Its form and buttons
On Monday, the 6th of July, a council worker in Rathkeale, Co. Limerick, chopped down a willow tree in the grounds of the local parish church. One of his co-workers dropped to his knees: he had seen an image of the Virgin Mary in the stump. By the end of the week, there were two thousand petitioners calling for the preservation of the stump, although in their enthusiasm many of them had already begun to pick it apart. Medals and rosary beads left at the willow disappeared overnight; some suspected the local priest, whose admonitions to his flock were by now echoing throughout the national media: ‘You can’t worship a tree.’ On Friday the London Times had a brisk report that raised the spectre of Ballinspittle, the epicentre of the rash of Marian apparitions which hit Ireland in 1985. It also quoted the worker who had cut down the tree. He had seen nothing in it. On Saturday, the Irish Examiner expressed a more laissez-faire mood: ‘Let them believe.’ By the following Monday, a week after the initial discovery, the Irish Times was teetering on the edge of a similar sentiment. Its reporter found a mixture of ‘devotion, reserve and scepticism’ in Rathkeale, and all the local people quoted in the story were tolerant of the phenomenon. One man had seen ‘known criminals’ praying at the stump: ‘If it brings out the good in them, then what harm?’
In the same week, the Oireachtas debated the Defamation Bill 2006, which had slowly made its way through various amendments and a change of government to its final stages. The long summer recess was only days away and there was the usual heavy legislative backlog to be cleared. This is of course a good time to slip in pieces of legislation that are likely to provoke a degree of outrage: with limited time for bluster and recrimination, matters can be settled with minimum fuss. This was certainly true of the Dáil debate on the Wednesday, which was guillotined before discussion reached the recent amendment criminalizing blasphemy. As the debate scampered to a close, Charles Flanagan TD labelled this hasty treatment of the legislation ‘disgraceful’. Its sponsor, Minister for Justice Dermot Ahern, rebuffed calls for more time: ‘I suggest that Members finish the allotted three minutes and simply get on with it.’ They did get on with it. On Thursday, the Bill, complete with the amendment criminalizing blasphemy, passed to the Seanad for its final vote. Unlike the Dáil, the Seanad was allowed to debate the blasphemy provision, and in the course of this debate the Minister for Justice effectively denounced his own legislation: ‘Probably most of us accept that having the offence of blasphemy is anathema to the type of society we have today.’ One of his coalition partners seconded the sentiment. At the end of it all, the Bill passed the Seanad by one vote. Blasphemy is now a criminal offence in Ireland.
The irony is that the Defamation Bill in which the new blasphemy provision is housed might otherwise be seen as quite progressive. It makes defamation a civil rather than criminal offence, along with abolishing the common-law offences of seditious libel and obscene libel. The day after the Bill was passed by the Seanad, the UK justice minister, Lord Bach, was announcing to parliament similar proposals to abolish sedition, seditious libel and defamatory libel from British law, ‘arcane offences from a bygone era when freedom of expression wasn’t seen as the right it is today’. But in the Irish legislation, the progressive and the arcane are intertwined. The blasphemy amendment provides that an individual will face criminal conviction and a fine of up to €25,000 in the case that
(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.
According to the Minister, new legislation on blasphemy was necessary in order to plug a legal void in the area. This void had been evident since at least 1999, when the Supreme Court ruled in Corway v. Independent Newspapers – the first blasphemy prosecution in the history of the state – that there was no workable definition of blasphemy in Irish law. Yet Article 40.6.1.i of the Constitution specifies that the ‘publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law’. Not for the first time, the stated provisions of the Constitution and the working realities of Irish law were in conflict. But it would be ten years before the Oireachtas moved to rectify the matter.
Deputy Dermot Ahern: … While the Senators shout and harangue–
Senator Joe O’Toole: We would never do that.
Deputy Dermot Ahern: – we cannot ignore the Constitution.
