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.

Orion

MrPudding wrote: »

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

MrP

The SC can overrule itself in subsequent cases. That's happened less than a handful of times iirc. But this is about jurisdiction. It wouldn't even be able to hear a constitutional case that was already ruled on under section 26.

Orion

And here's the outrage:

http://www.thejournal.ie/muslim-charlie-hebdo-limerick-school-1923456-Feb2015/

The mother of the 11-year-old boy – who’s in fifth class at the Limerick School Project in Limerick city – says she’s outraged over the incident.

seamus

Orion wrote: »

And here's the outrage:

http://www.thejournal.ie/muslim-charlie-hebdo-limerick-school-1923456-Feb2015/

What makes that case funny is that the 11-year-old boy wasn't even offended by the paper until his mother told him that he should be :rolleyes:

robindch

seamus wrote: »

What makes that case funny is that the 11-year-old boy wasn't even offended by the paper until his mother told him that he should be

That's a lot more sad than funny.

silverharp

seamus wrote: »

What makes that case funny is that the 11-year-old boy wasn't even offended by the paper until his mother told him that he should be :rolleyes:

In fairness I could think up various situations where a parent could be outraged based on something said or done in the class that the child might not be aware of yet.
So we have one confirmed case of outrage, what's the magic number I wonder?

recedite

Peregrinus wrote: »

There isn't, to my lasting regret, any real doubt about the constitutionality of this law.

Which only shows that President McAleese was correct in her assessment that the proposed blasphemy law was not inherently repugnant to the Constitution, and therefore there was no point referring it to the SC to test its constitutionality.
But that says nothing about its suitability as legislation. You can have a bad piece of law that is "constitutional". And subsequently a govt. can remove that law. Even if the SC had ruled that the blasphemy law was constitutional, it could still be removed now by the current govt. or any future govt.

Probably the real problem is Article 44;

Article 44 wrote:

1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

Even that can be sorted out by having a referendum to delete it. It could be done this year if there was sufficient political will to hold the referendum, and enough of the electorate wanted it removed.

Which brings us on to the Charlie Hebdo thing. What we really need is for some ridiculous case to be taken by a minority religion under the blasphemy law, which would then turn the rest of the electorate negative in their attitude to Article 44.

Peregrinus wrote: »

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.

Ah, but the private individual can walk into any Garda station and report the offence of being offended through blasphemy. Gardai would then get the DPP involved if the grievance was legit, as defined by the blasphemy law.
The only question is whether the offendees will be stupid enough to take the bait.

Nodin

Orion wrote: »

And here's the outrage:

http://www.thejournal.ie/muslim-charlie-hebdo-limerick-school-1923456-Feb2015/

...though is she not-bothered-by-high-court-costs outraged?

marienbad

Nodin wrote: »

...though is she not-bothered-by-high-court-costs outraged?

... and so it begins .

Hotblack Desiato

porsche959 wrote: »

Have you read it?

AH answer: Yeah, have you?

A&A answer: why do you ask? Are you implying that what I have said is incorrect - that the constitution is not religious in nature or does not call for a blasphemy law - because if so you're entirely wrong.

Constitution of Ireland wrote:

CONSTITUTION OF IRELAND

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,

We, the people of Éire,

Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,


ARTICLE 6

1 All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.


ARTICLE 12

8 The President shall enter upon his office by taking and subscribing publicly, in the presence of members of both Houses of the Oireachtas, of Judges of the Supreme Court and of the High Court, and other public personages, the following declaration:

"In the presence of Almighty God I do solemnly and sincerely promise and declare that I will maintain the Constitution of Ireland and uphold its laws, that I will fulfil my duties faithfully and conscientiously in accordance with the Constitution and the law, and that I will dedicate my abilities to the service and welfare of the people of Ireland. May God direct and sustain me."


ARTICLE 31

4 Every member of the Council of State shall at the first meeting thereof which he attends as a member take and subscribe a declaration in the following form:

"In the presence of Almighty God I do solemnly and sincerely promise and declare that I will faithfully and conscientiously fulfil my duties as a member of the Council of State."


ARTICLE 34

5 1° Every person appointed a judge under this Constitution shall make and subscribe the following declaration:

"In the presence of Almighty God I do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me."


ARTICLE 40

3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

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.


ARTICLE 44

1 The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.


...

Dochum Glóire Dé

agus

Onóra na hÉireann

It is religious literally from start to finish, from preamble to postamble.

I'm including 40.3.3 because the referendum to add that ludicrous measure, equating a grown woman with a blob of cells, was only held at the behest of extremist religious campaigners, many funded from outside the State.

