“It’s probably somewhat different in Ireland, in that we have a Constitutional requirement, which means that, you know, blasphemy, is an offence under our laws, and as a consequence, it has to have penalties which will be commensurate with that, and respect our Constitutional position, but, having said that, I think, over the period that it’s been there, as far as I can understand, there has been very few, perhaps one, case ever taken, which I think may have been unsuccessful, so it’s not a major issue, I think, for the vast majority of, sane, sensible people… In Ireland the laws that we have, based on the Constitutional position, would, in fact, you know, cover all religions, and indeed, we’ve seen where, you know, remarks passed have caused serious offence to people in other religions, and that has its own reactions, and its own ramifications, and I think in any society, I know there’s, you know, freedom of expression is very important, I mean it’s fundamental to democracy, and to be able to express your viewpoint is a fundamental, and in fact, can I just say, and this would be different than in Britain, in fact, it is a Constitutional requirement here to have freedom of speech, but I think most people, again, recognise that freedom of speech is not an absolute, it has to be done in a measured, responsible way, and, indeed, there, it can be, you can infringe, if you like, that entitlement by Incitement to Hatred Acts, which we have here, which has been contravened, and indeed there are other countries, you know, in Europe, like Germany, Austria and that, where, for example, you know, denial of the Holocaust is an offence punishable by imprisonment.”

All of these arguments have been addressed by Atheist Ireland, both in articles on this website and in submissions made to the Justice Minister, the Justice Committee and the Council of State while this Act was making its way through Parliament.

It was not Constitutionally necessary to pass this particular law. Indeed, it may have been unconstitutional to pass this particular law. It may not have been Constitutionally necessary to pass any blasphemy law. And the Constitution could have been amended in conjunction with the Lisbon II Referendum that was being held around the same time as the law was being passed.

The new Irish law does not protect the fundamental beliefs of all religions. It arbitrarily excludes what it describes as “cults” whose primary aim is to make profit or who employ oppressive psychological techniques. And it does not protect the fundamental beliefs of atheist citizens, merely those of citizens whose fundamental beliefs are religious.

Nobody is suggesting that the right to freedom of expression is absolute, merely that blasphemy is not a justifiable reason to qualify it. Incitement to Hatred laws criminalise harm to individuals, while blasphemy laws criminalise harm to ideas. The existence of Holocaust Denial laws in specific countries do not justify a blasphemy law in another country.

Senator Walsh’s arguments merely strengthen the case for the immediate repeal of this anachronistic law, and for the development of a modern secular Irish Constitution.

Atheist Ireland is seeking your help today to launch and shape a new long-term campaign with two important aims: to repeal the new Irish blasphemy law and to attain a secular Irish Constitution. Specifically, we are asking you to do three things: send us a message of support, get actively involved in shaping this project, and lobby to persuade Irish politicians to pursue these policies.

We will soon be holding public meetings around Ireland to launch this campaign. We want it to include religious and nonreligious people working together, within Ireland and with international support. The campaign has one common aim that transcends any other differences we may have: that all Irish citizens, of all beliefs and none, can live together in equality, with the State being neutral on matters of religion.

In recent decades, several independent and all-party committees (most whose members were Christians) have repeatedly called for an end to discrimination against nonreligious citizens in our Constitution. Not only has this not been done, but a new religious crime has now been created. The blasphemy law is the final straw. We need a secular Irish Constitution, and we need it now. Please help to make this happen.

Our Immediate Aim: Repeal the Blasphemy Law

The Defamation Act 2009 makes blasphemy a crime punishable by a €25,000 fine, after the Minister for Justice signs the commencement order in mid-October. Blasphemy is defined as “matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion” with safeguards to make it harder to prosecute.

Regardless of the detail, it is wrong in principle for a modern democratic republic to have any type of blasphemy law. Theological thought-crimes belong in the past. Religious and nonreligious people alike should be protected from harm and incitement to harm, but religious and nonreligious ideas alike should be open to any criticism. That is how human knowledge progresses. Blasphemy laws discriminate against nonreligious citizens, by protecting the fundamental beliefs of religious citizens only.

