Position of blasphemy in our Constitution cannot be ignored
OPINION:Successive governments have been advised to reform the law on blasphemy; the only alternative to legislation would be a referendum, writes DERMOT AHERN.
THE 1961 Defamation Act provides that a person can be both fined and imprisoned for a maximum of seven years for the crime of blasphemous libel. The Government is moving to reform that Act, while respecting our Constitution, which requires that blasphemy must be punishable by law.
My intention is to remove the possibility of prison sentences and private prosecutions for blasphemy, currently provided for in Irish law. The only credible alternative to this move is a blasphemy referendum which I consider, in the current circumstances, a costly and unwarranted diversion.
Reform legislation in regard to our laws on defamation has been long in the making, dating effectively from the Report of the Law Reform Commission in 1991. The Defamation Bill 2006 is the culmination of that process and it has fallen to me to bring the reform to fruition, which I expect to do before the summer.
The Bill was passed by Seanad Éireann on March 11th, 2008. On Wednesday April 29th, in the Dáil, the Select Committee on Justice, Equality, Defence and Women’s Affairs began its consideration of the Bill and of a number of amendments proposed by myself and the Opposition parties. This is a normal part of the legislative process.
Among my proposed amendments was a proposal in regard to the treatment of the issue of blasphemy in our law. It is wrong to state that we have no law in this area and that I am creating a new offence. Currently, section 13 of the 1961 Defamation Act provides for sanctions, both monetary and prison, where a person might be convicted of publishing a blasphemous libel. That section will be repealed, along with that whole Act by the new legislation.
There is no element of surprise here as some of the less informed commentators might have you believe. The requirement to deal with this issue was publicly flagged previously on consideration of this Bill in both the Seanad and the Dáil.
The key point here is that successive attorneys general have advised the various ministers for justice, in the context of the reform of defamation law and the repeal of the 1961 Act, that article 40.6.1.i of the Constitution imposes an obligation to implement the constitutional offence of blasphemy.
That article specifically states that the publication of blasphemous matter “is an offence which should be punishable in accordance with law”. Those who argue that, where the Constitution has ordained an offence, a minister should simply ignore it to suit his ideological positions, seem to me to be arguing for a clear constitutional provision to be wilfully ignored. This would be to undermine the Constitution and its protection. Needless to say, I have no intention of so doing.
Following the 1999 Corway case, the only blasphemy action taken in the State since at least the 1937 Constitution, there is a legal obligation to ensure that article 40.6.1.i is operable. If that article is not to be removed from the Constitution by referendum then it is necessary to ensure that it is operable. To do otherwise would imply an a la carte approach to the Constitution and its precepts and principles.
Indeed, the Law Reform Commission Report pointed out that “the abolition without replacement of the offence of blasphemy would be impossible under the existing Constitutional provision”.
I am repealing the Defamation Act 1961 which purported to provide a punishment for blasphemy. The Supreme Court in Corway pointed out that legislation was necessary to define the offence in relation to blasphemy. In repealing the relevant provisions of the 1961 Act it is necessary for me to provide for such a definition.
In doing so, I have taken the opportunity of ensuring that private prosecutions for blasphemy can no longer be brought by ensuring it is not a summary offence and that all prosecutions have to be brought by the independent prosecutor, the DPP. I have also removed the punishment of imprisonment and instead imposed a fine. The Labour Party in its proposed suggestion in regard to my amendment does not propose deletion of it, but rather to make a proposal as to the penalty involved.
This acknowledges that a provision is required on blasphemy if no referendum to take out the reference to blasphemy in the Constitution is held.
Finally, while the Constitution requires an offence of blasphemy it also, like the position in many other countries, expressly protects freedom of expression. My reform legislation will have to be construed in that context. No innocent conduct will be captured.
The revised provision in regard to blasphemy requires at least three elements to be present: that the material be grossly abusive or insulting in matters held sacred by a religion; that it must actually cause outrage among a substantial number of adherents of that religion; and, crucially, that there be an intent to cause such outrage. Such intent was not previously required.
It is my intention to complete the reform of our law on defamation as soon as possible. I also intend to comply with my constitutional obligations, where in this case I have to fill a constitutional gap left by the Corway case.
Dermot Ahern is Minister for Justice