What does the repeal of the blasphemy offence actually mean?
By Emma Sweeney | Nov 7 2018
On 26th October, a referendum was held and passed that removed Article 40.6.1.i from the Constitution, ending the state ban on blasphemy. The referendum has been anticipated for a long time, with disapproval of the article coming from high ranking figures like Minister for Justice Charlie Flanagan. The Minister had said that "... there is no room for a provision such as this in our Constitution." Previously, the 2009 Fianna Fáil-led government had intended to reform the related 1961 Defamation Act. However, then Minister for Justice Paul Gallagher saw that there existed a constitutional obligation to "recreate an offence against blasphemy" in the modified 2009 Defamation Act. He claimed that the government chose not to do this because of the need to hold a referendum on the constitutional ban on blasphemy. Fianna Fáil Minister of Justice, Dermot Ahern said that a referendum at that time was not a reasonable option given the current economic downturn.The Act stated that the Director of Public Prosecutions was the only person with the standing to bring a case under this provision
The blasphemy offence could be argued to have already passed into irrelevance before the referendum was held. The blasphemy portion of the 2009 Act was drafted in such a way as to raise the bar for prosecution to a very high level, making it near-impossible to be prosecuted for blasphemy. The Act stated that the Director of Public Prosecutions was the only person with the standing to bring a case under this provision. Along with this, the Act outlines that a person being prosecuted for blasphemy could defend themselves and their speech by arguing that there was genuine literary, artistic, political, scientific, or academic value in the offending words, a relatively easy defense to prove. Even before the 2009 Act was drafted and passed, the blasphemy offence was effectively moot, as no one had been prosecuted under it since 1885. However, there were arguments that the article's existence alone was controversial, as it represented an offence against freedom of speech and religion. [caption id="attachment_50881" align="aligncenter" width="658"]
Comedian and author Stephen Fry found himself the subject of a short Garda investigation following comments he made on an RTÉ show.[/caption]There seemed to be a genuine lack of interest in this referendum, with some arguing that the referendum was a waste of money given the offence's effective irrelevance. This was reflected in the voter turnout on 26th October, with only 43.87 percent of the electorate voting. Despite this, Amnesty International and the Irish Council for Civil Liberties campaigned for "Yes" votes while churches across the country were describing the provisions as largely obsolete.Colm O'Gorman argued that the result may prevent states, like Pakistan, that pointed to Ireland's blasphemy article to justify their own from continuing this obfuscation.
The amendment passed by a margin of 64.85 percent in favor of removing the mention of blasphemy against 35.15 percent opposed to removing it from the Constitution. Flanagan commented on the article's repeal that "... [we have] sent a message to the world... that laws against blasphemy do not reflect Irish values." Amnesty International stated that the result of the referendum is "... another important step towards a human-rights compliant Constitution." Colm O'Gorman argued that the result may prevent states, like Pakistan, that pointed to Ireland's blasphemy article to justify their own from continuing this obfuscation. Recently Pakistan's Supreme Court freed a Christian woman, Asia Bibi, from a death sentence for blasphemy against Islam. She had been on death row since 2010 for allegedly making derogatory remarks about Islam. There has been an outcry in Pakistan over this decision in which mobs threatened to lockdown the country while calling for the heads of the judges who decided this case. Despite blasphemy not being mentioned in the Constitution anymore, there is still the offence in the 2009 Act of "... publication or utterance of blasphemous matter..." against any religion. This Defamation Act can enforce a fine of up to €25,000 for blasphemy. There have been some concerns coming from bishops like Bishop Kenneth Kearon that Ireland did not replace the article with provisions protecting hate speech. The Prohibition of Incitement to Hatred Act 1989 does make it an offence to publish or distribute material that is threatening, abusive, or intended to incite hatred, though there have not been many cases that have been prosecuted using this legislation. Furthermore, religious freedom is already safeguarded under article 44.2.1 of the Constitution.