Blasphemy: A Response to Eoin O'Dell

In today's Irish Times and on his blog, Eoin O'Dell argues that the Blasphemy offence in the Defamation Bill is unconstitutional and urges the President to refer the Bill to the Supreme Court. As a mere aspiring lawyer it can be difficult to disagree with a university lecturer but I feel I must try.

Mr. O'Dell's thesis is essentially that:

1. The protections afforded to free speech by the Constitution are the same as European Convention on Human Rights.
   
   
2. The Convention requires that punishment for blasphemy can only be justified when the material complained of creates a risk of public disorder.
   
   
3. Since the Bill doesn't require that the blasphemous material should create such a risk, it's unconstitutional.

While I have doubts about the first point, it's his second argument on which I think he falls. The Constitution and the Convention are quite different documents, a point which can easily be demonstrated by comparing their respective provisions on the freedom of expression.

"1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law."

compared with:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

(No points for guessing which is which.) Admittedly, to a large degree the differences are mostly in style and not substance. Both set out a right and subject it to a series of qualifications. If they are ever going to be found to be in conflict, I don't think such a conflict is likely here.

Among the reasons, in the Convention, for limiting the freedom of expression the "the prevention of disorder or crime" and "the protection of health or morals" are listed separately. In my opinion it is wrong to assume that a risk of "disorder or crime" must be created before a criminal punishment for blasphemy could be imposed. The protection of morals could, on their own, suffice.

In its recent decision in I.A. v. Turkey, the European Court of Human Rights upheld (admittedly on a small majority) a prosecution for blasphemy in Turkey. In doing so the Court said:

"29. However, the present case concerns not only comments that offend or shock, or a 'provocative' opinion, but also an abusive attack on the Prophet of Islam. Notwithstanding the fact that there is a certain tolerance of criticism of religious doctrine within Turkish society, which is deeply attached to the principle of secularity, believers may legitimately feel themselves to be the object of unwarranted and offensive attacks through the following passages: “Some of these words were, moreover, inspired in a surge of exultation, in Aisha's arms. ... God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual intercourse with a dead person or a live animal.”

30. The Court therefore considers that the measure taken in respect of the statements in issue was intended to provide protection against offensive attacks on matters regarded as sacred by Muslims. In that respect it finds that the measure may reasonably be held to have met a 'pressing social need'."

The wording of the Defamation Bill's blasphemy offence which applies to:

"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 ... he or she intends, by the publication or utterance of the matter concerned, to cause such outrage",

could almost be said to have been based on the above-quoted paragraphs. The necessity for blasphemy to be based solely on the potential creation of public disorder is also defeated by reference to Corway v. Independent Newspapers, where the Supreme Court declared, in effect, that the common law offence of blasphemy did not survive the enactment of the Free State Constitution in 1922. In that case Donal Barrington J. speaking for the Court said:

"34. The [1937] Constitution 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." (my emphasis)

With both the reference to "morality" in that case and to "public order and morality" in the Constitution (quoted above), the inescapable conclusion is that O'Dell's thesis that an offence of blasphemy could only be justified based on the risk of public disorder is wrong. I think such a law can also be justified based on the potential of blasphemy to cause outrage among and offence to religious believers.

Blasphemy in the Internet Age and other Oddities

On finally reading the soon-to-be Defamation Act, I am struck by the absurdity of section 37. If legislating for a criminal offence of blasphemy wasn't bad enough, section 37 allows for search, seizure and disposal of blasphemous matter. Logical I suppose, but the days — if they ever existed — when you could destroy a blasphemous book by burning all the copies are surely long gone. Publication on the internet will frustrate any powers of search and seizure, and any search, seizure and disposal that might take place would be entirely pointless.

Another curious oddity of the new offence is that it will an indictable offence (placing it in a class along with treason, murder, rape and riot) but one for which you can't be sent to prison (like littering) unless you refuse to pay or don't have the money, that is. As a consequence, people accused of blasphemy will face a jury trial, even though this is normally reserved for people facing fairly stiff terms in prison. Normally when the Oireachtas create new offences, they create them as "either/or" which can be tried either summarily before a district judge or upon indictment before the Circuit Court or the Central Criminal Court.

And another thing. The justification given for enacting a blasphemy law is complete nonsense. The Minister for Justice may well be right to say that they can't — within the terms of the Constitution — repeal all of the 1961 Defamation Act without in some way replacing its blasphemy provision, but there was no need to repeal all of that act. The relevant provisions could have been left unrepealed.

Criminal Justice (Amendment) Bill 2009

Lawyers are not liked as a group and any proposal which they generally oppose is very likely to become more, rather than less, popular because of their opposition. A little over ten years ago the Bail Referendum, was opposed, among others, by a relatively small group of lawyers and was decisively approved by the people and the present Criminal Justice Bill is no different. The proverbial man on the Blanchardstown omnibus isn't bothered by such laws as he thinks that they'll apply to criminals in Limerick and not him. Of course we all know that civil liberties only apply to decent law-abiding middle class types and not gangland criminals from Limerick.

Ireland has always had an ambiguous relationship with jury trials. Historically Grand Juries were detested as being the creatures of the Protestant Ascendancy which passed doubtful indictments on Catholics while refusing to indict their own when the evidence was stronger. In fact one of the first things we did after independence was to remove their remaining judicial powers, thereby abolishing them completely. The Petit Jury remained only to face competition from various military tribunals, the most notorious of which was undoubtedly the Constitution (Special Powers) Tribunal which was empowered, among other things to inflict any punishment it saw fit upon conviction before the Tribunal for any criminal offence whatsoever. As far as draconian legislation goes, we are unlikely to even dream up anything quite so severe these days.

