A Comparative Assessment of the Rationale for Blasphemy in the Irish Legal Framework
Table of Contents
Table of Cases…………………………………………………………………………………………………………………….4
1.1 Research Question and Objectives
2. Blasphemy in an Irish Secular Society
2.2 Developing the Jurisprudence
2.3 Irish Constitution – Article 40.6.1 (i)
2.6 The Constitutional Convention
2.7 The Future of Blasphemy Law
3.1 Freedom of Expression in England
3.2 History of Blasphemy in England
3.3 Journey to the Abolition of Blasphemy
3.4 The Criminal Justice and Immigration Act 2008
3.5 Future of Religious Vilification Laws in England
4.1 Freedom of Expression and Pakistan’s Constitutional History
4.2 Blasphemy Laws in Pakistan
4.3 Effect of Blasphemy Laws in Pakistan
4.4 Merits in Pakistani Blasphemy Laws?
4.5 Blasphemy Laws of Pakistan: A Severe Restriction of Human Rights
5. Reality of Religious Sensibilities: Do they really need Protection?
5.1.1 Conservative Approach – Enforcing Respect for Religion
5.1.2 Abolition of Blasphemy Laws Approach
Table of Cases
AG v.Paperlink [1984] ILRM 373……………………………………………13, 55
Bowman v Secular Society [1917] AC 406, HL………………………………..12, 15, 25
Corway v Independent Newspapers [1999] 4 IR 484…………………….14, 15, 27, 28, 29, 56
De Rossa v. Independent Newspapers Plc [2000] IEHC 171, [2000] 3 JIC 0702…………………13
Entick v Carrington [1765] EWHC KB J98………………………………………..24
Green, R (on the application of) v. The City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin)26, 28
Haji Bashir Ahmad v. The State 2005 YLR 985, Lahore………………………………..37
Jameel and others v. Wall Street Journal Europe Sprl [2006] UKHL 44………………………24
Malik Muhammad Mumtaz Qadri v. the State, Criminal Appeals No. 210 and 211 of 2015…………38
New York Times v. Sullivan, 376 US 254, 300 (1964) (Goldberg and Douglas JJ)………………..20
Quinn’s Supermarket v Attorney General [1972] IR 1………………………………16, 21
R v. Petcherine (1855) 7 Cox CC………………………………………………12
R (Green) v City of Westminster Magistrates’ Court[2007] EWHC 2785 (Admin)………….27, 29, 31
R v Boulter (1908) 72 JP 188…………………………………………………12
R v Woolston Fitzgibbon 64, 2 Strange, 832, 1 Barnardiston 162, 266………………………11
R v. Lemon [1979] AC 617, HL………………………………………..23, 25, 29, 31
R v. Petcherine (1855) 7 Cox C.C. 79……………………………………………12
R v. Ramsay & Foote (1883) 15 Cox CC 231……………………………………….12
R v. Taylor (1676) 1 Vent 293, (1676) 86 ER 189……………………………………11
R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 QB 429, [1991] 1 All ER 306.27
Re Article 26 and the Employment Equality Bill 1996[1997] 2 IR 321……………………….21
Reynolds v. Times Newspapers Ltd., [2001] 2 A.C. 127 (H.L.)…………………………….24
Whitehouse v. Lemon [1979] 1 All E.R. 898 at 901…………………………………..29
Zaheer-ud-din v. The State 1993 SCMR 1718……………………………………..38
[I]f all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.
John Stuart Mill, On Liberty[1]
As a result of international events over the past two decades, tensions have increased between those who advocate freedom of expression and those who feel that religion should be respected. Internationally, tensions reached their highest peak in recent years. In early 2015, there was an attack on the headquarters of the satirical magazine Charlie Hebdo by Islamic extremists.[2] These tensions have renewed debate about the possible validity and necessity of blasphemy laws in a modern pluralistic society such as Ireland. Traditionally Ireland was viewed as both statistically and culturally as a Catholic country.[3] In recent years demographic changes have occurred as the result of Ireland becoming an increasingly secular society, and additionally there has been a growth in adherents of other religions. According to Census figures from the years 1991 to 2011, the sum total of people whom professed no religion, atheism, or agnosticism increased more than fourfold.[4]
Simultaneously, Ireland is a democratic society where there is an incremental value being placed on freedom of expression. In spite of the fact that Ireland is a modern and secular society, Ireland reaffirmed its blasphemy laws as part of the Defamation Act 2009.[5] The retention of blasphemy as part of Irish law is a mystery.
The aim of this thesis is to demonstrate that the retention of blasphemy laws is unsuitable in a country where incremental value is placed on freedom of expression. In order to achieve this, it will be necessary to examine the treatment of Irish blasphemy laws in detail. The study will then consider blasphemy laws in other international jurisdictions including England,[6] and Pakistan,[7]and then compare those blasphemy laws with Ireland’s blasphemy laws. In reviewing the English jurisdiction, the abolishment of blasphemy laws will be examined. In relation to Pakistan, there will be an emphasis on specific case studies – the ways in which blasphemy has met with actual legal treatment. Once this research is completed, the study will then be able to resolve the question of retaining blasphemy laws in Ireland: should they be abolished, revised or left alone?
In order to explore the tension between freedom of expression and the respect for religion which have been stated in the introduction, the research in this thesis will examine the following issue: is the restriction on freedom of expression on such grounds compatible with a democratic and a secular society? In order to answer the above research question, the aim of the research will address whether Ireland requires the retention of blasphemy laws. A parallel question involving the rationale for the retention of Irish blasphemy laws would need to be resolved.
In relation to the comparative approach of this research, the selected jurisdictions will be England and Pakistan. The English jurisdiction will be examined as the government abolished blasphemy laws and may be an inspiration for the Irish government. Pakistan, in strengthening their protection against blasphemy, illustrates an alternative approach to dealing with the impact of such laws on freedom of expression.
Finally, the deliberations of the Constitutional Convention and its recommendations will be considered as it is the most recent domestic attempt at seeking reform of blasphemy in the Irish legal framework. This has been left as the final objective as it encompasses a comparative approach and historical approach to the issues surrounding blasphemy and will add to the doctrinal approach taken in this dissertation.
This study is primarily a doctrinal examination of the laws of blasphemy. However, a comparative approach is utilised as it involves comparing the laws of three jurisdictions, namely Ireland, England, and Pakistan. The essential feature of doctrinal research involves a critical conceptual analysis of all relevant legislation, case law, and legal principles to reveal a statement of the law relevant to the matter under investigation.[8] The legal analysis consists of both primary and secondary sources which are legal instruments and academic literature.
The doctrinal analysis utilises interpretive methods to examine relevant sources of law in relation to freedom of expression rights and how these rights are restricted by blasphemy laws. A further aim of the doctrinal research method is to deduce the purpose and policy of law that exists; and this is useful to determine the rationale for the retention of blasphemy in Irish law.
The research adopts a comparative analysis as a methodological approach. The comparative approach is beneficial as the research relates to reforming and developing law involving such a right.[9] Manning articulates that a comparative analysis is necessary in order to avoid mistakes.[10] Therefore, if another jurisdiction is examined, it might be useful as an example of a reform route that Ireland may not wish to take. Pakistan is an example of such a jurisdiction. It appears that Pakistan has strict conservative blasphemy laws. However, Pakistan needs to be examined to discover whether there is any merit in these laws.
Some of the research objectives involve comparative analysis of the strength of legal protection available to freedom of expression. Therefore, a doctrinal analysis involving the assessment of such strength in different jurisdictions is required. This concerns the research of blasphemy in the Irish legal framework and the comparison of blasphemy laws in the jurisdictions of England and Pakistan. The scrutinising of the contrasting jurisdictions of England and Pakistan will aid to ascertain reform approaches for Irish blasphemy law. The research aims to highlight the problems with blasphemy, especially regarding its restrictions on freedom of expression. As the doctrinal research method involves critical analysis of blasphemy, this is a reason to use this method.
Instead of conducting a comparative analysis on relevant issues in each chapter, this research will analyse blasphemy law in each respective jurisdiction, England and Pakistan. However, there will be separate comparative analysis towards the later part of the thesis. This was to enable better understanding on the issues and its development in Ireland and the respective jurisdictions. However, some important points on the similarities and differences between the two jurisdictions are throughout the chapters.
The main focus of the domestic research will be Article 40.6.1 (i) of Bunreacht na hEireann, the Defamation Act 2009, and the Constitutional Convention. There will be an analysis of the jurisprudence of Ireland to discover how Article 40.6.1(i) is interpreted by the courts. The legal framework of freedom of expression and the restriction of this right by blasphemy laws as it is an important aspect of the research. Some of the research will include current issues in relation to blasphemy to give context to the legal debate in this issue.
Despite a long-standing constitutional guarantee of freedom of expression, blasphemy laws remain in place in both statute and the Constitution.[11] Up until 1937, blasphemy was a common law offence. The Constitution then explicitly made it an offence punishable by law. This offence of blasphemy was not provided for by legislation until the Defamation Act, 1961. However, the 1961 Act did not provide a definition for blasphemy and this lacuna was filled by the Defamation Act 2009.
The purpose of this chapter is to discover what blasphemy is in Irish law, and how it has been interpreted in Irish law. This will aid in uncovering whether there is any argument for the retention of blasphemy in Ireland. However, an assessment of blasphemy’s history is essential to any examination of blasphemy’s position in modern Irish law and this will be detailed first.
Writing in the 1760s, Sir William Blackstone, the authority on English law, defined blasphemy during early common law:
‘Blasphemy against the Almighty, is denying his being or providence, or uttering contumelious reproaches on our Saviour Christ. It is punished, at common law by fine and imprisonment, for Christianity is part of the laws of the land.’[12]
This excerpt from Blackstone demonstrates that the rationale of prohibiting blasphemy in early common law was the protection of Christianity as it was considered part of the law of the land. Christianity was deemed as paramount; therefore, it deserved legal protection. Moreover, the importance of blasphemy can be gleaned from cases in early common law.
Higgins provided a brief summary of blasphemy cases in early common law which was beneficial as there were no adequate reports of these.[13] During the course of the seventeenth century, the common law courts in England began to prosecute blasphemy offences. Higgins mentioned the first landmark blasphemy case of R v. Taylor[14] where the rationale for protecting Christianity originated and Taylor was affirmed in R v. Woolston.[15] Taylor was examined by Higgins where the defendant was prosecuted for calling Jesus a bastard. It was clear at this early stage that people could not speak ill of Christianity as it was part of the law of the land.
It seems that the earliest reported case of blasphemy in the Irish common law courts was the trial of Emlyn which resulted in a conviction, thirty years after Taylor.[16] The following cases of Syngean Bridgman[17] and R v. Petcherine,[18]demonstrated that blasphemy laws punished persons who ridiculed Christianity or exposed it to scrutiny. The cases during early common law revealed that the prohibition of blasphemy did not apply to religions other than Christianity.[19] The early common law cases seemed to punish questioning of doctrine per se rather than protecting persons from religious insult.
This rationale of protecting religion as evidenced by the aforementioned cases rather than persons from religious insult culminated in its downfall. The Church of Ireland was disestablished by Gladstone within the terms of the Disestablishment Act 1869. As the rationale of blasphemy law was to protect the official religion of the state, it could be said that there was no reason to retain blasphemy.[20]
According to common law, the aim of blasphemy laws was to protect Christianity. In the case of R v. Ramsay and Foote, the rationale of blasphemy shifted from protecting the religion per se to protecting persons from religious insult and this resulted in a clearer rationale.[21] The view in Ramsay and Foote was approved in the subsequent case of R v Boulter,[22] and was endorsed in Bowman v. Secular Society.[23] In Bowman, the House of Lords expressed that a denial of Christianity would not be unlawful and that the propagation of anti-Christian doctrines without scurrility or profanity does not amount to blasphemy.
However, the dearth of case law case law since R v. Petcherine[24] demonstrates that it was unclear whether Irish law experienced the change evidenced in English case law leading up to and including the 1917 House of Lords decision in Bowman v. Secular Society.[25] There was an ambiguity surrounding whether the Irish Constitution altered the rationale of blasphemy pre-existing at common law.[26] Eamon de Valera responded that the constitutional offence of blasphemy replicated the common law offence when questioned about the source of the blasphemy provision in the Irish Constitution.[27] Consequently, the rationale of blasphemy was to protect religious sensitivities.
The prohibition against blasphemy was first set out by Irish law in the Constitution. The Constitution guarantees freedom of expression[28] and freedom of religion,[29] and provides that these freedoms are not used to undermine public order or morality. Article 40.6.1 (i) further details Ireland’s constitutional crime, blasphemy.[30]
There are more sources of freedom of expression than the Constitution in Irish law. The European Convention of Human Rights is a persuasive source for Irish Law and this was heightened with the incorporation of the European Convention of Human Rights into Irish law.[31] Additionally, it has been suggested that such jurisprudence may aid the interpretation of the Irish Constitution.[32] However, this right to freedom of expression and the right to communicate are limited, since organs of public opinion may not be used to undermine public order or morality or the authority of the State. One of the restrictions of freedom of expression is a prohibition against blasphemy.
Despite the fact that there has been no prosecution for blasphemy in Ireland since 1855,[33] the framers of the Irish Constitution included blasphemy as a restriction on constitutional rights.[34] The reasoning for the insertion of blasphemy into the Constitution by Eamon de Valera was the protection of society from moral degradation, and additionally was an attempt to curb evils.[35] This clause represents the framers’ belief that the protection of freedom of expression should not be used to justify anti-religious speech.[36]
Carolan[37] in examining the promulgation of the Irish Constitution mentions that the Catholic Church influenced the Constitution and this could be seen as a reason for the inclusion of blasphemy in the Constitution. As religion was deemed important, it would be understandable to assume that the offence of blasphemy’s rationale was the protection of religious sensitivities. It could be seen as a rationale for retaining blasphemy in Irish law.
Although it appeared that there was a rationale for blasphemy, the constitutional provision did not provide a definition of blasphemy or demonstrate which religions are protected from blasphemy.[38] The Defamation Act 1961 provides no definition for the offence of blasphemous libel, which criminalised its composition, printing, or publication.[39] Eamon de Valera reasoned that no definition was required as the constitutional offence of blasphemy replicated the common law offence of blasphemy.[40] Consequently, the definitions and elements of blasphemy needed to be derived from English common law, where the crime of blasphemy developed.
