OPINION: THE PRESIDENT has very few unconstrained powers, and the Council of State is convened only rarely, but this evening they will all move centre stage, when the council convenes to advise the President whether to refer two controversial Bills to the Supreme Court. Whatever she does about the Criminal Justice (Amendment) Bill, 2009, she should certainly refer the blasphemy provisions of the Defamation Bill, 2006, writes EOIN O’DELL
The common law historically punished blasphemy against Christianity as one aspect of the crime of libel. In a successful prosecution against Gay News magazine in 1977, the English courts confirmed the continuing existence of the crime. In an unsuccessful attempt to begin proceedings against Salman Rushdie for The Satanic Verses in 1991, they held that it did not protect Islam. Most recently, in another unsuccessful attempt to commence a prosecution against Jerry Springer – The Opera in 2007, they held that the modern justification for the crime lies in the risk of public disorder.
The European Court of Human Rights has held that, although blasphemy can infringe the right to freedom of expression, it can be justified, provided that there is a good reason for the infringement. In the Jerry Springer case, the court held that this reason must be the risk of public disorder, and not the mere fact of insulting religious beliefs, however deeply held.
The blasphemy provisions of the Defamation Bill make it an offence to cause outrage among a substantial number of the adherents of a religion by intentionally publishing material that grossly abuses or insults matters held sacred by their religion.
This is actually quite narrowly drawn, and there is a further saver for publications of genuine literary, artistic, political, scientific, or academic value. Moreover, the maximum €25,000 fine is relatively light.
It is therefore neither a trap for the unwary, nor a charter for religious cranks, nor even a check upon valuable public discourse.
Nevertheless, the offence is still of dubious constitutionality.
There is a very big gap between outrage and public disorder, and although the Bill punishes outrage, the Jerry Springer case suggests that it is only if the outrage goes further and carries a risk of public disorder that a blasphemy restriction can be held compatible with the European Convention on Human Rights.
Like the convention, the Constitution also protects freedom of expression, but the last sentence of the Constitution’s free speech clause provides that the publication of blasphemous matter is an offence punishable by law. Only one case has considered this sentence, and it reached the Supreme Court 10 years ago next week.
The court declined to allow a prosecution against the Sunday Independent for publishing, in the wake of the divorce referendum in 1995, a cartoon caricaturing a priest failing to give communion to unwilling politicians.
The court queried the compatibility of a wide common law crime of blasphemous libel with the constitutional guarantees of freedom of conscience and religion. It held that the common law crime was so uncertain that it was impossible to say what its elements were. And it concluded that the task of defining the crime was for the Oireachtas rather than the courts.
The blasphemy provisions of the Defamation Bill are an attempt by the Oireachtas to respond to this conclusion. Nevertheless, although the Constitution requires some crime of blasphemy, it does not necessarily follow that it requires these provisions.
As the Supreme Court emphasised in the cartoon case, the law must still be compatible with other provisions of the Constitution, such as freedom of conscience and religion, and freedom of expression.
Moreover, the Supreme Court has held that it will take the same approach to freedom of expression under the Constitution as the European Court of Human Rights takes to the Convention.
As we have seen, the English Courts in the Jerry Springer case have held that, for a blasphemy provision to be compatible with the convention, the offence must require not merely outrage but also the risk of public disorder.
The blasphemy provisions in the Defamation Bill do not go that far, and must therefore be questionable not only under the convention but also under the Constitution.
The Council of State should advise the President accordingly; she should refer these provisions to the Supreme Court; and they should find them unconstitutional.