Ending blasphemy laws in Ireland and Pakistan – my talk at TCD Law Review Panel

by Michael Nugent on October 5, 2017

I gave this talk yesterday at the TCD Law Review Panel. The other speakers were Dr Ali Selim, William Richardson and Neville Cox.

I will start by welcoming that the Government is finally proposing a date for a referendum to remove the offence of blasphemy from our Constitution, nearly a decade after Dermot Ahern surprised everyone by adding a new definition of blasphemy, at the last minute, into the revised Defamation Act.

There has been a lot of revisionism about this law. Some defenders claim that it was designed to be unenforceable, but the opposite is true. It was designed specifically to satisfy legal advice that the Government was obliged to make the Constitutional offence enforceable.

The original Bill had a much higher fine, and fewer safeguards. The Labour Party proposed these safeguards, then withdrew them after Atheist Ireland lobbied them to simply oppose the Bill. Fianna Fail then adopted Labour’s safeguards, in order to embarrass the Labour Party.

Atheist Ireland has campaigned against this new law since it was first announced, including by lobbying Irish politicians and international regulatory bodies, and addressing the Constitutional Convention on the issue.

We also campaign against blasphemy laws and related offences in Islamist regimes, where people are assaulted, murdered, jailed, and executed by religious authoritarians who like to point at Western blasphemy laws to justify their own barbaric infringements on human rights.

When we first opposed this law, the Department of Justice bizarrely replied that they didn’t have to listen to some crackpot in an attic somewhere. Since then, successive Governments have accepted the inescapable logic that the blasphemy law must go, but they somehow haven’t got around to actually doing it for nearly a decade.

Our Constitutional offence of blasphemy is both ridiculous and dangerous.

It is ridiculous because it implies that the creator of a universe of one hundred billion galaxies, if such a creator existed, would require that its rights and feelings be protected by Eamon de Valera and the Irish Parliament on planet Earth.

And it is dangerous for four reasons:

1. Our blasphemy law silences media and incentivises outrage
2. It treats religious beliefs as more valuable than secular beliefs
3. Blasphemy laws are used to infringe on human rights around the world
4. We should be removing, not reinforcing, 1930s religious references in the Irish Constitution

1. Our blasphemy law silences media and incentivises outrage

We have yet to see a formal blasphemy case being taken, but the very presence of the law causes the media to self-censor itself. We in Atheist Ireland have direct experience of media outlets, ranging from regional newspapers to national broadcast media, choosing not to publish material in case it might fall foul of the blasphemy law.

Ambiguous, subjective, religiously inspired laws can be enforced unpredictably. When the 1983 pro-life referendum was passed, nobody dreamed that the State would used it to prevent a raped teenager from leaving the country.

Also, under this law, if someone expresses one belief about ‘matters held sacred’, and some other people think that this insults a different belief about ‘matters held sacred’, then those people can become outraged, and this outrage can trigger a legal case against the first person.

The problematic behaviour here is the outrage, not the expression of different beliefs, however insulting they may be towards ‘matters held sacred’. Instead of incentivising outrage, we should be educating people to respond in a more constructive manner than outrage when somebody expresses a belief that they find insulting.

The recent police investigation into whether Stephen Fry committed blasphemy on RTE brought us a step closer to this problem, which Atheist Ireland has warned about since the law was passed.

The reason for ending the investigation is potentially more dangerous than a prosecution would have been. The police did not deny that the comments were grossly abusive or insulting in relation to matters held sacred by a religion.

Instead, the police said that they had failed to find a large number of people outraged by the comments. This creates a legal incentive for people to demonstrate outrage when they see or hear something that they believe is blasphemous.

After Islamist terrorists murdered cartoonists of Charlie Hebdo magazine in Paris, Ali Selim said that he would use the Irish law, if he could, to prevent Irish publications from reproducing the Charlie Hebdo cartoons.