The issue of blasphemy was not judicially raised in Ireland from 1855 until Corway v. Independent Newspapers.[41] Furthermore, Corway represented the tension between pre 1922 decisions and the current constitutional prohibition on blasphemy.[42] In Corway, the applicant sought leave to bring a private prosecution for blasphemy. The High Court concluded that there were no grounds for granting the leave sought as the publication in question probably would not result in a breach of the peace. On appeal, the Supreme Court held that the constitutional crime of blasphemy could not be applied as the concept of blasphemy evaded judicial definition. There was no constitutional definition of blasphemy and moreover, there was no definition of blasphemy provided for by statute[43]. Moreover, there was a lack of direct Irish translation.[44] As blasphemy law was uncertain, the judges in Corway could not provide a legal definition.
It has been suggested in a report that Corway could be seen as the strengthening of constitutional rights such as freedom of expression since blasphemy was rendered redundant.[45] However on closer inspection, it appeared in Corway that blasphemy laws were unenforceable, a number of academic commentators have stated that the Supreme Court failed to interpret the Constitution.[46] The court reasoned that ‘it is impossible to say of what the offence of blasphemy consists’ under Irish law and that ‘the task of defining the crime is one for the legislature, not for the courts.’[47] If there is interference of constitutional rights, these rights need to be protected. Laws are worthless if they cannot be enforced. The reluctance to define the offence left blasphemy in a confused state.
Corway resulted in further confusion to the already ambiguous blasphemy laws. As previously mentioned, the rationale of blasphemy was alternated from protecting the religion to protecting persons from religious insult.[48] However, Barrington J decided not to follow the ruling of Bowman.[49] As the religion which was protected by blasphemy laws was disestablished, there was no rationale for retaining blasphemy. The redundancy of the rationale of blasphemy may have been a factor the judges deciding the hold that the offence and blasphemy was unenforceable.
Consequently, if it appeared that the rationale became redundant, there may have been no reason to retain blasphemy laws. Cox[50] argued that blasphemy could have survived disestablishment if the rationale of protecting persons from religious insult rather protecting the religion per se was recognised in Corway.
Moreover, blasphemy would have been immune from any religious equality arguments. Barrington J. argued that protecting only the religion of Christianity contravenes the guarantee of freedom of conscience contained in Article 44.2.1 of the Constitution. Article 44 provides that the state must not discriminate those who profess different religious beliefs. Article 44 was judicially reinforced in the landmark case of Quinn’s Supermarket v. Attorney General[51]where it was accepted that the state must recognise all religions, and cannot prefer one religion over another. The Law Reform Commission suggested that as the constitutional reference to blasphemy appears in a subsection of a provision which originally confined its recognition of religions to the Jewish and Christian churches, it may have been the intention of the framers of the Constitution to limit the ambit of the offence of blasphemy. However, Cox[52] concluded that as Eamon De Valera stated that the constitutional and common law positions on blasphemy were indistinguishable and there was never any common law suggestion that the offence applied to the Jewish faith as well as to Christianity.
If Corway had allowed a prosecution for blasphemy, Christianity would have received preferential treatment. Freedom of religion was not the only right affected by Irish blasphemy law, freedom of expression would have been restricted also. Consequently, the effect of the Corway decision removed the legal effect of blasphemy from the Constitution[53]and neutralised S13(1) of the Defamation Act 1961. The ruling of Corway left two options. The offence could be defined in new statute, or a referendum could be held to remove blasphemy from the Constitution.
The overall consensus of reform bodies was for the recommendation to remove the offense of blasphemy from Irish law as Ireland is a modern, secular and democratic society. In the reports by the reform bodies, the removal of blasphemy was recommended primarily as it infringed the right to freedom of expression.[54] Furthermore, it was recommended that the constitutional provision should be modeled on the freedom of expression European counterpart, Article 10 of the European Convention of Human Rights.[55] The offence of blasphemy remaining contrasted to a previous review of the Constitution where a report of the Catholic Church was implemented as a result of the referendum in 1972.[56]
There was further opposition to blasphemy as part of Irish law than review groups. Oireachtas debates transpired with discussions on a proposed blasphemy provision, and these debates argued that the blasphemy provision was unworkable as it was an unnecessary restriction on freedom of expression.[57] Senator Alex White stated with a wide consensus that blasphemy was redundant, and that it should not be retained in the Constitution.[58]
Despite the suggestions from various stakeholders, a new statute was enacted with a blasphemy provision with even more bite. There was no prosecution for blasphemy in the history of modern Ireland; therefore it was easier to ignore it.
The Defamation Act of 2009 was the first piece of legislation to respond to the judiciary’s request for a legislative definition of blasphemy[59] and re-established blasphemy as a criminal offence.[60] Whilst it took some time for the Defamation Bill 2006 to be enacted, the last minute inclusion of blasphemy in the Bill came to many as a surprise. This may be because the proposed Defamation Bill of 2006 sought to abolish the common law offense of blasphemy.[61] Also, the 2008 report favoured the proposal of the Defamation Bill 2006 to repeal the 1961 Act and to abolish the common law offence of blasphemy.[62]
The Defamation Act 2009 appears to have been passed to satisfy a constitutional mandate while simultaneously ensuring the impossibility of a successful prosecution. Fine Gael’s spokesman on justice, Charlie Flanagan, argued that the amended blasphemy proposal was ‘an Irish solution to an Irish problem’,[63] and would ensure that it would be almost impossible to bring any prosecution.[64]
Dermot Ahern, Minister for Justice, Equality and Law Reform at the time stated; ‘[m]y personal position is that church and state should be separate, but I do not have the luxury of ignoring our Constitution.’[65] When faced with choosing between a referendum and reform which would help judges address the Corway ruling, reform was chosen.[66] However, the Defamation Act 2009 abolished the common law offence of sedition.[67] This decision to abolish sedition undermines the government’s stated justification for the retention of blasphemy in Irish law as both offences have the same constitutional footing. Shortly after the Defamation Act 2009 was enacted, Minister of Justice Dermot Ahern stated that efforts would be made to remove blasphemy from the Constitution.[68] However, since the enactment of the Defamation Act in 2009, there has been little development regarding blasphemy in Irish law, except the Constitutional Convention which took place in 2012.
The Irish Constitutional Convention emerged out of a compromise between two political parties. In the 2011 election campaign, the Fine Gael and Labour parties included in their election manifestos proposals for establishing citizen oriented forums to discuss areas for constitutional reform. Subsequently, the Constitutional Convention was established by resolutions by both Houses of the Oireachtas.[69] The Taoiseach, Enda Kenny claimed that the Constitutional Convention ensured that for the first time in Ireland, both the legislators who brought forward proposals for constitutional reform and the citizens who decided on the merits or otherwise of those proposals will jointly and publicly consider whether constitutional reform is necessary or desirable.[70] The Convention was mandated to consider eight appointed issues one of which included blasphemy, and also selected two others to discuss.[71]
The Constitutional Convention invited the public to submit views on a number of issues including the retention of blasphemy in Irish law. As these submissions were from the public and various interest groups, these could have been adopted to evaluate the bias against the retention of blasphemy in Irish law. The submissions revealed a strong sentiment against blasphemy laws as it was an unnecessary restriction on freedom of expression.[72]
After the submissions were received, the Constitutional Convention held plenary meetings which heard presentations from academic specialists, and advocates for both sides of the argument regarding the retention of blasphemy in Irish law. A majority of those who attended the plenary sessions at the Constitutional Convention favoured the removal of blasphemy.[73] However, the plenary session revealed arguments for and against the retention of blasphemy.[74]
The primary reason for the retention of blasphemy was the protection of religious beliefs for all religions and that blasphemy laws acts as a deterrent against the disrespect of religions. Dr Ali Selim of the Islamic Cultural Centre of Ireland favoured the retention of blasphemy, stating that freedom of expression should not be unrestrained and must be exercised responsibly.[75] Selim stated that religion is an essential component of a person and deserves to be respected.[76] Selim was the only religious representative that supported the retention of blasphemy laws at the plenary sessions of the Convention. Secularist groups, civil liberties groups, and the umbrella group representing almost all Christian churches in Ireland urged the repeal of blasphemy laws.[77]
Michael Nugent speaking on behalf of Atheist Ireland argued that blasphemy perpetrates harm as it restricts freedom of expression.[78] The impact of regulation which restricts freedom of expression demonstrated a chilling effect in this area does exist and the concept of ‘chilling effect’ laws has been discussed elsewhere.[79] Consequently, self-censorship may be practiced in Ireland to avoid legal repercussions.[80] Therefore, there will be a shortage of public, readily-available information and a shortage of information available for public debate.
Although it could be argued that the blasphemy laws as provided for by the Defamation Act 2009 protect all religions, it does not provide protection for those who profess no religious beliefs. The aim of the Constitution is to protect all citizens. This was the consensus of the Humanist Association of Ireland who proposed for the removal of blasphemy.[81] The Humanists noted that that the amount of people who profess no religious beliefs is next to those who are Roman Catholic.[82] This was evident with the last census which took place in 2016.[83]
There may be merit in the view that religious beliefs deserve protection. However, Cox suggested that there are already strong protections for religious beliefs in the Constitution.[84] This could be a good argument against retaining blasphemy in Irish law as Article 44 provides protection against religious discrimination. The fundamental case in relation to religious discrimination is Quinn’s Supermarket v Attorney General.[85]
It was held in Quinn’s Supermarket v Attorney General[86] that the overall purpose of Article 44 and the Preamble was to enable freedom to practice religion. The case of Re Article 26 and the Employment Equality Bill 1996[87] accepted the rationale of Quinn’s Supermarket and that the prohibition of religious discrimination is subordinate to the guarantee of free practice of religion. It could be argued that Article 40.1, the equality provision provides prohibition on religious discrimination, albeit less stringent than Article 44 and the preamble.
Whilst the majority of those at the Convention Plenary Sessions opposed the retention of blasphemy, there is merit in retaining blasphemy in Irish law as it protects persons from religious insult. However, if blasphemy laws are not enforceable, there is no protection for people against religious insult. Stephen O’Hare argued that as blasphemy laws are unworkable, there is no requirement to prohibit blasphemy as part of Irish law.[88]
Whilst the use of the Constitutional Convention in this manner for such an issue may be a good idea in theory, it could be said that the main criticism against the Constitutional Convention was its nonbinding nature. The Oireachtas can decline to facilitate a referendum to amend the Constitution regardless of the Constitutional Convention’s recommendation. For this, newspapers including the Irish Times criticised the Constitutional Convention for being ‘all form and little substance’[89] and an editorial in the Irish Independent classified the Constitutional Convention as ‘unelected and powerless’.[90]
In October 2014 it appeared that the government was considering the Constitutional Convention’s recommendations. Minister of State Aodhán Ó Ríordáin gave the official government response to the Constitutional Convention’s report on blasphemy, announcing that it had decided to hold a referendum on the issue.[91] As of summer 2017 the referendum on blasphemy has yet to occur. Seán Ó Fearghaíl criticised the failure to facilitate a referendum on blasphemy, despite the promise of one since the enactment of the Defamation Act 2009.[92] The Taoiseach has declared that the blasphemy referendum will not be held until after the next general election.[93]
While the government appear reluctant to facilitate a referendum on blasphemy, the future of retaining blasphemy in Irish law is in question. Cox agreed that there are occasions when it is legitimate to prohibit blasphemy.[94] It is important to appreciate that freedom of expression should be exercised which respects people’s religious beliefs. Nonetheless, it would be reasonable to exercise caution in expressing oneself.
The Law Reform Commission remarked that religion is a voluntary commitment and that it differs to race or gender which is not voluntary.[95] It could be said that it is incorrect to assume that religion is in any way voluntary. There are people who are genuinely committed to their faith and it may be as self-defining as the colour of their skin. If the government protects people based on their skin, then religion may be entitled to protection also. As Ireland is becoming a multi-cultural society, this requires respect for all religious beliefs.[96] Therefore, if blasphemy laws were retained people may be more careful before they act or speak. However, the suppression of blasphemous expression needs to be balanced with other constitutional rights.
The value of free expression in contemporary society has been justified in several ways and discussed elsewhere.[97] The diverse voices of the non-religious are either not being heard or are not equally valued. Considering the opposition of blasphemy, the retention of blasphemy as a part of Irish law is a mystery. Cox has explored the rationale for blasphemy and questioned whether it is justified in a modern pluralistic society.[98] Although the Defamation Act of 2009 affords some protection for all religions, a law that punishes the expression of views which offend the feelings of believers while offering no such protection for the feelings of non-believers.
Ireland presents us with a country that recently reaffirmed its commitment to outlawing blasphemy. Additionally, a combination of reluctance of judicial interpretation and constitutional amendments resulted in the retention of blasphemy in Irish law. Despite no prosecution since the nineteenth century, the framers of Ireland’s 1937 Constitution included blasphemy as an exception to freedom of expression.
Decades later, Ireland’s highest court disregarded a prosecution for blasphemy in the absence of a legislative definition. Blasphemy seemed redundant. The sudden inclusion of a blasphemy provision in the Defamation Act 2009 accompanied by a quick promise of a blasphemy referendum regarding its retention, the government’s motives appear questionable. In examining blasphemy as part of Irish law, the absence of academic support for the offence makes it surprising that the provision of blasphemy was included in the Defamation Act 2009. If any rationale can be gleaned from prohibiting blasphemy in such a context, it could only be that an unenforced ban lends moral authority to a social consensus against blasphemy.
A referendum has been proposed to consider repealing the law; however, no referendum has been executed to date. Irish legislators may look at other jurisdictions in order to determine whether or not to repeal the law; particularly, England’s Criminal Justice and Immigration Act of 2008. The English statute removed blasphemy as part of the law in order to protect freedom of expression. The journey and aftermath of this historical stepping stone is something to consider.
In contrast to the Irish jurisdiction, the English jurisdiction abolished blasphemy in 2008. There have been more blasphemy cases in England than there have been in Ireland.[99] Blasphemy law has been the subject of debate even more so in the 1970s and 1980s as there were high profile attempts to invoke the law in England. In 1977, Mary Whitehouse, sought a private prosecution against Denis Lemon, editor of the Gay News, over the publication of a poem. The jury concluded 10 to 2 that Lemon was guilty of blasphemy.[100] In 1979, the showing of the film Monty Python’s Life of Brian was accused of blasphemy.[101] In 1989, the British Board of Film Classification refused to issue a certificate to the film ‘Visions of Ecstasy’, as the film infringed the law of blasphemy.[102]
However it was only until the Incitement to Racial and Religious Hatred Act 2006, that the House of Commons and House of Lords considered the abolishment of blasphemy. For the purposes of this section, it falls into two parts. The legal history of blasphemy and development of blasphemy in England, a country that is becoming a secular society will be examined. Then, the abolition of blasphemy and its aftermath will be considered.
