets over any other
religion that exist in its jurisdiction. The fact that the legislature would actively seek the retention of
such a law would mean that any attempt by the government to foster a multicultural society would just
be hypocritical. If a society is meant to be a truly multicultural then it should be the case that either all
religions are protected or none at all
It was stated in the Mortensen’s article Blasphemy in a Secular State: A Pardonable Sin? that if the
current state of the blasphemy law is retained, even if its not enforced, that the retention of such as law,
even merely as an acceptable level of standards of the community would send a message to the other
groups in the community that “non – Christians are not completely equal participants in the political
community”30. The author also further states that the judgment of the Lemon case marked the fact that
religions and their followers now had legal group rights that could “attract legal recognition”31. But it was
also stated in this article that “once religious group rights are conceded through ecumenical blasphemy
laws” that the result could evolve into the stage where other groups that are defined by other secular
lines are given similar concessions32. Leading the author to quote from the judgment in Maryland v.
West which states that “if a majority of Christians is allowed to suppress what it finds, shocking, so
would a majority of Communists, Fascists, conservatives, racists, puritans, etc”33
Religious Freedom was one of the first human rights to be recognised universally and also justified on a
philosophical basis34. Locke stated in his Letter Concerning Toleration stated that:
27 Report
of the Legal Advisory Group on Defamation (2003) pp34-35 (para 59), p41 (recommendation XX),
http://www.justice.ie/en/JELR/rptlegaladgpdefamation.pdf/Files/ rptlegaladgpdefamation.pdf 01/08/2007
28 Penal Code 1860 (India) s. 298 as discussed in Mortensen, Blasphemy in a Secular State: A Pardonable Sin?, University of
New South Wales Law Journal, Vol. 17 No, 2 1994 p. 425
29 Whitehouse v. Lemon [1979] AC 617 as discussed in Mortensen, Blasphemy in a Secular State: A Pardonable Sin?,
University of New South Wales Law Journal, Vol. 17 No, 2 1994 p. 425
30 Bohlander, ‘Public Peace, Rational Discourse and the Law of Blasphemy’ (1992) 12 Anglo – American Law Rev 162 at 167
as discussed in Mortensen, Blasphemy in a Secular State: A Pardonable Sin?, University of New South Wales Law Journal,
Vol. 17 No, 2 1994 p. 428
31 Mortensen, ‘Blasphemy in a Secular State: A Pardonable Sin?, University of New South Wales Law Journal’, Vol. 17 No, 2
1994 p. 428
32 ibid p. 428
33 Maryland v. West (1970) 263 A2d 602 as discussed in Mortensen, Blasphemy in a Secular State: A Pardonable Sin?,
University of New South Wales Law Journal, Vol. 17 No, 2 1994 p. 429
34 Locke, ‘Letter Concerning Toleration’ (1685) in David Wootton (ed), John Locke Political Writings, (Penguin, London, 1993)
p. 390 as discussed in Lewis, “What not to Wear: Religious Rights, The European Court and the Margin of Appreciation”
I.C.L.Q. Vol. 56, April 2007, p 401
6
It is not the diversity of opinions (which cannot be avoided), but the refusal of toleration to
those that are of different opinions (which might have been granted) that has produced all
the bustles of wars that have been in the Christian world on account of religion.35
In fact the European Court of Human Rights in the Kokkinakis36 case states that
freedom of thought, conscience and religion is one of the foundations of a ‘democratic
society’… one of the most vital elements that go to make up the identity of believers and
their conception of life, but it is also a precious asset for atheists, agonistics, sceptics and
the unconcerned. The pluralism indissociable from a democratic society, which has been
dearly won over the centuries, depends on it.37
The right to religious freedom has been incorporated as a fundamental right of the European
Convention on Human Rights in Article 938. Lewis argues that the main reason for religious freedom, in
his article entitled “What not to Wear: Religious Rights, The European Court and the Margin of
Appreciation”, is the prevention of “persecution, social unrest and conflict, leading in extreme cases to
war” and gives the example of the wars in Europe in the wake of the Reformation as evidence of this
argument39.Even if the point of war being caused by religious intoleration is considered to be
sensational in the light of the debate at hand, it does demonstrate the divisions that can be caused
when all religions in a state are not put on an equal footing and, accordingly, not given equal treatment
by the law of the land. Therefore if the law of blasphemy was to be confined to Christians only, as is the
case at the moment, it would most certainly be sending the wrong signal to all those of other religions
that are living in the state at the moment. On the whole, the main reason for why the law of blasphemy
should not be just confined to the Christian Religion alone is best summed up in the words of Ronald
Dworkin, in that
[G]overnment must not only treat people with concern and respect, but with equal concern
and respect…It must not constrain liberty on the ground that one citizen’s conception of
the good life of one group is nobler or superior to another’s.40
Therefore any measure by which the legislature may formulate to deal with the recognition of different
religions may lead to some rather unwanted situations and, in fact from the dicta of previous cases from
the European Court of Human Rights any move by a domestic legislature to interfere in the legitimacy
of religious beliefs, in this case the protection or non – protection by an ecumenical blasphemy law may
fall foul of the provisions of the European Convention on Human Rights.
ibid
(1993) 17 EHRR 397
37 Kokkinakis (1993) 17 EHRR 397 as discussed in Lewis, “What not to Wear: Religious Rights, The European Court and the
Margin of Appreciation” I.C.L.Q. Vol. 56, April 2007, p 401
38 Article 9 of the European Convention on Human Rights states that Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others
and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest
one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and
freedoms of others.