We are now faced with the Criminal Justice Bill which allows for the conviction for membership of a criminal gang before the non-jury Special Criminal Court (the successor to the Special Powers Tribunal) by the uncorroborated evidence of any member of the Garda Síochána. But is it Constitutional? I think the answer is probably yes for the following reasons:

1. Separation of Powers. One of the best arguments against the Bill is that there's no reason for the sudden rush and that we can wait until the autumn when a more expansive examination of the Bill can be performed. However this not a reason for unconstitutionality as the courts will not enquire into the adequacy of debate in the Oireachtas concerning any particular bill.
   
   
2. Under the Presumption of Constitutionality, it's up to those who wish to challenge the Bill to prove that non-jury trials are not warranted. Were this not the case the Government would face the difficult task of showing that the "ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order." I have not yet heard of any reported case of jury – as opposed to witness – intimidation, and I'm not sure if the Government have either.
   
   
3. Interpretation. The Courts will try and save the Bill by interpreting it in such a way as to avoid any potential unconstitutionality. Thus in the absence of any clear statement that an accused person can be convicted on the uncorroborated evidence of a member of the Garda Síochána, the Courts will interpret to say that individuals either can't be convicted on the basis of uncorroborated evidence, or that the Courts should be very reluctant to convict anyone on the basis of such evidence. In short the opposite of what it purports to say.
   
   
4. The get-out-of-jail-free clause. The Bill includes a provision which says:
   

   "Nothing in [this Bill] prevents a court, in proceedings thereunder, from excluding evidence that would otherwise be admissible if, in its opinion, the prejudicial effect of the evidence outweighs its probative value".

   This allows the Courts to say that any potential unfairness brought about by the Bill can be mitigated by trial judges by excluding otherwise prejudicial evidence. It might also, of course, allow trail judges to completely undermine the operation of the Bill, but that’s a matter for another day.

The Referendum Bill

The Government's just published referendum bill is, predictably enough, not what I'd really like, but then I don't exactly get much input on these things. Like previous European Union/Community related amendments, the aim is to maximise what the Government can do in Brussels. The only restrictions being the prohibition on the formation of a common defence (a novelty introduced by the second Nice referendum) and a requirement that the Government seek the prior approval of the Dáil and Senate before adopting the more discretionary elements of the EU Treaties.

I fail to understand why, when the Government always insist that they're not going to give up our vetoes under taxation and foreign policy, they don't include these areas along with common defence as areas which would require further recourse to the people. This would be an altogether simple way of reassuring people over things which aren't going to happen anyway. (I'm preparing my don't-tell-me-I-didn't-warn-you speech.)

As with most of the bills which are about to be guillotined through Parliament, there will be remarkably little time for debate on the merits of the bill or properly consider amendments.

Anyway, here are the relevant parts of Article 29.4 of the Irish Constitution as it would be if the Government's referendum bill is passed this Autumn, along with some annotations.

"3° The State may become a member of the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957).

[ed. European Atomic Energy Community or Euratom continues its separate from, but associated status, with the EU. The Euratom Treaty is, other than essentially procedural amendments left as is.]

4° Ireland affirms its commitment to the European Union within which the member states of that Union work together to promote peace, shared values and the well-being of their peoples. [ed. A novel provision]

5° The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007 ("Treaty of Lisbon"), and may be a member of the European Union established by virtue of that Treaty.

[ed. Lisbon merges the hitherto separate legal entities of the European Union and the European Community, thereby creating a "new" European Union. The "new" EU is nonetheless pretty much the same as the old EU, save for the changes introduced by Lisbon itself.]

6° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5 of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by—

i the said European Union or the European Atomic Energy Community, or by institutions thereof,

ii the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or by institutions thereof, or

iii bodies competent under the treaties referred to in this section,

from having the force of law in the State.

[ed. The language of sub-section 6 essentially repeats that introduced by the Third Amendment as enacted in 1972.]

7° The State may exercise the options or discretions—

[ed. This relates to areas which are not really "necessitated" by EU membership, but which the State can opt-in or opt-out of. A similar provision was first inserted by the Amsterdam amendment.]

i to which Article 20 of the Treaty on European Union relating to enhanced cooperation applies,

ii under Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union annexed to that treaty and to the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community), [ed. This relates to our flexible opt-in/opt-out to the Schengen acquis.] and

iii under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, so annexed, including the option that the said Protocol No. 21 shall, in whole or in part, cease to apply to the State,

[ed. Another flexible opt-in/opt-out but this time relating the EU's Area of Freedom, Security and Justice, under which the bulk of Schengen Area rules are now made. This paragraph would also allow the State to join the Schengen Area.]

but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

8° The State may agree to the decisions, regulations or other acts—

i under the Treaty on European Union and the Treaty on the Functioning of the European Union authorising the Council of the European Union to act other than by unanimity,

ii under those treaties authorising the adoption of the ordinary legislative procedure, and

iii under subparagraph (d) of Article 82.2, the third subparagraph of Article 83.1 and paragraphs 1 and 4 of Article 86 of the Treaty on the Functioning of the European Union, relating to the area of freedom, security and justice,

[ed. These relate to the harmonisation of criminal law (both substantive and procedural), including the ability to expand the areas of criminal law subject to possible harmonisation, and the establishment of a European Public Prosecutor. These are areas under the flexible opt-in/opt-out arrangements under the Area of Freedom, Security and Justice.]

but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas.

9° The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 42 of the Treaty on European Union where that common defence would include the State. [ed. this was inserted by the second Nice referendum.]"