For God's sake, why have blasphemous libel?
ANALYSIS:The proposal to make blasphemous libel an offence would likely criminalise many writers and publishers, writes CAROL COULTER
EVERY SATURDAY a group of young people, their faces hidden by masks or scarves, gathers outside the office of the Church of Scientology in Abbey Street in Dublin with leaflets and placards making serious allegations about the sect.
If the new law prohibiting publishing or uttering blasphemous matter becomes law, as proposed yesterday by Minister for Justice Dermot Ahern, they could face fines of up to €100,000 and have their homes raided by members of the Garda Síochána in order to seize the offending material.
For that to happen, a court will have to be satisfied the matter published 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 that the outrage was intentional. These provisions came unannounced in a proposed amendment to the Defamation Bill, which was before the Oireachtas Committee on Justice yesterday (but was not discussed). The proposal from Ahern does not define “religion”, so there is no reason to imagine the Church of Scientology would not be protected by it from the publication of “abusive or insulting matter”.
What about other religious groupings and faiths? The proposed amendment makes the degree of outrage among adherents of any religion, in response to things said or written about them, a defining factor in determining whether an offence has been committed. We have seen elsewhere in Europe large-scale expressions of outrage by members of the Muslim community in response to films, books and cartoons. Books such as Salman Rushdie’s The Satanic Versesand films and cartoons, such as those published by a Danish newspaper and which offended some Muslims, would almost certainly be criminalised in Ireland by the present proposal.
This is in marked contrast to the state of the law at present. The Constitution qualifies the right to freedom of speech, making it subject to “public order or morality or the authority of the State”, and says the publication of “blasphemous, seditious or indecent material” is punishable. The 1961 Defamation Act prescribed penalties but did not define the offence or any prosecutions.
In 1991, the Law Reform Commission concluded there was no place for an offence of blasphemous libel “in a society which respects freedom of speech”. “The argument in its favour that the publication of blasphemy causes injury to feelings appeared to us to be a tenuous basis on which to restrict freedom of speech,” it said. “The argument that freedom to insult religion would threaten the stability of society by impairing the harmony between groups seemed highly questionable in the absence of any prosecutions.”
In 1999 came the only case taken under this law, Corway -v- Independent Newspapers, where a man complained about a cartoon depicting a plump and comic caricature of a priest, who was holding a host in his right hand and a chalice in his left. He appeared to be offering it to John Bruton, Ruairí Quinn and Proinsias De Rossa, members of the government of the day which had sponsored the divorce referendum. They appeared to be turning away. Corway complained that it was an insult to the Catholic faith.
The Supreme Court, upholding a High Court ruling, pointed out that there was no legislation defining blasphemy and describing the offence of blasphemous libel. “In this state of the law and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists,” the Supreme Court concluded.
There the matter rested until the Oireachtas Committee on the Constitution, under the chairmanship of Seán Ardagh, reported last year, recommending the deletion of references to sedition and blasphemy in the Constitution. While there appears to be no appetite for an amendment to do so, there equally has been no conspicuous clamour to legislate to fill the void identified by the Supreme Court.
Meanwhile, in the UK, where our blasphemy law has its origins, the law prohibiting blasphemy was repealed in July last year. The present proposal comes in an international context where a campaign seeking to outlaw the “defamation of religion” has been waged for some years, spearheaded by a number of Muslim countries in the United Nations and supported by the Vatican.
Last December, there was a vote on a resolution on “combating defamation of religion” at the UN, which was adopted by 86 votes to 53, with 42 abstentions. The resolution was tabled by Egypt on behalf of the Organisation of the Islamic Conference. Ireland, in common with all other EU countries, voted against.
However, at the Durban Review conference in Geneva last week (reviewing a 2001 UN conference on racism) references to “defamation of religion” were removed from the final document. At the same meeting, the human rights organisation Article 19 launched the Camden Principles, defending freedom of expression combined with the right to equality. They were drawn up with a high-level group of UN officials, representatives from other intergovernmental organisations, NGOs and academic experts.
Explaining Ireland’s vote at the December UN meeting, in response to a question from Green TD Ciarán Cuffe in the Dáil last month, Minister for Foreign Affairs Micheál Martin said: “We believe that the concept of defamation of religion is not consistent with the promotion and protection of human rights. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief.”
He went on to distinguish between this and discrimination based on religious belief and incitement to hatred, pointing out that Ireland supported a UN resolution on “Elimination of all forms of intolerance and of discrimination based on religion or belief.” Has our policy on the defamation of religion changed since last December and, if so, why?