39 Lewis, ‘What not to Wear: Religious Rights, The European Court and the Margin of Appreciation’ I.C.L.Q. Vol. 56, April
2007, p 401
40 Dworkin, Taking Rights Seriously, (Duckworth, London, 1977) as discussed Lewis, “What not to Wear: Religious Rights, The
European Court and the Margin of Appreciation” I.C.L.Q. Vol. 56, April 2007, p 403
35
36
7
The Constitution and the Protection of Religion
The 1922 Constitution was a “totally secular Constitution”41, it did not give preference to one religion
over another and the framers of the Constitution framed the rights of conscience, freedom of religion
and freedom of expression in wide enough terms to cover the views of citizens of all religions and none,
the tenets of one religion did not enjoy higher protection in law than the tenets of any other religion42.
Therefore it could not be said that there was an established church in the 1922 Constitution. In the
1937 Constitution as originally drafted the stated recognised in Article 44 “the special position of the
Catholic Apostolic and Roman Church as the guardian of the faith professed by the great majority of its
citizens”43. It also acknowledged, “that the homage of public worship is due to Almighty God”44, and that
it would “hold His Name in reverence, and shall respect and honour religion”45. However, Bunreacht ná
hÉireann also recognised the Church of Ireland, the Presbyterian Church, the Methodist Church, the
Religious Society of Friends and the Jewish Congregation and the other religions existing in Ireland at
the date of the coming into operation of Bunreacht ná hÉireann46.
The Fifth Amendment sought to remove sections 2 and 3 of Article 44.1 which gave the Catholic
Church its special position in the Irish Constitution and recognised the constitution position of other
named religions. It is important to note that during the time that this amendment was proposed, the
general attitude was that this article went too far in relation to creating a special position for the Catholic
Church under Bunreacht ná hÉireann. But, a small minority of zealous Catholics felt that this article did
not go far enough. This group, which was called Maria Duce which was lead by Father Denis Fahy,
complained that Article 44 only recognised the Catholic Church as the church of the majority where as
they wanted the Catholic Church to be recognised “as the one true church founded by our Divine
Lord”47. In 1949, the organisation arranged a petition calling for an amendment of this article but the
commotion came to nothing, as there was no major political backing given to the organisation. Yet,
less than thirty years later, the mores and ethos of the people had changed to such an extent that even
Cardinal Conway, who was the Archbishop of Armagh and Primate of All - Ireland stated that:
I personally would not shed a single tear if the relevant sub-section of Article 44 were to
disappear. It confers no legal privilege whatsoever on the Catholic Church and, if the way
to convince our fellow Christians in the North about this is to remove it, then it might be
worth the expense of a referendum48.
The main argument behind the removal of this article was as a contribution to removing the
misconceptions held in the North and elsewhere about the nature of the Irish Republic49. Even though
there was some opposition to the amendment, mainly from more conservative Catholic elements, the
vote in favour of change was 84%. This was a significant result in relation to the changing attitudes of
the Irish population. At the time that Bunreacht ná hÉireann was drafted the Catholic Church in Ireland
was in such an important position that Vatican approval had to be secured so that Bunreacht ná
Corway v. Independent Newspapers [1999] 4 I.R. 484 at p. 499
ibid p. 499
43 Foley & Lalor, Gill & Macmillian Annotated Constitution of Ireland, (1995) p. 128
44 Article 44, Bunreacht na hÉireann 1937, prior to the Fifth Amendment of the Constitution in 1973 which removed this
provision
45 Article 44, Bunreacht na hÉireann 1937, which was retained after the Fifth Amendment of the Constitution in 1973 which
removed the rest of this provision
46 Foley & Lalor, p. 128 – 129
47 Chubb, The Constitution and Constitutional Change in Ireland, (1978) p. 62
48 ibid p. 68
49 ibid p. 69
41
42
8
hÉireann would be passed. But now, its privileged position had declined to such a substantial degree
that this constitutional position had now been removed.
It was never stated in the Irish Constitution that the Catholic Church was the established church of
Ireland. The Church of Ireland which was the established Church in Ireland was disestablished in 1869.
