Sunday, 12 July 2009

An Irish Problem to frustrate an Irish solution?

There's a phrase in Irish politics: "an Irish solution to an Irish problem", which usually means a compromise that's been created to solve a problem that could only arise in Ireland. Could this new Defamation Act be an Irish Problem to frustrate an Irish solution?

Arguably the court ruling in Corway v Independent Newspapers was an Irish solution - here the Supreme Court ruled that there could be no prosecution for blasphemy because, while it is in the Constitution (article 40), there's no legislation for the "crime" of blasphemy. Per paragraph 36:

"There is no doubt that the crime of blasphemy exists as an offence in Irish Law because the Constitution says so. It says that the publication or utterance of blasphemous matter “is an offence which shall be punishable in accordance with the law”. Yet the researches of the Law Reform Commission would appear to indicate that the framers of the Constitution did not intend to create a new offence. This may explain why there is no statutory definition of blasphemy. The Censorship of Films Act, 1923 S.7 (2) and S.13 (1) of the Defamation Act, 1961 assume that the crime exists without defining it. 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."


And 38:

"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. As the Law Reform Commission has pointed out neither the actus reus nor the mens rea is clear. The task of defining the crime is one for the Legislature, not for the Courts. 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."


And that could have been the end of it, but a few months ago the Minister for Justice, Dermot Ahren, revealed plans to legislate to outlaw blasphemy (in order to fulfill a supposed obligation set by the constitution), despite the Committee on the Constitution recommendation on the subject being a referendum to amend Article 40 to bring it into line with the European Convention on Human Rights. Frank Schnittger wrote a good background on the proposed act back in May.

On Friday, the new Defamation Bill passed in the Seanad, though only after the government whips called for a walk-through vote - giving the government time to round up 2 more Senators to reverse the first (lost) electronic vote. The Bill will be signed into law by the President - which is merely a formality at this point, since she cannot refer the law to the Supreme Court on grounds of constitutionality.

The Bill as passed by the Dáil is here. The article concerning blasphemy is Article 36 (Page 26 on the PDF).

The decision to draft and pass article 36 is a strange one. The reception by the public has been very negative, going by the various letters to the editor I've read in different newspapers, and a referendum could presumably be done at the same time as the Lisbon Treaty referendum on October the 2nd (though that is no longer a realistic possibility now that the Dáil's in recess until September). The reasoning behind the legislation has been confused too - the only real reason that's been given is that the Constitution must be enforced, and that nobody should take the law seriously - but in that case why work on passing the law in the first place; why not have a quick referendum and be done with it, instead of tempting right-wing religious groups with a legal means of suppressing contrary views?

The excuse that the law was one that would never be really be seriously tested is given lie with the changes over article 36(1). The original upper limit of the fine that could be imposed was €100,000, on the thinking that the higher the fines are, the less likely anyone is of actually being convicted. Yet, this was seen as too harsh, and the fine cap is now €25,000. ["The Minister added that he had amended the Bill to remove the threat of imprisonment and reduce the fine for blasphemous libel from €100,000 to €25,000."] Still a hefty sum; but surely this weakens the argument that the law is being made so ridiculous that it will never be enforced in practice?

It's hard to see the reasoning behind each part of the (completely unnecessary) process.

And that's long before you get to the meat of the argument that in a diverse and open society there shouldn't be the legal protection of ideas or beliefs from criticism, and that setting the limits of free speech at blasphemy is far too restrictive.

It's an amazingly wrong-headed and ridiculous law that doesn't represent the Ireland of today.

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