Charlie and the blasphemy law

Orion

Ireland’s Islamic Cultural Centre has said the presence of a depiction of the prophet Muhammad on the front page of the satirical publication, on sale now in Irish shops, is a clear breach of the country’s blasphemy legislation.

Hasain said that while the centre has not decided whether or not to lodge a complaint to the Irish authorities, individuals or groups have the right under Irish law to use the legislation to prosecute those distributing the magazine since last week.

http://www.theguardian.com/world/2015/feb/05/charlie-hebdo-ireland-blasphemy-law-image-of-prophet

I really hope the Islamic Cultural Centre take a case under this ridiculous law. It needs to be tested (and then thrown out) in the courts seeing as this useless government we have won't do a damn thing about it. Reducing the minimum age for the presidency is more important than changing something actually important it seems.

silverharp

Isn't the second test that a substantial number of adherents have to be outraged. How should this be measured?
In the absense of rioting in the streets what's the plan? A survey where they will fill in a 1 to 10 scale of how outraged "they" feel?
Its a bad law that will just troll everyone involved. They should leave it alone unless someone is either trying to make a name for themselves or actually wants to generate hostility.

seamus

I hope they take it too, because they will likely fail under the other tests required of the legislation, namely that "he or she intends, by the publication or utterance of the matter concerned, to cause such outrage."

and

"It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates"

Also, I love section 4:

In this section “ religion ” does not include an organisation or cult—

(a) the principal object of which is the making of profit, or

(b) that employs oppressive psychological manipulation—

(i) of its followers, or

(ii) for the purpose of gaining new followers.

Pretty sure one could prove that any religion is a cult going by those guidelines :pac:

"Oppressive psychological manipulation"? Check!

K4t

They probably won't take a case because as you say it would hopefully be thrown out. The real crime is that they are allowed issue such a threat to free expression, a threat only made possible by the ineptitude of our own government.

As many religious believers will tell you here on boards, blasphemous remarks are written and said every day without anyone being taken to court under the blasphemy laws. However, it is that religious believers like Dr Selim and the Islamic Cultural Centre can issue the threat of invoking the law that restricts expression and speech. Not the law itself. Every time they issue the threat, for as long as that blasphemy law is in our constitution, a person potentially does not exert their right to free expression or speech. They know this. And that is the real crime.

Dermot Ahern and Mary McAleese have a lot to answer for on this, though they might still think it's a sensible law. Idiots.

shruikan2553

**** or get off the pot.

I would take north koreas threats more seriously then theirs. Either attempt to prosecute or dont. No point telling everyone who will listen you could do it,

K4t

shruikan2553 wrote: »

**** or get off the pot.

I would take north koreas threats more seriously then theirs. Either attempt to prosecute or dont. No point telling everyone who will listen you could do it,

It's possible that they know they wouldn't get a court decision in their favour, but as long as they can make the threat, it will potentially stop people from exerting their right to freedom of expression and speech. It's the threat they are using in an attempt to suppress expression, not the actual law.

Many people contemplate breaking the law, but the threat of prison causes them not to. Now, they might get away with breaking the law, but the threat of prison if they get caught means they don't even attempt to in the first place.

MrPudding

Orion wrote: »

http://www.theguardian.com/world/2015/feb/05/charlie-hebdo-ireland-blasphemy-law-image-of-prophet

I really hope the Islamic Cultural Centre take a case under this ridiculous law. It needs to be tested (and then thrown out) in the courts seeing as this useless government we have won't do a damn thing about it. Reducing the minimum age for the presidency is more important than changing something actually important it seems.

Can they actually take a case? Is it not the government that needs to do it?

MrP

MrPudding

K4t wrote: »

It's possible that they know they wouldn't get a court decision in their favour, but as long as they can make the threat, it will potentially stop people from exerting their right to freedom of expression and speech. It's the threat they are using in an attempt to suppress expression, not the actual law.

Many people contemplate breaking the law, but the threat of prison causes them not to. Now, they might get away with breaking the law, but the threat of prison if they get caught means they don't even attempt to in the first place.

Exactly. This is the 'chilling effect' we keep hearing about. Whatever one might say about the likelihood of a conviction, or even a prosecuton, the simple fear that might[i/] happen will undoubtedly cause people to self censor. So the legislation that was never supposed to result in a prosecution ends up being effective regardless. Disgraceful.