Without doubt it could be stated that the Roman Catholic Church is the majority church in Ireland
however, it must be remembered that it is not the established church in Ireland. Even Barrington J. in
the Corway case stated that “it was difficult to see how the common law crime of blasphemy could
survive in a constitutional situation where there is no established church”50. Also in the same case,
Geoghegan J. in the High Court hearing stated that:
I am satisfied, therefore, that in considering this application I need not concern myself with
any particular words in the Constitution as either having the effect of expanding the
meaning of blasphemy or as in some way superseding the common law offences.51
In Byrne and McCutcheon, they detail the cases relating to the persuasive authority of Pre – 1922
decisions of the House of Lords. This was a question that vexed the judicial authorities after the
Independence of Ireland. In the case of Exham v. Beamish52 Gavan Duffy J. recommended that “only
those decision which has been accepted as being part of Irish law before 1922 were binding”53. Also in
the cases of Boylan v. Dublin Corporation54 and Minister for Finance and Attorney General v. O’Brien55
the judges in each of these cases considered all pre – 1922 decision to be binding. However, there was
a relaxation in the rules of the Supreme Court following its own precedents in the mid 1960’s with the
judgment in the case of The State (Quinn) v. Ryan56, whereby the Supreme Court departed from the
strict application of the rule of stare decisis whereby the Supreme Court was bound by its own previous
decisions. From this, Byrne and McCutcheon consider that such decisions may be departed from
where there are compelling reasons to do so57. Also Geoghegan J. in the High Court hearing of the
Corway case states that:
No statutory offence of blasphemy was ever created after the Constitution came into force.
It is same to assume that the Oireachtas considered that the common law offences of
blasphemy and blasphemous libel would have been carried over under the Constitution as
not being inconsistent with it.58
However, as there were no cases regarding blasphemy during the lifetime of the Article providing for
the special position of the Catholic Church the precedent of the law of blasphemy protecting only the
established church, the article granting this position could not have been judicially construed to give the
[2000] 1 I.L.R.M. 426 at p. 435 as discussed in Cox, Commenting on the Corway v. Independent Newspapers Judgement in
Case and Comment, (2000) 22 D.U.L.J 201 at p. 201 although the author states that such a law protected religious feeling.
However, it must be remembered that the in the case of R v. Bow Street Magistrates, ex parte Choudhury [1991] 3 All ER 306
which stated that the Common Law of Blasphemy only applied to the established religion of the State. Under the Irish
Jurisdiction there is no established religion of the state yet this position has been clarified in the wake of the Defamation Act
2009.
51 [1999] 4 I.R. 484 at p. 489
52 [1939] I.R. 366 as discussed in Byrne and McCutcheon, The Irish Legal System, Third Edition, (1996) p. 346
53 ibid
54 [1949] I.R. 60
55 [1949] I.R. 61
56 [1965] I.R. 110
57 Cox, Blasphemy and the Law in Ireland (2000) p. 52
58 [1999] 4 I.R. 484 at p. 488
50
9
meaning that the special position equated the established church. It must also be noted that any
creation of social policy by the Judiciary in Ireland by legislative intention “is to be regarded with
suspicion”59. As stated above the established religion in Ireland, the Church of Ireland was
disestablished in 1869 and there was no other religion stated as the appointed religion of Ireland since.
In the Constitution of Ireland, it was never stated that the Roman Catholic Church was to become the
established church. It was noted by the English Law Commission that there was argument to be made
to remove the regulation of the State from blasphemy stating that:
It is inappropriate and indeed contrary to Christian precepts to invoke that power of the
State in defence of the honour of the Deity and by such means to coerce other who are
unwilling to refrain from expressing disrespect…suggesting that the better, more Christian,
response is to attempt to convince anyone who insults God that he is wrong to do so; but
this is matter of persuasion rather than coercion, which is performed as a service to others
and hence by this means to God.60
Is the use of Racial Hatred Laws the better option?
In the deliberations of the Law Reform Commission regarding the Crime of Libel, they looked in detail at
the desirability of retaining the law on blasphemy prior to the Defamation Act 2009. The Commission
agreed with the contention that the rules relating to blasphemous libel were an aid to prevent the
publication or utterance of blasphemy causing injury to feelings? This appeared to the Commission to
be a tenuous basis to restrict freedom of speech. They stated that “the argument that freedom to insult
religion would threaten the stability of society by impairing the harmony between groups seemed highly
questionable in the absence of any prosecutions”61. They felt that the provisions of the Prohibition of
Incitement to Hatred Act 1989 covered instances where hatred was directed at a person due to their
religion and situations where material was published with its intention to promote hatred62.
The Irish Constitution under Article 44.2.1 recognises that “Freedom of conscience and the free
profession and practice of religion are, subject to public order and morality, guaranteed to every
citizen”. By virtue of this provision religious protection may be extended to any faith. This is also
guaranteed in Article 9 of the European Convention63.
Both of these provisions have limiting sections regarding this right providing that such a right or
freedom may be restrained for the protection of “public order and morality” or that may be “necessary in
a democratic society in the interests of public safety, for the protection of public order, health or morals,
or the protection of the rights and freedoms of others”. These are reasonable limitations to balancing
the right to freely practice ones religion and protect others from unwelcome proselytism.
Cox, Commenting on the Corway v. Independent Newspapers Judgement in Case and Comment, (2000) 22 D.U.L.J 201 at
p. 201
60 Criminal Law Offences Against Religion and Public Worship, (No. 145, 1985) p. 14
61 Report on the Crime of Libel (LRC 41 – 1991), at p. 11
62 ibid
63 Article 9 of the European Convention on Human Rights states that everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others
and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. However, the freedom
to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a
democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the
rights and freedoms of others.