This law also has serious international impacts. Irish citizens could face blasphemy charges elsewhere under the European Arrest Warrant. Also, Islamic States are lobbying at the UN to make defamation of religion a crime internationally. Ireland has voted along with the other EU States against this, because Islamic States can use blasphemy laws to justify religious persecution. These Islamic States can now point to a modern pluralist Western State passing a new blasphemy law in the 21st century.

Our Overall Aim: A Secular Irish Constitution

We have a blasphemy law because the Irish Constitution of 1937 says we should have one. And our Constitution also discriminates against nonreligious citizens in many other ways. For example, you cannot become President or a Judge unless you take a religious oath asking God to direct and sustain your work. So up to a quarter of a million Irish people cannot hold these offices without swearing a lie. This is contrary to Ireland’s obligations under the UN Covenant on Civil and Political Rights.

The Preamble states that all authority of the State comes from, and all actions of the State must be referred to, the Most Holy Trinity. Article 44 states that the homage of public worship is due to Almighty God and that the State shall hold His Name in reverence. This is not merely an assertion of the right of citizens to worship this god. It is an assertion of the right of this god to be worshipped by citizens.

The Constitution also contains many other references to this god and to religion generally. Our national parliament reflects this by starting each day’s business with a prayer explicitly asking the Christian God to direct all of their actions. Under this guidance, they have legislated for many public policies that are heavily influenced by religion.

We should be removing these 1930s religious references from our Constitution, not creating new crimes to enforce them seventy years later. A modern secular Constitution would allow all citizens, whether religious or nonreligious, to live together as equals with the State being neutral on matters of religion.

Our Request to You: Please Help This Campaign

The blasphemy law is the final straw. We now need a secular Irish Constitution. We will soon be holding public meetings around the country to shape this campaign for equality for and by all Irish citizens, of any or no religious beliefs. But we will be much more likely to succeed if we have national and international support.

Here are three ways that you can help:

• One, please send us a message of support. Just a few lines will do. We want to be able to show that there is a wide support for these ideals.
• Two, please let us know if you would like to get actively involved in any way. You are more than welcome to help shape how this project evolves.
• Three, in whatever way you can, please help to lobby Irish politicians at national and international level to implement these policies.

This will be a lengthy campaign, but a very worthwhile one that you can be proud to have played your part in. We look forward to working alongside you to build an ethical and secular Ireland.

“The Act is subject to a commencement order. It is intended to commence all provisions of the Act simultaneously. However, it is not possible to make a commencement order at present as the Circuit and Superior Court Rules need to be amended to accommodate a number of procedural changes in the new legislation. It is not possble to give an exact date yet for commencement of the Act but it is expected to be mid to late October.”

The Minister has the option of commencing different parts of the Act at different times. Atheist Ireland will continue to ask him to delay commencing the blasphemy sections, until such time as a referendum can be held to remove the reference to blasphemy from the Constitution.

Atheist Ireland will now campaign for the repeal of this anachronistic and dangerous blasphemy law, and for a referendum to remove the blasphemy reference from the Irish Constitution, as part of our wider campaign for an ethical and secular Ireland.

We call on the Minister for Justice to delay signing the order that would make the blasphemy sections of the Defamation Act operable, until such time as a referendum can be held to remove the reference to blasphemy from the Constitution.

Ministerial Order

The Minister has the power to sign different provisions of the Act into law at different times.

He has already said that he does not want blasphemy to be illegal. He repeatedly told the Oireachtas that he only included the blasphemy sections into the Defamation Act because he was advised that he was constitutionally obliged to do so, and that to not do so would result in him having to withdraw the entire Defamation Bill.

The Minister has now satisfied the obligation that he stated himself to be under, and he has also succeeded in his more important stated aim of passing the Defamation Act. He should now delay making operable the sections of the Act that he says he does not want to be illegal, and give the Irish people the opportunity to address the issue by referendum.