Also there was a provision concerning "the special position of the Catholic Church" which was, in a brief episode of limited enlightenment, removed in the 1970s.

The provisions regarding "protecting the institution of marriage" and the "position of women in the home" are very much inspired by paternalistic traditional catholic religious teaching.

Finally, Archibishop John Charles McQuaid was heavily involved in the drafting of the constitution. The final draft was presented to the pope for his approval.

Wereghost

seamus wrote: »

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

"Oppressive psychological manipulation"? Check!

This is great. It's basically Ireland saying that if your organisation condemns apostates then it's not a religion and doesn't get to cry "blasphemer!".

Hotblack Desiato

All religions use oppressive psychological manipulation.

Do what we say, and you will be happy forever and reunited with your loved ones.

Don't do what we say, and you will suffer unimaginable pain and torment for eternity.

Then we allow 96% of primary schools to teach this as fact to kids from age 4...

Brian Shanahan

Orion wrote: »

And here's the outrage:

http://www.thejournal.ie/muslim-charlie-hebdo-limerick-school-1923456-Feb2015/

It's on the Limerick Leader too. http://www.limerickleader.ie/news/business/business-news/limerick-school-apologises-for-upset-over-charlie-hebdo-1-6564147#.

This kind of crap happening in my local area (schools apologising over valid forms of expression because of religion's unearned privilege) shames me.

Peregrinus

recedite wrote: »

Which only shows that President McAleese was correct in her assessment that the proposed blasphemy law was not inherently repugnant to the Constitution, and therefore there was no point referring it to the SC to test its constitutionality.

Yes, I think so.

recedite wrote: »

But that says nothing about its suitability as legislation. You can have a bad piece of law that is "constitutional".

You certainly can.

recedite wrote: »

And subsequently a govt. can remove that law. Even if the SC had ruled that the blasphemy law was constitutional, it could still be removed now by the current govt. or any future govt.

Usually, but I think not in this instance. As pointed out by Hotblack below, Art 40.6 requires that blasphemy be an offence, and that it be "punishable in accordance with law". This present blasphemy law was only enacted because the SC pointed out that something of the kind was constitutionally required. And if this law were to be repealed, then so long as Art 40.6 remained unamended some other, probably very similar, blasphemy law would have to be enacted instead.

recedite wrote: »

Probably the real problem is Article 44;
Even that can be sorted out by having a referendum to delete it. It could be done this year if there was sufficient political will to hold the referendum, and enough of the electorate wanted it removed.

No, Art 40.6. Art 44 and the other references to religion in the Constitution, whatever their other problems, do not require a blasphemy law.

But, yes, a referendum would fix the problem. The thing is, both politicians and the public dislike referendums. I think the possibility of a referendum was considered before the 2009 law was enacted, and in the end the 2009 law went through with some distaste because it was perceived to be less unpopular and divisive than another referendum. To get that decision changed, you'd need to persuade the politicians that the climate of opinion had changed, such that the public will punish them if the don't hold a referendum

recedite wrote: »

Which brings us on to the Charlie Hebdo thing. What we really need is for some ridiculous case to be taken by a minority religion under the blasphemy law, which would then turn the rest of the electorate negative in their attitude to Article 44.

And there's your problem. A minority religion - indeed, the majority religion - can't do that. They have no standing to take any case under the blasphemy law. Only the DPP or the AG can do that - the law was crafted with this in mind. The last thing the legislators wanted was for anyone to be prosecuted under that law, ever.

recedite wrote: »

Ah, but the private individual can walk into any Garda station and report the offence of being offended through blasphemy. Gardai would then get the DPP involved if the grievance was legit, as defined by the blasphemy law.

And the DPP will quietly bury the file in a very deep hole; he has a lot of prosecutorial discretion.

I'm all in favour of this law being removed, but a strategy which depends on someone being prosecuted and the resulting public outrage is wishful thinking. No-one has been prosecuted for blasphemy since 1855, and this law was neither intended nor drafted to make prosecutions easier or more frequent.

I suspect a better strategy is a more broad-based challenge - political, not legal - to the degree of explcit theism in the Constitution. If Art 40.6 gets amended in that context, then having the 2009 Act repealed will be a piece of cake.

recedite

Peregrinus wrote: »

And the DPP will quietly bury the file in a very deep hole; he has a lot of prosecutorial discretion.

I'm all in favour of this law being removed, but a strategy which depends on someone being prosecuted and the resulting public outrage is wishful thinking.

The DPP can't just refuse to prosecute a "crime" if it is listed on the statute books and has been reported by a member of the public.