59
10
However, what would constitute a religion in order to be afforded protection? The difficulties in
constituting what a religion is under legal parameters having already shown to be flawed with
recognised difficulties. With so many different groupings that may require religious protection, expert
witnesses may be required and this was not seen to be a favourable method of dealing with the
problem for the future by the English Law Commission. In relation to blasphemy the Commission was of
the opinion that its retention to deal with such issues would “fail to penalise the gravamen of the
conduct requiring criminal sanctions”.
It is true in this area of law that there will be minority rights at stake which will need protection to combat
any hatred that is levied against them. It was stated by Knight in Freedom of Religion, Minorities and
the Law that:
Minority views are likely to need greater protection than majority views under a
constitutional democracy in that they may not be able to gain the necessary protection
through the normal channels…It is clear from a number of decisions from Strasbourg that
one of the underlying principals of the European Convention of Human Rights is to ensure
pluralism in society, which will entail support and respect for minorities64.
Therefore the manner of dealing with the attacks on religious groupings is the key to the efficient
protection of the minority rights in question. But when the manner of protection is seen to be curtailing
the right to freedom of expression, the merits of such protection will come under increased scrutiny.
On consideration of a multitude of different methods in which to protect religious minorities, the most
favourable solution to the English Law Commission was the amendment, if required, of the English
Public Order Acts so that “the law penalises anyone who, in the guise of an attack on religious beliefs,
is in substance attacking groups, particularly minority groups, because of the beliefs which they hold.”65
It was noted the in the English Law Commission’s report on Criminal Law Offences
Against Religion and Public Worship, that recent authority indicated that racial groups
could be classified with regard to a common religious thread amongst the group.
The Commission further states that
If in future there appears to be a substantial problem relating to the availability of material
which in form is an attack upon particular religious beliefs, but is in substance an attack on
those holding such beliefs, it would seem to be a relatively simple task to amend section
5A of the of the Public Order Act 1936 specifically to penalise such material.66
In 2006, the Racial and Religious Hatred Act came into law and created the public order offence of
religious hatred, which was defined under the Act as “hatred against a group of persons defined by
reference to religious belief or lack of religious belief”67. It outlaws the use of behaviour that is intended
to stir up religious hatred by means of the following methods: the use of words or behaviour or display
or written material, publishing or distributing written material, public performance of a play, the
distribution, showing or playing a recording or the broadcast or including programme in programme
service. With regard, to the protection of freedom of expression it does state in Article 29J that this
should be read or given effect in a manner that would “prohibit or restrict discussion, criticism or
Knights, Freedom of Religion, Minorities and the Law (2007) p.85
Criminal Law Offences Against Religion and Public Worship, (No. 145, 1985) p. 28
66 ibid p. 16
67 Article 29A, Section 1, Racial and Religious Hatred Act 2006, www.opsi.gov.uk 26/06/2007
64
65
11
expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or
practices of their adherents” or of other religions or seeking others to stop believing in their religions68.
Therefore the issue of the protection of the tenants of the religion itself is removed and therefore the
area of concern of the Law Commission is resolved. Yet the fact that the believer is held up to ridicule is
given an effective legal remedy. One would think that on that point the issue would be resolved.
However, many commentators are against this Act and even the passage of the legislation through the
Houses of Commons was not without its own peculiar strives69.
With recent case judgments, it seems that the law needs revision. In the wake of the recent trial of BNP
leader Nick Griffin, the then Home Secretary John Reid conceded that the current laws may be in need
of some reform70. Also opposition members also argued that tougher laws could lead to "extremist
martyrs"71. It is essential that the right to free speech is preserved and that the legislature does not
place unwarranted or unnecessary constraint on this fundamental right. This is the reason why there is
considerable debate on the provisions of the English Racial and Religious Hatred Act 2006. In England,
legislative attempts to protect persons from racial hatred date back as far as 1936, however it was only
until ethnic tensions were risen during the period of the breakup of the Commonwealth in the 1950’s
and 1960’s that sufficient momentum was put behind proposals that the Race Relations Act 1965 was
eventually promulgated into English Law.72 Even at the committee stage of the Bill, the committee was
not able reach as a conclusive decision was to whether the act of inciting religious hatred should be
criminalised in the first place. However such was the magnitude of political will that was placed behind
the issue that the Racial and Religious Hatred Act was promulgated into law in 2006.