Constitutional Issues

A citizen charged with blasphemy can still challenge the constitutionality of this law.

• It is inconsistent with the guarantees in our Constitution of freedom of equality, freedom of conscience and religion and freedom from religious discrimination.
• It reverses the burden of proof to the defendant in a criminal trial, and it does not meet the standard of prevention of public disorder that made the old English blasphemy law compatible with the European Convention of Human Rights.
• The definitions in the law are too vague to allow citizens to regulate their conduct, and it could make it unlawful for a religious citizen to inform his co-religionists about a statement he believes to be blasphemous.

Original Concerns

As well as the constitutional issues, our original concerns with this law still remain.

• It does not protect religious belief; it incentivizes outrage and it criminalises free speech. 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.
• It treats religious beliefs as more valuable than secular beliefs and scientific thinking. There is no equivalent of a blasphemy law for scientific ideas. We should respect people as individuals, but beliefs as abstract ideas should always be open to scrutiny and challenge.
• We should be removing 1930s religious references from the Irish Constitution, not legislating to enforce them. For example, conscientious Irish atheists are precluded from becoming President or judges because of the religious oath in the constitution.

Today we begin our campaign for the repeal of this law, as part of our wider campaign for an ethical and secular Ireland.

• The law is contrary to the guarantees of equality under the law enshrined in Article 40.1 of the Irish Constitution, and of freedom of conscience and religion enshrined in Article 44.2.
• The law is contrary to Article 44.2.3 of the Irish Constitution, which says that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
• The law shifts the burden of proof to the defendant in contravention of Article 38 of the Constitution, and of Schedule 1, Article 6, 2. and 3(a) of the European Convention on Human Rights Act, 2003.
• The law does not meet the standard of prevention of imminent public disorder that made the old English blasphemy law compatible with the European Convention of Human Rights.
• The definitions in the law are too vague to allow citizens to regulate their conduct, and it could make it unlawful for a religious citizen to inform his co-religionists about a statement he believes to be blasphemous.

Here is the full content of our letter:

Cover Letter

Dear President McAleese,

I write as Chair of Atheist Ireland, an advocacy group for an ethical and secular Ireland. We ask you to consider our concerns about sections 36 and 37 of the Defamation Bill 2006, to raise them during your consultation with the Council of State, and to refer these sections to the Supreme Court for a decision on their constitutionality.

The contents of our submission are as follows:

1. Preface

2. Section 36(2)
2.1. Equality and Freedom of Conscience
2.2. Outrage versus Public Disorder
2.3. Vagueness of Definitions

3. Section 36(3)
3.1 Burden of Proof

4. Section 36(4)
4.1. Freedom of Religion and from Discrimination

5. Conclusion

We are not seeking to convince you that our arguments are necessarily correct; merely that they raise sufficient concerns to warrant you referring the matter to the Supreme Court, so that all of the arguments for and against can be teased out in appropriate detail.

The Constitutionality of the new Blasphemy Law

1. Preface

Please consider that you as President, the Council of State, and the Supreme Court judges, may have a conflict of interest in this matter. You will be considering the religiously inspired offence of blasphemy, and you have all taken office by making religious declarations which, in the case of you and the judges, include the request that “God direct and sustain” you. Please also consider that this exclusionary declaration precludes any of our members, as conscientious atheist Irish citizens, from holding any of the offices that will ultimately decide on this matter. In this context, we ask you to take particular note of our concerns.

2. Section 36 (2)

This states that a person publishes or utters blasphemous matter if (a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and (b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

2.1. Equality and Freedom of Conscience

We believe this is contrary to the guarantees of equality under the law enshrined in Article 40.1, and of freedom of conscience and religion enshrined in Article 44.2.

The Christian nature of significant parts of the Constitution suggests that its framers, while respecting the right of citizens to believe in no gods or false gods, nevertheless saw the concept of blasphemy as protecting only the Christian religion. The old common law crime of blasphemy seems not to have survived the transition to the new Constitution, as it conflicted with the rights to equality and freedom of conscience and religion.