Seanad debate, 9 July 2009
In July 2008, a Joint Oireachtas Committee on the Constitution issued a report on freedom of expression in Ireland. It indicated that the Corway decision had essentially ‘neutralised’ the constitutional reference to blasphemy, as well as rendering inoperable the statutory offence outlined in the 1961 Defamation Act. The Corway judgement had also implied that the common-law offence of blasphemy did not survive the enactment of the Constitution in 1937: since it was bound up with offences against Christianity, it would be in conflict with the provisions for religious equality in Article 44. The report’s conclusion on the Corway case was that it had served to strengthen freedom of expression in Ireland. Still, the report found that there was no danger in leaving the reference to blasphemy in the Constitution, since it had not created any practical problems to date. It could be safely disregarded since it had already been ‘emasculated’ by the Supreme Court decision. Even before the Corway case, both a 1991 Law Reform Commission and a 1996 Constitution Review Group had recognized that the law on blasphemy was an ass; in contrast to the 2008 committee, these earlier bodies clearly recommended removing the reference to blasphemy from the Constitution.
There has not been a conviction for blasphemy in Ireland since 1909. Until the enactment of the 1961 Defamation Act, neither legislators nor prosecutors concerned themselves with what either the old British common-law offence, or the prohibition in the Irish Constitution, actually entailed under Irish law. The 1961 Act attempted no rigorous legal definition of blasphemy, but merely adopted the terms of the Constitution, which in turn gestured back to the existing common-law offence. Like so much of Irish law, this had developed over centuries in the British courts, and it originated in the context of a direct legal identification between church and state. Historically, blasphemy against an established church connoted a breach of the civil order, and it is no accident that injunctions against blasphemy and sedition are often found cheek by jowl (as they are in Article 40.6.1.i). In Ireland the offence had already fallen into disuse by the time it was enshrined in the 1937 Constitution. In Britain, the common-law reformer Lord Denning called it ‘a dead letter’ barely twelve years later. Attempts to revive it were sporadic and largely unsuccessful; the last British conviction was in 1977. Significantly, a 2007 case brought against Jerry Springer – The Opera by a group called Christian Voice determined that having an offence of blasphemy was not in conflict with provisions for freedom of expression in the European Convention on Human Rights, so long as the offence involved public disorder. Yet this case also failed, since it was found that the British common-law offence did not apply to broadcasts or stage productions. It was yet further confirmation of a 2003 House of Lords Select Committee Report which stated that a successful prosecution under the current law was highly unlikely. Heeding its advisors, the UK government abolished the offence of blasphemy under the Criminal Justice and Immigration Act 2008. Finding itself in a similar position, the Irish government has now taken the opposite route.
Deputy Dermot Ahern: … when I go around knocking on doors asking people to vote in favour of the Lisbon treaty, I do not relish asking at the same time if they want to take blasphemy out of the Constitution.
Seanad debate, 9 July 2009
Until the Defamation Bill revived the matter this summer, blasphemy could hardly be said to be a live issue in Ireland. The only prosecution taken in the history of the state served merely to establish that there was no workable law in the area, and ten years passed before even this development attracted much public notice. It follows that a criminal law against blasphemy may be surplus to requirements. But in answering his critics, the Minister for Justice firmly pitched his tent on the side of reason. His spokesman reported to the Irish Times that he was ‘bemused’ at the reaction to the amendment. The trouble started with what the Minister called the ‘hysterical’ response of the ‘commentariat’ and other ‘pseudo-liberals’. The Mininster declared himself to be a republican who believes in the separation of church and state, but the Minister’s hands were tied by the Constitution. Rather than abolish the injunction against blasphemy by way of a referendum, which would be too costly and distracting, the Minister decided to enact a law to comply with this provision – a law that he hoped would be all but unenforceable.
The origin of this reasoning predates Dermot Ahern’s assumption of the Justice brief. In the course of a Seanad debate on 11 March 2008, the previous Minister for Justice, Brian Lenihan, carefully deflected praise for the proposed abolition of criminal, seditious and obscene libel in the Defamation Bill. It was, he said, ‘an exercise in common sense’, but he warned that ‘out of respect’ to the Constitution, penalties against ‘blasphemous, seditious, or indecent matter’ still needed to be provided for. Legislation on censorship and on offences against the state answered for two of the three, but blasphemy was not covered. Lenihan noted that even if the offence of blasphemy could be modernized to protect all faiths, it still presented clear problems:
The difficulty … is that the essence of the offence seems to consist of the hurt that is caused to the believer. This is a dangerous basis for an offence. It is far safer to have an offence based on the incitement to hatred or the imminent proximity of the statement to the causing of a breach of the peace.