During the legislative process in the Houses of Commons four significant amendments were made by
the House of Lords. These amendments were, firstly, that the offence was to be a separate stand alone
offence. Secondly, the actus reus of the crime was confined to threatening words or behaviour and
would not cover mere instances of abusive or insulting words. Thirdly, the words or behaviour would
intend that the conduct complained of would to stir up religious hatred. Lastly, the House of Lords
insisted on a provision being inserted a saver provision for freedom of expression purposes73. Hare
quotes the reasons given by the British Government as follows:
Although the Government does not believe that incitement to religious hatred is commonplace, it does
exist and where it exists it has a disproportionate and corrosive effect on communities, creating barriers
between different groups and encouraging mistrust and suspicion. At an individual level this can lead to
fear and intimidation and a sense of isolation. It can also indirectly lead to discrimination, abuse,
Article 29J, Section 1, Racial and Religious Hatred Act 2006, www.opsi.gov.uk 26/06/2007
Further information on this can be found on BBC News, Raising the bar for hatred prosecutions,
http://news.bbc.co.uk/2/hi/uk_news/politics/4669714.stm 01/08/2007 and Ministers lose religious bill bid
http://news.bbc.co.uk/2/hi/uk_news/politics/4664398.stm 01/08/2006
70 BBC News, Tougher Race Laws to be Considered, http://news.bbc.co.uk/2/hi/uk_news politics/6137722.stm 01/08/2007
71 According to comments of Liberal Democrat MP Evan Harris in BBC News, Tougher Race Laws to be Considered,
http://news.bbc.co.uk/2/hi/uk_news/politics/6137722.stm 01/08/2007
72 Hare, ‘Crosses, Crescents and Sacred Cows: Criminalising incitement to Religious Hatred’, P.L. 2006, AUT, pp. 522 - 523
73 Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of
antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other
belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief
system to cease practising their religion or belief system. Section 29J Racial and Religious Hatred Act 2006
68
69
12
harassment and ultimately crimes of violence against members of our communities. It is legitimate for
the criminal law to protect citizens from such behaviour.74
Also the recommendations from the Law Commission for the abolishment of the offence regard the
unequal protection given by blasphemy to other religious was also a reason for the need to adopt
sufficiently strong religious hatred laws. Supporters of the law also stated that the right to freedom of
expression was not an absolute right and that all speech was not entitled to the same level of
protection.75
With regard to free speech and attacks on the tenets or believers of a particular religion, there has
always been hostility to government intervention and censorship in this area. Free speech has always
been regarded as “intrinsically and instrumentally important” to the operation of any democracy and
Hare notes that the United Kingdom has not “formulated a method which contains sufficient guarantees
of judicial objectively when the court is confronted with the expression of what are frequently
unappealing opinions” and that in addition to this “attempts by the state to sanitise public discourse are
inconsistent with our democratic concepts of individual autonomy”76.
In the case of R. (on the application of Pro – Life Alliance) v. British Broadcasting Corporation Lord
Scott of Foscote’s dissenting opinion stated that restricting speech on matters which could create
controversy for the reason of it being offensive
...denigrates the voting public, treats them like children who need to be protected from the
unpleasant realities of life [and] seriously undervalues their political maturity. 77
Lewis states that it is a “necessary consequence of autonomy that people will pursue a variety of paths.
Inevitably these paths will sometimes conflict and yet still be viewed as valuable as they derive from the
free choices of rational agents.78” Lewis further quotes directly from Raz stating that “[Conflict] is
endemic to value pluralism in all its forms. Belief in value pluralism is the view that many different
activities and forms of life which are incompatible are [nevertheless] valuable79.
In McGonagle’s Article Wresting (Racial) Equality from Tolerance of Hate Speech the fundamental
balancing that must be achieved in such an area as religious hatred legislation is discussed and to this
end the following quote from Ronald Dworkin is given:
74 Para.69 of the letter from Caroline Flint M.P., Parliamentary Under Secretary of State for the Home Office (February 3,
2005) in response to the Joint Committee on Human Rights' Fourth Report, First Progress Report (2004-05HL 26/HC 224) and
annexed in App.2a of the Committee's Eighth Report (2004-2005 HL 60/HC 388) as discussed in Hare, Crosses, Crescents
and Sacred Cows: Criminalising incitement to Religious Hatred, P.L. 2006, AUT, pp. 524 - 525
75 Hare, Crosses, Crescents and Sacred Cows: Criminalising incitement to Religious Hatred, P.L. 2006, AUT, p. 525. This
position is true when one considers the amount of protection given to political speech over obscene speech such as
pornography. This can be seen quite clearly from the jurisprudence of the European Court of Human Rights
76 ibid pp. 526 - 527
77 [2003] UKHL 23; [2004] 1 A.C. 185 as discussed in Hare, Crosses, Crescents and Sacred Cows: Criminalising incitement to
Religious Hatred, P.L. 2006, AUT, pp. 527 – 528. A good example of this was the Civil Rights Movement and attempts by state
officials to stop peaceful protests as the protestors has a right to protest under the First Amendment even though it caused
offence to the white citizens
78 Lewis, “What not to Wear: Religious Rights, The European Court and the Margin of Appreciation” I.C.L.Q. Vol. 56, April
2007, p 403
79 J Raz, ‘Multiculturalism: A Liberal Perspective’ in J Raz, Ethics in the Public Domain: Essays in the Morality of Law and
Politics (OUP, Oxford, 1994) 164 as discussed in Lewis, ‘What not to Wear: Religious Rights, The European Court and the
Margin of Appreciation’ I.C.L.Q. Vol. 56, April 2007, p 401
13
[I]t is the central, defining, premise of freedom of speech that the offensiveness of the
idea, of the challenge they offer to traditional ideas, cannot be a valid reason for
censorship; once that premise is abandoned it is difficult to see what free speech means.80
This is the key that must be remembered in any moves for creating a law that would restrain or penalise
speech on the grounds of religious hatred or racial hatred. It is only by question traditional ideas that
progress can be made and in the realms of religious thought this has proved dangerous and deadly for
some81.