Based on the Stephen Fry investigation, the police would advise Ali to go away and come back when he can show that a large number of people are outraged by the cartoons. That is not something that our laws should be encouraging, and I assume that Ali Selim would not encourage that either.

2. Our blasphemy law treats religious beliefs as more valuable than secular beliefs

International human rights laws are clear that the right to hold nonreligious philosophical convictions is as worthy of protection as the right to hold religious beliefs. But blasphemy laws protect only religious believers, and not atheists, from being outraged.

Based on my atheistic philosophical convictions, I find it abusive and insulting that the Christian Bible suggests that a woman should be stoned to death for not being a virgin on her wedding night, or that it is okay to kill your slave if he dies slowly, or that effeminate people are unrighteous, or that women must not teach and must learn in silence.

Based on my atheistic philosophical convictions, I find it abusive and insulting that the Quran suggests that men can beat their wives in certain circumstances (4:34), that women’s testimony is worth half that of a man (2:282), that women inherit half what a man does (4:11), that you should cut off the hands of thieves (5:38), that you should kill disbelievers (4:89), and that you should fight non-Muslims until they are in a state of subjection (9:29).

I also find it abusive and insulting that some Christians and Muslims teach impressionable children false beliefs that harm the ongoing human quest for knowledge. For example, that the creator of the universe impregnated a virgin to give birth to himself, or that many dead bodies rose from their graves and walked through Jerusalem when Jesus died, or that Mohammad split the moon in two or flew on a winged horse.

Based on my atheistic philosophical convictions, I hold my beliefs just as strongly and just as sincerely as Christians and Muslims hold their beliefs. Reason, empathy, compassion, fairness, justice, liberty, and human rights are as important to me as ‘matters held sacred’ are important to them.

If enough atheists are outraged about these passages, should the Christian Bible and the Quran and Hadiths be banned? Of course not. Christians and Muslims should be allowed to publish and propagate their beliefs in ways that I find abusive and insulting, and I should be allowed to criticise those beliefs in ways that they find abusive and insulting.

3. Blasphemy laws are used to infringe on human rights around the world

Alleged blasphemy frequently leads to arbitrary arrest, detention, poor treatment in custody including torture, dubious legal procedures and poor application of justice. Governments use blasphemy laws to silence political opponents, individuals fabricate charges against others, religious extremists use blasphemy laws to attack opponents, and religious authorities can impose religious orthodoxy with the sanction of the state.

Islamic States, both at the United Nations and at the Organisation of the Islamic Conference, have been campaigning to have laws against blasphemy, or defamation of religion, implemented internationally. They make political use of blasphemy laws which are recent innovations, passed in western states such as Ireland.

Heiner Bielefeldt, the former United Nations Special Rapporteur on Freedom of Religion or Belief, shares this concern. When Atheist Ireland was preparing our submission to the Constitutional Convention, he offered us this quote to include:

“Of course you are right that the major damage done by this legislation is the international one. I wouldn’t expect any harsh verdicts being handed down in Ireland, but those countries that continue to have an intimidating anti-blasphemy practice like to quote European countries to unmask Western hypocrisy. So I hope things will be moving in the right direction.”

This year, when the United Nations Human Rights Committee questioned Pakistan about its human rights record, we brought a joint delegation to Geneva from Atheist Ireland, the Evangelical Alliance of Ireland, and the Ahmadiyya Muslim Community of Ireland.

We briefed the UN Human Rights Committee about breaches of human rights, including through blasphemy laws, against atheists, Christians, Ahmadiyya Muslims, and other religious minorities. We did so on behalf of of persecuted Pakistani minorities who, for obvious reasons, could not speak out themselves.

The UN Human Rights Committee told Pakistan to end its blasphemy laws, and respect freedom of religion and belief for all.

Specifically, the UN Human Rights Committee was concerned about the mandatory death penalty for blasphemy, the discriminatory impact of the law on Ahmadi Muslims, and violence and intimidation related to blasphemy allegations, as illustrated by the recent case of Mashal Khan, a student who was lynched by a mob in his university room. Meanwhile, atheist bloggers have been secretly detained or ‘disappeared’, and Asia Bibi, a Christian mother, awaits execution for blasphemy after an argument about her drinking water from the same bowl as her Muslim neighbours.