Whilst England had no formal constitution, it has been suggested that common law did recognise freedom of expression as a civil liberty.[103] Barendt suggested that freedom of expression had no clear constitutional status and that it could be unpredictable in certain cases.[104] There was freedom of expression only when the expression was not forbidden by law.[105] However, in Reynolds v. Times Newspapers Ltd.,[106] Lord Steyn referred to a constitutional right to freedom of expression in England and this resulted in more weight in the recognition of the right. Reynolds recognised that freedom of expression would be reinforced by the statutory requirements of the Human Rights Act 1998.[107]
The enactment of the Human Rights Act in 1998 enshrined the elements of the European Convention of Human Rights into English law. Consequently, the principles of the Article 10 provision in the Convention[108] supplements the existing civil liberties for freedom of expression which can be protected by the English courts. Like Ireland, freedom of expression is not an absolute right in England; which means that there are exceptions to this fundamental right.[109]
One of the most sensitive and difficult area that was faced by the English courts is the extent that is legally permissable for court to favour one protected right over another. Prior to the abolishment of blasphemy, one of the more contentious areas was the right for Christians to profess their beliefs and the right to freedom of expression.
The framework of English blasphemy law was based on decisions made by the courts in the nineteenth century. The framework of Irish blasphemy at common law orginated from England, therefore the blasphemy laws of the two jurisdictions are similar. The corresponding jurisdictions of Ireland and England had the same rationale for blasphemy law until the late twentieth century, which was to protect Christianity.[110] Whilst the legal framework for blasphemy originated in the nineteenth century, the important court decisions were Bowman v. Secular Society[111] and R v. Lemon.[112]
The case of Bowman[113] showed the inability of blasphemy law to protect persons from religious insult who professed beliefs other than Christianity.[114] Nevertheless, there were other beliefs other than Christianity. After Bowman, it was presumed that with no prosecution that blasphemy was redundant.
However, Lemon demonstrated that the common law crime of blasphemy did not fade away after a period of inactivity. It was realised in Lemon that blasphemy had become redundant. Lord Diplock described the offence of blasphemy as having ‘a long and at times inglorious history in the common law’ and Lord Scarman described it as ‘shackled by the chains of history’.[115] Moreover, it was identified in Lemon that England was becoming a more secular society and that all different beliefs required protection.[116]
However, there were further instances involving critique of blasphemy. After Lemon, this was only the beginning of academic interest in blasphemy. After Lemon, there were recommendations to abolish blasphemy in England, a jurisidiction that was becoming more secular. As well as England becoming more secular, it became a more democratic society. The need for freedom of expression in a growing democratic society was acknowledged.[117]
After the case of Green, the Law Commission produced a well-researched working paper proposing the abolition of blasphemy as freedom of expression prioritises a theoretical need to protect society in 1981.[118] The Law Commission added that the scope of protection against religious insult was too narrow as it only protected those who professed Christian religious beliefs.[119] A few years later, the Law Commission produced another paper, this one echoeing the same recommendations as the 1981 paper.[120] The 1985 paper was more forceful about abolishing blasphemy. The Law Commission advised that the inadequacies of blasphemy laws were so serious that nothing short of abolition would be adequate.[121] In the 1985 paper, the Law Commission recommended repeal as blasphemy laws were uncertain in scope, lack of intention is no defence, and the law is unlimited in penalty. The 1985 paper concluded that as England is a country of multiple faiths, it is discrimatory to allow a blasphemy law to protect Christianity to remain. In the 1991 Report, The Law Commission stated that the offence of blasphemy was uncertain in its scope.[122]
All of the reports echoed a common recommendation. The reports concluded that in a democratic society that blasphemy should be abolished in favour of freedom of expression. Furthermore, the reports of 1981, 1985, and 1991 recommended the abolition of blasphemy as it was discriminatory to protect only persons from insult who professed Christian beliefs. According to the English census of 1991, England was becoming a country with more varied ethnicities, it was became clear that blasphemy laws were becoming outdated.[123] It seemed that laws were needed to protect persons from religious insult who professed any religious belief, not just persons with Christian beliefs.
In the same year as the 1991 census, the case of R v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury transpired.[124]In Choudhury, a Muslim, was prevented from prosecuting the publishers of Salman Rushdie’s book Satanic Verses. The Applicant in Choudhury complained that if English law contained no offence of blasphemy protecting the followers of Islam from attacks on their religion, then it was a breach of Article 9 of the Convention.[125] In Choudhury the action failed primarily as blasphemy laws in England only pertained to the Christian religion. This case further evidenced that new religious vilification laws could be needed in England, a country with multiple faiths, or with no beliefs at all. The Irish ruling of Corway[126]followed Choudhury.[127] Whilst in Corway the case failed as there was no legislative definition of blasphemy, it was held that blasphemy protected Christianity and applied to no other religion.
There was academic criticism of the fact that blasphemy only applied to Christianity. Kearns and Elliott believed that Christian believers were afforded special privileges and that protection should extend to all religions.[128] These comments seem justifiable. Besides the fact that England is a country with multiple faiths, it is becoming a secular society. Munro recognised the need to amend blasphemy laws as England became an increasingly secular society.[129]
However, it was not until 2008 that the English government decided to abolish blasphemy. A number of developments occured which seemed to influence the abolishment of blasphemy. The Irish case of Corway[130], the House of Lords report in 2003, The Racial and Religious Hatred Act 2006, and the case of R (Green) v. City of Westminster Magistrates’Court.[131]
Despite the fact that Corway was an Irish case, it influenced the House of Lords Select Committee Report in 2003.[132] As decided in Corway, the Report contended that common law was uncertain as to whether the offence applied only to the Church of England or also to Christianity. The House of Lords Report in 2003 identified two main ways in which other faiths could be protected from insult; whether existing religious offences such as blasphemy should be abolished and whether a new offence of incitement to religious hatred should be created.[133] The 2003 report observed that there was a gap in the law and that blasphemy laws were failing to fill it. Yet, the 2003 report reached no procedural conclusions.
The Corway case and the 2003 report were important developments prior to the abolition of blasphemy as these demonstrated that there was a need for a new law that prohibited religious vilification for all beliefs. The solution to this appeared to be The Racial and Religious Hatred Act 2006. The Racial and Religious Hatred Act 2006 amended the Public Order Act 1986 to create Part 3A entitled ‘Hatred Against Persons On Religious Grounds’. It created numerous criminal offences protecting groups of believers from being threatened in any way because of religious belief or lack of religious belief. ‘Religious hatred’ means hatred against a group of persons defined by reference to religious belief or lack of religious belief. As such, a defendant would be guilty if he incited hatred towards a group of atheists or humanists. This legislation came into force in October 2007. The aim of the statute was to prevent anti-social behaviour on grounds of religion.[134] This differs to blasphemy which aimed to protect Christian beliefs, which were seen to be a source of public morality.
It could be argued that as a result of the Racial and Religious Hatred Act 2006, blasphemy would not be judicially raised again. Even though the offence of blasphemy lay dormant, Green showed that it was still alive. The last attempted blasphemy prosecution was in 2007 where the applicants sought a prosecution against the BBC over its broadcasting of Jerry Springer: The Opera.[135] The court found that the common law blasphemy offences specifically did not apply to stage productions. The Lord’s Appeals Committee refused an appeal as it did not raise an arguable point of law which was important.
However, Green showed that blasphemy could in special circumstances be revived the same way as it was in the Lemon case,[136] as mentioned previously. Green demonstrated the possible dangers of the presence of blasphemy in the English legal framework even though there were laws against religious hatred.
How the English government dealt with blasphemy laws after Green contrasted with the aftermath of the Irish case of Corway. The Green case was a development which encouraged the abolition of blasphemy from the English legal framework. The judges realised that blasphemy laws were insignificant part of the legal landscape in the English jurisdiction.[137]
The Green case highlighted that with the combination of the new religious hatred laws, blasphemy was redundant and outdated. The case of Corway showed that blasphemy was redundant in the Irish legal framework. Moreover, the application for a blasphemy prosecution was unsuccessful on grounds of uncertainty and that a legislative definition was required.[138] It was acknowledged in Green that blasphemy only applied to Christianity, but it was ruled that it was not discriminatory in the applicant’s case. Whilst Green aided in the realisation that blasphemy laws needed to be abolished, this was not the case in Corway. A year after the abolition of the blasphemy provisions from English law, Ireland reaffirmed its blasphemy laws with the Defamation Act 2009.
The Green and Corway cases, the House of Lords 2003 Report and the Racial and Religious Hatred Act 2006 demonstrated that it was possible that blasphemy laws could not exist in a modern secular society which respected freedom of expression. There were developments which showed that blasphemy fell into disuse, and the 2006 Act could possibly protect religious beliefs. Yet, blasphemy remained in the English legal framework. It was not until 2008 that the removal of blasphemy was considered by the English government.[139]
The House of Lords voted to abolish the common law offence of blasphemy in 2008 after its place in society was discussed for over three decades.[140] There were various reports and bills to abolish blasphemy. It was not until the presence of the Incitement to Religious Hatred Act 2006 that the government debated its abolishment. On the 5th March 2008, Baroness Andrews introduced the government proposal to abolish the common law of blasphemy.[141] The Bill received Royal Assent in May 2008, and came into effect in July of that year. Section 79 of the Criminal Justice and Immigration Act 2008 provided that the offence of blasphemy was no longer in existence in England.
Writing in 2005, Ahdar and Leigh commented how the offence ‘has lingered on, enjoying a perilous existence on a life support machine while legislators, commentators and judges huddle around the bedside debating whether it has a future.’[142] Therefore, the abolition of these ancient offences in such an understated way caught many by surprise.
Advocators for abolishment of blasphemy, including Evan Harris stated that this was a step towards secularisation.[143] Monaghan stated that Christianity was privileged over other religions and that there is no legal protection against religious discrimination.[144] The combination of the Racial and Religious Hatred Act 2006 and Criminal Justice and Immigration Act 2008 removed this privilege as blasphemy laws were abolished. As the special treatment of Christianity was removed, this meant that there would be no discrimination against those with different religious beliefs than Christianity. Moreover, the 2006 Act prevented any discrimination that would result in the stirring up of religious hatred. Another benefit of the 2006 Act was that it protected those who professed no religious beliefs. Consequently, the 2006 and 2008 Acts showed that the English government acknowledged that England was becoming a more secular and plural society.
Although it seemed as if there was a positive move towards secularisation, critics bemoaned the removal of blasphemy laws. Lord Robertson and Baroness O Cathain protested that this would result in the removal of the legislature presence of Christian tradition.[145] However, there are symbols of Christianity throughout English law. For example, the Queen’s coronation oath reflects the constitutional position of Christianity in England and that she is the defender of the faith of Christianity.[146]
Moreover, Lord Ahmed disagreed with the need to protect one section of people in society and that blasphemy laws were out of date in England, a country with diverse religious beliefs.[147] Tomes wrote that the ‘death of Christian Britain’ failed to account for the reasons that blasphemy was abolished as England was becoming a secular society.[148] The removal of blasphemy laws was to accommodate religious diversity in England. If blasphemy laws remained this could have resulted in an inconsistency between the protection of one faith with England and claims that England is a secular society.
Whilst it could be seen as a positive move to remove blasphemy law as England became an increasingly secular society, Bailin, Doe and Sandberg stated that as there was lack of prosecution with blasphemy with years could mean that England was hasty in removing blasphemy law.[149] However, blasphemy prosecutions were still possible. The Green case illustrated that a blasphemy prosecution was possible. Moreover, the Lemon case exposed the dangers of blasphemy remaining in the legal framework as the defendant was punished. It could be said that it is better to remove a law with the danger of prosecution rather leave it remain, even if there is a slight danger of prosecution.
The chance of prosecution results in a chilling effect to the freedom of expression.[150] Monaghan suggested that the 2006 Act restricts freedom of expression.[151] However, the 2006 Act provided a freedom of expression clause.[152] This was not the case with the abolished blasphemy laws as there were no defences to protect freedom of expression. Blasphemy laws attempted to secure rigid conformity in any form of expression.
Rivers, Hill and Sandberg stated that the incitement to religious hatred offence as a substitute for blasphemy is illusory.[153] Whilst there is a defence to protect freedom of expression, there is still a restriction on this right. However, England deserves praise for recognising that there is a growing sense of awareness of the importance of freedom of expression and to respect all religions. The distance that English law has travelled in the course of a few decades is commendable. It moved from a Christian-centric legal framework with no anti-discrimination legislation to one of neutrality towards all religions or beliefs. The rationale for religious hatred laws is to prevent anti religious expression, which consequently could result in an atmosphere of discrimination and violence.
Not only could the removal of blasphemy result in less religious discrimination, it might have strengthened the right to freedom of expression. Freedom of expression is provided for by the Human Rights Act 1998. But the English government is seeking to replace the 1998 Act with the Bill of Rights, which imported Europe’s Convention of Human Rights into English law as there is a belief that the act is open to abuse.[154]
The Bill of Rights is said to include clauses which provide a ‘freedom of expression’ defense for journalists who are being sued for damages.[155] This could result in stronger freedom of expression as blasphemy laws have been abolished and there would be less reliance on the European Convention of Human Rights.
It has been argued by two Commissioners,[156] that there was a failure to prove that there were any real drawbacks in the Human Rights Act 1998 which will be abolished as a result of the Bill of Rights.[157] It was also argued that this Bill of Rights would be used a justification to pull away from the European Convention of Human Rights.[158] Those who defend the Human Rights Act suggest that in enacting the Bill of Rights would result in a weakening in human rights for the most vulnerable.[159] It must also be added that it was recently confirmed that there will be no withdrawal from the European Convention of Human Rights.[160]
Nonetheless, the English government could be praised for their efforts to adapt to the secular and democratic society that England has become. Originally, in early English common law discrimination existed as there was no protection for religious beliefs except Christianity.
As the Church of England was to 1700s England, so is Islam to current-day Pakistan. In Pakistan, an individual act of blasphemy is far more likely to occur by accident or by sincere disagreement with the majority faith than it is to originate in a desire to be provocative. In Pakistan, there is a clear example in a modern context of the function that blasphemy once served in the West by enforcing conformity to a state religion. Islam is seen as supreme; criticism or deviation from its principles is punished, whether by the courts or by vigilante justice.