In the 1999 Corway v Independent case, Barrington J said that: “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.”

This passage suggests that merely defining the old common law offence, or redefining a similarly discriminatory offence, would not pass constitutional muster: it has to be “adapted” to the circumstances of a modern State. The current Defamation Bill attempts to move towards this by redefining blasphemy as protection from outrage and extending such protection to citizens of any religion. However, in doing so, it arbitrarily excludes such protection from citizens who have a fundamental belief system based on no religion (or indeed based on a religion which a court rules not to be a religion.)

Is this constitutional? Returning to the 1999 Corway v case, the Supreme Court found that the Constitution guarantees freedom of conscience, religion and equality before the law to “all citizens, be they Roman catholics, Protestants, Jews, Muslims, agnostics or atheists.” The 1996 Constitutional Review Group noted that Walsh J had said in 1974 that this includes the right “to have no religious beliefs or to abstain from the practice or profession of any religion.” The Review Group concluded that “the guarantee probably also extends to philosophical beliefs such as humanism and may possibly also extend to other moral and ethical belief systems such as vegetarianism.”

Also, Article 44.2.3 says that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. This subsection provides for just such disabilities and discrimination against those Irish citizens whose religious status is that they are not religious.

2.2. Outrage versus Public Disorder

In 2007, the English High Court examined whether the (now abolished) common law against blasphemous libel was compatible with Article 10 of the European Convention of Human Rights. The case was R (on the application of Green) v The City of Westminster Magistrates Court [2007] EWHC 2785

In that case, the English High Court held that it was the prevention of imminent public disorder that made the old English blasphemy law compatible with the EHCR. But there is a big difference between the concept of “causing outrage” (which is what our Bill outlaws) and the risk of public disorder. That is particularly so with our Bill, where a potential defence exists of proving that blasphemous matter has artistic or other value.

This could lead to a situation where blasphemous matter was published, and it caused a reaction that went beyond causing outrage and did actually lead to public disorder, yet a defence would exist that could make it irrelevant that actual public disorder had been caused. So clearly this law is not intended to prevent public disorder.

If the Irish Supreme Court applies the same criteria to the constitutionality of this Bill, as the English High Court did to the compatibility of the English law with the EHCR, then this Bill could be unconstitutional.

(Note: thanks to Eoin O’Dell for bringing this argument to our attention.)

2.3. Vagueness of Definitions

This law is too vague to enable citizens to regulate their conduct. Unspecified matter is declared to be “grossly abusive” and “insulting” without clarifying who or what is being “grossly abused” or “insulted”. The phrase “in relation to matters” is an abstraction conveying the victimless concept of blasphemous matter being matter that abuses other matter. How can any citizen possibly know all of the “matters” that may be “held sacred” by “any” or indeed all “religions”?

What is Gross Abuse and Insult?

How are “gross” “abuse” and “insult” and their impact on “outrage” to be measured? Is it based on the sensitivities of a hypothetical reasonable person, or of an aggrieved religious adherent? If the latter, the provisions are self-conflicting in that religions have different gods, each the only true god, so matters held sacred by one religion could cause outrage to adherents of other religions.

(For example, if a fundamentalist Protestant preacher called the Pope the Antichrist, a substantial number of Roman Catholics might be outraged. Yet to charge such a person with blasphemy would surely be contrary to the constitutional guarantees of freedom of conscience and religion.)

What is a Substantial Number?

What is “a substantial number of adherents” of a religion? Is it an actual number, or a proportion? If it is an actual number, then the law discriminates against adherents of smaller religions. If it is a proportion, then the law discriminates against adherents of larger religions. Both are contrary to Article 44.2.3 of the Constitution.

(For example, the latest census lists 504 Baha’is and 3.68m Roman Catholics. If “a substantial number” is an actual number, then the law discriminates against Baha’is by making it much easier to blaspheme against their sacred beliefs, and if the number is higher than 504 then it is actually legal to blaspheme against their beliefs. On the other hand, if “a substantial number” is a proportion of adherents of a religion, say 10%, then fifty Baha’is would have more legal protection than would 350,000 Roman Catholics.)