This is a country, Pakistan, which at the United Nations, has used specific language from Ireland’s law in its proposals to the Ad Hoc Committee on the Elaboration of Complementary Standards, in its call for an international instrument preventing the defamation of religion. You know you are doing something wrong when Pakistan is citing you as best practice for blasphemy laws.

4. We should be removing, not reinforcing, 1930s religious references in the Constitution

The blasphemy law is not a standalone issue. It is part of a pattern.

Today, under the Irish Constitution, you cannot become President or be appointed as a Judge unless you take a religious oath asking God to direct and sustain you in your work. Also, an atheist Taoiseach or Tanaiste must swear a religious oath to retain office, as they are obliged to swear the Council of State oath.

This means that up to half a million Irish people cannot take up these offices without swearing a lie. These religious declarations are contrary to Ireland’s obligations under the UN International Covenant on Civil and Political Rights.

The preamble to our Constitution states that all authority of the State comes from, and all actions of the State must be referred to, a specific god called the Most Holy Trinity. It also humbly acknowledges all of the obligations of the people of the State to a specific god called Our Lord Jesus Christ.

In Article 44, the State acknowledges that the homage of public worship is due to Almighty God and that the State shall hold His Name in reverence. This is not 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 other references to this god. Article 6 states that all powers of government derive, under God, from the people. Article 40 makes blasphemy an offence. The last line of the Constitution dedicates the Constitution to the glory of God and the honour of Ireland.

Our national parliament recognises the supposed rights of this god by starting each day’s business with a prayer to it. This prayer explicitly asks this god to direct the actions of our parliamentarians, so that their every word and work may always begin from and be happily ended by Christ Our Lord.

There are also other references in the Constitution to religion, as opposed to gods. We should be amending our Constitution to remove these references, because the only way for the State to protect equally the right of every citizen to freedom of religion and belief is for the State to remain neutral on such beliefs.

Positive Amendment about Freedom of Expression

I want to end to with a practical suggestion about the wording that the Government should put before the people in next year’s referendum.

Atheist Ireland proposed to the Constitutional Convention that Article 40.6.1 should be replaced with a positive statement about freedom of expression based on Article 10 of the European Convention on Human Rights.

This would be a more logical approach to the issue, starting by expressing the right, and then outlining the conditions for placing any restrictions on that right. The restrictions should be as minimal as possible, have a legitimate aim, and be proportional to that aim.

This is not a controversial suggestion. The Constitution Review Group already proposed it in 1996. And at the Convention, Eoin O’Dell made the same proposal when speaking as an independent expert.

The Convention Report, in the section on ‘Convention Discussion’, states that:

In terms of amending Article 40.6 of the Constitution, the suggested amendment put forward by Eoin O’Dell received broad support from across the tables. Others suggested replacing the blasphemy clause with a new incitement to hatred provision.

Yet, despite this broad support for such a positive amendment, the Convention members were not given the option to vote for it.

Instead they were restricted to choosing between (a) Removing the offence altogether, and (b) Replacing it with a new provision including incitement to religious hatred.

But we already have laws against incitement to hatred, and there is no good reason to replicate the existing problem, by introducing some of them into our Constitution.

When choosing the wording for the referendum, the Government should reflect the broad support at the Convention for a positive, Article 10 type, amendment.

Conclusion

To summarise, our Constitutional offence of blasphemy is both ridiculous and dangerous.

It is ridiculous for obvious reasons. And it is dangerous for at least four reasons:

1. Our blasphemy law silences media and incentivises outrage
2. It treats religious beliefs as more valuable than secular beliefs
3. Blasphemy laws are used to infringe on human rights around the world
4. We should be removing, not reinforcing, 1930s religious references in the Irish Constitution

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