Submission to Justice Committee

The All-Party Justice Committee is meeting today to discuss the Defamation Bill, and we have arranged to send them a submission which will be circulated to them before they meet. Here is a draft of this submission. Any feedback welcome, before we send it over to the Committee.

Update: the submission has now been sent to the Justice Committee.

Blasphemy is a Victimless Crime

Submission from Atheist Ireland to Joint Committee on Justice

May 20, 2009

1. An introduction to Atheist Ireland
2. The concept of a blasphemy law
3. The detail of this proposed law
4. A referendum with Lisbon is practical
5. The international impact of this law

1. An introduction to Atheist Ireland

Atheist Ireland is an advocacy group that promotes reason and atheism over superstition and supernaturalism, and that campaigns for an ethical and secular Ireland. We work alongside the Humanist Association of Ireland and other relevant groups, and we will be in touch with you on many  issues in the future.

We have evolved from an internet discussion forum of over a thousand members, into a real-life organisation with members and/or active local groups so far in Clare, Cork, Donegal, Dublin, Galway, Kildare, Laois, Limerick, Longford, Louth, Mayo, Meath, Monaghan, Sligo, Waterford, Wexford, Wicklow, Northern Ireland and abroad.

2. The concept of a blasphemy law

You may be tempted to focus today on the details of the various amendments on your agenda regarding blasphemy. Please focus instead on the bigger picture. The problem with the proposal before you is the concept of a blasphemy law, and not its details. 

Blasphemy is essentially a religious concept, not a civic or criminal one. It originated in Christian canon law. The English courts justified enforcing blasphemy laws on the grounds that Christianity was parcel of the laws of old England, and therefore to reproach the Christian religion was to subvert the law. That is not the case in the Republic of Ireland in 2009.

Blasphemy simply has no place in a modern democratic Republic. People need protection from harm, but ideas and beliefs should be rigorously challenged and they should always be open to disrespect and ridicule. Ideas and beliefs about religion should have no more or no less protection than ideas and beliefs about science, politics, culture or any other area of discourse.

3. The detail of this proposed law

The proposal before you has mutated into a dangerous, undefinable, unmeasurable, and probably unenforceable law. We will outline here five of the difficulties, not to suggest that you attempt to resolve them, but to demonstrate to you that they are irresolvable within this Bill.

Firstly, this Bill is becoming another “Irish solution to an Irish problem” comparable to the absurd 1979 law that told adults they could buy condoms if they had a prescription from their doctor. It seems designed to create the impression that there is a serious law being enacted, while nodding and winking at the people who it criminalises, and hinting that it will never be enforced in practice. This brings our laws, and our legislature, into disrepute. Also, in practice, we cannot be certain that it will never be enforced. Unnecessary Irish laws can be interpreted in unexpected ways, as we discovered with the X Case.

Secondly, independently of whether we should have a blasphemy law, such a law should not be located in a Defamation Act. Defamation is a civil matter. Blasphemy is a criminal matter. Defamation consists of publishing a statement concerning a person. Blasphemy does not consist of a statement concerning a person. The debate about blasphemy should be disentangled from the passage of the new Defamation Bill. You should ask the Attorney General to find a way to do this. Blasphemy should never have been included in the 1961 Defamation Act. Please do not compound this mistake by repeating it almost half a century later.

Thirdly, this law is dangerous. It encourages and incentivizes outrage, because it makes the expression of outrage one of the triggers for identifying blasphemous matter. The problematic behaviour here is the outrage, not the expression of different beliefs. Instead of incentivizing outrage, we should be educating people to respond in a more healthy manner than outrage when somebody expresses a belief that they find insulting. More worryingly, this law would encourage, reinforce and protect the type of orchestrated outrage that Islamic fundamentalists directed against cartoonists and novelists.