A western liberal democracy should encourage by its laws the discussion and debate of religious ideas
and the non – belief in such ideas. The imposition of laws that may be seen to impinge on this right can
send a dangerous signal to free speech zealots. Therefore it has to be welcome that the Religious and
Racial Hatred Act 2006 was promulgated into law with the following paragraph:
Even though the scope the Racial and Religious Hatred Act with relation to offensive
speech has been narrowed there still remains concern amongst commentators regarding
the constituent elements of the offence and also that the conduct that would fall under the
Racial and Religious Hatred Act may already be dealt with under existing legislation.
As Hare states:
Justifications for restrictions on speech based on the effect such expression may have on its audience
(for example, by making them think less highly of a particular group) is an inevitably speculative, and
potentially dangerous, basis for the imposition of legal sanction. This must be especially true where the
restriction occurs through the criminal process. Government fails in its duty to treat us as autonomous
and rational agents if it purports to prohibit speech on the basis that it might persuade us to hold what it
considers being dangerous or offensive convictions. It will be remembered that one of the main
justifications for the protection of speech is the persuasive impact it may have on the minds of others.
To use the impact speech may have on its audience as the basis for censorship therefore turns a good
deal of the principled basis for free speech protection on its head82.
Some commentators have stated that the provisions of any racial hatred act could be used to combat
religious hatred as some religious groupings also run along racial lines. However Hare points out that
…it remains the case that for the vast majority who live in liberal democracies, religious
adherence is a matter of choice rather than birth and the law does not usually provide the
protection of the criminal law for vilification based upon the life choices of its citizens…
(and that)…. it is arguable that greater latitude should be given to free discussion on
religious matters than on those concerning race. 83
Dworkin, Freedoms Law, p.206 as discussed in T. McGonagle, ‘Wresting (Racial) Equality from Tolerance of Hate Speec’h
(2001) 23 D.U.L.J. 21 at p. 22
81 From the early heresy trials with scientists such as Copernicus and Galileo to the Satanic Verses, question of religious
doctrines in different faiths have lead to grave penalties for those who wish to question the fundamentals of religion
82 Drawing from the judgement of the Lingens Case (Lingens v Austria (1986) 8 E.H.R.R. 103) as discussed in Hare, Crosses,
Crescents and Sacred Cows: Criminalising incitement to Religious Hatred, P.L. 2006, AUT, p. 532
83 R. Miles, Racism After "Race Relations" (Routledge, London, 1993) and J. Richardson and J. Lambert, The Sociology of
Race (Causeway Press, Ormskirk, 1985) as discussed in Hare, Crosses, Crescents and Sacred Cows: Criminalising
incitement to Religious Hatred, P.L. 2006, AUT, p. 534
80
14
In the past, reactionary legislation has been promulgated by Governments in order to appease fears
relating to isolated incidences that have been sensationalised by the mass media84. These incidences,
even though admittedly traumatic to those that have suffered them, are in the main a not as common
an occurrence as other crimes but yet they can be the attention of disproportionate column inches.
Hare is suspicious about the motivations for the enactment of the Racial and Religious Hatred Act and
questions whether “the proposal is intended to soften the hostility felt by some groups to Parliament's
previous over-reactions to the threat of international terrorism”85
However, on the European Stage Protocol 14 which was opened for signature on November 4th, 2000
can be seen as a step in the right direction for balancing up the right not to be discriminated against. In
the European Convention there is no free standing rights to non – discrimination and in order to settle
this gap in the Convention Protocol 12 was opened for signature. This protocol, prohibits discrimination
“on any ground such as sex, race, colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status”. It will only cover
discrimination by public authorities.
This Protocol does not seek to isolate the fact of religion as a defining characteristic but lists a whole
raft of reasons for which people can be discriminated against. The manner in which the list is framed,
“on any ground such as”, would suggest that this will be an open ended list, in that the reasons for
discrimination will not be confined only to those reasons that are listed in the Protocol. Also with regard
to those who do not believe in a religion and would deem themselves as atheists, they are not left in the
almost farcical situation by which they seek protection under the Religious and Racial Hatred Act in
England but rather they can seek protection as it is an opinion.
Cultural Change and the Legal Position of Religion
In an increasingly pluralist and multi – faith society which activity seeks the incorporation of all cultures
into its society cannot seek the retention of a law that protects one religion and its tenets over any other
religion that exist in its jurisdiction. The fact that the legislature would actively seek the retention of
such a law would mean that any attempt by the government to foster a multicultural society would just
be hypocritical. If a society is meant to be a truly multicultural then it should be the case that either all
religions are protected or none at all.
The 1922 Constitution was a “totally secular Constitution”86, it did not give preference to one religion
over another and the framers of the Constitution framed the rights of conscience, freedom of religion
and freedom of expression in wide enough terms to cover the views of citizens of all religions and none,
the tenets of one religion did not enjoy higher protection in law than the tenets of any other religion87.