Pakistan could be examined by Ireland as a country that retains blasphemy laws in a society which is becoming more secular. Pakistan is a model of a country fighting the growing global secularisation. In the 1970s, the world became more secular. Pakistan reacted to a more secular world by reinforcing traditional values and morals.[161] Pakistan’s reaction to a growing secular society may be something for the Irish government to consider with the retention of Irish blasphemy laws. Moreover, Pakistan is an example of the impact of strict blasphemy laws.
Currently, Pakistani blasphemy laws are probably the most highly criticised as these laws may be the most actively prosecuted blasphemy laws in Islamic states. Pakistan illustrates how blasphemy laws can be enacted to crackdown on specific religious minorities that deviate from the state sanctioned religions. The nature of Pakistan’s government, constitutional, and legal structure has created a legal system based on traditional notions of Islam, which is enforced through vigilantism. However, there may be logic in respecting people’s religious views and protecting religious people from insult which will need to be considered.
As Pakistan restricts the right to freedom of expression in order to facilitate blasphemy laws, the scope of the right will be examined also. Additionally, the effects of Pakistani blasphemy laws needs to be investigated. The investigation of Pakistani blasphemy laws will illustate whether there are any merits in Ireland retaining blasphemy laws. But first, in examining Pakistan as a country with conservative religious values, the history of the Pakistani Constitution and the introduction of blasphemy laws needs to be researched, as this could show some of the rationale for the retention of blasphemy laws.
When Pakistan first became an independent nation, the aim of the first government was that Pakistan would become a country of tolerance that would respect freedoms.[162] One of these freedoms included freedom of expression, a provision in Pakistan’s Constitution which is similar to the freedom of expression provision in the Irish Constitution.[163]
It was the intention of Muhammed Ali Jinnan who was the founder of Pakistan, to sanction freedom to practise religion without fear of persecution in Pakistan.[164] Consequently, the first Constitution contained provisions concerning freedom of religion. The 1973 Pakistan Constitution contained many of the same rights that can be found in the Constitutions of democratic jurisdictions including Ireland.
However, the desire to allow freedom of religion did not last long. Pakistan succumbed to Muslim fundamentalists in the 1970s.[165] Pakistan’s constitutional law history was turbulent especially since the military rule of Zia – ul – Haq. The reasoning for this was that there was a shift towards an increased role of Islam in Pakistan’s legal system.
As a result of the ‘Islamisation’ of Pakistan, the democratic Pakistani Constitution that was akin Ireland became a method of implementing and enforcing laws based on Islam.[166] The Pakistani Constitution provides that no laws can be enacted that are repugnant to Islam.[167] This exhibited the importance of the religion of Islam in Pakistan’s legal system. Unfortunately, the democratic Constitution was abandoned in favour for the increased Islamisation of Pakistan.
Both Islam and Sharia are held with such a high regard that the rights contained in the Pakistani Constitution are restricted. This contrasts to Ireland. For example, freedom of expression can be exercised however it is subject to public order and morality. Article 20 like Article 40.6.1 (i) this is subject to law and morality, however if any expression is repugnant to Islam or Sharia, then it can be restricted.[168] Pakistan has a history of limiting the fundamental right of expression in order to protect the reputation of Islam, but not necessarily other religions.
Pakistan’s enforcement of blasphemy laws is extensive and well-documented especially concerning the restriction of freedom of expression. Punishment for insults against Islam can lead to fines, life imprisonment, or even a death sentence. A famous example of the harsh punishment of blasphemy is Asia Bibi, who was sentenced to death for an alleged blasphemy.[169]
There are several features of Pakistani blasphemy laws that merit comment. Pakistan has provisions for blasphemy which heavily restrict freedom of expression.[170] However, there are more problems than the restriction of freedom of expression with blasphemy laws in Pakistan. Moreover, the ambiguity in the blasphemy provisions and the absence of the requirement to establish any intent to blaspheme can led to tragic consequences.[171] For example, the definition of blasphemy under section 295C is relatively open-ended, and the arrest of an accused requires no warrant.
It could be said that there are not just inherent problems with blasphemy laws; there are problems with the enforcement of blasphemy laws. There is no speedy trial, no bail for the accused and the lower court judges are influenced by the public. The Pakistani government arbitralily enforce any allegation of blasphemy.[172] A preliminary investigation of a blasphemy offence is not required. Once there is the testimony of a reliable man, the accused is arrested. Individuals who are prosecuted for blasphemy cannot be denied fair trial guarantees. The trial proceedings in blasphemy cases can be fundamentally unfair. Sometimes, members of extremist religious groups often pack the courtroom creating an intimidating atmosphere.[173]
Consequently, authorities often hold blasphemy trials in jails or in camera, preventing the right to a public hearing and the accused’s right to an effective defense. Moreover, the Pakistani blasphemy laws have been heavily used since their inception. According to Human Rights Watch, there have been 1,400 blasphemy cases since the laws were first enacted in 1986. There are more than 15 cases of people on death row for blasphemy in Pakistan, and 52 people have been killed while facing trial for the charge.[174] Consequently, it appears that Pakistan’s blasphemy laws severely curtail its citizens’ rights including the right to freedom of expression.
Currently, Pakistan is similar to Ireland in early common law where blasphemy laws were more restrictive of freedom of expression in Ireland.[175] The rationale of Irish blasphemy law in the eighteenth century was the protection of Christianity. The Pakistani blasphemy laws punish individuals for defaming Islam.[176] The main belief of Islam is that there is only one God, namely Allah and that the Prophet Muhammed was the final messanger of Allah.[177] Therefore to speak against Islam would be considered blasphemy. However, Ireland has somewhat adapted to a secular society.[178]
In a stark contrast to Ireland, Pakistan reinforced its traditional moral values as it retained blasphemy laws that only applied to Islam. This could be perceived as being rather discriminatory to those who profess religious beliefs other than Islam. This is despite the fact that Article 36 of the Pakistani Constitution claims to protect minorities.[179] However on closer inspection, it appears that blasphemy laws are a legal justification for intolerances of different religious beliefs.
A more worrying concern is how Pakistan uses blasphemy laws to promote broad censorship on speech. For example, in May 2010, the Court in Lahore placed a temporary ban on Facebook, Wikipedia, and YouTube in response to growing sacrilegious content.[180] There is also a concern that these blasphemy laws are used to suppress the opinion of those in the minority. This is just one of the effects of blasphemy laws in Pakistan.
One of the primary effects of blasphemy laws is the possiblity of manipulation for personal vendettas as mere accusation is suffice for an arrest.[181] There is evidence of the manipulation of blasphemy laws in research conducted by the International Commission of Jurists. In the 25 cases reviewed by the ICJ, in 60% of appeals in the High Court, the appellants were acquitted on the grounds that the complaints against them had been either been fabricated, or made maliciously for personal or political reasons.[182]
The misuse of blasphemy laws are facilitated by the vague language of the blasphemy laws and the absense of the requirement for intent to blaspheme. For example, Section 295-C of the Pakistan Penal Code, criminalises words, representations, imputations, innuendos, or insinuations, which directly or indirectly, defile the sacred name of the Holy Prophet. The elements of the offence are vague and overbroad, and are open to subjective interpretations. Vague laws allow selective prosecution and interpretation which can be based on discriminatory views.
In 2005, the Lahore High Court relied on a different interpretation of Islamic jurisprudence.[183] In this case, the trial court had convicted a Muslim man for uttering derogatory remarks against Prophet Muhammad. The High Court dismissed the appeal and upheld the trial court’s death sentence, ruling that the Quran prohibited even the slightest cause of annoyance to the Prophet Muhammad and that the only punishment for insulting him was death.
As the blasphemy laws are vague and open to interpretation, this has led to tragic consequences in Pakistan. In a recent judgment, the Supreme Court discussed data collected by the Legal Aid Society, Karachi, which indicated that at least 53 people have been unlawfully killed since 1990 in relation to blasphemy allegations, including not only those accused of committing blasphemy, members of their communities, and their lawyers, as well as politicians who had called for amendments to the law.[184] Despite the government’s claiming a zero tolerance policy towards extremism, it has failed to take action to address vigilantism. This could be as there is a high level of support politically and publically for blasphemy laws. As the general public favour blasphemy laws, the authorities are frequently overuled by citizens through vigilantism.[185] According to the United States Department of State, the government failed to prevent acts of violence and in fact, has encouraged people to take the law into their own hands.[186] It could be said that vigilantism is a direct result of relgious intolerances in Pakistani society.[187]
It appears that religious intolerance is widespread.[188] The target of religious minorities is exacerbated by the enforcement of blasphemy laws by the judicial system. In Zaheerudin v. State, the Supreme Court trivialised the importance of a minority religion by comparing the practise of the Ahmadiyaa faith to Trademark infringement.[189] The court in Zaheerudin added that the court has the right to protect the sanctity of Islam. The decision confirmed that Pakistani Courts treat religious minorities unfairly.
Despite widespread recognition of the injustices regarding blasphemy laws, those accused of blasphemy, as well as the their families, their legal representation, and their communities are at risk. Younis Masih an alleged blasphemer, was presumed to be killed by either detainees or staff.[190] Moreover, because of the fear of vigilantism, those accused of blasphemy are forced into hiding. Nakoula Bassely Nokoula was forced into hiding after a $100,000 bounty was placed on his life.[191] Nokoula distributed a video ridiculing Islam on YouTube. The politicians of Pakistan are not immune from the effects of blasphemy laws either.
Bhatti, a politician who promised a government review of blasphemy laws was killed in 2011.[192] Despite the fact that a group claimed responsibility for the murder of Bhatti, no-one was punished for it. There are instances of innocent minorities in the community who were not even involved in an alleged blasphemy incident that were attacked. An example of such an attack in a community was at Lahore in May 2010, where at least 93 Ahmaydiyyas were killed when militants attacked mosques.[193] There was no condemnation by the Pakistani government.[194] This indicated an approval of the attacks at the mosques.
It appears that blasphemy laws are open to abuse and directly target the most vulnerable religious minorities in Pakistan. This is not helped by factors such as a weak judicial system, prosecutorial misconduct, corruption within the police and those who administrate justice, inadequate legal representation, and the imposition of the death sentence in such cases leads to grave breaches of justice.
In times of fear and uncertainty, societies can become less tolerant. Societies can come under strain when divergent views and cultures cause a clash of beliefs. Blasphemy laws are a response to the dangers posed by intolerance. As a result of the threat to public safety and the need to protect human rights, blasphemy laws can be seen as a justification of extenuating intolerances.
The question of whether there are any merits in Pakistan’s blasphemy laws needs to be investigated. It could be said that Pakistan has a different society to Ireland. Ireland is a democratic society and appears to encourage freedom of expression. This contrasts to Pakistan which is a conservative country which would not have the same freedoms which Ireland appears to have.
Pakistan imposes blasphemy laws as there is a perceived need to protect religious beliefs from insult. As Ireland is a secular society with a wide variety of beliefs, it could be argued that there needs to be some respect for people’s religious beliefs. However, Pakistan has strict blasphemy laws with severe consequences and so, Ireland may look at Pakistan for reasons why Irish blasphemy laws needs be repealed.
It could be argued that the risk to the community from violent mobs is one of the valid rationales for the restriction on Pakistan’s citizen rights. This includes the right to freedom of expression as provided for by Article 19 of the Pakistani Constitution. Dobras has detailed in research that the government of Pakistan have argued that freedom of expression is a derogable right.[195] This means that certain rights can be restricted under certain circumstances and this includes protection from potential violence. It could be said that the primary rationale for the retention of blasphemy laws in Pakistan is that they protect people of all religious beliefs in the community.
There is evidence that an accused requires protection from violent mobs in many cases.[196] This includes the case of Rimsha Masih, a 14 year old girl who was arrested as there was a fear that she would be attacked by violent Islamic mobs. Rimsha was accused of setting fire to pages of the Qu’ran, a book which is held dear by those who profess Muslim beliefs.[197] Rimsha was falsely accused by a Muslim cleric and the case was dismissed by the High Court in Islamabad in September 2012.[198] It could be argued that there is a low risk of a violent attack directed at a person accused of blasphemy in Ireland. However, it is a very real reason for the retention of blasphemy laws in Pakistan as there are many instances of an accused that needs protection from violent mobs like in Rimsha Masih’s case. Holzaepful justifiably rationalised the legal justification for blasphemy laws in that they purport to protect those accused of blasphemy from unjust attacks.[199] As those accused of blasphemy are often imprisoned, the lower court judges may agree with this reasoning.
However, it has been argued that lower court judges are influenced by the general public.[200] Hassan has stated that Higher Court judges in Pakistan are aware of the possible unfairness of alleged blasphemers charged and those that are convicted of blasphemy are released.[201] In more than 80% of the reported cases by the International Commission of Jurists, those accused of blasphemy are eventually acquitted on appeal.[202] The judges have ruled that in the majority of such cases the complaint was fabricated and spurred on by personal vendettas.[203]
The National Commission for Justice and Peace found that in over one hundred cases where the defendants in recent blasphemy trials were found innocent, the accusers were shown by the court to have been motivated by personal grudges or hopes of financial gain.[204] This possibility has been raised in the Rimsha Masih case, with witnesses coming forward and stating that those who accused Rimsha did so out of a motivation to drive Christians from the area. [205] In 2011, Sajad Masih admitted to sending blasphemous text messages to religious leaders in the name of his fiancé in order to punish her for breaking their engagement.[206]
Despite the restrictions on rights to protect those from personal vendettas, the Pakistani government depicts that it has religious freedom.[207] Supporters of Pakistan’s blasphemy laws argue that the laws are not discriminatory and apply equally to all citizens of Pakistan.[208] According to Dobras, Boyle and Sheen, the treatment of religious minorities remains a concern.[209] Dobras added that the religion of Islam supersedes any laws in Pakistan.[210] Article 227 of the Constitution provides that laws must conform to Islam. Therefore, the freedom and protections garnished to religious minorities is subject to the limitation that they must conform to Islam.
While supporters may argue that blasphemy laws apply to all religions, it may not be possible for those who profess minority religious beliefs to report a crime of blasphemy. The Pakistan Report stated that blasphemy laws require that there must be public outrage for arrest. [211] If there is a requirement of public outrage, then it is not possible for a prosecution for the blasphemy of religions other than Islam. Muslims account for 97% of the population.[212] Therefore, it appears that only Islam is protected by blasphemy laws in Pakistan. This contrasts to Ireland. The Defamation Act 2009 provides that blasphemy provision applies to all religions equally.[213] The expansion of Irish blasphemy laws could be seen as an achievement as there is no discrimination in the application of blasphemy laws.