But ‘dangerous’ as the notion of hurt (or outrage) may be as the basis of an offence, Lenihan expressed doubt whether an offence defined on the sturdier basis he outlined would answer the requirements of the Constitution. What those requirements might be is unclear; the Constitution itself does not provide a definition of ‘blasphemous’ matter.
Yet there are many constitutional matters on which successive governments have chosen not to legislate, most notoriously the judicial interpretation of Article 40.3.3 (regarding abortion) that was produced by the X Case. It was such a course of inaction that was effectively recommended by the 2008 Joint Committee Report, published a few months after Brian Lenihan’s comments to the Seanad. At the time, the Defamation Bill stood to abolish the common-law offences of blasphemous libel, seditious libel and obscene libel, without establishing any new offences in their place. In the case of blasphemy and sedition, the report found that this would render the references in 40.6.1.i ‘redundant’ (while indicating that the injunction against the publication of ‘indecent matter’ was covered by censorship legislation). The redundancy of these references has long been obvious in practice: the last Irish prosecution for seditious libel was in 1901, eight years before the last Irish conviction for blasphemy. Where the common-law offence of blasphemy was in effect found unconstitutional by the Supreme Court in 1999, the 2008 report indicated that the common-law offence of ‘seditious libel’ was similarly in conflict with the Constitution (in this case with Article 40.6.1.i which establishes the freedom to criticize government policy). It concluded that with the abolition of ‘seditious libel’ in the Defamation Bill, ‘the reference to Sedition in the Constitution will remain impossible to enforce, given the lack of definition of the offence and due to the fact that no such common law offence of seditious libel exists’.
Similarly, without the blasphemy amendment added in April 2009, the reference to blasphemy in Article 40.6.1.i would have remained impossible to enforce. As far as constitutional imperatives go (or can be said to exist), the requirements to make blasphemy and sedition ‘punishable in accordance with law’ are precisely the same. The historical relationship between these offences is also clear. Yet they have now been treated quite differently. The report effectively states that abolishing the common-law offence of ‘seditious libel’ would have the same effect on Article 40.6.1.i as would abolishing the common law offence of blasphemy. It does not take into account the relevance to sedition of the Offences Against the State Acts, which may be one reason why the government did not favour its interpretation. Nevertheless, given that ten years passed with successive governments ignoring the implications of the Corway decision, the sudden imperative to legislate for blasphemy alone seems all the more questionable.
Even without tangling any further in legal argument, it would be difficult to avoid falling down the rabbit-hole. But there is always further to go. The Minister’s defence of a law he himself described as ‘anathema to the type of society we have today’ is that it will be very difficult to enforce. (The most enthusiastic argument in the blasphemy amendment’s favour was made by Senator Rónán Mullen, a former spokesperson for the Dublin Archdiocese, who said that there would be ‘no harm’ in its being in existence.) In the Audenesque formula that poetry makes nothing happen, this amendment might then stand as poetry of a high order. During the debate, Senator Ivana Bacik, a barrister herself, did point out the unhelpful vagueness of its language: a defence lawyer might happily question what exactly ‘outrage’ means, or what qualifies as a ‘substantial number’ of outraged religionists (if I have a religion of five, is three a substantial number?), or who is qualified to decide what is ‘grossly abusive or insulting’. Yet at the same time, practical consider ations have been provided for. The law grants the gardaí powers to enter premises, and to seize and destroy offending material. By classifying blasphemy as a criminal act it is ensured that only the Director of Public Prosecutions can bring a case, taking the ability to instigate actions out of the hands of ‘cranks’ and other mischievous people. A defence has been allowed where a ‘reasonable person’ would find ‘genuine literary, artistic, political, scientific, or academic value’ in the material. This suggests two things. Firstly, that writers, artists, politicians, scientists and scholars have license to blaspheme where their fellow citizens do not. (Fair enough. A new impetus is needed for becoming a writer, artist, politician, scientist or scholar in these hard times.) Secondly, it suggests that the legislators are not only poets, but atheistical, revolutionary and infinitely cunning poets to boot. While the yardstick for deciding artistic value or otherwise is the legal convention of the ‘reasonable person’, this measure is not relevant in considering the gross abuse or insult suffered by religious followers. Reading between the lines, the implication is that the reasonable person is no judge of the offence thus caused. And, by extension, that the substantial adherents of any religion are not reasonable people. There may yet be a cause against the Act under the Act.
