Tuesday, 28 July 2009

The Pluralisation of Blasphemy law: Possible Constitutional Implications

This blog post was submitted by PhD candidate Eoin Daly, who is reading for a PhD under the supervision of Dr Conor O'Mahony. He is a Government of Ireland Research Council for the Humanities and the Social Sciences Scholar.

Following months of controversy surrounding blasphemous libel, the Defamation Bill 2006 has been signed into law. The question of the constitutionality of the offence of blasphemy therefore awaits the prosecution of a blasphemous statement, and judicial review by the superior courts. However, although Atheist Ireland has promised to immediately test the law, Dermot Ahern has bizarrely stated that it will be “practically impossible to get a successful prosecution” (Irish Times, July 10). It is indeed possible that the offence may remain shrouded, indefinitely, in a degree of constitutional ambiguity. Here, I briefly consider some of the arguments that have been raised concerning the constitutionality of the new offence. In particular, however, I focus on what I regard as the most interesting aspect of the new offence – the fact that is has been “pluralised”, encompassing material that is “grossly abusive or insulting in relation to matters held sacred by any religion.” This pluralisation of blasphemy law is underpinned by the ruling in Corway v. Independent Newspapers [2000] 1 IRLM 426. The Supreme Court held that the common law offence of blasphemy had not survived the enactment of the Constitution, since it only protected Christian beliefs. This implied that the constitutional mandate for a blasphemy offence had to be reconciled with the guarantee against discrimination on religious grounds contained in Article 44. Thus, what Corway and the recent legislation appear to signify is that blasphemy law has shifted from a religious to a secular legitimation, from the protection of a particular religious truth, to the protection of the sentiments of religious persons, of all recognised affiliations.

However, it is this very fact of a secular legitimation, of “outrage among a substantial number of [any religion’s] adherents”, which renders the contours of the offence unfeasibly vague. While the State is ostensibly removed from any role as an arbiter of religious truth, the determination of what is offensive to “any religion” necessarily involve the courts in an implausibly arbitrary inquiry as to the content of religious belief. While the offence is ostensibly justified in view of the secular rationale of protecting the sentiments of the believer, the content of individual conscience remains unascertainable; thus, even a “plural” blasphemy law could only be enforced through consultation of clerical authority. Furthermore, the “outrage” experienced by an individual believer is unascertainable to any external authority; this criterion is then inevitably determined with reference to some form of external orthodoxy. Therefore, the secular legitimation of blasphemy law, appealing notionally to the “rights” of those believers offended by attacks on their belief, is illusory. The offence transgresses an important boundary between the protection of the rights of the believer, and protection of religious belief or truth itself.

We know that the Constitution permits an offence of blasphemy, because it plainly states in Article 40.6.1º that “the publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law.” This does not, of course, mean that the offence in its current form is necessarily valid, not least given the Article 44 guarantees of freedom of religion and conscience. It is thus arguable that the offence creates a restriction which is broader than what is mandated by Article 40.6.1º

Firstly, it may be argued that Barrington J erred in the Corway ruling, and that Article 40.6 was in fact merely intended to give constitutional effect to the common law offence which protected only Christian belief – or, at most, that it warrants protection of the Abrahamic denominations originally enumerated in Article 44.1. Accordingly, the legislation would restrict speech relating to religion in a sense broader than that envisaged by the Constitution, and therefore violate freedoms of expression and of conscience. It is not implausible that Article 40.6.1º was historically intended in this limited sense; however, there is a broad consensus that this historical method of interpretation is inappropriate to provisions which engage “values and standards.” We should be less concerned with ascertaining the framers’ intent than rendering the most coherent contemporary account of the relevant provisions; in this lens, it is quite conceivable that the prohibition on religious discrimination implicitly requires the pluralisation of any blasphemy legislation.

