Blasphemy in Ireland
A Constitutional Anomaly
There is no doubt that the crime of blasphemy exists as an offence in Irish Law because the Constitution says so. It says that the publication or utterance of blasphemous matter “is an offence which shall be punishable in accordance with the law”. Yet the researches of the Law Reform Commission would appear to indicate that the framers of the Constitution did not intend to create a new offence.
So wrote Mr Justice Barrington, giving the judgment of the Irish Supreme Court in Corway v Independent Newspapers (1999). The issue became relevant again recently when it was reported that the Irish police, An Gárda Síochána, was investigating a complaint of blasphemy against Stephen Fry. The police dropped the investigation when they found that nobody seemed to have been outraged by Fry’s remarks.
The position of the offence of blasphemy in the Irish Constitution is odd, to say the least. The statement that the offence exists is in effect a proviso to Article 40.6.1, which guarantees the right of freedom of expression. The apparent intention of the framers was to save an existing prohibition of blasphemous, seditious and indecent utterances from being invalidated by the right of free expression.
Only it seems that there wasn’t an existing offence to protect. When a constitution comes into force, it will usually carry over the law previously in force, to the extent that the old law is consistent with the provisions of the new constitution. This is exactly what the constitutions of 1922 and 1937 did. Judge Barrington doubted that the common law offence of blasphemy became part of the law of the Free State:
There can be no question … of the mere publication of an opinion on a religious matter constituting a criminal offence unless the publication is such as to undermine public order or morality … It is debatable to what extent, if at all, [the Constitution of 1922] carried forward the common law in relation to blasphemy.
As for the Constitution of 1937:
the implications … for the crime of blasphemy would need to be worked out in legislation. It is difficult to see how the common law crime of blasphemy, related as it was to an established Church and an established religion could survive in such a constitutional framework.
The net effect of this is that the framers of the Republic’s Constitution, in attempting to preserve what they wrongly thought to be an existing crime of blasphemy, instead half-resurrected it as a zombie. They declared an offence but without defining its elements or prescribing a penalty. (According to Art. 40.6.1 (i) the crime is to be “punishable in accordance with the law”. The Defamation Act 1961 set the maximum penalty for publication of a blasphemous libel, but without defining that term.) Barrington was clear that it would not be within the competence of the courts to fill in the gaps:
In this state of the law, and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists … The task of defining the crime is one for the Legislature, not for the Courts. In the absence of legislation and in the present uncertain state of the law the Court could not see its way to authorising the institution of a criminal prosecution for blasphemy against the Respondents.
It is significant that Barrington did not call on the Oireachtas to resolve the anomaly by defining the offence in legislation. In fact, he seemed unperturbed by the existence of a crime which could never be prosecuted. The judge’s equanimity contrasts with the fierce criticism by another Supreme Court judge, Niall St John McCarthy, seven years earlier in the X case. McCarthy had castigated the legislature for its inaction following the passage of the eighth amendment to the Constitution, which had placed a duty on the state to “defend and vindicate” the right to life of the “unborn” child and, where necessary, to balance that right with the “equal” and potentially conflicting right of the mother.
For another 20 years, the elected representatives happily shirked the duty which McCarthy had discovered in the murky provisions of the eighth amendment. It was almost thirty years after the adoption of the amendment itself that they finally got around to enacting the consequential legislation. It’s ironic that they were a lot quicker in addressing their much less urgent responsibility relating to blasphemy. In 2009, the Justice Minister, Dermot Ahern, added a provision to the bill which became the Defamation Act, to define the offence of blasphemy and provide for punishment by way of a fine.
There had been no criticism from the bench of legislative inactivity in this area. Barrington’s judgment had made it clear that the courts could neither dictate the terms of the putative legislation nor force the Oireachtas to enact it. Ahern was under no pressure to act. If he felt obliged to so something, the obvious thing would have been to initiate a referendum to remove subparagraph (i) from Article 40.6.1. Instead, apparently unwilling to embark on yet another constitutional amendment, he completed the resurrection of the zombie which in 1937 had tentatively stirred from its grave, and made it the law that blasphemy should be punishable by a fine of €25,000.