Therefore it could not be said that there was an established church in the 1922 Constitution. In the
1937 Constitution as originally drafted the stated recognised in Article 44 “the special position of the
A perfect example of this in Ireland would be the Non Fatal Offences against the Person Act 1997 where in the wake of a
spate of Syringe Attacks where the assailant threatened to infect the person with a disease such as AIDS by a blood filled
syringe in the course of a crime such as a robbery. Many Dublin Bus workers were threatened in such a fashion and in the
wake of press lobbying a separate offence was created in section 6 of the act. Even though the offence of assault in section 2
specifically covered instances of assault where by force was defined and covered instances where it consisted of the
application of matter in solid liquid or gaseous form.
85 Hare, Crosses, Crescents and Sacred Cows: Criminalising incitement to Religious Hatred, P.L. 2006, AUT, p. 538
86 Corway v. Independent Newspapers [1999] 4 I.R. 484 at p. 499
87 ibid
84
15
Catholic Apostolic and Roman Church as the guardian of the faith professed by the great majority of its
citizens”88. It also acknowledged “that the homage of public worship is due to Almighty God”89, and that
it would “hold His Name in reverence, and shall respect and honour religion”90. However, Bunreacht ná
hÉireann also recognised the Church of Ireland, the Presbyterian Church, the Methodist Church, the
Religious Society of Friends and the Jewish Congregation and the other religions existing in Ireland at
the date of the coming into operation of Bunreacht ná hÉireann91.
The Fifth Amendment of the Constitution in 1973 sought to remove sections 2 and 3 of Article 44.1
which gave the Catholic Church its special position in the Irish Constitution and recognised the
constitution position of other named religions. It is important to note that during the time that this
amendment was proposed, the general attitude was that this article went too far in relation to creating a
special position for the Catholic Church under Bunreacht ná hÉireann. But, a small minority of zealous
Catholics felt that this article did not go far enough. This group, which was called Maria Duce which was
led by Father Denis Fahy, complained that Article 44 only recognised the Catholic Church as the
church of the majority where as they wanted the Catholic Church to be recognised “as the one true
church founded by our Divine Lord”92. In 1949, the organisation arranged a petition calling for an
amendment of this article but the commotion came to nothing, as there was no major political backing
given to the organisation. Yet, less than thirty years later, the mores and ethos of the people had
changed to such an extent that even Cardinal Conway, who was the Archbishop of Armagh and
Primate of All - Ireland stated that:
I personally would not shed a single tear if the relevant sub-section of Article 44 were to
disappear. It confers no legal privilege whatsoever on the Catholic Church and, if the way
to convince our fellow Christians in the North about this is to remove it, then it might be
worth the expense of a referendum93.
The main argument behind the removal of this article was as a contribution to removing the
misconceptions held in the North and elsewhere about the nature of the Irish Republic94. Even though
there was some opposition to the amendment, mainly from more conservative Catholic elements, the
vote in favour of change was 84%. This was a significant result in relation to the changing attitudes of
the Irish population. At the time that Bunreacht ná hÉireann was drafted the Catholic Church in Ireland
was in such an important position that Vatican approval had to be secured so that Bunreacht ná
hÉireann would be passed. But now, its privileged position had declined to such a substantial degree
that this constitutional position had now been removed.
The census of 2006 shows that the traditional religions of Ireland are still in a majority position and this
has been reflected in the latest census but with a large increase of those professing to have no
religious beliefs. However, there is evidence to suggest that the amount of respondents to the census
Foley & Lalor, (1995) p. 128
Article 44, Bunreacht na hÉireann 1937, prior to the Fifth Amendment of the Constitution in 1973 which removed this
provision
90 ibid
91 Foley & Lalor, Gill & Macmillian Annotated Constitution of Ireland, (1995) p. 128 – 129
92 Chubb, The Constitution and Constitutional Change in Ireland, (1978) p. 62
93 Chubb, p. 68
94 Chubb, p. 69
88
89
16
that do not follow these “traditional” religions is a significant minority grouping95. Also in 2007, the
Department of An Taoiseach entered into a process of dialogue with many of the churches and
religious groupings in Ireland which could add to the argument for them to be recognised as religions in
the Irish legal landscape as they have already been afforded recognition by the Executive.96
Defamation Act 2009 changes to the law on blasphemy
The new defamation act of 2009 has laid down the statutory parameters for the new crime of
blasphemy. Under section 2 of the act, blasphemy is defined as follows:
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 amongst a substantial
number of the adherents of that religion and he or she intends, by the publication or
utterance of the matter concerned, to cause such outrage.97
However it will be defence if the defendant can prove that a reasonable person would find genuine
literary, artistic, political, scientific, or academic value in the matter to which the offence relates.98 The
legislature specifically excludes any organisation or cult from the provisions of the legislation, by
removing protection from any group which has a principal object of making money or one which uses
“oppressive psychological manipulation” of its followers or in order to gain new followers.99
If a person is found guilty under this section then they are liable to pay a fine of up to €25,000. We can
breathe a collective sigh of relief, however, to learn that the original fine intended by the legislature was
€100,000. At select committee report, Pat Rabbitte suggested that this fine be reduced to €1,000.100
Although maybe it could be argued that a fine of €25,000 was reaching the happy medium.
The introduction of the crime in the form of the Defamation Bill of 2006 was surprising to many. The Bill
had been on the legislative to – do list since its inception by the former Minster for Justice, Michael
McDowell. However it was only in April 2009 when blasphemy provision was introduced. The
blasphemy section was only read into the bill during the select committee hearing. The Bill was subject
to a possible Article 26 challenge when the President summoned the council of state over the summer.