I like the line from the Guardian article pointing out the Ireland was the only county on earth to enact blasphemy legislation in the 21st century. A fcuking joke.

MrP

PopePalpatine

silverharp wrote: »

Isn't the second test that a substantial number of adherents have to be outraged. How should this be measured?
In the absense of rioting in the streets what's the plan? A survey where they will fill in a 1 to 10 scale of how outraged "they" feel?
Its a bad law that will just troll everyone involved. They should leave it alone unless someone is either trying to make a name for themselves or actually wants to generate hostility.

By any chance, given the nefarious deeds of the Church of Scientology, I wonder why their Irish branch hasn't tried to sue someone for blasphemy under the "significant portion of believers" clause.

Bannasidhe

MrPudding wrote: »

I like the line from the Guardian article pointing out the Ireland was the only county on earth to enact blasphemy legislation in the 21st century.
MrP

Bit early to call really... loads more time for lashings of blasphemy laws...

:pac:

silverharp

PopePalpatine wrote: »

By any chance, given the nefarious deeds of the Church of Scientology, I wonder why their Irish branch hasn't tried to sue someone for blasphemy under the "significant portion of believers" clause.

Section 4 quoted by seamus seems designed to exclude groups like the Scientologists.

PopePalpatine

silverharp wrote: »

Section 4 quoted by seamus seems designed to exclude groups like the Scientologists.

Whoops.

lazygal

MrPudding wrote: »

Can they actually take a case? Is it not the government that needs to do it?

MrP

I'd presume it's like any other criminal offence, where a complaint would be made to the gardai and the alleged crime investigated. The government wouldn't take such a case unless the attorney general had advised it.

Hotblack Desiato

What I want to know is - which shops

magicbastarder

K4t wrote: »

Dermot Ahern and Mary McAleese have a lot to answer for on this, though they might still think it's a sensible law. Idiots.

not quite sure why mcaleese is responsible - why so?

K4t

MrPudding wrote: »

So the legislation that was never supposed to result in a prosecution ends up being effective regardless. Disgraceful.

MrP

You might even say the blasphemy law has worked to perfection. Nearly as well as Islamophobia.

magicbastarder wrote: »

not quite sure why mcaleese is responsible - why so?

'President Mary McAleese convened the Council of State to discuss whether the Bill should be referred to the Supreme Court to test its Constitutionality; she decided not to do so.[38] The Bill became Law on 23 July 2009,[32] and came into effect on 1 January 2010' - Wikipedia(It seems she could have referred the bill to the supreme court?)

Hotblack Desiato

How could it have been found unconstitutional when the constitution is religious in nature from start to finish and explicitly calls for a blasphemy law?

Orion

K4t wrote: »

(It seems she could have referred the bill to the supreme court?)

It's probably better she didn't. If she had the Supreme Court would rule on its constitutionality and if they found it was constitutional it could never be challenged again.

K4t

Orion wrote: »

It's probably better she didn't. If she had the Supreme Court would rule on its constitutionality and if they found it was constitutional it could never be challenged again.

Ah, I see. They could have omitted the €25,000 fine surely though?

Peregrinus

K4t wrote: »

Ah, I see. They could have omitted the €25,000 fine surely though?

Nope. Under an Art. 26 reference, the Supreme Court rules either that the Bill is constitutional (in which case the President must sign it) or unconstititional (in which case she may not sign it). There is no scope for the SC to amend the Bill to something they like a bit better.

Peregrinus

Orion wrote: »

It's probably better she didn't. If she had the Supreme Court would rule on its constitutionality and if they found it was constitutional it could never be challenged again.

This. A lot of constitutional lawyers don't really like the Art 26 procedure. It requires constitutionality to be decided in the abstract, it precludes a later challenge on the basis of how the law is playing out in reality, or in the light of facts and situations not contemplated at the time of the Art 26 reference.

Peregrinus

MrPudding wrote: »

Can they actually take a case? Is it not the government that needs to do it?

The blasphemy offence can only be prosecuted on indictment. Only the Director of Public Prosecutions or the Attorney General can prosecute on indictment; a private individual or pressure group cannot. The Guardian report linked in the OP quotes someone as saying that "individuals or groups have the right under Irish law to use the legislation to prosecute those distributing the magazine". This is false; they have no such right.