There appeared to be progress in Pakistan when Rimsha Masih was acquitted from a blasphemy charge in 2013.[214] Hoffman questioned whether there was a change in Pakistani blasphemy laws after the acquittal of Rimsha Masih.[215] The fact that the accuser was arrested for fabricating evidence was unprecedented; however Hoffman added that this was far from a turning point. Rimsha and her family were forced to go into hiding in Canada. Moreover, it has not changed how blasphemy allegations have been handled since then.
The treatment of minorities is not helped by the fact that blasphemy laws provide a justification for intolerance. In addition to its discriminatory enforcement, the penal code provides for; inter alia, wildly disproportionate penalties when the religion criticised is Islam.[216] Dobras stated that the blasphemy laws are a vehicle to punish minorities rather than for any actual wrong-doing in order to punish religious minorities for practising their beliefs that do not conform to Islam.[217]
Holzaepful argued that blasphemy laws are in place for public safety and protect those accused of blasphemy. It has been argued that blasphemy laws are present to protect both those accussed of blasphemy and the community. Blasphemy laws do not in fact protect public safety. They incite violence based on religious belief.[218]
However, restrictions on human rights should only occur when they are necessary and proportionate to legitimate to government aims.[219] Some people might support Holzaepful’s view that the automatic detention of the accused results in protection from violent mobs who would exact a worse punishment. However, if those accused of blasphemy face threats to their lives after being released, the solution should be better protection from the State and not the application of measures that restrict rights. Furthermore, the absence of an impartial inquest system opens the door to the use of blasphemy laws to settle personal quarrels.
Some personal quarrels could be as a result of differences in religious beliefs which blasphemy laws are designed to prevent. Rehman stated that by shielding those who profess Islam from minority religious beliefs, this protection results in rising intolerant attitudes.[220] As already discussed, there are a number of instances where a person was prosecuted for blasphemy and the reason was a result of professing different religious beliefs.[221] Blasphemy laws are designed to prevent religious discrimination, not excerabate them. It has been stated that Pakistan government argue that Islam supersedes any laws. However, Sharia does not state that non – Muslims are inferior to Muslims.[222] The aim of blasphemy laws is not religious discrimination resulting in restrictions to human rights.
In researching Pakistani blasphemy laws, it appears that blasphemy laws are prioritised in favour of its citizens’ rights. Blasphemy prohibitions could be seen as a way of preserving social order and safety in a modern plural and democratic society. However, legislative respect for religions is not required from a human rights perspective as harmful abuses of expression are provided for in International Human Rights Law. Pakistan’s blasphemy laws breaches its international legal obligations in relation to protection for freedom of thought, conscience, religion or belief; freedom of opinion and expression; the prohibition of discrimination; amongst other rights important for a plural and democratic society. The operation of blasphemy laws continues to have a detrimental impact on democratic rights in the country, and feeds into the atmosphere of religious intolerance and extremism.
Pakistan claims to have attempted to impose obligations on the Western world in relation to the treatment of Muslim minorities. However, it has not been willing or able to protect its own religious minorities.[223] Though successive governments have recognized that these laws are abused, they have been either unwilling or unable to adopt the reforms necessary to address this issue. This legal system not only restricts freedom of expression, but enforces aspects of Islam which unfortunately can be through vigilantism. Hoffman has stated that all institutions of the Pakistani State – the executive, the parliament, and the judiciary have relinquished responsibilities under human rights law when people are accused of committing blasphemy, knowingly leaving them either at the mercy of religious extremists, or facing trials that are fundamentally unfair.[224] If any sort of reform is to be achieved, it is there where it must take place.[225]
While Hoffman[226] has proposed the reformation of Pakistan’s blasphemy laws, it has been argued by the Muslim Council of Britain that there is nothing more insulting, immoral or offensive than insulting one’s prophet.[227] Additionally, it could be argued that it is inappropriate for Muslims to tolerate insults in favour of the demands of freedom of expression. However, the above arguments do not justify the suppression of blasphemous expression. The restriction of freedom of expression should not underestimated by blasphemy laws.[228] The protection of the right to freedom of expression can place the protection of religious sensitivities in conflict.
In Ireland, blasphemy laws were enacted to safeguard rights which protect religious feelings. Despite the fact there is a right to freedom of expression, this freedom is restricted by blasphemy laws. Spencer has suggested that there is no evidence for the assumption that religious feelings are more important than any other feelings and that religious people can be more offended. It has been added that this is discriminatory against non-believers.[229] If Ireland were to retain a law for the prevention of certain offensive religious speech, then it must involve a balance between the competing claims of freedom of expression on the one hand, and the protection of religious sensitivities from being offended on the other.
There are some jurisdictions which have encountered the issue of the competing claims of freedom of expression and protection from religious insult. England and Pakistan are models of jurisdictions with contrasting approaches to the competing claims of freedom of expression and protection from religious insult.
The jurisdictions of the England and Pakistan have been examined. Now, the approach of these jurisdictions needs to discussed in detail and whether any of these approaches can provide a solution for Ireland.
The rationale of Pakistan’s blasphemy laws needs to be considered in order to discover whether the said rationale justifies the severe restriction of freedom of expression. Pakistan and Ireland are divergent jurisdictions as Pakistan is a more conservative jurisdiction than Ireland. Moreover, Pakistan appears to restrict freedom of expression more than Ireland. Therefore, it needs to be explored whether there are there any merits in Pakistan’s blasphemy laws. And if there are any merits, it needs to be considered whether the conservative approach of Pakistani blasphemy laws could be applied to Ireland.
In addition to Pakistan being a conservative jurisdiction, Pakistan stands amongst the most extreme Muslim nations in terms of blasphemy law enforcement and severity of punishment. Pakistan puts a primacy on religion and the protection of religion over the rights of the individual, including freedom of expression. Though several countries have blasphemy laws on their books, Pakistan’s blasphemy laws appear to violate their citizens’ rights. This is evident in a number of instances discussed previously.[230] It appears that the jurisdiction of Pakistan favors protecting religious feelings.
This contrasts to Ireland as Ireland which is more accepting of other religious beliefs. In Ireland, Catholicism is the primary religious belief professed, however all religions are treated equally by the Defamation Act 2009 and the Constitution. Moreover, there is a wider variety of the population professing religious beliefs.[231] According to the Pakistan Bureau of Statistics, 97% of Pakistan professed Muslim religious beliefs in 2014.[232] Pakistan holds Islam in such a high regard that Islam is part of the constitutional laws. The Pakistani Constitution provides that no laws can be enacted which conflict with Islam.
The Quran is regarded as a highly important part of people’s lives in Pakistan. The reason for the increased importance of Islam were the constitutional amendments enacted under the military rule of Zia ul-Haq, and there has since been a deliberate shift toward an increased role for Islam and Shari’a in the law and governance of Pakistan. According to Dobras, the Islam religion tells believers to violently and fiercely protect it.[233] There are a number of instances where violent mobs attacked an alleged blasphemer as there was a belief that violence is required to protect Islam.[234] As a result of the violent instances, Pakistan’s government argued that the rationale of blasphemy laws was to protect public safety.
The rationale of blasphemy laws of Ireland and Pakistan could be seen as the same. The rationale of the blasphemy law is to prevent public outrage.[235] But, there is a second rationale for Pakistan’s blasphemy laws. As the religion of Islam is given such a constitutional importance, this would be another rationale for the enactment of blasphemy laws in order to protect Islam. The rationale of protecting Islam is similar to Ireland during the common law era whereby Christianity was protected.
There appears to be a rising critique against Islam and it could be argued that with the constant critique, perhaps the religion deserves some protection. During a press conference in New York on 19 September 2012, the Secretary-General of the United Nations, Ban Ki-moon, said the following about Innocence of Muslims:
Now, it is very disgraceful and shameful that still people are provoking the values and beliefs of other people……..It is very important that all people around the world should have due respect and deeper understanding of the values and beliefs……….This is a basic foundation of our civilized society.[236]
Ki-moon may have a point. While there is a right to freedom of expression in both Ireland and Pakistan, this right is qualified. The right to freedom of expression right should not be abused. Ki-moon explains that in order to have a civilised society, there needs to be mutual respect of religious beliefs. It has been argued that for a democratic society, there needs to be an expansive right to freedom of expression. However, if this right is abused, it can result in a society that breeds chaos.
It is claimed that religious intolerance is a contentious issue throughout history amongst individuals, communities and nations. It has been the cause of the bloodiest conflicts.[237] Often, violence and riots are advocated. Innocence of Muslims incited violence across the globe and resulted in at least 75 deaths and 100s of injuries.[238] Therefore, if Muslim beliefs were respected, this respect would have prevented such violence.
Therefore it could be argued that for this reason, blasphemy laws have continued to exist for more than two millennia and have remained a serious matter even in the modern age. Butt stated that the offence of blasphemy not only harms the relationships among the communities but also causes general disorder in the society.[239] This is even more evident in the past few years where attacks have occurred as a result of blasphemous material being published.
However, it appears that blasphemy laws in some countries only incite violence rather than prevent it. The violent reactions to religion have increased by 285 in 14 of the 59 countries that retain some form of blasphemy or defamation of religion laws.[240] However, of the 139 countries with no blasphemy laws have only a 17% high hostility rating.[241]
It could be argued that Pakistan’s blasphemy laws do not in fact protect public safety, they incite violence. Moreover, when those accused of blasphemy are arrested for their apparent safety, this is a submission to the violent mobs. Unfortunately, there are even individuals who are found innocent by the court system that often have to go into hiding and seek asylum elsewhere as a result of the many death threats received.[242] Religious extremists have attended blasphemy court cases and threatened violence if the alleged blasphemer was acquitted; they have also threatened to kill those accused of blasphemy or those, like judges or lawyers, who stood in the way of convictions.[243] There is an unbalanced reaction to alleged blasphemy incidents from religious extremists. There have been occasions of vigilantism occurring in Pakistan, where groups of extremists have attacked or killed alleged blasphemers.[244] This contrasts to Ireland where there is a fear of a fine of €25,000 rather than a death penalty and attacks from violent mobs.[245]
Furthermore, a mixed picture emerges when considering the actual enforcement of blasphemy laws in Pakistan. They are easily manipulated for personal vendettas as mere accusation of blasphemy is sufficient for arrest. Warrants are not required and investigations are typically not conducted.[246] There are a number of flaws in the criminal procedure involved for a charge of blasphemy. There is no evidence required in filing a blasphemy complaint. The word of anyone claiming to be a witness is enough. The accused is arrested and imprisoned immediately, left to await trial in jail. In addition, these laws are flawed in their application because false accusations generally go unpunished. Therefore, it is not just the right to freedom of expression that is restricted; it is the right to liberty that is restricted also.
While it appears that Ireland is a different jurisdiction to Pakistan, there are interesting observations that the Irish government could consider in relation to the retention of blasphemy laws. Religious intolerance in Pakistan runs rampant, and the blasphemy laws facilitate such intolerance.[247] These laws allow extremist religious organizations to operate legally and target religious minorities.[248]
There are some merits for blasphemy laws in Pakistan. It may ensure that people’s religious views are free from ridicule. It could be claimed to prevent social disorder. Yet, there is still disorder. There are people who have been falsely accused as a result of personal vendettas, and people who have been killed because of blasphemous statements. The blasphemy laws and religious intolerance remain a major problem in Pakistan. There appears to be only a primary merit and that is that people’s feelings are protected and these are only those who profess to follow the majority religion of Islam. However, this comes at a very high price for others.
Today, there are people that can live together in peace no matter what religious beliefs they profess. Pakistan shows the pitfalls of strict blasphemy laws and can demonstrate the dangers of the same. In considering Pakistani blasphemy laws, the rationale for the retention of blasphemy laws was public safety and the protection of Islam. Pakistan is an example of a jurisdiction with extreme blasphemy laws and no democracy. This contrasts to England, a secular jurisdiction similar to Ireland.
The blasphemy prohibitions are implemented at the expense of the rights and freedoms of religious minorities. The Pakistani situation perfectly illustrates how blasphemy laws can be enacted against religious minorities that deviate from the state sanctioned religious orthodoxy. Ireland used blasphemy laws in early common law to prevent deviation from Christianity. Therefore, it could be argued that Ireland would go back centuries of progression to a plural society if blasphemy laws similar to Pakistan were enacted.
England and Ireland are both becoming secular. However unlike Ireland, England did not retain its blasphemy laws. As a result of the enactment of the Criminal Jurisdiction and Immigration Act 2008, blasphemy laws were abolished in England. This was enabled by the enactment of the Incitement to Racial and Religious Hatred Act 2006. The enactment of the 2006 Act ensured that there was still some protection against the stirring up of religious hatred. Whilst England abolished its blasphemy laws in 2008, a year later, Ireland reiterated its blasphemy laws and enacted the Defamation Act 2009 which gave blasphemy laws a statutory footing. Perhaps England could be looked at as an example of a jurisdiction that has abolished its blasphemy laws in a country that is becoming more secular and democratic. As England was becoming a more democratic and secular state, the right to freedom of expression was recognised as an important right.
The abolition of blasphemy laws was enabled by the enactment of the Incitement to Racial and Religious Hatred Act 2006. It created new offences that prohibited conduct which stirs up hatred against persons on religious grounds. Religious hatred is defined as hatred against a group of persons defined by reference to religious belief or lack of religious belief. The aim of 2006 Act was to secure greater equality for minority religious belief-holders and for those without any religious belief at all.[249] The previous discriminatory distinction allowed the apparently legally sanctioned restriction on expression by blasphemy laws.
Tomes disputed that as England claimed to be a country that is becoming more secular, it would be inconsistent to retain a law that protected only one religion.[250] English blasphemy laws exclusively protected the religion of Christianity. The protection of Christianity was discriminatory as it restricted freedom of expression for people who professed different beliefs. This was not consistent with a country claiming to accommodate diverse religious views as it only protected one religion.
According to the British Social Attitudes Survey, it appeared that the affiliation to the Church of England religion fell from 40% in 1983 to 25% in 2010.[251] As the importance of the Church of England religion decreased, it could be seen that the protection of that religion was less important. The restriction of freedom of expression was for a redundant rationale.
It could be argued that Ireland is a more religious society than England. According to the 2011 census, 84% of the population were Catholic. Therefore, Ireland may not be the same plural jurisdiction as England, as it appears that more importance is placed on religion in Ireland. However, Ireland is becoming similar to England.[252] Both Ireland and England and are becoming democratic societies, therefore importance needs to be place on freedom of expression.
