Tuesday 20 November 2018

Andrea Martin: There is no place in our Constitution for a blasphemy offence for which no one will be convicted - it's a sham

On October 26, we must confirm what we have recognised for years and dump this anachronism, writes Andrea Martin

The Patrick Kavanagh statue on the Grand Canal
The Patrick Kavanagh statue on the Grand Canal

Andrea Martin

We all have our 'sacred cows' - passions and beliefs so important to us it hurts to have them treated with disrespect.

A friend working in television once filmed a comedy item for a Valentine's Day TV show. It featured a young woman writing lousy romantic verse as she sat beside the bronze figure of Patrick Kavanagh ruminating on his canal-bank seat.

Back in the office, he showed the piece to a colleague, a cultured and principled man, passionate about poetry. "You can't broadcast that," said his colleague, in horror, "It's Kavanagh!" On re-reading Kavanagh's Lines Written on a Seat on the Grand Canal, I can understand the colleague's sense of offence. But no one was in danger of being prosecuted for offending what the other held sacred.

On October 26, we vote whether or not to remove the constitutional requirement that blasphemy be a crime under Irish law.

The relevant provision is the final paragraph of Article 40.6.1 of Bunreacht na hEireann, adopted in 1937. It's part of the article that guarantees our right to freely express our convictions and opinions. The final sentence reads: "The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable by law."

We will be asked whether or not we approve the removal of the word "blasphemous" from that sentence.

Blasphemy was for centuries a criminal libel offence under common law ('judge-made' law).

Following the publication in this newspaper in 1995, during the divorce referendum campaign, of a cartoon deemed by some to be offensive to Catholic principles, John Corway sought leave from the High Court to have the owners and editor of the Sunday Independent prosecuted for the common law offence of blasphemous libel.

Section 13 of the Defamation Act 1961 (now abolished) provided for the penalties to be imposed on conviction for the offence - a fine of up to £500 and/or imprisonment for up to two years, or penal servitude for up to seven years.

The Supreme Court decided in Corway, upholding the 1996 High Court decision in the case, that in the absence of a statutory definition of blasphemy and in a state where the Constitution guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, it was impossible to determine what constituted blasphemy.

In this way, the common law offence of blasphemy became incapable of prosecution.

The punishments for blasphemy set out in the Defamation Act 1961 ensured the letter of the Constitution was observed. But the crime wasn't capable of being prosecuted, rendering the constitutional reference to blasphemy an empty formula.

Fast forward to the parliamentary debates in 2008 on the 2006 Defamation Bill. The bill, in its original form, contained two provisions affecting blasphemy.

The first was the repeal of the 1961 Defamation Act, thereby doing away with the punishments for blasphemy contained in that act. The second was the abolition of all common-law criminal libel offences, thereby doing away with the offence of blasphemy altogether.

In the Seanad, Labour senator Alex White, who had already proposed a referendum to remove blasphemy from the Constitution in his role as a member of the All Party Committee on the Constitution, pointed out the constitutional anomaly that would arise if these two provisions were passed - the proposed legislation would abolish both the offence of blasphemy and the punishment for blasphemy, leaving the State in breach of its own Constitution.

Something had to be done.

A constitutional referendum was already in the pipeline - the second referendum on the Lisbon Treaty. Minister for Justice at the time, Dermot Ahern, I speculate, wasn't going to risk distracting the populace with a blasphemy referendum, for fear of not getting the second Lisbon vote 'right'.

The rejection of the Lisbon Treaty by referendum in 2008 had caused embarrassment to the Government in the EU. So, in what can only be described as an Irish solution to an Irish problem, he introduced a new section to the Defamation Bill. The new section defined blasphemy and made it a criminal offence.

However, the new provision allowed such latitude for defending a blasphemy prosecution, it would be nearly impossible to secure a conviction and, even if convicted, no one would go to jail.

The bill was enacted as the Defamation Act 2009 and became law on January 1, 2010.

Section 36 of the 2009 Act defines blasphemy as the publication or utterance of "matter that is grossly abusive or insulting to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents to that religion", coupled with an intention to cause that outrage. A charge of blasphemy can be defended on the basis that, "a reasonable person would find genuine literary, artistic, political, scientific, or academic value" in the publication or utterance made.

As a result, we now have on our statute books a blasphemy offence for which no one will be convicted. It's a sham.

Unfortunately, Ireland's blasphemy law has probably had more effect internationally than here in Ireland. Our blasphemy law has been quoted directly by countries such as Pakistan at the United Nations in making the case for the prohibiting of 'defamation of religion'.

Our Supreme Court recognised in 1999 that our blasphemy law was an unenforceable anachronism. Our legislature, by passing the Defamation Act 2009, recognised our blasphemy law as an unenforceable anachronism.

On October 26, the people of Ireland can finally confirm what our courts and legislature have long-since recognised, that there is no place in Ireland's Constitution in the 21st Century for a blasphemy law.

  • Andrea Martin is a solicitor specialising in media law. She is a partner with MediaLawyer Solicitors. This article featured in the October 7th edition of the Sunday Independent

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