Who is Deemed to Cause Outrage?

The phrase “intends to cause such outrage” seems to be based on a 1991 suggestion by the Law Reform Commission. They recommended deleting blasphemy from the Constitution, and suggested a fall-back position that defined blasphemy as “matter the sole effect of which is likely to cause outrage…” The definition in this new law excludes the word “sole” and thus makes a far wider range of matter potentially blasphemous.

Using the broader definition in this law, if a religious citizen was outraged by matter that he believed to be blasphemous, he would be outlawed from bringing that matter to the attention of other adherents of his religion, because he in turn would have to publish the matter to them in order to do so. This is contrary to the constitutional right of freedom of expression.

(For example, if the Danish cartoon incident was to be repeated here, and if the cartoons were found to be blasphemous, then the Muslim campaigners who republished the cartoons, by bringing them to the attention of other Muslims, would themselves be guilty of publishing or uttering blasphemous matter. They would not be saved by the defence in section 36(2)(b) as they clearly would have intended to cause outrage among their fellow Muslims. Nor would they be saved by the defence in section 36(3) as that refers to the value being inherent in the matter itself, not in the motivation for publishing or uttering it.)

3. Section 36 (3)

This states that 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.

3.1. Burden of Proof

This subsection shifts the burden of proof to the defendant in contravention of the accepted interpretation of Article 38 of the Constitution, and of Schedule 1, Article 6, 2. and 3(a) of the European Convention on Human Rights Act, 2003. It makes the defendant, in a criminal case, prove his or her innocence by reference to the imagined thoughts of a non-existent person.

On the other hand, if this burden of proof were to be set very low, even to the extent of being in effect reversed, then, ultimately, the crime that this law would create is that of publishing or uttering matter that has no genuine literary, artistic, political, scientific, or academic value. Otherwise, you could cause outrage or even public disorder, and you would not be convicted under this law.

So the higher the burden of proof, the more the presumption of innocence is undermined; and the lower the burden of proof, the more the requirement to prevent public disorder (as a reason for restricting freedom of expression) is undermined.

4. Section 36 (4)

This states that “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.

4.1. Freedom of Religion and from Discrimination

Article 44 guarantees freedom of religion, whilst Article 44.2.3 says that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. Yet this subsection specifically imposes disabilities and discriminates against some citizens of minority or no religions, on exactly these grounds.

This subsection also arbitrarily describes some religions as cults, without defining either religion or cult (In our opinion, ‘cult’ is a label that adherents of a large religion give to a small religion). In the context of examining “matters held sacred”, it should not be the role of the Courts to determine what is or is not a religion.

In the 1979 McGrath and O Ruairc v Maynooth college case, Henchy J found that “the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion”. In the 1999 Corway v Independent blasphemy case, the Supreme Court ruled that, under the Constitution, “the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality”.

Making profit is not contrary to public order or morality. Why should a religion not have the principal object of making profit, if its God reveals a divine instruction to do so? Article 44.2.5 of the Constitution says that every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions.

The final clause could see Roman Catholicism deemed to be not a religion. Its Church employs oppressive psychological manipulation by, for example, threatening children who have yet to reach the age of reason with psychologically terrifying ideas such as the Devil and Hell, both in its teachings and as part of compulsory instruction in our schools.

5. Conclusion

Finally, we ask you to consider that all judges of the State have the same conflict of interest as yourself on this matter. In principle, how is it possible for a person charged with blasphemy in Ireland to get a fair trial, when all of the available judges have asked a specific God to direct them in their work?

In spite of the numerous conflicts, contradictions and illogicalities in the Bill, on behalf of Atheist Ireland, I ask that you refer this Bill to the Supreme Court to rule on its constitutionality.

The law now only has to pass through Seanad before being signed into law by President. It is scheduled for 10.30 am tomorrow morning in the Seanad. The Atheist Ireland AGM will plan a response to this blasphemy law, between 2-5pm this Saturday in Wynns Hotel Dublin. Members of the public are welcome to attend. Please attend, and also invite anyone you think might be interested in campaigning for an ethical and secular Ireland.