Fourthly, many aspects of this law are undefinable, unmeasurable and probably unenforceable. And the more you try to amend it, the more complicated this problem becomes. What is a religion? Who decides? Does a religion need a deity? Why or why not? Who denies religious status to a self-styled religion? What if they react to this denial by becoming outraged at a blasphemous rejection of their beliefs? What is a sacred matter? Who defines whether a specific matter is sacred? Can a criminal matter be considered sacred? 

How do you quantify an emotion like outrage? What is a substantial number of adherents of a religion? Is it a specific number of people, in which case either small religions could be excluded or else a small proportion of Catholics could trigger a prosecution? Or is it a proportion of the adherents, in which case 100 outraged Sikhs could have more influence than 300,000 outraged Catholics? Could two outraged members of a ten-strong Jedi church trigger a prosecution? How does an outraged person prove they are a member of a specific religion? How do you define intent? Where does the onus of proof lie? 

What does genuine artistic value mean, and how does it differ from non-genuine artistic value? Does creation theory have genuine scientific value, if it outrages members of another religion? Who is the reasonable person who decides on the genuineness of ambiguous literary value? Why is the onus of proof on the defendant, in a criminal matter, to prove that somebody else would make a particular value judgment about something they have said or written or drawn? 

Fifthly, please recognise that many atheists hold beliefs that are as fundamental to us as religious beliefs are to other people. Why are we excluded from this Bill? What happens if we get outraged by passages in the Christian Bible or the Koran about matters that are fundamental to us? What if we get outraged by statements made by Cardinal Murphy O’Connor, who believes that atheists are not fully human? Is it not unconstitutional to explicitly give religious believers more rights than are given to atheists, in this specific area of protection from being outraged about things people say about our fundamental beliefs or philosophical worldviews?

If this law is passed, we in Atheist Ireland intend to test its legitimacy as soon as practicable. We will not accept another “Irish solution to an Irish problem” on a matter as fundamental to us as this.

4. A referendum with Lisbon is practical

In recent years, the Oireachtas has asked three different independent or all-party groups to assess this and related issues: the 1991 Law Reform Commission, the 1996 Constitution Review Group and the 2008 All-Party Committee on the Constitution. All three groups have recommended deleting the reference to blasphemy from the Constitution. Please respect their impartial research and the wisdom of their identical conclusions. 

It is perfectly practical to ask the people to delete this Constitutional clause alongside the coming Lisbon Referendum. Please decide to do so. You know that it is the right thing to do. Indeed, it is arguable that the crime of blasphemy, as envisaged in 1937 and 1961, is itself incompatible with other aspects of the Constitution. Unless there is one established State religion, the very concept of a civic crime of blasphemy does not even make sense. As already mentioned, it could also be unconstitutional for the State to give greater protection to the fundamental beliefs of religious people than it gives to the fundamental beliefs of atheists.

Ultimately, we should be removing many 1930s religious references from our Constitution, not legislating to enforce them. All of the independent and all-party committees that have reviewed the Constitution agree with this. We should remove the references to God in the preamble. We should remove the requirement that the President and Judges must swear religious oaths. We should remove the clause that enshrines the right of the Christian God to be worshipped. 

5. The international impact of this law

Finally, please consider the international impact of this law. In other modern democracies, seeing Ireland even debate this law is already making us look like a backward country. And in some Islamic countries, Ireland passing this law will be used to politically justify their own more Draconian blasphemy laws, and the infringements on human rights that follow from them.

As you know, at the UN last December, Ireland voted that there should not be such a crime as “defamation of religion”. Ireland voted with the other EU states against mostly Islamic States. The “defamation of religion” vote was at first passed and later removed from the final declaration. The Minister for Foreign affairs, Micheal Martin, later explained why Ireland had taken this position. He told the Dail that:

“We believe that the concept of defamation of religion is not consistent with the promotion and protection of human rights. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief.”

What has happened since December to change this sensible policy? Nothing. Minister Martin’s statement represents the outcome of examining the evidence rationally, and coming to a conclusion based on doing the right thing instead of the politically expedient thing. Please take the same approach to this proposed blasphemy law, and enable us all to move forward towards building an ethical and secular Ireland.