But the atheistical poets of Leinster House are cleverer than this. The concept of blasphemy has historically protected dominant beliefs, rather than ordinary worshippers. As many critics of the new law have pointed out, what the Irish government has done runs counter to the trend in other European countries, which is to replace the notion of blasphemy with legislation outlawing incitement to hatred. Rather than protect individuals from ‘outrage’, it more usefully protects them from attack on the grounds of their religious beliefs, as well as ensuring freedom to worship. But this is a bit dourly pragmatic. The Irish blasphemy amendment reflects a more original mode of thinking. It also demands a certain amount of conceptual sophistication, as demonstrated by Senator Dan Boyle of the Green Party:
… while I accept the reasons this is being done in this way, the effect of it will be that we will codify an offence that most people do not believe in on grounds that people will not be able to bring actions and even if they were able to do so, it is unlikely there would be prosecutions on foot of such actions. That makes a nonsense of our process of defining laws. I will be supporting the amendments. I will also be supporting the Bill …
As a result of his support, it is now a civil rather than a criminal offence to defame a living person, and a crime to cause ‘outrage’ by intentionally insulting a quasi-historical or mythical being. The blasphemy amendment may, as the Minister for Justice hopes, prove to be a useless legal formula, an empty form of words. As a calculated piece of nonsense, it could be argued that it brings the law into disrepute. Yet this is to ignore the precedent in the area. It was 1927 when Eamon de Valera finally determined that the Oath of Allegiance was no more than an empty legal formula and so was able to lead his new party, Fianna Fáil, into the Dáil. It was a useful piece of scholastic reasoning. Perhaps the habit stuck.
Humpty Dumpty: When I use a word…it means just what I choose it to mean – neither more nor less.
Lewis Carroll, Through the Looking-Glass
Legal reform does not occur in a political vacuum, and yet it is difficult to discern why the government has chosen to legislate in this way, at this time. There was no apparent popular support for the revival of an offence that fell into disuse a century ago, no recent public outrage that might have incited reform, not even a supporting whisper from the religious bodies in Ireland, which have in any case never been less influential than they are in the wake of the Ryan Report on child abuse in religious institutions. Dermot Ahern has been too busy casting himself as Pontius Pilate to provide a convincing rationale for his actions. Perhaps, as some suggest, the prospect of civil partnership legislation has inspired a political attempt to placate the more conservative quarters of the electorate. Perhaps, as others suggest, there was a fear that Dublin buses might soon sprout advertisements declaring ‘there’s probably no God’, as happened in London last January. Perhaps the government even believes its own arguments. Or perhaps decades of enacting legislation that conforms to Catholic teaching has taken its toll. Perhaps there has finally been an irruption of the glorious mysteries in the body politic.
One thing is certain: the cause of all this confusion is the Constitution. Seventy-two years after its enactment, it can make for difficult reading. But there is a simple key to unlocking the text. Those drafting the document had spent the earlier part of the 1930s busily reducing the last remaining elements of British statehood in Ireland to the status of a legal formula. Following the heroic act of the first Dáil in disregarding the reality of the Palace of Westminster, they continued to ignore various imperial insignia and trappings of state, from the traitorous Victorian letter-boxes to the little man crossing the Phoenix Park in his fancy coach. Similarly, there is no evidence that Bunreacht na hÉireann was ever meant to correspond to any kind of tangible reality. This is the only spirit in which it can now be read. It is unlikely that a band of republicans, Irish or otherwise, would seriously take on all the clapped-out trappings of a theocratic state, as in the truculent demand of Article 44 that ‘that the homage of public worship is due to Almighty God’. They would not grant equality to all citizens before the law, and at the same time implicitly stipulate that women shall not hold paid employment, as in Article 41.2 (‘by her life within the home, woman gives to the State a support without which the common good cannot be achieved. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home’). The Constitution casually and repeatedly implies that all holders of public office shall be men, yet when the President – a mother of three – consults her copy of the document she does not find herself suddenly magicked out of existence. It is all a fantasy. To some extent, those responsible for the blasphemy legislation might feel as if they are still acting out a mediocre play scripted back in 1937, all bad hats and fake moustaches. No harm to them, but there are always alternatives. I look on it with nostalgia, I admire its form and buttons, but when I go out around the town I do not wear my granny’s coat.
Read more in The Dublin Review issue No. 36 Autumn 2009.