Charlie and the blasphemy law

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?

Peregrinus

recedite wrote: »

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?

They could have done this, and I wish they had. But there would still be blowback from bolting on an unconnected referendum to a vote on, say, the Good Friday Agreement, or one of the EU Treaties. The Government would have been accused of trying to muddy the waters/sneak something through/take your pick. Plus, why pick this issue to bolt on, out of all the various isses that the reviews had identified.The Constitution Review Group and others were envisaging a suite of connected referendums arising out of a reform process; there was no particular reason to pluck this one out and bolt it on to an EU referendum.

You may not like this - I don't. But I don't think it translates into enthusiastic support for a blasphemy crime.

recedite

Maybe not "enthusiastic support" for having the blasphemy crime, but its fair to say there is a "strange reluctance" to remove it.
IMO having several unconnected referendums on the same day would be beneficial, because it would increase voter turnout. A single issue referendum might only have a turnout of less than 50%. But what do I know, I'm just a punter.....

Peregrinus

Well, I won't argue with you, because I wish they would do something like that, so we can get rid of this bloody thing.

And it seems there is finally some possiblity that this might happen - fingers crossed.

recedite

Peregrinus wrote: »

And it seems there is finally some possiblity that this might happen - fingers crossed.

Meh... that's just a junior minister being trotted out to feed bull$hit to the press.

My link trumps yours, because it has Enda Kenny in it.

A referendum on removing the offence of blasphemy from the Constitution will not be held during the lifetime of this Government, Taoiseach Enda Kenny has said.
The Government agreed last year that a referendum should be held, following the recommendation of the Constitutional Convention that the blasphemy clause should be removed...blah blah..

..Mr Kenny said two referendums would be held this year – one on same-sex marriage and another on reducing the voting age for Presidential elections. Both are expected to be held in May....

..Mr Kenny said he did not want to hold more than two referendums on one day because (cough cough) "it might take the focus away from the other issues".

(my coughs)

Peregrinus

recedite wrote: »

Meh... that's just a junior minister being trotted out to feed bull$hit to the press.

My link trumps yours, because it has Enda Kenny in it.

[Peregrinus throws down cards, forfeits hand.]

SpannerMonkey

has there ever been a fine or conviction under the blasphemy law ?

marienbad

SpannerMonkey wrote: »

has there ever been a fine or conviction under the blasphemy law ?

Under the new law no, and it has been drafted so as to make such an occurrence virtually impossible .

Hotblack Desiato

marienbad wrote: »

Under the new law no, and it has been drafted so as to make such an occurrence virtually impossible .

But it still has a chilling effect on free speech, and our friend Dr Selim has threatened to use it against any publication that dares say things he doesn't like about islam.

marienbad

Hotblack Desiato wrote: »

But it still has a chilling effect on free speech, and our friend Dr Selim has threatened to use it against any publication that dares say things he doesn't like about islam.

I don't think so , no matter what Selim thinks , but it does make us look stupid in the wider world and to ourselves.

Hotblack Desiato

All the blasphemy law needs to do is threaten.

All Selim needs to do is threaten.

No actual attempts at prosecution are required.