The constitutional offence of blasphemy should be replaced with a new general provision to include incitement to religious hatred, the constitutional convention has recommended. Voting yesterday on whether the offence of blasphemy should be kept as it is in the Constitution, 38 per cent said yes, 61 per cent no and 1 per cent were undecided or had no opinion.
In a follow-up question, 38 per cent said the offence should be removed from the Constitution, 53 per cent said it should be replaced with a new general provision to include incitement to religious hatred and 9 per cent had no opinion. Asked whether there should be a legislative provision for the offence of blasphemy, 49 per cent of members said yes, 50 per cent said no and 1 per cent were undecided or had no opinion.
The 100-member forum includes 66 members of the public and is chaired by Tom Arnold. It will send a detailed report to the Government outlining its recommendations.
The convention heard from academic and legal specialists, and from advocates of both sides of the argument. Dr Neville Cox of Trinity College Dublin said the relevant part of the 2009 Defamation Act, which sets a maximum fine of €25,000 for those found guilty of publishing or uttering blasphemous material, was too tightly drawn to be applied in practice.
He said the law’s requirement that a publisher must be proven to have intended to cause outrage among a substantial number of a religion’s adherents meant it “will be very difficult successfully to prosecute the offence”.
The law also makes it clear that it is a valid defence to prove a reasonable person would find genuine literary, artistic, political, scientific or academic value in the publication of the material. “It makes it so hard to operate the law . . . that I think the 2009 act effectively kills off the crime,” Dr Cox said.
Dr Cox also pointed to a decision by the Supreme Court in Corway v Independent Newspapers, a 1999 case in which the court said it couldn't define blasphemy and therefore couldn't apply the constitutional prohibition. "What this did was render the crime of blasphemy a dead letter," he said.
Dr Ali Selim of the Islamic Cultural Centre of Ireland said the offence should be retained, arguing that freedom of expression should not be "unrestrained" and must be used responsibly. The Order of the Knights of St Columbanus argued in a written submission that the constitutional prohibition on blasphemy served to safeguard the right of believers "not to suffer unwarranted offence arising from the gratuitous impugning of sacred matter".
Mark Kelly, director of the Irish Council for Civil Liberties, said the blasphemy offence was a "national irrelevance and an international embarrassment", and was supported in calling for the removal of the clause by Atheist Ireland and the Humanist Association of Ireland.
What might be discussed next
Having now considered all eight issues assigned to it by the Oireachtas, the constitutional convention's attention is turning to the selection of additional topics its members may wish to discuss over two weekends next February.
Yesterday, the forum heard summaries of the topics and themes that have emerged in submissions made by various organisations and members of the public, as published on the forum’s website.
Many submissions call for an environmental clause to be inserted in the Constitution. Specific suggestions include declaring environmental protection or stewardship a fundamental constitutional principle; declaring that all citizens have fundamental rights to a clean, safe, ecologically sound environment; or declaring that all laws must pay due regard to the conservation of our natural heritage and built environment.
Economic, Social and Cultural Rights
A number of submissions call for the inclusion of these rights – which are contained in an international covenant ratified by Ireland in 1989 but not incorporated into Irish law – in the Constitution. They include the right to adequate housing, education, health care and social security.
Church and State
The convention has received some submissions calling for the Constitution to be secularised by removing religious references and others saying it should be left as it is. Suggested changes include removing the religious oath for office-holders and deleting the religious references from the preamble.
Political and Institutional Reform
Among the areas highlighted in submissions are the reform of Seanad and Dáil Éireann; inserting reference to specific powers of local government in the Constitution; giving the President a greater role in public life; and reform of the judicial appointments process.
The family and issues of morality
Various sides of the abortion debate have called for the repeal of Article 40.3.3, which concerns the right to life of the unborn. Other submissions call for the constitutional definition of the family to be amended to reflect changes in modern Irish society, and for the right to an assisted peaceful death to be inserted in the Constitution.
Bill of Rights
A submission proposes that the convention should consider amending the Constitution to improve its human rights provisions. It points out that the Belfast Agreement contains specific obligations on governments in the UK and Ireland in this respect.
The convention will hold regional meetings in Waterford, Dublin, Sligo, Athlone and Monaghan over the coming weeks. Its members will then decide what additional topics to consider.