Secondly, it might be argued that in targeting expression causing “outrage” against “any” religion, the legislation restricts religious speech which offends other religions, and therefore constitutes unwarranted interference in religious exercise. A Protestant preacher might cause “outrage” to Catholics by denigrating their sacraments in his sermons, and a restriction on this expression might constitute a restriction on religious conscience which is clearly not mandated by Article 40.6.1º. The freedom of all religions would be restricted by the sentiments of all others. However, the presumption of constitutionality probably means that the legislation could be read such as to exclude from its ambit speech which, although outrageous to other religions, was itself protected by Article 44.

Thirdly, Eoin O’Dell has recently argued (Irish Times, July 22) that the offence is of “dubious constitutionality” because it is not confined to outrage which threatens public order. However, his argument relies on English and ECtHR precedent rather than the constitutional text. Article 40 already permits restrictions on forms of expression conducive to public disorder; the mandate for a blasphemy law, particularly when read in light of the constitutional stipulation that “the homage of public worship is due to Almighty God,” clearly mandates a higher degree of protection for religious belief and sentiment. It is inconceivable that, given the privilege accorded to religion within the constitutional order, it warrants a blasphemy law only to the extent that is necessary to achieve secular goals such as public order, rather than the protection of religion itself. It is probably overly-optimistic to suggest that Article 40.6.1º only encompasses forms of expression causing tangible harm.

In suggesting that the provision may not, after all, be invalid under the current Constitution, I do not wish to suggest that it is coherent, necessary or desirable in a general sense. It is an anachronistic and cynical measure, but it almost certainly requires constitutional revision to be overturned. What I wish to stress here is that the pluralisation of blasphemy law is illusory, and that its enforcement will necessarily hinge upon deference to clerical authority rather than on the protection of individual conscience per se. Religions, rather than believers are protected; therefore, pluralised blasphemy law differs from its historical precedent only in the plurality of religions protected, rather than in the object of protection. It is left to the courts to determine what is offensive to a “significant number” of adherents rather than to a given, individual believer. This inevitably requires protecting certain beliefs over others, and consecrating the contingent power relations prevailing between and within different belief systems, with more prevalent forms of belief attracting protection. On a final point, it should not be assumed that it is constitutionally impermissible for the Courts to consult religious authorities to ascertain the nature and content of religious belief, a measure which is implicitly necessitated by the blasphemy provision. In Quinn’s Supermarket v. Att. Gen. [1972] IR 1, the Supreme Court took such evidence from the Chief Rabbi of Ireland, in ascertaining whether Jewish religious practices warranted their exemption from laws of general applicability. Again, while the new offence likely protects religious authority rather than individual conscience, it incorporates a Catholic-centred view of religion, assuming the presence of a recognisable central religious authority which is competent to determine the content of doctrine and belief. The very fact of individual religious belief is, in itself, offered no protection against ridicule or abuse; it is instead, implicitly, only those beliefs which are buttressed by recognised clerical authority, as well as the sheer weight of empirical prevalence, which now receive the protection of the criminal law.

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Thursday, 23 July 2009

President signs the Criminal Justice (Amendment) Act and Defamation Act into law

The news just in is that the Criminal Justice (Amendment) Bill and the Defamation Bill have not been referred to the Supreme Court by the President. She has in fact signed them into law as of today. The issue of a referral arose under Article 26 of the Constitution which allows for the following:

1° The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.
2° Every such reference shall be made not later than the seventh day after the date on which such Bill shall have been presented by the Taoiseach to the President for his signature.
3° The President shall not sign any Bill the subject of a reference to the Supreme Court under this Article pending the pronouncement of the decision of the Court.

The Irish Times today reports that the Council of State met for three hours last night to consider the question of referral. So despite strong opposition to both pieces of legislation and real concerns raised regarding their Constitutionality we will have to wait to see if those problems are in the end litigated through the normal court process.
This was the fourth time in her 12 years in office that Mary McAleese has consulted the Council of State over concerns about proposed laws.
See some excellent discussion on this and its particular relevance for the Blasphemy laws, and more generally the controversy on the Defamation legislation by Dr Eoin O’Dell on his Cearta blog.

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