A large section of society are quite happy with all the religious oaths, favours and protections in the Constitution, as long as they understand that the references were designed to favour their religion.
Once people start to realise that other rival religions can use the religious references to further their own objectives too, they start to see the importance of that fundamental concept; the separation of church and state.

MrPudding

recedite wrote: »

The DPP can't just refuse to prosecute a "crime" if it is listed on the statute books and has been reported by a member of the public.

They can do exactly that. They will look at things like the public interest in pursuing the conviction as well as the likelihood of securing a conviction. The DPP should not pursue a case where they have little or no hope of conviction. It is a waste of public money. Where the law Has been drafted in such a way as to make it exceedingly difficult to secure a conviction, as it seems to have been in this case, it makes it less likely the DPP will try to prosecute anyone.

The DPP has the power to pursue a conviction, but it does not have to.

MrP

Peregrinus

recedite wrote: »

The DPP can't just refuse to prosecute a "crime" if it is listed on the statute books and has been reported by a member of the public.

He can, as Mr P points out, and he frequently does. For example in a case of underage sex where bothparties are underage, each is committing a crime. In the abence of an aggravating element, there would very rarely be a prosecution.

The DPP often decides not to prosecute, and never comments on the reasons for not prosectuting a particular case, and the courts have been extrement reluctant to intervene. I'm open to correction, but I don't think the courts have ever ordered the DPP to bring a prosecution.

recedite wrote: »

A large section of society are quite happy with all the religious oaths, favours and protections in the Constitution, as long as they understand that the references were designed to favour their religion.

Once people start to realise that other rival religions can use the religious references to further their own objectives too, they start to see the importance of that fundamental concept; the separation of church and state.

I think there's a mixture of cynicism and wishful thinking at work here, recedite. While some people undoubtedly want legal protection, respect, status etc for their religion but not for others, there many people who want it for all religions, and are not all all fazed when other religions invoke the same protections.

recedite

I agree that religious leaders often support the privileges of other religions, even when the doctrines of the two religions are mutually blasphemous.
I can't fully explain this, but suppose it is due to a mixture of their cognitive dissonance and their survival instincts.

But what I was hoping for, was that the opinions of the "slightly religious" general public could be changed when they saw "a wrong religion" benefiting from existing state laws. It's a cynical kind of hope, yes

Hotblack Desiato

Peregrinus wrote: »

Usually, but I think not in this instance. As pointed out by Hotblack below, Art 40.6 requires that blasphemy be an offence, and that it be "punishable in accordance with law".

But if no such law exists then it can't be punished.
I believe it's a mistake to try to write legislation into a constitution. 40.6 is probably the closest it gets to writing criminal law into our constitution. But (IMHO, IANAL) the constitution can prevent the Oireachtas from enacting certain laws but can't oblige it to enact laws.

The Supreme Court can, and has, pointed out that legislative lacunae exist (in other areas too e.g. assisted reproduction) where rights expressed in the constitution have no law giving effect to them. They can point this out, but they can't oblige the government to do anything. The government chose to act to introduce a blasphemy law, it was in no way obliged to do so.

This present blasphemy law was only enacted because the SC pointed out that something of the kind was constitutionally required.

They decided a prosecution could not take place because there was no constitutionally valid law providing for such. Ten years then elapsed, and then suddenly an FF government decided to act - why?

I suspect a better strategy is a more broad-based challenge - political, not legal - to the degree of explcit theism in the Constitution. If Art 40.6 gets amended in that context, then having the 2009 Act repealed will be a piece of cake.

We might as well start afresh, given the number of amendments we'd need to make our existing constitution non-theist (and non-sexist.)

Peregrinus

Hotblack Desiato wrote: »

I believe it's a mistake to try to write legislation into a constitution. 40.6 is probably the closest it gets to writing criminal law into our constitution. But (IMHO, IANAL) the constitution can prevent the Oireachtas from enacting certain laws but can't oblige it to enact laws.

I think it’s certainly a mistake - to put it no higher - to write a requirement for this law into the Constitution. And I could think of a couple of other similar mistakes.

But the Constitution certainly can oblige the Oireachtas to enact laws, and it does so a lot, and most instances are unobjectionable. Art 3.1, for example, requires that there should be a law defining citizenship, and Art 9.2 repeats that. Art 11 requires that there should be a law regulating regulating the appropriation and expenditure of public money (which is what give the Oireachtas, rather than the Government, ultimate control over public finances.) Art 12.5 requires an electoral law, while Art 13.5 requires a law to regulate the Defence Forces. Etc, etc.

Hotblack Desiato wrote: »

They decided a prosecution could not take place because there was no constitutionally valid law providing for such. Ten years then elapsed, and then suddenly an FF government decided to act - why?

