Michael McNamara: Reactionary blasphemy proposal does not reflect tolerance
Should I have the right to say or publish something that grossly insults a religion? Even if I intend to outrage a large number of that religion's believers? And even if there is no literary, artistic, political, scientific or academic value in what I say or publish?
This is what will be decided in the referendum on whether to remove blasphemy from the Constitution tomorrow, the same day as the presidential election.
In the USA, freedom of speech is absolute. The Supreme Court of the United States ruled that the "constitutional guarantee of free speech and free press" prevents states from limiting statements except "where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action". Thus, in the land of the brave, one is free to gratuitously insult religious beliefs and/or to seek fame by burning the 'Holy Bible' or the 'Koran' with predictable results.
On this side of the Atlantic, the European Court of Human Rights has found that whoever exercises the right to freedom of expression also has to accept duties and responsibilities and "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 others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs."
The current laws which seek to strike the balance between freedom of expression and the sensitivities of believers in Ireland are sections 36 and 37 of the Defamation Act 2009. They make it an offence to publish or say something that is grossly abusive or insulting in relation to matters held sacred by any religion, causing outrage among a substantial number of the adherents of that religion with the intention of causing that outrage. It is a defence to prove that a reasonable person would find genuine literary, artistic, political, scientific or academic value in what was said or published.
Cults - which are defined as having as their principal object the making of profit, or that employ oppressive psychological manipulation of their followers, or for the purpose of gaining new followers - are specifically removed from the definition of religion. Anybody accused of the offence has the right to a jury trial and, if convicted, the punishment provided for is a fine of not more than €31,744. These provisions have hardly stifled public debate or resulted in a gagging of free speech in this country.
To date, nobody has been convicted, or even prosecuted, under these laws.
But that's not the point. We are told, we need to get rid of them because they set a bad example to other states, such as Pakistan, which mete out draconian penalties for blasphemy.
However, human rights groups have also long criticised India for its out-dated sedition law. An actress and former Indian MP, Divya Spandana, is currently being prosecuted under those sedition laws for speaking positively about Pakistan. After visiting Islamabad with a group of young South Asian parliamentarians, she said on returning that Pakistan was "not hell". She even said that Pakistanis were very much like Indians, and treated the visitors very well.
This ongoing abuse of the sedition law in India has not led our Government to consider removing the offence of sedition from the Irish Constitution. In fact the Bill to be voted on specifically affirms it, providing that 'seditious' shall be substituted for 'blasphemous, seditious' in our Constitution.
The reactionary and regressive proposal contained in this referendum does not reflect the value that modern Ireland has come to exemplify - tolerance. This tolerance also includes tolerance of religious believers and the beliefs that are sacred to them.
Michael McNamara is a former Labour TD and is a barrister