Here is the full wording of the blasphemy sections, and the amendments that are being proposed to them. Please contact your TDs today and ask them to vote for amendments number 22 and 26, which would delete the blasphemy sections from the Bill.

Proposed amendments to the blasphemy sections:

Overall, there are 33 amendments proposed to the Defamation Bill. Five of these relate to the blasphemy section. They are amendments numbers 22 to 26.

Amendment 22 would delete the entire section on the offence of blasphemy. This is proposed by Charles Flanagan of Fine Gael and Aengus O Snodaigh of Sinn Fain.

Amendment 23 would change the fine from €100,000 to €1,000. This is proposed by Pat Rabbitte of the Labour Party.

Amendment 24 would change the fine from €100,000 to €25,000. This is proposed by Dermot Ahern, Minister for Justice, who said at Committee stage that he would do this.

Amendment 25 would exclude from the definition of “religion” 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.” This is proposed by Pat Rabbitte of the Labour Party.

Amendment 26 would delete the entire section on the seizure of blasphemous material. This is proposed by Charles Flanagan of Fine Gael and Aengus O Snodaigh of Sinn Fain.

The wording of the blasphemy sections:

Section 36 of the Bill covers publication or utterance of blasphemous matter. Section 37 covers seizure of copies of blasphemous statements. The full text of these sections is:

36. Publication or utterance of blasphemous matter.

(1) A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €100,000.

(2) For the purposes of this section, a person publishes or utters blasphemous matter if (a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and (b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

(3) 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.

37. Seizure of copies of blasphemous statements.

(1) Where a person is convicted of an offence under section 36, the court may issue a warrant (a) authorising any member of the Garda Siochana to enter (if necessary by the use of reasonable force) at all reasonable times any premises (including a dwelling) at which he or she has reasonable grounds for believing that copies of the statement to which the offence related are to be found, and to search those premises and seize and remove all copies of the statement found therein, (b) directing the seizure and removal by any member of the Garda Siochana of all copies of the statement to which the offence related that are in the possession of any person, (c) specifying the manner in which copies so seized and removed shall be detained and stored by the Garda Siochana.

(2) A member of the Garda Siochana may (a) enter and search any premises, (b) seize, remove and detain any copy of a statement to which an offence under section 36 relates found therein or in the possession of any person, in accordance with a warrant under subsection (1).

(3) Upon final judgment being given in proceedings for an offence under section 36, anything seized and removed under subsection (2) shall be disposed of in accordance with such directions as the court may give upon an application by a member of the Garda Siochana in that behalf.

Already, in 2005, an Austrian cartoonist has faced extradition to Greece on blasphemy charges, when a book of his cartoons was published there. And Turkey, which may soon be a European Union member, is this month trying a novelist for blasphemy. This is yet another reason stop the proposed Irish blasphemy law.

The European Arrest Warrant

The European Arrest Warrant was introduced to speed up the extradition of suspected or convicted criminals between European Union countries. Some crimes are automatically covered by the act, such as terrorism, fraud, child pornography, racketeering and murder. Other crimes can also be covered, if they attract a 12 month prison sentence in the country seeking the extradition, and if the offence is also a crime in the country where the person whose extradition is sought is living.

The case of Gerhard Haderer

In 2002, Austrian cartoonist Gerhard Haderer wrote a book of cartoons satirising the life of Jesus. The book sold well in Germany, and was translated into 10 international languages. When it was published in Greece, it was banned, and Haderer was charged with blasphemy. In January 2005, he was convicted of blasphemy in his absence, and was given a six-month suspended prison sentence. The Greek courts then sought his arrest under the terms of the European Arrest Warrant.

Because blasphemy remains an offence in the Austrian legal code, Hadarer could not automatically escape the decision of the Greek court. He appealed his conviction in Greece, risking a two-year prison sentence in doing so. Fortunately, the Greek Supreme Court overturned the original decision, and Hadarer was free. But, despite being an Austrian citizen living in Austria, his freedom had been determined by decisions made in Greece about the Greek interpretation of blasphemy laws.

