Strasbourg, 12 June 2015 CDL-JU(2015)016 Engl. only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) 14th meeting of the Joint Council on Constitutional Justice MINI-CONFERENCE ON “BLASPHEMY AND OTHER LIMITATIONS TO THE FREEDOM OF EXPRESSION” Bucharest, Romania 12 June 2015 “Blasphemy Law in Ireland: an overview of its historical development and current proposals for reform” REPORT BY Ms Sarahrose MURPHY Executive Legal Officer Supreme Court of Ireland This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-JU(2015)016 - 2 - “Blasphemy Law in Ireland: an overview of its historical development and current proposals for reform” Good afternoon ladies and gentlemen Before I begin, I would like to thank the organisers and the hosts, the Constitutional Court of Romania for their wonderful welcome and hospitality. It was with great enthusiasm that I accepted the invitation to give a brief presentation at today’s mini-conference, ‘Blasphemy Law and other limitations on freedom of expression’. This issue is topical in Ireland in light of the existence of law prohibiting blasphemy and current proposals for reform in this area of law. Background – Report of the Venice Commission As Mr. Durr noted in his opening address, blasphemy law as a restriction of freedom of expression received attention in the 2008 Venice Commission Report on Blasphemy, insult and hatred: finding answers in a democratic society.1 The Report noted that [b]lasphemy is an offence in only a minority of member states2 and is “nowadays, rarely prosecuted in European states.”3 While the Commission found that incitement to hatred, including religious hatred, should be the object of criminal sanctions, as it is in most Member States, it was of the view that the offence of blasphemy should be abolished and should not be reintroduced.4 In Ireland, the Defamation Act 2009 provides for the offence of blasphemy.5 However, this provision did not appear from thin air. A look at the overall constitutional and legislative framework together with case law of the Supreme Court of Ireland goes some way towards explaining the relatively recent enactment of this blasphemy law. The Irish Legal System Ireland is a common law country and has been described as the “first adventure of common law”6 outside of England. It became indepdnent in 1922 and is governed by a written Constitution called Bunreacht na hÉireann in the Irish Language, which was enacted in 1937. The Constitution provides that Ireland is a sovereign, independent and democratic State.7 Power derives from the people and is divided between the legislature, executive and the judiciary.8 The Constitution provides for a tripartite separation of powers between these organs.9 Importantly for the purpose of this presentation, the Constitution may only be amended by national referendum.10 1 ‘Blasphemy, insult and hatred, finding answers in a democratic society’ (Venice Commission, 2008). 2 Ibid. at 19. At the time, these members states included Austria, Denmark, Finland, Greece, Italy, Liechtenstein, the Netherlands and San Marino. The Netherlands has since abolished its blasphemy law. A footnote to 2008 Report noted that, at the time, the introduction of the criminal offence of blasphemy was being discusses in Ireland in order to implement Article 40.6.1.i of the Constitution of Ireland. 3 Ibid. 4 Ibid. at page 32. 5 Defamation Act 2009, s. 36. 6His honour Judge W.J. Johston, ‘The First Adventure of the Common Law’ 36 (1920) Law Quarterly Review 9. 7 Article 5 of the Constitution of Ireland. 8 Article 6.1 of the Constitution of Ireland. 9 Articles 6, 15.2.1, 28.2, 34.1 and 37 of the Constitution of Ireland. 10 See Articles 46 and 47 of the Constitution of Ireland. - 3 - CDL-JU(2015)016 The Irish Constitutional and Legislative Framework The Constitution of Ireland – Article 40.6.1(i) A considerable portion of the Constitution of Ireland is devoted to the protection of fundamental rights.11 Article 40.6.1(i ) guarantees freedom of expression “subject to public order and morality”. This guarantee and general restriction of freedom of expression is followed by what is considered to be “one of the most extraordinary” 12 and unusual aspects of the Irish Constitution; a statement that: “The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.” This is the only crime provided for in the Constitution of Ireland. However, as the Irish professor of law, Cox, has noted, it is not an aspect of the Constitution that has “unduly troubled the Irish courts.”13 There are very few records of blasphemy cases in Ireland, and only one since the enactment of the Constitution.14 Other references to religion in the Constitution The blasphemy clause is one of many allusions to religion in the Constitution of Ireland.15 Religious references are contained in Article 44.4.1, which provides that the State “acknowledges that the homage of public worship is due to Almighty God” and states that “[i]t shall hold His Name in reverence and shall respect and honour religion.” The Constitution guarantees freedom of conscience and the free profession and practice of religion, “subject to public order and morality”.16 It prohibits the State from endowing any religion17 or imposing any disabilities or making any discrimination on the grounds of religious profession, belief or status.18 The Constitution once referred to the “special position of the Roman Catholic church”19 in addition to recognising certain other specified religious denominations.20 However, the fifth amendment of the Constitution removed this provision in the early 1970s.21 The Defamation Act 2009 The Defamation Act 2009 gives statutory definition to the constitutional crime of blasphemy. It provides for a maximum fine of €25,000 upon conviction of the publication or utterance of blasphemous matter.22 11 Articles 40 to 44 of the Constitution of Ireland. 12 Cox, Sacrilege and Sensibility: The Value of Irish Blasphemy Law’ (1997) 1 DULJ 87. 88. 13 Ibid at 89. 14 Corway v Independent Newspapers [1999] 4 IR 484. 15 See generally Daly, Religion, Law and the Irish State (Clarus 2012). 16 Article 44.2.1 of the Constitution of Ireland. 17 Article 44.2.2 of the Constitution of Ireland. 18 Article 44.2.3 of the Constitution of Ireland. 19 Article 44.1.2 previously stated : “The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.” 20 Article 44.1.3 previously provided: “The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish Congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.” 21 Fifth Amendment of the Constitution Act, 1972. 22 Defamation Act 2009, s. 36. CDL-JU(2015)016 - 4 - According to the 2009 Act, 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.” 23 It is a defence to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.24 It has been noted that this means that it would be very difficult to bring a successful prosecution for blasphemy and that, arguably, “the terms of the statutory offence are so tightly drawn that it is highly unlikely to have any application in practice.”25 In fact, there have been no prosecutions under the 2009 Act to date. Prohibition of Incitement to Hatred An attack on religion may constitute an offence under the Prohibition of Incitement to Hatred Act 1989,26 a hate speech law which prohibits the publication or distribution of written material, words, behaviour, visual images or sounds which are " threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred."27 It has been suggested that a high standard for proof under the 1989 Act has resulted in a lack of prosecutions under the 1989 Act.28 European Convention on Human Rights Ireland incorporates the European Convention on Human Rights through the European Convention on Human Rights Act 2003, and therefore Article 10 of the Convention forms part of Irish law.29 When challenged, the European Court of Human Rights has upheld the application of domestic blasphemy laws.30 This morning, Ms. Grigc provided a comprehensive overview of the case law of the European Court of Human Rights.31 Early Common Law Developments The current constitutional and legislative framework of Irish blasphemy law can only be properly understood when put in its historical context. I will therefore refer briefly to early common law developments in England and Ireland. England In England, there were many prosecutions for blasphemy in the 18th and 19th centuries. The crime of blasphemy was originally perceived as a crime against Christianity. In Taylor’s 23 Ibid, s. 36(2). 24 Ibid, s. 36(3). 25 See Sixth Report of the Convention on the Constitution: The removal of the offence of blasphemy from the Constitution, Expert Presentation by Cox on Introduction and the Irish context (January 2014). 26 Prohibition of Incitement to Hatred Act 1989, s.