Section 29J of the Incitement to Racial and Religious Hatred Act 2006 provided a defence for freedom of expression.[253] The Government’s original proposal for the 2006 Act would have seriously harmed freedom of expression and had the potential to criminalise ordinary religious debate. The 2006 Act criminalised the incitement of hatred against people defined by their religious beliefs, it did not criminalise the criticism of those religious beliefs themselves. Moreover, it seemed clear that this narrowing of the focus onto threatening words or behaviour aimed to refute arguments about freedom of expression by ensuring that it would remain lawful to insult religious beliefs. Under the 2006 Act, criticism of a certain religion or it prophets would not constitute an offence per se.[254] Instead, it must be proven that such criticisms are committed by means of threatening words or behaviour, with the intention of stirring up religious hatred, and consequently this conduct would be punishable. Whether the target of criticism is a religion, ideology, or religious leader, the right to criticise is guaranteed under the 2006 Act.
However, the expansion of the religious hate speech provisions to religious criticism was highly controversial.[255] It led to a campaign by famous comedians and others concerned about the censoring of religious criticism.[256] It was argued that the 2006 Act was an illegitimate restriction on freedom of expression. It could be argued that the 2006 Act would in effect constitute a ban on serious theological debate.
However, contrary to Government’s original intentions, a prosecution can only be brought if the defendant intended to stir up religious hatred. This, coupled with a freedom of expression provision in the 2006 Act, has decreased the chance of a successful prosecution under the Act. There have been no reported cases to date. Bailin has pointed out that there have been several cases where charges have been brought but have been dropped before reaching court.[257] The 2006 Act extends protection to religious groups defined by reference to religious belief or lack of a religious belief.[258] According to Ahdar and Leigh, ‘a suspicion persisted that the proposal was a balancing measure to make the government’s policy more acceptable to British Muslims, some of whom had long campaigned for such a move’.[259] The government’s concern was primarily to protect Muslims.
However, the risk of being charged with religious harassment acts more as a deterrent and these offences are increasingly controversial in a society that has become increasingly secularised.[260]
Lord Ahmed argued that
‘I am not against blasphemy laws. Indeed, I should very much like all religions and all peoples to be protected from insults and attacks equally in law….However certain common law offences relating to religion and public worship are out of date and relate to only one section of our community. It is imperative that we amend our laws so that they are relevant to the multi-religious Britain of today’.[261]
As the world is ever more inter-connected and as the fabric of societies has become more multicultural, there have been a number of incidents in recent years, which have brought renewed attention to the issue of incitement to hatred. It should be underlined that many of the world’s conflicts in past decades have contained a component of incitement to national, racial or religious hatred. The realisation of the right to freedom of expression enables public interest debate enabling different perspectives and viewpoints. It could be stated that freedom of expression has a crucial role to play in ensuring democracy and sustainable human development, as well as in promoting international peace and security.
The options for reform have been discussed in detail and the suitability of these options for Ireland needs to be reviewed. There have been two options proposed for Ireland. All of these options have diverse beliefs regarding blasphemy and the freedom of expression. As Ireland is a country with religious values, it would be understandable that Pakistan’s system would be posed as an example of a country where religious views are taken into consideration. Despite the fact that Ireland’s majority religion is Christian and Paksitan’s is Muslim, Pakistan can be still be looked at as the framework could give an example of strict blasphemy laws being enforced in favour of freedom of expression. It has been suggested that the restriction on freedom of expression is for public safety.[262]
There has been a lot of religious tensions in the last few decades. These tensions seem to be accumulating. It could be argued that a lot of these religious tensions would be eased if there were no publications of blasphemous statements which offends people’s religious feelings. The fact that people have been offended by certain publications containing blasphemous statements has resulted in disruption to society. There have been terrorist attacks and its has been claimed that these attacks were the result of religious extremists being so offended by blasphemous statements, and it was felt action needed to be taken.
It has also been argued that people’s religious views are entitled to freedom from insult. For these reasons, it has been claimed that there needs to be enforceable blasphemy laws. In the last 15 years, there has been no prosecution of blasphemy. So would some of Pakistan’s conservative methods of enforcing blasphemy be any benefit to Ireland?
Without disrespect to Pakistan, this would not be a solution for Ireland. Ireland is a democratic country. There needs to be enhanced protection of the right to freedom of expression. Freedom of expression is already restricted excessively. As already discussed, freedom of expression is needed in Ireland. People have the right to receive and impart information. If there were no freedom of expression, Ireland would become a totalitarian state like Pakistan, where the citizens barely have any freedoms. It has been claimed that blasphemy laws in Pakistan are for public safety.[263]
Blasphemy laws are meant to suppress social unrest and protecting human rights, however this may not be the reality. In August 2011, a report conducted by the Pew Forum on Religion & Public Life found that blasphemy and defamation against religions laws actually have the opposite effect on social unrest.[264] Not only does the evidence from the Pew Forum demonstrate that hostilities against religion are much more frequent in countries with blasphemy laws, it also points to a trend. In those fifty-nine countries with blasphemy laws on the books, from mid-2006 to mid-2009, hostilities have increased at a higher rate than in the 139 countries with no such blasphemy laws.[265] In roughly 28% of those countries hostilities against religion increased, and hostilities only decreased in 3.4% of those fifty-nine countries.[266] In the 139 countries globally without blasphemy laws, hostilities only rose in 6%, and hostilities decreased by 7%.[267] This demonstrates that blasphemy laws create more problems rather than solving them.
It appears that out of the two options for reform for Ireland, the English option for reform would be most suitable for Ireland. England removed blasphemy from its statute books. One of the reasons for the removal of English blasphemy laws was the appearance of discrimination as only one religion was protected by English blasphemy laws. This was similar to Ireland prior to the enactment of The Defamation Act 2009, where only Christianity was protected. The Defamation Act 2009 provides that blasphemy prohibited against all religions. The Irish blasphemy laws whilst restricting certain rights, were marginally better than English blasphemy laws as they were applied to other religions other than Christianity. The abolition of English blasphemy laws removed the discrimination of protecting only one religion.
The aim of preventing discrimination is essential in England, a jurisdiction that has become more culturally diverse. Whilst Ireland may not have the same variety of diverse cultures, it is a positive move to adopt laws that would prevent discrimination based on religion. This social harmony would enable co-existence between communities with different values and religious beliefs. The Incitement to Racial and Religious Hatred Act 2006 would enable a peaceful society as it would be unacceptable to for anyone to incite hatred to an entire segment of a population. The Incitement to Racial and Religious Hatred Act 2006 sets a minimal standard of conduct that is responsible which ensures that publications do not cause a high level of offense. However, as it the Incitement to Racial and Religious Hatred Act 2006 is not discriminatory, is it is more suitable to a secular society than English blasphemy laws.
The Irish blasphemy provisions are unsuitable for the modern increasingly secular society of Ireland. While The Defamation Act 2009 is not sectarian and the law on blasphemy does apply equally to all religions, about 20% of people in Ireland are atheists and the provision does not offer atheists any protection to express their views on religious perspectives. In addition, the legislation provides for exemptions including gestures of genuine literary, artistic, political, scientific, or academic value, however, it does not define these exemptions, making them difficult to prove in court.
Accordingly, legislative amendments for blasphemy were inadequate to achieve true reform in regard to the problems with blasphemy.[268] This was examined in detail when the Consititutional Convention presented a report in 2014, where Eoin O’Dell proposed solutions for the difficulties with blasphemy laws in Ireland.[269] Moreover, the Constitutional Convention report proposed amendments for the constitutional and statutory provisions for blasphemy.[270]
The Constitutional Convention report proposed that there should be no amendments to blasphemy law as the courts are clearer in decisions regarding freedom of expression, especially in its interpretation and application.[271] However, not everyone agrees with this sentiment. O Dell stated that ‘no matter how hard they try, they cannot make a silk purse out of a sow’s ear.’[272] In other words, no matter how clear the courts are interpreting the constitutional provision, the current wording of the constitutional provision is unsatisfactory and drafted in such a way that the limitations on freedom of expression are afforded undue significance.[273]
Irregardless of how the court interprets and applies the provision of the Constitution, the blasphemy provision cannot be ignored.[274] It was suggested by the Constitutional Convention report that all of Article 40.6.1 (i) should be replaced. It was recommended that the provision for freedom of expression should be more akin to Article 10 of the European Convention of Human Rights. It may appear that by eradicating the whole provision may provide a solution. However, considering that Bunreacht na hÉireann was created back in 1937, it was ahead of its time.
Currently, the constitutional provision is not suited to a modern secular society. Additionally, the blasphemy statute does not protect those who profess atheisism. Even more worrying is the fact that blasphemy laws censor atheists’ expression and they may only be professing their beliefs. The next solution suggested by the report was to amend Article 40.6.1 (i) by removing the blasphemy aspect of it. As this is the biggest problem of the provision, this could be key in ensuring that freedom of expression gets the recognition that it deserves. But to ensure that freedom of expression gets priority, the other constitutional crimes of sedition and treason would also need to be removed. At the Constitutional Convention a majority favoured the removal of blasphemy.[275] Apparently, the Constitutional Convention is the views of the people of Ireland. It is displayed throughout this essay that the majority of commentators share the same view. Therefore, if a referendum was implemented to remove these aspects from Article 40.6.1 (i), this would mean that as the majority would vote yes, this would not pose a problem.
The Constitutional Convention report moves onto statutory recommendations. These recommendations related to Section 36 of the Defamation Act 2009. It was proposed that the statutory provision could be left as it is or the amending of its scope was discussed. The reasons for the provision remaining is to protect people’s religious feelings and after Corway[276] a gap would remain as there is no definition of blasphemy. But as discussed, the right to freedom of expression is a highly important right in a democratic society and this right cannot be restricted for religious feelings. The argument of a gap in blasphemy law would be redundant as it would be proposed to eliminate blasphemy from statute and from the Constitution. In addition, recent voting patterns in the Human Rights Council suggest that support for the concept of defamation of religions is on the decline at the international level.[277]
The concept of repealing blasphemy laws was discussed in the Constitutional Convention report. The argument was raised was that there is already an Irish provision which prohibits hatred against people because of their religion.[278] It also extends the offence of hatred to people because of their race, ethnicity, sexual orientation or if they are a member of the travelling community. This demonstrates that the blasphemy provision is narrow in scope compared to the incitement to hatred provision which exists for other types of hatred. It was advocated by the Constitutional Convention report that the blasphemy laws should be replaced in its entirety. This has been done in England as discussed previously.[279] This legislation was applauded by commentators as it shows that the England is dedicated to freedom of expression.
- Conclusion
Ultimately, it is the Irish Courts that has created a confusing and unpredictable jurisprudence that gives preferential treatment to protecting religious sensibilities. Perhaps more problematic is the court’s apparent willingness to show a great amount of deference to the Irish government, even when it limits the expression of individuals who do not subscribe to religious beliefs. It is clear that in the Irish courts when freedom of expression is concerned, it will only be protected once it is not conflicting with another right. There is a lack of development on Ireland’s part with blasphemy laws. This is despite the fact that since 2005, there have been significant events surrounding blasphemous material being published. As tensions have increased, it is hard to see why there is such deference on the government and court’s part.
It is clear that there has been a gradual development of the right to protection from religious insult. There has been a failure to recognise that there is no conflict between the right to protection from religious insult and the right to freedom of expression. It is also clear that there are inherently discriminatory blasphemy laws sanctioned. There is too much priority given to religious sensibilities – and this means that these get too much of a priority over freedom of expression. Of course, while legal sanctions on nonviolent speech are objectionable as they give the government undue control over its citizens’ expression, it should be recognised that there are sociological problems related to how speech is used and manipulated, especially in Pakistan.[280]
The role of expression and social responsibility needs to be considered. There needs to be social solutions and not legal solutions which offends and causes social unrest.[281] Plenty can and should be done to confront problems of intolerance, discrimination, and violence without restricting expression. In England, statutory blasphemy laws have been repealed, however there is still restriction on freedom of expression.[282] Yet, in the United States, there are no blasphemy laws and social regulation is effective. Freedom of expression is needed to be seen as not an individual luxury, but as a right which is essential in Ireland’s democratic and secular society. When there are legal restrictions, it only takes the burden off people to censor what they say-something which they should be responsible for themselves.
The prevalent view is that Irish blasphemy laws should be abolished. It has been suggested that the protection of religious sensibilities is provided for by the Prohibition of Incitement to Hatred Act 1989, which does not afford religious opinions a special position above the opinions of the non-religious, or indeed opinions on non-religious subject matter, but treat all opinions equally.[283] Therefore, there was no need for the blasphemy to be re-established in The Defamation Act 2009.
However, abolishing the offence of blasphemy would do nothing to correct another imbalance in the law. The Irish government needs to go one step further. Irish or international laws proposing to ban blasphemy laws do not solve the very real problems of religious discrimination faced by the people who profess many different religions around the world. Blasphemy not only offends against the right to freedom of expression, but it also discriminates against people who do not profess any religion. Instead of trying to shield religions per se against criticism or ridicule, the Irish government should focus their attention on the protection of believers and non-believers against discrimination and violence. Even with the repeal of blasphemy laws and an amendment to the Constitution would be powerless to improve the protection of freedom of expression unless there is judicial, governmental or public desire for change.
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[1] (John W Parker & Son.) 76, 80.
[2] Ruadhán Mac Cormaic & Lara Marlowe, ‘It Was Over in Less Than a Minute: For France a Dark, Disorienting Week Reached a Brutal End’ The Irish Times (Paris, 10 January 2015). Available at http://www.irishtimes.com/news/world/europe/it-was-over-in-less-than-a-minute-for-france-a-dark-disorienting-week-reached-a-brutal-end-1.2061067 accessed 14 January 2017.
[3] Catholics represented just fewer than 90% of the population in each of the censuses held from 1881 to 1911. The proportion of Catholics of the total population rose to a peak in 1961. Ever since then, its proportion of the total population has declined, falling gently in the sixties and seventies then accelerating to a more pronounced drop in the eighties. While the proportion of Catholics continued to decline in 2011 to 84%. See Report on 2011 Census, Central Statistics Office, Profile 7 – Education, Ethnicity, and Irish Travellers, available at <http://www.cso.ie/en/media/csoie/census/documents/census2011profile7/Profile,7,Education,Ethnicity,and,Irish,Traveller,entire,doc.pdf.> accessed on 6 March 2017. According to the 2016 Census figures the proportion of Catholics has declined further, the lowest figure being 78.3%. See Press Statement Census 2016 Summary Results – Part 1, available at http://www.cso.ie/en/media/csoie/newsevents/documents/pressreleases/2017/prCensussummarypart1.pdf, accessed 12 April 2017.
