The Constitution sets out the basic law of the State. Legislation passed by the Oireachtas must comply with the Constitution. The Oireachtas is not allowed to enact any law that is contrary to the Constitution. If a piece of legislation is challenged, the Courts can declare that it is invalid if it is found to be in conflict with the Constitution.
When a Bill is presented to the President to be signed, he or she may refer it to the Supreme Court for a decision on whether the Bill in conflict with the Constitution. The President must consult with a body called the Council of State before he or she does this. The Council of State advises the President, but the decision on whether or not to refer the Bill is the President’s alone.
If a Bill is referred to the Supreme Court, that Court must decide whether or not the Bill conflicts with the Constitution. If the Supreme Court decides that the Bill is unconstitutional, the President cannot sign it and it does not become law.
The Constitution can only be altered by the People in a referendum.
Every proposal to amend the Constitution starts in Dáil Éireann as a Bill. The Constitution says that if the Bill to amend the Constitution is passed by a majority of both the Dáil and Seanad, it shall be submitted to the People in a referendum. If a majority of those voting in the referendum votes in favour of the proposal, the Bill is then signed by the President and the Constitution is amended.
Article 15.1.2˚ of the Constitution says that the Oireachtas consists of the President and two Houses, Dáil Éireann and Seanad Éireann.
The Dáil consists at present of 158 TDs who are elected from 40 different constituencies, apart from the Ceann Comhairle (or chairperson) of the Dáil who is re-elected automatically.
The Seanad consists of 60 Senators. Forty-three of them are elected to five panels representing a range of vocational interests. Six senators are elected by the graduates of two universities - 3 from National University of Ireland and 3 from the University of Dublin (Trinity College). Eleven are nominated by An Taoiseach.
The President is the head of state. He or she has a number of important constitutional functions including the signing of Bills into law, and deciding whether or not to refer a Bill to the Supreme Court for a decision as to whether or not it is constitutional. In addition, the President has a ceremonial role.
ARTICLE 40.6.1(i) OF THE CONSTITUTION
Article 40.6.1(i) says:
"6 1 ˚ The State guarantees liberty for the exercise of the following rights, subject to public order and morality:–
i The right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”
Paragraph (ii) of Article 40.6.1 protects the right of citizens to assemble peaceably, and paragraph (iii) protects citizens’ rights to form associations and unions.
PUBLICATION AND UTTERANCE
There is no definition in the Constitution of “utterance” and “publication”. The courts have also not defined these words in the context of Article 40.6.1(i).
It seems likely in this context that publication means a statement in written or permanent form, and that utterance generally means a spoken word or statement.
While the point has never been decided and is not certain, if it arose, it seems reasonable to expect that a Court would decide that the words “publication” and “utterance” in Article 40.6.1° together included all forms of communication, including oral, written, visual, sound, gestures, broadcast, internet, electronic and any other method signifying meaning.
The Constitution does not itself define blasphemy. The legal definition of blasphemy is contained in the Defamation Act 2009.
Section 36 of the Defamation Act 2009 says that a person publishes or utters something blasphemous if they
- publish or say something 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
- intend to cause that outrage.
Under the 2009 Act, where a person is accused of the criminal offence of publishing or saying something blasphemous, it is a defence if they can prove that a reasonable person would find genuine literary, artistic, political, scientific or academic value in what they published or said.
If convicted of this offence, a person may be fined up to €25,000. There is no prison sentence for this offence.
The offence of blasphemy applies to any religion. Organisations or cults who have the principal object of making profit or who use oppressive psychological manipulation of its followers or to gain new followers are not a “religion” for the purpose of the offence. Beyond that, the Act does not define what a “religion” is. This will therefore be an issue for the courts to decide in any case which might be brought.
Corway v Independent Newspapers (Ireland) Limited (1999) is the only case where the Supreme Court has considered the requirement in Article 40.6.1(i) of the Constitution that blasphemy be a criminal offence.
In November 1995, at the time of the second referendum on divorce, an article appeared in a newspaper concerning the influence of the Catholic Church in Ireland. This article was accompanied by a cartoon, which showed three government ministers, including the Taoiseach of the time, rejecting a communion host and a chalice being offered by a priest. Above the cartoon were the words "Hello, Progress - Bye-Bye Father?"
The applicant applied to the High Court for permission to prosecute the publisher, owner and editor of the newspaper. He said that he was offended and outraged by the ridicule shown to the sacrament of the eucharist as a result of the publication.