MrPudding wrote: »

Exactly. This is the 'chilling effect' we keep hearing about. Whatever one might say about the likelihood of a conviction, or even a prosecuton, the simple fear that might[i/] happen will undoubtedly cause people to self censor. So the legislation that was never supposed to result in a prosecution ends up being effective regardless. Disgraceful.

I agree that it's disgraceful but, actually, for the reason just given, I don't think the chilling effect is all that great. Publishers and media figures understand the position well. It clearly hasn't chilled the distribution of Charlie Hebdo (by Eason Menzies, who are notoriously shy of legal risk).

And to the extent that there is a chilling effect, it pains me to say it but it may, at least in part, be the result of opponents of the law "bigging up" the possibility of prosecution in the hope of generating support for their cause.

PopePalpatine wrote: »

By any chance, given the nefarious deeds of the Church of Scientology, I wonder why their Irish branch hasn't tried to sue someone for blasphemy under the "significant portion of believers" clause.

You can't sue for blasphemy in Ireland. Bad and all as the law is, it doesn't make blasphemy a civil wrong for which purported "victims" can sue and seek damages or other remedies.

porsche959

Orion wrote: »

It's probably better she didn't. If she had the Supreme Court would rule on its constitutionality and if they found it was constitutional it could never be challenged again.

I truly hope you are wrong on this as if you are right it seems that there is effectively a de-facto inbuilt mechanism whereby a conscientious president with genuine concerns about a particular piece of legislation would refrain from using his/her powers in a situation when they probably should.

Peregrinus

porsche959 wrote: »

I truly hope you are wrong on this as if you are right it seems that there is effectively a de-facto inbuilt mechanism whereby a conscientious president with genuine concerns about a particular piece of legislation would refrain from using his/her powers in a situation when they probably should.

The whole point about having a power, as opposed to a duty, is that you get to consider whether and when you should use it. That's a strength, not a weakness.

The fact that the President did not refer this (or any other particular) Bill to the Supreme Court does not mean that she is a supporter of the Bill. It could mean that she thinks it is constitutional; a reference is not likely to result in the Bill being struck down. (And if she does think that, I think most constitutional lawyers probably agree with her.) And if you agree with that assessment, and you oppose the Bill, then sending it to the SC would be either useless or positively counterproductive. So this is not a situation where a President "probably should" refer the Bill under Art 26; if anything it's one where a President probably should not.

porsche959

Peregrinus wrote: »

The whole point about having a power, as opposed to a duty, is that you get to consider whether and when you should use it. That's a strength, not a weakness.

The fact that the President did not refer this (or any other particular) Bill to the Supreme Court does not mean that she is a supporter of the Bill. It could mean that she thinks it is constitutional; a reference is not likely to result in the Bill being struck down. (And if she does think that, I think most constitutional lawyers probably agree with her.) And if you agree with that assessment, and you oppose the Bill, then sending it to the SC would be either useless or positively counterproductive. So this is not a situation where a President "probably should" refer the Bill under Art 26; if anything it's one where a President probably should not.

I didn't really have this specific case in mind, I was concerned about the general principles.

Is it legally correct to state, as Orion seemed to, that were a president to use his/her powers to refer a bill to the Supreme Court, and then were it to be deemed by them to be constitutional, that by virtue of having already ruled on bill's constitutionality, it could never be deemed by the Supreme Court to be unconstitutional at any subsequent sitting - even for example, an SC that consisted of entirely different members to the one that was asked to rule on bill originally, for example?

Peregrinus

Yes, it is. Under Art. 34.3.3 "no Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26."

Plus, the Constitution requires that there be only a single judgment given by the court, and that there should be no minority or dissenting judgments given. So, if a minority of the judges in an Art 26 reference disagree with the majority view, we'll never get to hear of it.

The purpose of the Art. 26 procedure is to provide certainty in cases where there is doubt over the constitutionality of a new law, and that doubt would cause a lot of problems.

This is not such a case. There isn't, to my lasting regret, any real doubt about the constitutionality of this law. And even if there were, it's probably a doubt we are better off living with so that the law can be tested in the courts as it operates (if it ever does) rather than having to make a decision in the abstract, in the absence of any facts, and in the absence of anyone who has actually been affected by the law.

In brief; constitutional activists generally don't like Art 26, and don't regard it as a terribly good way of testing the constitutionality of laws. They are usually happier if a law is not referred under Art. 26. The Supreme Court isn't wild about Art. 26 either; they are uncomfortable about having to rule on constitutionality in the absence of any facts or any relevant parties.

porsche959

Peregrinus wrote: »

Yes, it is. Under Art. 34.3.3 "no Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26."

