Wednesday, July 22, 2009

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.


  1. Despite the merits of the legal arguments, is it wise to open avenues to organised feelings of outrage at the expense of freedom of information?