The Court said that there is a crime of blasphemy in Irish law, because the Constitution says so. It said however that it was difficult to see how the crime of blasphemy that had previously existed in the common law was compatible with the Constitution, which had come into force in December 1937. It also held that it was difficult to reconcile the principles of the Constitution with the view that the mere act of publication of blasphemous matter without proof of any intention to blaspheme is sufficient to support a conviction of blasphemy.
The Court therefore held that, given the state of the law and without a legislative definition, it was impossible to know what was meant by the offence of blasphemy.
Subsequently, a definition was set out in the Defamation Act, 2009.
Article 10 of the European Convention on Human Rights protects freedom of expression. It also provides for limitations on that freedom, including for the protection of morals or for the protection of the reputation or rights of others.
There have been cases where it has been argued that criminal punishment for blasphemy breached Article 10.
In these cases, the Court generally examines whether there has been an interference with freedom of expression, whether the interference is provided for in national law, whether the interference had a legitimate aim and whether the interference is necessary in a democratic society. The Court decides on the facts of each case whether or not punishment for blasphemy breaches Article 10.
Lemon v United Kingdom (1983) (Link couresty of Westlaw)
This case involved the publication in a magazine of a poem relating to the body of the crucified Jesus. The magazine and the responsible editor were found guilty of the common law offence of blasphemous libel that then existed in UK law. The UK Parliament subsequently abolished the criminal offence of blasphemy in 2008.
The European Commission of Human Rights held that the offence of blasphemous libel had the legitimate objective of protecting the right of citizens not to be offended in their religious feelings and that the offence of blasphemous libel was not disproportionate.
The European Commission of Human Rights was a special tribunal that could receive applications from individuals and non-governmental organisations claiming a violation of the ECHR, before the applications could be referred to the European Court of Human Rights. It was abolished in 1998.
Otto-Preminger Institute v Austria (20 September 1994)
In this case, a private non-profit making organisation announced that it would have six showings of a satirical film about religion. The film was seized and forfeited by the authorities before it was shown.
The Court held that the seizure and forfeiture did not violate Article 10. It found that the Austrian authorities had acted to ensure religious peace and that it was for the national authorities, who were better placed the European Court of Human Rights, to assess the need for the seizure and forfeiture in light of the local situation.
Wingrove v United Kingdom (25 November 1996)
The British Board of Film Classification refused a certificate to a film on the grounds that it was blasphemous. This meant that it was against criminal law in the UK at the time. The UK parliament subsequently abolished the criminal offence of blasphemy in 2008.
The Court said that, while countries had a limited discretion to restrict political and public interest expression, they generally had more discretion to regulate freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion. The Court noted that under UK law (as it stood at the time before the abolition in 2008) the extent of insult to religious feelings had to be significant. Article 10 was not violated.
IA v Turkey (13 September 2005)
The case involved an author, who had published a book which the European Court of Human Rights described as containing an abusive attack on the Prophet of Islam. The author was convicted and sentenced to two years imprisonment and a fine, which was then commuted to a fine of the equivalent of 16 US dollars. The European Court of Human Rights held that freedom of expression carries duties and responsibilities, and that in the context of religious beliefs, this may include a duty to avoid expressions that are gratuitously offensive to others and profane. The Court did not find a violation of Article 10 on the facts here.
Giniewski v France (31 January 2006)
In this case, a journalist had written an article which criticised a papal encyclical and suggested that the Catholic Church and its members were responsible for Nazi atrocities. The journalist was convicted, ordered to pay one franc in damages and was ordered to publish a notice of the conviction in a national newspaper at his own expense.
The European Court of Human Rights held that there had been a violation of Article 10. It said that while the article may offend, shock or disturb some people, it was not gratuitously offensive or insulting and did not incite disrespect or hatred. The Court concluded that the penalty had a deterrent effect and was disproportionate.
Klein v Slovakia (31 January 2007)
A journalist was convicted and sentenced to a fine of €375 for publishing an article criticising a Slovak Archbishop for his efforts to halt the distribution of the film “The People v Larry Flint”.
The European Court of Human Rights found that the article exclusively criticised the Archbishop and did not interfere with the right of believers to express and exercise their religion in a manner justifying the penalty imposed on the journalist. Therefore, the penalty was not necessary in a democratic society and there had been a violation of Article 10.
SEDITIOUS AND INDECENT MATTER
As well as referring to blasphemy, Article 40.6.1(i) of the Constitution states that it is an offence punishable by law to publish or utter something seditious or indecent.