Reports in the Irish Times suggest that the section had to be included in the new bill for constitutional
reasons101. These constitutional reasons could hark back to the fact that it was questionable as to
whether blasphemy was an actual crime due to the lack of an established religion in the country.
There is one strange section in the Act. It seems from a reading of section 37 that a court may only
make an order to seize the material in question when a person is convicted. One would it think it
See also http://www.cso.ie/statistics/popnclassbyreligionandnationality2006.htm 24/10/09. For example if the amount
stating not stated, other stated religion and Muslim (Islamic) are taken together then they would represent religions such as
Hindu, Buddhist and Islam and would account for around 3.7% of the respondents.
96 These groups included the Roman Catholic Church, the Church of Ireland, the Presbyterian Church in Ireland, the Methodist
Church in Ireland, the Baptist, Lutheran and Moravian churches, the Religious Society of Friends, Jehovah’s Witnesses, the
Greek, Russian, Coptic and Romanian Orthodox Churches, the Church of Jesus Christ of Latter – Day Saints, the Jewish
Representative Council of Ireland, the Islamic Cultural Centre, the National Spiritualist Assembly of the Baha’is of the Republic
of Ireland, the Irish Council of Churches and the Humanist Association of Ireland. As discussed by Whyte, On the Meaning of
“Religion” under the Irish Constitution, Doyle and Carolan (Ed.) The Irish Constitution: Governance and Values (2008) p. 453
97 Section 36 (2)
98 Section 36 (3)
99 Section 36 (4)
100 Dáil Éireann, Defamation Bill 2006, Select Committee Report, 28th April 2009 pp. 6 - 8
101 Irish Times, President calls Council Meeting, 17/09/2009
95
17
strange that the material will only be lawfully seize when a person is guilty when surely such evidence
would be necessary for trial in order to find a person guilty?
It could be argued that the new provision in the Defamation Act remedies the problems of the offence
only protecting the traditional religions. Now the definition of religion is kept wide open, but it does allow
for some cults to be excluded from protection.
It could be argued that as the demographical profile of religious worship has increased in Ireland, so to
has the protection of the various religions by legal means in Ireland. This protection of religion by
means of legislation could be said to acknowledgment and acceptance of other religions other than the
traditional in Ireland. Therefore it can be said that the law on blasphemy can be used as a barometer of
cultural change.
Conclusion
In Ireland the legislature has already enacted the Prohibition of Incitement to Hatred Act 1989 which
states that hatred means ‘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 orientation102.
If the definition was to be broadened in line with the new Protocol 12 it would provide a much greater
and democratic means of protecting not only those who claim that their religion is being used as a tool
of discrimination against them and that their rights, such as freedom of religion are being curtailed, but
would also make such protection more democratic as other groups which face discrimination will also
have the same and equal protection under such legislation.
For instance, racist bigots picketing the Clonskeagh Mosque with messages of hatred against the
Muslim faith and believers would fall foul of the Prohibition of Incitement to Hatred Act, however a group
of chauvinistic men may picket an Irish Country Women’s Associating meeting with placards that
communicate a message of hatred to women which would not fall foul of this Act. This is a rather
outlandish set of events but they serve to show how protecting one segment of society over another
can be as undemocratic as protecting none at all.
The Irish legislature should be commended for having the foresight to view that such discrimination
would prove problematic in 1989. However, such legislation could prove even more commendable if the
provisions were broadened to match that of the new Protocol 12103.
The whole point of the moves by the various Reform bodies across the world recommending that
blasphemy be removed as an offence was to remove the whole elevated status of protecting
sensibilities of believers in religions and removing the burden this restriction placed on freedom of
expression.
Prohibition of Incitement to Hatred Act 1989 www.acts.ie 16/06/2007
For instance discrimination on the grounds of sex, language, political or other opinion, membership of minority group,
property or birth is not covered. Also the Prohibition of Incitement to Hatred Act 1989 list of grounds for hatred is not an open
list so there cannot be any judicial interpretation of any further grounds that may come before the court in the future. Albeit,
with the provisions of the Human Rights Law Act 2003 and hopefully the prompt signing of the Protocol, the protocol may have
become part of the Convention and be binding on Irish Law before such a case would reach the courts in Ireland.
102
103
18
It could be stated that Ireland has to a great extend legislated to protect against any form of racial or
religious hatred. In Ireland the focus has been taken from the purely religious nature of the offence but
has recognized it as a form of discrimination amongst others. Also there is a strong regulatory
framework in operation which takes the minor issues out of the criminal system to be dealt with by the
complaints bodies, therefore leaving the gravest offences to be dealt with the public sphere by the
courts.
Even before the creation of the Defamation Act 2009, the reformists were calling on the Government to
remove the offence of Blasphemy from the Constitution. If the intent of the legislature in the creation of
the offence was to protect minority groups, then the use and even strengthening of Racial Hatred
legislation is the appropriate response. Therefore the retention of Blasphemy in the Irish Constitution is
an unnecessary encumbrance on the right to freedom of expression.
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