[4] Report on 2011 Census, Central Statistics Office, Profile 7 – Education, Ethnicity, and Irish Travellers, available at <http://www.cso.ie/en/media/csoie/census/documents/census2011profile7/Profile,7,Education,Ethnicity,and,Irish,Traveller,entire,doc.pdf.> accessed on 6 March 2017.
[5] The Defamation Act 2009, S36.
[6] See further section 3 where the jurisdiction of the United Kingdom is discussed.
[7] See further section 4 where the jurisdiction of Pakistan is considered.
[8] Terry Hutchinson, ‘Valé Bunny Watson? Law Librarians, Law Libraries and Legal Research in the Post – Internet Era’, (2014) 106(4) Law Library Journal 579, 584.
[9] O Kahn – Freund, ‘On Uses and Misuses of Comparative Law’ (1974) 37 MLR 1, 2.
[10] Morris Manning, ‘Rights, Freedom and the Courts: A Practical Analysis of the Constitution Act 1982’ (1983) Toronto 12.
[11] The guarantee of freedom of expression set out in Article 40.6.1 (i) of the Irish Constitution protects ‘the right of the citizens to express freely their convictions and opinions’. But, this protection is limited, since ‘organs of public opinion’ may not be used ‘to undermine public order or morality or the authority of the State’.
[12] William Blackstone, Commentaries on the Laws of England, Vol. 4, (Oxford: Clarendon Press, 1765-1769) 59.
[13] For further detail, see Paul O’Higgins, ‘Blasphemy in Irish Law’ (1962) 23 Mod L Review 151, 158.
[14] R v. Taylor (1676) 1 Vent 293, (1676) 86 ER 189, available at <http://www.commonlii.org/uk/cases/EngR/1726/773.pdf> accessed 25 March 2016, in Paul O’Higgins, ‘Blasphemy in Irish Law’ (1962) 23 Mod L Review 151, 158.
[15] R v. Woolston, Fitzgibbon 64, 2 Strange, 832, 1 Barnardiston 162, 266, in Paul O’Higgins, ‘Blasphemy in Irish Law’ (1962) 23 Mod L Review 151, 158.
[16] Paul O’Higgins, ‘Blasphemy in Irish Law’ (1962) 23 Mod L Review 151, 158.
[17] Ibid.
[18] R v. Petcherine (1855) 7 Cox CC.
[19] See Marcus Tregilgas-Davey, Ex Parte Choudhury, ‘An Opportunity Missed’ (1991) 54(2) Mod L Review 294, 295.
[20] This rationale of protecting the official religion of the state becomes important in the important case ofCorway v. Independent Newspapers, (2000) 3 TCLR 95, 109. See Collins, An Outline of Modern Irish History (Dublin, 1985).
[21] R v. Ramsay & Foote (1883) 15 Cox CC 231.
[22] R v. Boulter (1908) 72 JP 188.
[23] Bowman v. Secular Society [1917] AC 406, HL.
[24] R v. Petcherine (1855) 7 Cox C.C. 79.
[25] Bowman v Secular Society [1917] AC 406, HL. See Stephen Ranalow, ‘Bearing a Constitutional Cross Examining Blasphemy and the Judicial Role in Corway v. Independent Newspapers, (2000) 3 TCLR 95, 109; Neville Cox, ‘Constitutional Law-Constitutional Interpretation – Passive Judicial Activism – Constitutional Crime of Blasphemy’ (2000) 201 DULJ 207.
[26] Paul O’Higgins, ‘Blasphemy in Irish Law’ (1962) 23 Mod L Review 151, 158.
[27] Ibid.
[28] Bunreacht na hEireann. Article 40.6.1 (i) provides that
The State guarantees liberty for the exercise of the following rights, subject to public order and morality: –
i. The right of the citizens to express freely their convictions and opinions.
ii. The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The constitution also provides a corollary right to communicate which was recognised as an unenumerated right, and this covers communication of information. This unenumerated right was first recognised in AG v. Paperlink [1984] ILRM 373.
[29] Bunreacht na hEireann, Article 44.2.3.
[30] Bunreacht na hEireann, Article Art 40.6.1 (i) which provides that ‘the publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law’.
[31] This is a result of the incorporation of the Convention into Irish law by the European Court of Human Rights Act 2003.
[32] See De Rossa v. Independent Newspapers Plc [2000] IEHC 171, [2000] 3 JIC 0702.
[33] However see section 2.2 Developing the Jurisprudence of Irish Blasphemy Laws where Corway v. Independent Newspapers [1999] 4 IR 484 was a leave to take criminal libel prosecution.
[34] Bunreacht na hEireann, Article 40.6.1 (i) provides that ‘ [t]he State shall endeavor to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State’. The article goes on to state, ‘[t]he publication or utterance of blasphemous, seditious, or indecent matter is an offense which shall be punishable in accordance with law.’
[35] Paul O’Higgins, ‘Blasphemy in Irish Law’ (1962) 23 Mod L Review 151, 158.
[36] Joint Committee on the Constitution, Houses of the Oireachtas, Ireland, Article 40.6.1 (i) — Freedom of Expression (2008) http://www.oireachtas.ie/documents/committees30thdail/j-constitution/report_2008/100708-Report1.pdf accessed 11 February 2017.
[37] Eoin Carolan, ‘Constitutionalising Discourse: Democracy, Freedom of Expression and the Future of Press Regulation’ (2014) 1 The Irish Jurist 1, 27. The Constitution, which seems to bear the influence of Catholic social teaching of the era, provided for substantial restrictions on constitutional rights. One has to only look at the preamble which shows the evidence of Christian inspiration
[38] Irish law has not addressed the question of what constitutes a religion. Art 44.1, which requires the State to ’respect and honour religion’, does not restrict ’religion’ to the Catholic faith. See Quinn’s Supermarket v. Attorney General [1972] 1 IR 1, 23 where it was found that a law was discriminatory under Art 44.2.3, but upheld that law to sustain the free practice of the Jewish religion, as guaranteed under Art 44.2.1.
[39] Spoken blasphemy remained a common law crime. Only blasphemous libel, in written form, received statutory regulation by S13(1) of the Defamation Act 1961 carrying a maximum penalty of two years’ imprisonment.
[40] Paul O’Higgins, ‘Blasphemy in Irish Law’ (1962) 23 Mod L Review 151, 158.
[41] Corway v. Independent Newspapers [1999] 4 IR 484. Please note that this was permission to prosecute from the High Court.
[42] For further detail on this provision, see section 2.3 Irish Constitution – Article 40.6.1 (i).
[43] See section 3.2 Irish Constitution – Article 40.6.1 (i). The Irish Constitution provided for the offence of blasphemy. However, it did not provide a definition. The Defamation Act 1961 provided for an offence of blasphemy; however it did not provide a definition of it. Until 2009, the Defamation Act of 1961 was the primary statute for blasphemy law in Ireland. While rigid in its approach regarding defamation law and procedure, the Defamation Act of 1961 hardly broached the subject of blasphemy. However, it created the statutory offence of blasphemy. The 1961 blasphemy legislation provided little framework for the judiciary to reference when attempting to define what constitutes blasphemy, what religions are protected from blasphemous statements, or to what extent one should be punished for different types or extremity of statements. S13(1) provides that ‘Every person who composes, prints or publishes any blasphemous or obscene libel shall, on conviction thereof on indictment, be liable to a fine not exceeding five hundred pounds or imprisonment for a term not exceeding two years or to both such fine and imprisonment or to penal servitude for a term not exceeding seven years.’ See section 2.2 Developing the Jurisprudence of Irish Blasphemy Laws for further detail on what common law offence of blasphemy consists of.
[44] Paul O’Higgins, ‘Blasphemy in Irish Law’ (1962) 23 Mod L Review 151, 158.
[45] Joint Committee on the Constitution First Report of the Joint Committee on the Constitution: Article 40.6.1.(i) – Freedom of Expression (Stationery Office Dublin 2008).
[46] See Neville Cox, ‘Constitutional Law – Constitutional Interpretation- Passive Judicial Activism – Constitutional Crime of Blasphemy’ (2000) 201 DULJ 207; Stephen Ranalow, ‘Bearing a Constitutional Cross Examining Blasphemy and the Judicial Role in Corway v. Independent Newspapers, (2000) 3 TCLR 95, 109; Tom Daly, ‘Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1(i) of the Constitution’ (2009) 31 D.U.L.J. 228, 262.
[47] Corway v. Independent Newspapers [1999] 4 IR 484, at 436.
[48] See section 2.4 The Defamation Act 2009 for further detail.
[49] See earlier in this section where Bowman featured and in the case it stated that the rationale was switched from protecting the religion of Christianity to protecting persons from religious insult. As Bowman was not approved, it appears that the rationale of blasphemy was to protect the religion of Christianity. The religion of Christianity was disestablished.
[50] Neville Cox, ‘Sacrilege and Sensibility: The Value of Irish Blasphemy Law’ (1997) 19 D.U.L.J. 87, 112.
[51] Quinn’s Supermarket v. Attorney General [1972] IR 1 at 23, 24, where Walsh J. stated that ‘Our Constitution reflects a firm conviction that we are religious people. The Preamble to the Constitution acknowledges that we are a Christian people and Article 44.1.1, acknowledges that the homage of public worship is due to Almighty God but it does so in terms which do not confine the benefit of that acknowledgment to members of the Christian faith. In Article 44.1 of the Constitution the State recognises the existence of the several religious denominations there named, including the Jewish Congregations, as well as all other unnamed ones existing at the date of the coming into operation of the Constitution. This declaration is an express recognition of the separate co-existence of the religious denominations, named and unnamed. It does not prefer one to the other and it does not confer any privilege or impose any disability or diminution of status upon any religious denomination, and it does not permit the State to do so’.
[52] Neville Cox, ‘Sacrilege and Sensibility: The Value of Irish Blasphemy Law’ (1997) 19 D.U.L.J. 87, 112.
[53] Stephen Ranalow, ‘Bearing a Constitutional Cross: Examining Blasphemy and the Judicial Role in Corway v. Independent Newspapers’ (2000) 3 Trinity College Law Review 95, 109.
[54] See Law Reform Commission, Consultation Paper on the Crime of Libel (Law Reform Commission, 1991); Report of the Constitution Review Group (Dublin Stationery Office, 1996); Joint Committee on the Constitution First Report of the Joint Committee on the Constitution: Article 40.6.1.(i) – Freedom of Expression (Stationery Office Dublin 2008).
[55]Report of the Constitution Review Group (Dublin Stationery Office,1996).
[56] Report of the Committee on The Constitution (Dublin, 1967).
[57] Select Committee on Justice, Equality, Defence and Women’s Rights Deb 20 May 2009, 4; Dáil Éireann Deb 19 May 2009 Vol. 682 Col 18645/09, No5; Seanad Éireann Deb Vol. 196 Col No. 13; Seanad Éireann Deb Vol. 195 No. 10.
[58] Joint Committee on the Constitution Deb 23 April 2008 Freedom of Expression: Discussion, 3. available at <http://oireachtasdebates.oireachtas.ie/debates%20authoring/DebatesWebPack.nsf/committeetakes/CNJ2008042300003?opendocument&highlight=blasphemy> accessed 31 January 2017.
[59] Referred to in section 2.2 Developing the Jurisprudence of Irish Blasphemy Laws. Please note that the inclusion of blasphemy was only at the committee stage and was not originally part of the Defamation Act 2009.
[60] The Defamation Act 2009 was implemented on the 1st of January 2010. The Defamation Act of 2009 sets out the definition of what is considered to be blasphemous under the provisions of s. 36 (2) which states that:
(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
The defences contained in s. 36 (3) allows for a 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.
[61] Section 34 of the Defamation Bill 2006 provides that ‘The Common law offences of criminal libel, seditious libel and obscene libel are abolished’.
[62] Joint Committee on the Constitution First Report of the Joint Committee on the Constitution: Article 40.6.1.(i) – Freedom of Expression (Stationery Office Dublin 2008).
[63] In Irish political discourse, ‘an Irish solution to an Irish problem’ is any official response to a controversial issue which is timid, half-baked, or expedient, which is an unsatisfactory compromise, or sidesteps the fundamental issue. See Jeffrey A. Weinstein, 1993). ‘An Irish Solution to an Irish Problem: Ireland’s Struggle with Abortion Law’ (1993) Arizona Journal of International & Comparative Law 10, 165.
[64] Carol Coulter. ‘Changes To Defamation Bill Made By Minister’ The Irish Times (Dublin, 21 May 2010).
[65] Carol Coulter, ‘Ahern to propose blasphemy amendment’ The Irish Times (Dublin, 1 March 2010).
[66] Ibid.
[67] The Defamation Act 2009, S35.
[68] Carol Coulter, ‘Ahern To Propose Blasphemy Amendment’ The Irish Times (Dublin, 17 March 2010).
[69] See Dáil Éireann Debates, ‘Constitutional Convention: Motion’ (10 July, 2012), available at < https://www.kildarestreet.com/debates/?id=2012-07-10.505.0>, accessed 4 May 2017.
[70] See Dáil Éireann Debates, ‘Constitutional Convention: Motion’ (10 July, 2012), available at < https://www.kildarestreet.com/debates/?id=2012-07-10.505.0>, accessed 11 March 2017.
[71] The removal of the offence of blasphemy from the Constitution was one of the specified issues to be discussed at the Constitutional Convention. The other issues which were considered included reducing the presidential term of office to five years and aligning it with the local and European elections, reducing the voting age to 17, review of the Dáil electoral system, giving citizens resident outside the State the right to vote in presidential elections at Irish embassies, or otherwise, provision for same-sex marriage, amending the clause on the role of women in the home and encouraging greater participation of women in public life, increasing the participation of women in politics.
[72] The outcome of the convention’s deliberations were that a substantial majority of its members recommended that the offence of blasphemy should be removed from the Constitution, with 61% of members voting in favour of removal of blasphemy, 38% voting against the removal of blasphemy and only 1% undecided.
[73] Dáil Éireann Debates, ‘Sixth Report of the Constitutional Convention – Blasphemy: Statements’, Oireachtas (2 October 2014) available at <http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail2014100200011?opendocument#J00100> accessed 31 February 2017.