These two elements of Article 40.6.1(i) of the Constitution will not change whether there is a Yes or No vote on 26 October 2018. The only proposal is to remove the reference to blasphemy from the Constitution.
The terms “seditious” and “indecent” are not defined in the Constitution and definitions of what is seditious and indecent are not certain and may be open to debate.
There is a definition of a “seditious document” in the Offences Against the State Act 1939. It includes:
(a) a document consisting of or containing matter calculated or tending to undermine the public order or the authority of the State, and
(b) a document which alleges, implies, or suggests or is calculated to suggest that the government functioning under the Constitution is not the lawful government of the State or that there is in existence in the State any body or organisation not functioning under the Constitution which is entitled to be recognised as being the government of the country, and
(c) a document which alleges, implies, or suggests or is calculated to suggest that the military forces maintained under the Constitution are not the lawful military forces of the State, or that there is in existence in the State a body or organisation not established and maintained by virtue of the Constitution which is entitled to be recognised as a military force, and
(d) a document in which words, abbreviations, or symbols referable to a military body are used in referring to an unlawful organisation.
There is a definition of “indecent” in the Censorship of Publications Act 1946, which says that the word “includes suggestive of, or inciting to, sexual immorality or unnatural vice or likely in any other similar way to corrupt or deprave”.
It is not clear if these statutory definitions would also apply in the context of Article 40.6.1(i) of the Constitution.
PROHIBITION OF INCITEMENT TO HATRED ACT 1989
The Prohibition of Incitement to Hatred Act 1989 makes it an offence to engage in certain words and acts that are intended or are likely, in all the circumstances, to stir up hatred.
Hatred includes hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.
Incitement to hatred may occur in a number of ways. For example, it is an offence to publish or distribute written material that is threatening, abusive or insulting and that is intended to, or likely to, stir up hatred. It is also an offence to use words in a public place that are threatening, abusive or insulting and are intended to or likely to stir up hatred. It is also an offence to prepare or possess written material with a view to distributing, displaying, broadcasting or publishing it, if the material is threatening, abusive or insulting and is intended to or is likely to stir up hatred.
Where a person is convicted under the 1989 Act, they may be required to pay a fine or serve a period of imprisonment. The Court may order any written material or recording which relates to the offence to be forfeited, and either destroyed or disposed of.
The European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe. It entered into force in 1953 and Ireland is a party to it.
The ECHR established the European Court of Human Rights. Any person who feels that their rights have been violated under the ECHR by the State can make an application to the European Court of Human Rights. If that Court finds that there has been a violation of the ECHR, its judgment is binding on the State concerned. The State concerned is obliged under the ECHR to implement or give effect to the judgement of the European Court of Human Rights.
The ECHR is not a European Union Treaty and the European Court of Human Rights is not a European Union Court. The ECHR does not have the same status in Irish law as EU law.
The ECHR was given effect in national law by the European Convention on Human Rights Act 2003. Where a complaint is made that a law, including an Act of the Oireachtas, is incompatible with the ECHR, a court can issue a declaration of incompatibility relating to that law. If the court issues a declaration of incompatibility, the law remains the same and continues in force unless and until the Oireachtas removes the incompatibility.
The Constitution cannot be declared incompatible with the ECHR. However, a person who feels that the Constitution does not protect their rights under the ECHR can seek to bring a complaint to the European Court of Human Rights.
The UN Human Rights Committee is a body of independent experts that monitors the implementation of the International Covenant on Civil and Political Rights (“ICCPR”) in States that are party to the ICCPR. Ireland ratified the ICCPR in 1989. However, Ireland has not given the ICCPR effect in national law. The Human Rights Committee conducted a review of Ireland’s compliance with the ICCPR in 2014. In its Concluding Observations on the Fourth Periodic Report of Ireland (19 August 2014) regarding the ICCPR and recommended that Ireland “should consider removing the prohibition of blasphemy from the Constitution”.
The Committee made the following comments at paragraph 22 of its report:-
While welcoming the repeal of the Defamation Act, 1961, the Committee remains concerned that blasphemy continues to be an offence under article 40.6.1 (i) of the Constitution and section 36 of the Defamation Act 2009 (art. 19).
The State party should consider removing the prohibition of blasphemy from the Constitution as recommended by the Convention on the Constitution, and taking into account the Committee’s general comment No. 34 (2011) on article 19: freedoms of opinion and expression, concerning the incompatibility of blasphemy laws with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. “
Article 20(2) of the ICCPR states:
“2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
Article 19 of the ICCPR states:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”