The case of Nedim Gursel

Later this month, on June 25, a Turkish author will be tried for blasphemy because he wrote a novel that questions the ideas of belief and violence in Islam. Nedim Gursel Says that his book, “Daughters of Allah”, is a work of fiction and that his extensive research included consultation with religious leaders. Nevertheless, he faces up to a year in jail if convicted, because a Turkish citizen complained that he had used inappropriate language against the Prophet Muhammad, his wives and the Koran.

In April, Gursel wrote a public letter to the Turkish Prime Minister, in which he noted the damage that such trials could cause to Turkey’s efforts to join the European Union. No doubt the supporters of Turkey’s blasphemy laws would be delighted if they could counter this by pointing to Dermot Ahern’s revival of the Irish blasphemy laws. And maybe, in the future, Turkey can celebrate its entry to the European Union by extraditing an Irish citizen to spend time in a Turkish prison for blasphemy.

Sources

• Framework text of the European Arrest Warrant
• Artists and the European Arrest Warrant
• Muslim outrage puts Turkish writer in the dock for blasphemy

The Venice Commission, the body that advises the Council of Europe on constitutional matters, has just published its annual report for 2008. It includes a report on freedom of expression and freedom of religion which was co-written by the Commission’s Irish member, Finola Flanagan, the Director General and Senior Legal Advisor in the Office of the Attorney General. 

The report concluded that incitement to hatred, including religious hatred, should be a crime; that insult to religious feelings should not be a crime; and that the offence of blasphemy should be abolished (which is already the case in most European States) and should not be reintroduced.

Democracy must not fear debate

The report advised that the purpose of any restriction on freedom of expression must be to protect individuals, rather than to protect belief systems from criticism. It said people must be able to criticise religious ideas, even harshly and unreasonably, and even if it hurts other people’s religious feelings, as long as they do not advocate hatred against an individual or groups.

The report said that democratic societies must not become hostage to the excessive sensitivities of certain individuals, and that freedom of expression must not indiscriminately retreat when facing violent reactions. Instead, the level of tolerance of these individuals and of anyone who would feel offended by the legitimate exercise of the right to freedom of expression should be raised. 

The report found that it is not exclusively or even primarily for the courts to find the right balance between freedom of religion and freedom of expression, but rather for society at large, through rational discussions between all parts of society, including believers and non-believers.

It concluded that: “Democracy must not fear debate, even on the most shocking or anti-democratic ideas. It is through open discussion that these ideas should be countered and the supremacy of democratic values be demonstrated. Mutual understanding and respect can only be achieved through open debate. Persuasion, as opposed to ban or repression, is the most democratic means of preserving fundamental values.”

Existing Irish law is adequate

In an appendix to the report, in which Flanagan answered various questions about Ireland, she was asked: “Is there in your opinion/according to the leading doctrine a need for additional legislation concerning: (a) the prohibition of blasphemy or religious insult? (b) incitement to religious hatred? (c) hate speech concerning a group? (d) speech or publication with a discriminatory effect?” 

She replied: “In general the legislation provides adequately for these matters. The criminal law, together with the Prohibition on Incitement to Hatred Act and the Criminal Justice (Public Order) Act, provide for appropriate offences. In addition to legislation outlined above, there is equality legislation which prohibits discrimination on grounds of religious belief (or the absence of belief) and on grounds of racism.”

She then cited two bodies that have recommended that the offence of blasphemy be removed from the Irish Constitution: the 1991 Law Reform Commission chaired by Justice Ronan Keane, and the 2008 All-Party Oireachtas Committee on the Constitution. A third independent body, the 1996 Constitution review Group chaired by TK Whitaker, also made the same recommendation.

Source material

• The Annual Report of the Venice Commission, adopted this week
• The Blasphemy Report of the Venice Commission, adopted last October
• Appendix re blasphemy law in 12 European countries (including Ireland)