Greg Daly
Some arguments for removing Ireland’s blasphemy law are dubious at best, writes Greg Daly
The Constitution’s provisions concerning blasphemy are an embarrassment to Irish diplomats and would-be statesmen. Such, at least, seems to be the import of comments last month from Justice Minister Charlie Flanagan on plans to hold a referendum in October on removing the offence of blasphemy from Bunreacht na hÉireann.
“In terms of Ireland’s international reputation, this is an important step,” he said.
“Regrettably, there are some countries in the world where blasphemy is an offence, the punishment of which is being put to death,” he continued. “In these countries, such laws are not an anachronism but a very real threat to the lives of those who do not share the views of those enforcing the laws. Such situations are abhorrent to our beliefs and values.”
Given this, he said, it is time to spell out where we stand. “By removing this provision from our Constitution, we can send a strong message to the world that laws against blasphemy do not reflect Irish values and that we do not believe such laws should exist,” he said.
Fringe movements
Atheist Ireland has, as those who pay attention to the noisier fringe movements in Irish public life will know, been extremely vocal about blasphemy in Irish law since a new defamation law, with a section on blasphemy, came into force in 2010.
Their objections initially took the form of absurd stunts, notably through the publication of a list of 25 supposedly blasphemous quotations, intended, it was said, to provoke a prosecution that would reveal the ludicrous nature of the new law.
The thing is, though, that while section 36 of the Defamation Act says that those who publish or utter blasphemous matter can be subject to a fine of up to €25,000, it also sets up a three-part test for establishing whether something is blasphemous or not.
Under the terms of the law, to be blasphemous, matter under investigation must have caused outrage among a significant number of people of a particular religious line, must have been intended to cause such outrage, and must be bereft of literary, artistic, scientific, academic, or political merit.
Now, leaving aside how many of the quotations cited by Atheist Ireland had such merit and as a general rule had not been originally penned with the aim of outraging substantial numbers of believers, not to mention how their collective publication bothered hardly anybody, their publication to make a point about free speech was, by virtue of its political character, clearly exempt from prosecution under section 36.3 of the Defamation Act 2009.
The law was designed to be unenforceable, after all: in accordance with the needs of the Constitution it technically closed a legislative loophole, but was worded so as to make it effectively impossible for anyone to be successfully prosecuted for blasphemy.
One might wonder about the wisdom or propriety of passing deliberately toothless laws, but still, the fact remains that the law is written in such a way as to nullify itself.
Still, over the last few years the standard line about the blasphemy law has been that it should be removed because it has encouraged Muslim countries to introduce similar blasphemy laws.
It is, however, hard to find concrete evidence in support of this claim, though one incident seems relevant, if highly problematic.
Discussing discrimination at an October 2009 meeting of the UN’s Human Rights Council, Pakistan entered a six-part proposal to oppose discrimination based on religion and belief.
The first of their six propositions undeniably seems to have been to some degree modelled on the Irish definition of legal blasphemy: “State parties shall prohibit by law the uttering of matters that are grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of adherents to that religion.”
This might look essentially the same as the Irish law – then on the books but not yet in force – but it is profoundly different in at least one crucial way, omitting as it does any reference to intent.
Ireland’s law, after all, establishes that one cannot blaspheme accidentally or inadvertently, and that blasphemy must not merely be offensive, but must be deliberately intended to cause large-scale outrage, with there being a range of legitimate defences against a blasphemy prosecution mapped out in the law.
In practical terms, the Irish law is less about offending God than it is about deliberately angering people, and is best understood as a superfluous ‘incitement to hatred’ law.
The Pakistani proposal, on the other hand, neither explicitly acknowledged its debt to Irish law nor explained why, unlike in Ireland, intent wasn’t a feature of their proposal.
Not, unfortunately, that this has stopped Atheist Ireland from misrepresenting this reality, with Atheist Ireland chair Michaell Nugent describing it as “dangerous” for several reasons including how “Islamic States use it to justify their own blasphemy laws, which they use to persecute and murder members of religious minorities”.
Atheist Ireland national committee member John Hamill, meanwhile, writes on the organisation’s website that “Pakistan applies the death penalty for blasphemy, and has used verbatim language from Irish law when defending their position from international criticism.”
This is true as far as it goes, of course, but it doesn’t go very far, glossing as it does over some essential aspects of Ireland’s law.
“The distance between the Irish position and that in Pakistan, needs to consist of more than just the severity of the punishment for a blasphemous utterance,” he continues, as though the two don’t fundamentally differ around the issue of intent.
It was not for nothing, after all, that the US Committee on International Religious Freedoms found last year that of all 71 countries around the world with blasphemy laws, Ireland’s are the least restrictive. Pakistan, strikingly, tied with Iran for the title of most restrictive.
Still, there may still be a case for removing the Constitution’s requirement for a blasphemy law. As the Irish Catholic Bishops’ Conference stated after their summer meeting last month, reaffirming comments from 2013, “the current reference to blasphemy in the Constitution, under article 40.6.1.i, is largely obsolete”.
It seems that the bishops as a whole are taking the view that while it’s not a bad idea to have a law intended to prevent the stirring up of sectarian hatred, God is perfectly capable of defending himself.