I think they were required either to legislate for blasphemy or to legislate for a referendum to remove the requirement for a blasphemy law. They didn’t particularly want to do either - no matter which way they jumped, the downside was greater than the upside - but ten years was about as long as they could long-finger the decision.

By the time the SC had its say in 1999, the Law Reform Commission had already considered the matter (in 1991). They felt that there was “no place” for the old offence of blasphemous libel “in a society which respects freedom of speech”, but they also recognised that the Constitution did require a blasphemy offence, and they felt that a referendum solely to address the blasphemy requirement “would rightly be seen as a time-wasting and expensive exercise”. (What need is there to spend millions to abolish a crime which hasn’t been prosecuted for 150 years?) They recommended a new statutory offence of blasphemy to serve until the constitutional requirement could be removed as part of a broader exercise.

The Constitution Review Group, which reported in 1996 (again, before the Supreme Court ruling struck down the old blasphemous libel offence) recommended that “the retention of the present constitutional offence of blasphemy is not appropriate”.

So, when the decision in Corway was handed down, the government already had advice which basically said (a) it would be preferable that the Constitution should not require a blasphemy offence (LRC and CRG); (b) but it does (LRC and CRG); (c) a single-purpose referendum to remove it would be unpopular, time-wasting and expensive (LRC only; CRG did not discuss this - it recommended a comprehensive set of recommendations and did not see any need for a single-purpose referendum; (d) if the requirement is not removed, the blasphemous libel offence should be replaced with one which does not privilege Christianity (LRC again).

By the time Corway was handed down in 1999, there had been a change of government. The Consitution Review Group was a creation of the Rainbow Coalition; the Fianna Fail government had no appetite for a wide-ranging set of constitutional amendments, so they basically ignored the issue for as long as they could. But, for other reasons, in 2006 they introduced a Defamation Bill to make various amendments to Irish law on defamation and, in that context, it was hard to avoid addressing the issue (and, from memory, the media industry who were pressing for reform of defamation law wanted it addressed). Initially, though, the Bill didn’t address blasphemy; instead the Government referred that question to the Oireachtas Joint Committee on the Constitution, which was preparing a report on Art 40.6 generally. That Committee recommended in 2008 that the Constitutional requirement be removed, but expressed no opinion about when it should be done, or whether it should be done in isolation. (Like the CRG, the Committee was recommending a number of amendments.)

In short, all this long-fingering didn’t make the problem go away. The government still had three options - (A) a single-purpose referendum to remove any requirement for a blasphemy law; (B) remove the requirement for a blasphemy law as part of a comprehensive package of reforms; (C) enact a minimally constitutional blasphemy law.

For the reasons identified by the LRC back in 1991, (A) was I think never a runner, and in fact none of the Committees, Review Groups, etc which have looked at the issue have ever recommended this. They were not ready to proceed with (B) - wide constitutional reform has always been more of a Fine Gael thing - and that left (C).

Strictly speaking, there was also (D), continue to do nothing, but this wasn’t going to solve the problem. Plus, (D) might have pretty well reached the end of its shelf-life. There was a risk that if the Defamation Bill was referred to the SC under Art 26 the SC would find it unconstitutional if it didn’t address the blasphemy requirement. As long as the Oireachtas didn’t legislate in the defamation area the SC could not compel them to - separation of powers and all that - but once they did, their legislation could be assessed against Art 40.6 and found wanting.

Hence they amended the Defamation Bill to address the question of blasphemy, with consequences that we all know. But I think it’s very hard to interpret this as an enthusiasm for a blasphemy offence. As you point out yourself, if they actually wanted a blasphemy offence they could have introduced legislation for it at any time in the previous ten years. Fianna Fail was in government consistently throughout that time.

Hotblack Desiato wrote: »

We might as well start afresh, given the number of amendments we'd need to make our existing constitution non-theist (and non-sexist.)

The only drawback to that is that it’s unlikely that the politicians would remove only the bits we don’t like. There are plenty of instances of the courts embarrassing the politicians by forcing progressive measures on them, invoking the Constitution to do so. Would we really be better off if the politicians got to rewrite the Constitution so as to reduce or eliminate that possibility?

recedite

Well, that all makes a degree of sense, except the reasoning about the single issue referendum being a waste of public money. While that may be true, there have been several referendums since then. And there will be another one soon. But no sign of the blasphemy referendum being tagged on (at no extra cost).
If cost was the only issue, why not just draft the text of an amendment to remove blasphemy, make it publicly available, and then stick it in the referendum "shopping basket" to wait for the next available referendum day?