Ivana Bacik

 Report and Final Stages (9th July 2009).

Senator Ivana Bacik: If I may have the Minister’s attention, I wanted to ask again about the jurisdiction of the court dealing with the proposed offence. The Minister said he envisaged it would be the High Court, that would be the Central Criminal Court, and that he did not envisage it would be in the Circuit Court, if I heard him correctly. The stipulation that the fine would not exceed €25,000 is not enough to confer jurisdiction on the High Court because the Circuit Court has jurisdiction to impose unlimited fines in criminal matters. It would require some express provision to ensure these trials would proceed in the Central Criminal Court, as was provided for when rape trials were moved to the Central Criminal Court following the Rape (Amendment) Act 1990. I wanted to clarify that with the Minister.

I want to address the substance of these provisions and express my strong opposition to the statutory definition of the offence of blasphemy. I do not say the Minister is creating a new offence of blasphemy. I accept he seeks to insert a statutory definition of a common law offence that is also stated in the Constitution. Looking at the Corway judgment I do not accept that it is necessary to pass this legislation to give statutory definition of this sort. The Corway judgment was given almost exactly ten years ago, on 30 July 1999, by the Supreme Court. To suggest there is any urgency or imperative about doing this now rings somewhat hollow when there has been a ten-year lapse.

Mr. Justice Donal Barrington for the court, in the critical passage in his judgment, said, “In this state of the law and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists”. He went on to say, “In the absence of legislation and in the present uncertain state of the law the court could not see its way to authorising the institution of a criminal prosecution for blasphemy against the respondents”. The effect of the judgment is to make the offence unworkable.

Mr. Justice Barrington did not find section 13 of the Defamation Act repugnant to the Constitution so there was no imperative to enact a new definition, as the Minister has suggested, just because we are reforming the Defamation Act. The court simply said it was too vague for the court to be able to authorise the institution of a prosecution. The subtext is interesting because the court clearly suggested the crime of blasphemy is outdated. In the previous page of his judgment Mr. Justice Barrington said, “It would appear that the Legislature has not adverted to the problem of adapting the common law crime of blasphemy to the circumstances of a modern State which embraces citizens of many different religions and which guarantees freedom of conscience and a free profession and practice of religion”. The court was suggesting the Legislature should adapt the common law crime of blasphemy which, as we know, has changed many times over the years.

To suggest there is only one possible way of defining blasphemy is wrong. The original definition of blasphemy related only to the Christian religion and any challenge to the fundamentals of Christianity was blasphemy. That changed over the years as different clerics were prosecuted for challenging tenets of other branches of Christianity. The definition has changed. As Senator Regan said, the most appropriate way to adapt the offence of blasphemy to today’s world, if we accept that some sort of statutory definition might be required, would be to amend the Prohibition of Incitement to Hatred Act. That amendment should have been inserted here instead of the amendments proposed by the Minister in the new sections 35 and 36. That would have been a far more appropriate approach and I would be grateful if he would outline why that approach was not taken. Clearly the status quo could have been preserved in some other manner given that it has been preserved for the past ten years. The Minister has said that the section 13 offence could not have been repealed at this point. The Government could have given a commitment to amend the Constitution to remove the reference to the crime of blasphemy if not at the time of holding the referendum on the Lisbon treaty at some future date. That is in line with all recommendations of previous groups, in particular the Law Reform Commission.

I am grateful for the Minister’s comment - I hope I am not misquoting him - that the most optimal approach would be to abolish the offence of blasphemy by removing it from the Constitution. However, what he has done here is the worst of all possible worlds. He proposes to include a new definition of blasphemy based very much on the old law on blasphemy, in which there has not been a successful prosecution for more than 150 years. He proposed to base the definition on the 19th century understanding of blasphemy without seeking to adapt it as the Supreme Court has suggested to the circumstances of a modern state. Perhaps I will await the Minister’s attention again.

