Ireland’s crime of blasphemy is a “dead letter” that cannot be prosecuted, the constitutional convention has heard.
Dr Neville Cox of Trinity College Dublin said the relevant part of the 2009 Defamation Act, which sets a maximum fine of €25,000 for those found guilty of publishing or uttering blasphemous material, was too tightly drawn to be applied in practice.
He said the law’s requirement that a publisher must be proven to have intended to cause outrage among a substantial number of a religion’s adherents in effect meant it would be “very difficult successfully to prosecute the offence”.
The law also allows someone accused of the offence to offer, as a defence, proof that a reasonable person would find genuine literary, artistic, political, scientific or academic value in the publication of the material. “It makes it so hard to operate the law… that I think the 2009 Act effectively kills off the crime,” Dr Cox said.
He was speaking this morning at the opening session in Malahide, Co Dublin, of the convention’s discussion on whether to remove the offence of blasphemy from the Constitution.
Dr Cox also pointed to a decision by the Supreme Court in Corway v Independent Newspapers, a 1999 case in which the court said it could not define blasphemy - and therefore could not apply the constitutional prohibition.
“What this did was render the crime of blasphemy a dead letter,” he said. “They said this is beyond us - and killed off the thing. To my mind that was a strange abdication of responsibility.”
Setting out the options available to the convention’s 100 members, Dr Eoin O’Dell, also of Trinity College Dublin, said the relevant section of the Constitution - Article 40.6.1(i) - could be left as it is or amended by removing the reference to “blasphemous” matter.
A third option was to recommend removing the last sentence, which states that “the publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law”.
Alternatively, the convention could recommend replacing the article in its entirety.
Prof Maeve Cooke, a philosopher from UCD, argued there should not be a constitutional ban on blasphemy, situating her argument in an understanding of two key elements needed to "flourish as a human being".
First, every human being was deserving of respect as an ethical human being, and society had to respect everyone by virtue of their capacity to form and pursue their own view on what constituted a good life.
Second, the legal and political principles constituting the State should be acceptable in principle to all citizens, “certainly the very general ones enshrined in the Constitution”.
“If you take those two elements… and add the point that there is a plurality of views on what the good life is in Irish democracy, then you have to say there is no room for a constitutional offence of blasphemy,” Prof Cooke said.
“If there are citizens of the Irish State whose view of the good life does not include a belief in God, we would be failing to respect their ethical agency if we were to include a constitutional prohibition on blasphemy.”
The convention is also due to hear from representatives of Atheist Ireland, the Humanist Association of Ireland, the Irish Council of Civil Liberties and the Islamic Cultural Centre of Ireland.
In addition to the main discussion on blasphemy, the convention will also consider what issues it should look at next.