Plus, the Constitution requires that there be only a single judgment given by the court, and that there should be no minority or dissenting judgments given. So, if a minority of the judges in an Art 26 reference disagree with the majority view, we'll never get to hear of it.

Thanks very much for the elucidation.

The implications trouble me greatly.

Peregrinus wrote: »

The purpose of the Art. 26 procedure is to provide certainty in cases where there is doubt over the constitutionality of a new law, and that doubt would cause a lot of problems.

This is not such a case. There isn't, to my lasting regret, any real doubt about the constitutionality of this law. And even if there were, it's probably a doubt we are better off living with so that the law can be tested in the courts as it operates (if it ever does) rather than having to make a decision in the abstract, in the absence of any facts, and in the absence of anyone who has actually been affected by the law.

"and in the absence of anyone who has actually been affected by the law."

With respect, is that not an overly narrowly legalistic view of things ? What of the "chilling effects" as mentioned by others earlier in the thread?

One cannot say that someone has not been affected by a law, just because they have not formally gone through the (likely, time-consuming and expensive) process of challenging it.

Peregrinus wrote: »

In brief; constitutional activists generally don't like Art 26, and don't regard it as a terribly good way of testing the constitutionality of laws. They are usually happier if a law is not referred under Art. 26. The Supreme Court isn't wild about Art. 26 either; they are uncomfortable about having to rule on constitutionality in the absence of any facts or any relevant parties.

Can't say I'd blame 'em, in either case.

porsche959

Hotblack Desiato wrote: »

How could it have been found unconstitutional when the constitution is religious in nature from start to finish and explicitly calls for a blasphemy law?

Have you read it?

Peregrinus

porsche959 wrote: »

"and in the absence of anyone who has actually been affected by the law."

With respect, is that not an overly narrowly legalistic view of things ? What of the "chilling effects" as mentioned by others earlier in the thread?

One cannot say that someone has not been affected by a law, just because they have not formally gone through the (likely, time-consuming and expensive) process of challenging it.

Just to clarify:

Courts like to deal with facts. They like to have an actual dispute, with real events, involving real people, before them. All their systems and processes are designed, developed and refined to deal with this, and that is what they are experienced in doing. They are uncomfortable moving outside this area of expertise, and don't particularly relish doing so.

The constitutionality of a law would normally come up in a context - e.g. suppose you and a few others mount a picket outside the Dept of Agriculture to protest against the slaughter of animals for food, or alleged inhumanity in the slaughter of animals for food. You get arrested and charged with obstructing the highway, contrary to section something-or-other of the Highways Act. You assert in your defence that this is unconstitutional because it's an infringement of your constitutionally-guaranteed right to free speech.

Even if you win, the court is not going to strike down the entirety of the Highways Act . They are not necessarily even going to strike down the particular section of the Highways Act which creates that offence. They may just rule that, correctly interpreted in harmony with the Constitution, that section does not make your picket an offence, and therefore your arrest was wrongful.

However they rule, though, all they are doing is ruling on the constitutionality of the law and/or the garda action taken under it in this particular circumstance. If you win your case, the whole Act does not collapse. If you lose your case, that doesn't stop someone else challenging the constitutionality of some other section of the Act, or even the same section of the Act, on another occasion, against different facts or or on other grounds. The court only rules on the particular facts which have happened.

But in an Art 26 reference, they can't approach it that way. No facts have happened. No person can point to any particular way in which the law has impacted on them - the law isn't even in force yet, so by definition it hasn't impacted on anybody. We can speculate about the people, or the kinds of people, who might be affected if the law comes into force, but imaginary people cannot appear before the court to make arguments about that. And, even if they could, they could only speculate about the ways in which the law might impact them.