(Interruptions in the Chamber)

What the Minister is doing is the worst of all possible worlds. He is basing the new statutory definition on the old understanding of blasphemy from the 19th century, and including within the definition words and phrases that remain so vague as to render the new offence effectively unenforceable. Indeed I believe the Minister has said his intention is to make it virtually impossible to get a successful prosecution. It seems this stated intention undermines the entire point of introducing a new definition. While it is clearly welcome that no prison sentence is imposed, the fine is ludicrously high. We have not yet mentioned the proposed section 36. The powers of the Garda of entry by reasonable force if necessary and the seizure of copies of statements, etc., and the fine make it a draconian offence. However, it is still so vague in the terms used as to make it very difficult to see how any prosecutions could ensue and yet the danger is that they will ensue.

The Bill provides that persons who publish “matter that is grossly abusive or insulting in relation to matters held sacred by any religion” may be prosecuted for blasphemy. The concept of “matter that is grossly abusive or insulting” is extremely subjective and very vague. The Bill provides that it must thereby cause “outrage among a substantial number of the adherents of that religion”. However, with the proliferation of the Internet we know how quickly substantial numbers of people might be offended and feel grossly abused or insulted.

(Interruptions in the Chamber)

People justifiably feel outraged at the proposal to introduce the new statutory definition because they are rightly concerned that satirical matters, like the “Father Ted” series that poke fun at religion will now be subject to criminalisation. That is the fear.

(Interruptions in the Chamber)

The definition of religion is very broad in its terms, which might make it easier for a prosecution to be instituted. The definition of religion in section 36(4) states what it does not include as follows:

(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.

It clearly leaves wide open the possibility of all sorts of groupings of persons—–

(Interruptions in the Chamber)

Most people who have been contacting us have been opposing the idea of the blasphemy offence at all. Where we look at the definition of religion, the problem is that it is still too vague and leaves wide open the possibility of what I would describe as cranks. The danger is that it becomes a cranks’ charter. The Minister has said he hopes the State will not proceed and that prosecutions will not ensue by the State. However, we should remember that the Corway case was not a prosecution taken by the DPP, but a case taken against Independent Newspapers—–

(Interruptions in the Chamber)

—–by an individual who took offence at a satirical cartoon that he claimed caused offence to the Eucharist. There are cranks in all sorts of religions.

(Interruptions in the Chamber)

Anyone who has any regard for the history of censorship in Ireland will recognise a long history of repression in the name of religion. For a long time institutions such as the Magdalene laundries symbolised the sexual repression of women in particular in the name of religion and in the name of the domination in this society by the Catholic Church in particular. Anyone with regard for that would be very wary of the creation of a new statutory definition for an offence that seems to give this sort of elevated position to adherence to a religion to persons who may feel grossly abused or insulted in all sorts of ways in all sorts of satirical and political commentary and publications. That is the real concern. The Minister may have in effect said he does not want this to be a workable offence, but the reality is that by creating a statutory definition he is making an offence that will potentially be used against people. We will see a great deal of Garda time wasted if nothing else because cranks will come forward making complaints that they feel grossly abused or insulted by satirical matters.

I am very grateful to a new organisation, Atheist Ireland, which has made various comments about the legislation and has rightly criticised it as being both silly and dangerous in effectively reviving a medieval crime in a modern pluralist republic. It is quite right in that. When one considers the history of the blasphemy offence, that is what we are doing. We are changing the status quo of an unworkable offence. All the expert groups recognise it should be removed from the Constitution. We are actually making it more workable by placing a statutory definition in a modern law without considering ways to adapt it, particularly through the Prohibition of Incitement to Hatred Act in a way that would be much more appropriate to the needs of a modern pluralist state. The law will become absurd in practice. We will see groups rightly seeking to challenge the definitions etc. A great deal of time will be wasted in seeking to enforce it.

The writers of “Father Ted” and others have come out against it. Various people have pointed out different absurdities in it. This morning I suggested that Fr. Willie Russell from Rathkeale, County Limerick, who criticised those in his parish who appeared to be worshipping a tree because it took on the appearance, in their eyes, of the Blessed Virgin Mary, could be open to a charge of blasphemy because he said one cannot worship a tree. He was very critical - and perhaps insulting - of those who believe one could worship a tree. I urge the Minister at this late stage to accept Senator Regan’s amendment and to delete these provisions which are silly and dangerous.