The Offence of Blasphemy and Constitutional Change

On New Year’s Day the Defamation Act 2009 came into force, including the controversial s. 36 provision relating to the offence of blasphemy. This has been greeted with much publicity and attention in the international media and by an attempt on www.blasphemy.ie to intentionally contravene the provision. Indeed, today’s Sunday Times reports that the founder of Atheist Ireland, Michael Nugent, intends to send a copy of the 25 allegedly blasphemous quotes published on the site in order to try to provoke prosecution. As reported yesterday, however, my view is that this is unlikely to ‘succeed’. Quite apart from the debates around the appropriateness of such a law in a democratic society, it is important to note that the offence has been constructed in such a tight manner that, it seems to be, to be extremely difficult to commit the offence—either intentionally or accidentally. Indeed, the attempt on www.blasphemy.ie would tend to further back up this view.

Section 36 actually provides:

36.— (1) A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €25,000.

(2) For the purposes of this section, a person publishes or utters blasphemous matter if—

(a) he or she publishes or utters matter that 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

(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.

(4) In this section “religion ” does not include an organisation or cult—

(a) the principal object of which is the making of profit, or

(b) that employs oppressive psychological manipulation—

(i) of its followers, or

(ii) for the purpose of gaining new followers.

If we break this down to its constituent parts the difficulty in committing the offence of blasphemy becomes apparent. First of all one must publish or utter blasphemous material. Blasphemous material is defined as “matter that is grossly abusive or insulting in relation to matters held sacred by any religion”. In addition, one must not only publish or utter such material but the publication or utterance must cause “causing outrage among a substantial number of the adherents of that religion” (how would this be proven? What is a substantial number? How do we define adherents of a religion?). In addition to having actually brought these results about, the person must have intended for the publication or utterance to have brought about this outrage. Even if the DPP is satisfied that an instance throws up all of these circumstances in a provable manner, one will be able to avail of the defence that “a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter” that was published or uttered.

By any standards, this is an enormously difficult crime to prove. Indeed, the apparent requirement of causing outrage as part of the actus reus suggests that even where—as was the case with the www.blasphemy.ie attempt—one is intent on committing the offence it is particularly difficult to achieve. This drafting was no accident. The Constitution requires an offence of blasphemy. Article 41 reads provides, inter alia:

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

The real question that we ought to be considering here, is why the Government decided to press ahead with including an offence of blasphemy in the Defamation Act 2009 instead of holding a constitutional referendum to remove the constitutional requirement of an offence of blasphemy. The Sunday Times today reports comments from an official of the Department of Justice noting that the Minister is quite prepared to have a constitutional referendum on this issue, just not this year when there are other constitutional matters to be decided upon. This does not appear sensible to me. After all, as I have written about before, proposals for constitutional referenda are rife at the moment including other potentially divisive/value laden proposals (see my post on the proposed changes to Article 41.2 here).

It seems that we will have a constitutional referendum in 2010 on children’s rights and potentially also on judges’ pay. I am not convinced that there is any argument for not including amendment to the blasphemy provision at the same time. In my view, it is not appropriate—in a modern, pluralist society—to have any constitutional reference to blasphemy. The considerable energy being devoted to criticising the offence of blasphemy under the Defamation Act 2009 should be redirected and more effectively focused on trying to convince the Government that the Irish people are quite capable of dealing with multi-issue referenda and a proposal to amend Article 41 accordingly should be included at the earliest opportunity.