You can imagine that if a law dealing with highways in general was being considered in the abstract for consistency with the Constitution, the issue of how laws for keeping the traffic flowing freely might intersect with people exercising their right of free speech in a public place would be one of the many, many things that the court might think about, but how are they to lay down a (just, workable, one-size-fits-all) rule about when the guards can arrest protesters to clear the highway and when that would be an unconstitutional infringement of their freedom of speech? And how are they to take that question, and ever other conceivable constitutional question that might arise in connection with every aspect of a Highways Act - requisitioning private land to construct or widen a road, restricting development on private land adjacent to a road, levying tolls on a public road, closing a public road for temporary events, the list is endless - and foresee all the ways how every provision of the Act might ever play out in practice on every person who might ever be affected by it, and then come up with a simple yes/no answer regarding constitutionality of the entire Act? You can see why they would think that this is, basically, not a good way of answering questions about constitutionality, and is not the way most likely to produce answers which are sound, satisfactory and enduring.

What an Art 26 reference does is produce an answer which is certain and simple. But that's not always a good thing.

MrPudding

Peregrinus wrote: »

Just to clarify:

Courts like to deal with facts. They like to have an actual dispute, with real events, involving real people, before them. All their systems and processes are designed, developed and refined to deal with this, and that is what they are experienced in doing. They are uncomfortable moving outside this area of expertise, and don't particularly relish doing so.

The constitutionality of a law would normally come up in a context - e.g. suppose you and a few others mount a picket outside the Dept of Agriculture to protest against the slaughter of animals for food, or alleged inhumanity in the slaughter of animals for food. You get arrested and charged with obstructing the highway, contrary to section something-or-other of the Highways Act. You assert in your defence that this is unconstitutional because it's an infringement of your constitutionally-guaranteed right to free speech.

Even if you win, the court is not going to strike down the entirety of the Highways Act . They are not necessarily even going to strike down the particular section of the Highways Act which creates that offence. They may just rule that, correctly interpreted in harmony with the Constitution, that section does not make your picket an offence, and therefore your arrest was wrongful.

However they rule, though, all they are doing is ruling on the constitutionality of the law and/or the garda action taken under it in this particular circumstance. If you win your case, the whole Act does not collapse. If you lose your case, that doesn't stop someone else challenging the constitutionality of some other section of the Act, or even the same section of the Act, on another occasion, against different facts or or on other grounds. The court only rules on the particular facts which have happened.

But in an Art 26 reference, they can't approach it that way. No facts have happened. No person can point to any particular way in which the law has impacted on them - the law isn't even in force yet, so by definition it hasn't impacted on anybody. We can speculate about the people, or the kinds of people, who might be affected if the law comes into force, but imaginary people cannot appear before the court to make arguments about that. And, even if they could, they could only speculate about the ways in which the law might impact them.

You can imagine that if a law dealing with highways in general was being considered in the abstract for consistency with the Constitution, lthe issue of how laws for keeping the traffic flowing freely might intersect with people exercising their right of free speech in a public place would be one of the many, many things that the court might think about, but how are they to lay down a (just, workable, one-size-fits-all) rule about when the guards can arrest protesters to clear the highway and when that would be an unconstitutional infringement of their freedom of speech? And how are they to take that question, and ever other conceivable constitutional question that might arise in connection with every aspect of a Highways Act - requisitioning private land to construct or widen a road, restricting development on private land adjacent to a road, levying tolls on a public road, closing a public road for temporary events, the list is endless - and foresee all the ways how every provision of the Act might ever play out in practice on every person who might ever be affected by it, and then come up with a simple yes/no answer regarding constitutionality of the entire Act? You can see why they would think that this is, basically, not a good way of answering questions about constitutionality, and is not the way most likely to produce answers which are sound, satisfactory and enduring.

What an Art 26 reference does is produce an answer which is certain and simple. But that's not always a good thing.

You might have answered this already, but, is the Irish SC bound by its previous judgements, both 'normal' and Art 26 references?

MrP

Peregrinus

Judgments in Art 26 references are binding on all courts, including the SC itself, because of Art. 34.

But other judgments of the SC are not binding on the SC. Persuasive, yes; authoritative, yes; but not binding. And that includes other judgments on the constitututionality of legislation.

But the big issue isn't whether non-Art 26 judgments are binding; it's that they tend to be limited in their scope by the facts and issues in the case before the. In the protest example I gave above, the SC might rule that section such-and-such of the Highways Act is not unconstitutional on account of the fact that it allows the arrest of protesters who are blocking a road, or a footpath. But that wouldn't constrain a later SC (or a lower court) from considering the constitutionality of that section on different grounds, or of any other section of the Act.

Whereas if the Highways Act had been the subject of an Art 26 reference, and had been upheld, that's it. The constitutionality of any section of the Act cannot afterwards be questioned by any court.