[74] External Perspectives – Convention on the Constitution (02 November, 2013), available at <https://www.youtube.com/watch?v=bKCAhqDbge8>, accessed 15 March 2017.
[75] Ibid. It should be noted that the rationale prior to The Defamation Act 2009 was the protection of Christianity.
[76] Ibid.
[77] ‘Convention on the Constitution Recommends that the Offence of Blasphemy in the Constitution Should be Replaced’ available at <https://www.constitution.ie/AttachmentDownload.ashx?mid=b7d9c660-a044-e311-8571-005056a32ee4> accessed 10 March 2017.
[78] External Perspectives – Convention on the Constitution (02 November, 2013), available at <https://www.youtube.com/watch?v=bKCAhqDbge8>, accessed 15 March 2017. Here Michael Nugent recalled an instance of where RTÉ prohibited certain points from discussion. It was added that this was not the only instance of a restriction on the right to freedom of expression.
[79] The ‘chilling effect’ was first adverted to by the United States Supreme Court in New York Times v. Sullivan, 376 US 254, 300 (1964) (Goldberg and Douglas JJ.), where the court noted that where the boundary between permissible and impermissible expression is unclear, publishers will tend to engage in self-censorship in order to ensure that they do not fall foul of the law. See Katherine A. Rollinson, ‘An Analysis of Blasphemy Legislation in Contemporary Ireland and Its Effects Upon Freedom of Expression in Literary and Artistic Works (2011) 39(1) Syracuse Journal of International Law and Commerce 189, Alfred de Zayas and Áurea Roldán Martín, ‘Freedom of Opinion and Freedom of Expression: Some Reflections on the General Comment No.34 of the UN Human Rights Committee (2012) NILR 425, 454; Rex Tauati Ahdar, ‘Religious Vilification: Confused Policy, Unsound Principle and Unfortunate Law’ (2007) 26 U. Queensland L.J. 293; Bede Harris, ‘Should Blasphemy Be a Crime? The ‘Piss Christ’ Case {Pell v. Council of Trustees of the National Gallery of Victoria, unreported {1998} 2 V.R. 391} and Freedom of Expression’ (1998) 22(1) Melbourne University Law Review 217, 229; Niraj Nathwani, ‘Religious Cartoons and Human Rights – A Critical Legal Analysis of the Case Law of the European Court of Human Rights on the Protection of Religious Feelings and its Implications in the Danish Affair Concerning Cartoons of the Prophet Muhammad (2008) 4 E.H.R.L.R. 488, 507; Russell Sandberg and Norman Doe, ‘The Strange Death of Blasphemy’ (2008) 71(6) The Modern Law Review 971, 986; Stuart Chan, Hate Speech Bans: An Intolerant Response To Intolerance (2011) 1 Trinity College Law Review 77, 96.
[80] Ciara Murphy, ‘Defamation, The Media and the Public Interest: A Constitutional and Comparative Analysis of the Case for Reform’ (2003) 3 U.C. Dublin L. REV. 137, 147.
[81] External Perspectives – Convention on the Constitution (02 November, 2013), available at <https://www.youtube.com/watch?v=bKCAhqDbge8>, accessed 15 March 2017.
[82] This was referred to in section 1, Introduction where it was stated that those who profess no religious beliefs has increased in fourfold.
[83] See Press Statement Census 2016 Summary Results – Part 1, available at http://www.cso.ie/en/media/csoie/newsevents/documents/pressreleases/2017/prCensussummarypart1.pdf, accessed 12 April 2017.
[84] Dr. Neville Cox (TCD) – Convention on the Constitution (02 November 2013), available at <https://www.youtube.com/watch?v=VJBwCfcsOwc&list=PLh6GdIsuXe4E9LaLZIOy1b3WhfwPdNUqg&spfreload=10> accessed 11 March 2017.
[85] Quinn’s Supermarket v Attorney General [1972] IR 1, 23.
[86] Quinn’s Supermarket v Attorney General [1972] IR 1, 23.
[87] Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321.
[88] External Perspectives – Convention on the Constitution (02 November, 2013), available at <https://www.youtube.com/watch?v=bKCAhqDbge8>, accessed 15 March 2017. It must be noted that while this organisation had an oral presentation at the plenary sessions of the Constitutional Convention, there was no written submission from the organisation.
[89] ‘The Way Politics Is Done’ The Irish Times (Dublin, 12 July 2012). Available at <http://www.irishtimes.com/opinion/the-way-politics-is-done-1.534442>, accessed 14 March 2017.
[90]‘Fine Words Don’t Do Collins Justice’ Irish Independent (Dublin, 20 August 2012). Available at <http://www.independent.ie/opinion/editorial/fine-words-dont-do-collins-justice-26889086.html> accessed 14 March 2017.
[91] Dáil Éireann Debates, ‘Sixth Report of the Constitutional Convention – Blasphemy: Statements’, Oireachtas (2 October 2014) available at <http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail2014100200011?opendocument#J00100> accessed 5 March 2017.
[92] Ibid.
[93] Barry Roche, ‘Minister for Communications Calls for Blasphemy Referendum’ The Irish Times (Dublin, 1 February 2015). Available at <http://www.irishtimes.com/news/ireland/irish-news/minister-for-communications-calls-for-blasphemy-referendum-1.2087076> accessed 20 March 2017.
[94] Neville Cox, ‘Sacrilege and Sensibility: The Value of Irish Blasphemy Law’ (1997) 19 D.U.L.J. 87, 112.
[95] Law Reform Commission’s Consultation Paper on the Crime of Libel (Dublin, 1991).
[96] This was referred to in section 1, Introduction where the census figures demonstrated that Ireland is becoming a secular society.
[97] There are numerous publications on the merits of freedom of expression. See Robert Cannon, ‘Does Expression Have Any Freedom Left? Murphy v. Independent Radio and Television Commission’ (1998) 1 Trinity College Law Review 126, 143; Tom Daly, ‘Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1(i) of the Constitution’ (2009) 31 D.U.L.J., 228, 262; Tom Daly, ‘Reform of the Prohibition of Incitement to Hatred Act 1989’ (2007) 4 Irish Criminal Law Journal 16, 25; Eoin Carolan, ‘Constitutionalising Discourse: Democracy, Freedom of Expression, and the Future of Press Regulation’ (2014) 1 The Irish Jurist 1, 27; Rachel Joyce, ‘A New Approach to Freedom of Expression? The Doctrine of Proportionality and Article 40.6.1 (i) of the Constitution’ (2002) 2(1) Hibernian Law Journal 85, 90.
[98] Neville Cox, ‘Sacrilege and Sensibility: The Value of Irish Blasphemy Law’ (1997) 19 D.U.L.J. 87, 112.
[99] There has been only one case since the enactment of the Irish Constitution. However, in England there have been a few cases in relation to blasphemy.
[100] R v. Lemon [1979] AC 617, HL.
[101] Laura Tomes, ‘Blasphemy and the Negotiation of Religious Pluralism in Britain’ (2010) Contemporary British Religion and Politics 237, 256.
[102] Ibid.
[103] Reynolds v. Times Newspapers Ltd., [2001] 2 A.C. 127 (H.L.), and this was affirmed in Jameel and others v. Wall Street Journal Europe Sprl [2006] UKHL 44.
[104] Eric Barendt, ‘Freedom of Expression in the United Kingdom Under the Human Rights Act 1998’ (2009) 84(3) Indiana Law Journal 851, 866.
[105] See Entick v Carrington [1765] EWHC KB J98 where that the principle derived that the state may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law.
[106] Reynolds v. Times Newspapers Ltd. [2001] 2 A.C. 127 (H.L.)
[107] Eric Barendt, ‘Freedom of Expression in the United Kingdom Under the Human Rights Act 1998’ (2009) 84(3) Indiana Law Journal 851, 866.
[108] The European Convention of Human Rights, Article 10 provides that ‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’
[109] See section 2.3 Irish Constitution – Article 40.6.1 (i).
[110] The history of early common law in England was discussed in more detail in section 2.2 Developing the Jurisprudence of Irish Blasphemy Laws.
[111] Bowman v Secular Society Ltd [1917] AC 406.
[112] R v. Lemon [1979] AC 617, HL.
[113] Bowman v Secular Society Ltd [1917] AC 406 was mentioned in section 2.2 Developing the Jurisprudence of Irish Blasphemy Laws that the rationale of blasphemy shifted from enforcing religious orthodoxy which prevented breach of peace to protecting the emotional health of religious minorities in both jurisdictions.
[114] Sebastian Poulter, Ethnicity, Law, and Human Rights: The English Experience (Oxford, 1998).
[115] R v. Lemon [1979] AC 617, HL at 922.
[116] R v. Lemon [1979] AC 617, HL at 458, at 927.
[117] The benefits of freedom of expression in a democratic society have been critically discussed elsewhere.
[118] Law Commission, Offences Against Religion, (Working Paper No.79).
[119] Ibid.
[120] Law Commission Report No.145, 1985.
[121] Ibid.
[122] Law, Blasphemy, and the Multi-Faith Society (Commission for Racial Equality, 1990), 2.17, 2.18.
[123] See David Coleman and John Salt, Ethnicity in the 1991 Census, Volume One; Demographic Characteristics ofthe Ethnic Minority Populations (London, 1996). In 1991, an ethnic group question was included for the first time in the census. In the 1991 UK census, 93% of people reported themselves as being White British, White Irish or White Other with 7% of people reporting themselves as coming from other minority groups. However, the census did not include any questions relating to religion until the 2001 census.
[124]R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 QB 429, [1991] 1 All ER 306.
[125] The European Convention of Human Rights, Article 9, Freedom of thought, conscience and religion.
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
[126]Corway v Independent Newspapers [1999] 4 IR 484.
[127] R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 QB 429, [1991] 1 All ER 306.
[128] Paul Kearns, ‘The Uncultured God: Blasphemy Law’s Reprieve and the Art Matrix’ (2000) 5 E.H.R.L.R. 512, 521; D.W. Elliott, ‘Blasphemy and Other Expressions of Offensive Opinion’ (1993) 3(13) Ecc. L.J. 70, 85.
[129] Colin R. Munro, ‘Prophets, Presbyters and Profanity’ (1989) Public Law 369, 374.
[130] Corway v. Independent Newspapers[1999] 4 IR 485; [2000] 1 ILRM 426; [1999] IESC 5 (30 July 1999). See section 2.4 The Corway Case for further detail on the case.
[131] R (Green) v City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin).
[132] Corway was discussed in section 2.2 Developing the Jurisprudence of Irish Blasphemy Laws in more detail.
[133] House of Lords Select Committee on Religious Offences in England and Wales (2003), Volume 1 (HL Paper 95-1).
[134] Russell Sandberg & Norman Doe, ‘The Strange Death of Blasphemy’ (2008) 71(6) The Modern Law Review 971, 986.
[135] R (Green) v City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin).
[136] Whitehouse v. Lemon [1979] 1 All E.R. 898 at 901.
[137] This contrasted to R v. Lemon [1979] AC 617, HL where the Court of Appeal felt that a point of law of general public importance was involved in its decision.
[138] Corway v Independent Newspapers [1999] 4 IR 484.
[139] HL Deb 5 March 2008 c1118.
[140] Laura Tomes, ‘Blasphemy and the Negotiation of Religious Pluralism in Britain’ (2010) Contemporary British Religion and Politics 237, 256.
[141] HL Deb 5 March 2008 c1118.
[142] R. Ahdar and I. Leigh, Religious Freedom in the Liberal State (Oxford University Press, 2005) 368.
[143] HL Deb 5 March 2008 c1129.
[144] Karon Monaghan, ‘Religious Freedom and Equal Treatment : An United Kingdom Perspective’ (2014) 22(2) Journal of Law and Policy 6 , 673, 702.
[145] HL Deb 5 March 2008 c1129.
[146] The Queen’s Coronation Oath is a promise to maintain in the United Kingdom the Protestant religion and the rights and privileges of the bishops and clergy of the Church of England. See Terence Etherton, ‘Religion, the Rule of Law and Discrimination’ (2014) 16(3) Ecc.L.J. 265, 282.
[147] HL Deb 30 January 2002 c318.
[148] Laura Tomes, ‘Blasphemy and the Negotiation of Religious Pluralism in Britain’ (2010) Contemporary British Religion and Politics 237, 256.
[149] Alex Bailin, ‘Criminalising Free Speech?’ (2011) 9 Crim. L.R. 705, 711; Mark Hill and Russell Sandberg, ‘Blasphemy and Human Rights: An English Experience in a European Context’ (2009) 4 Derecho y Religión 145, 159.
[150] The ‘chilling effect’ on freedom of expression was already discussed in section 2.7 The Future of Irish Blasphemy Law.
[151] Karon Monaghan, ‘Religious Freedom and Equal Treatment: A United Kingdom Perspective’ (2014) 22(2) Journal of Law and Policy 673, 703.
[152] Prohibition Against Racial and Religious Hatred, s. 29J, which provides; ‘Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practicing their religion or belief system’.
[153] Mark Hill and Russell Sandberg, ‘Blasphemy and Human Rights: An English Experience in a European Context’ (2009) 4 Derecho y Religión 145, 159; Julian Rivers, ‘The Secularisation of the British Constitution’ (2012) 14(3) Ecc. L.J. 371, 399.
[154] Joanna Mason, ‘Guardian Live: Do We Still Need the Human Rights Act?’ (The Guardian, 3 July 2015), available at http://www.theguardian.com/membership/2015/jul/03/guardian-live-do-we-still-need-the-human-rights-act accessed 6 April 2017.
[155] Taku Dzimwasha, ‘UK government previews the British Bill of Rights which will replace the Human Rights Act’ (International Business Times, 8 November 2015), available at <http://www.ibtimes.co.uk/uk-government-previews-british-bill-rights-which-will-replace-human-rights-act-1527767> accessed 19 March 2017.
[156] Baroness Kennedy QC and Philippe Sands QC.
[157] Colm O’Cinneide, ‘The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?’ (UK Constitutional Law Association, 19 December 2012), available at < http://ukconstitutionallaw.org/2012/12/19/colm-ocinneide-the-commission-on-a-bill-of-rights-playing-on-even-while-the-goalposts-have-shifted/> accessed 28 February 2017.
[158] Ibid.
[159] Lewis Worrow, ‘In Favour of a British Bill of Rights’ (The Huffington Post, 12 June 2015), available at < http://www.huffingtonpost.co.uk/lewis-worrow/british-bill-of-rights_b_7552312.html>, accessed 23 March 2017.
[160] Defence Expenditure Oral Answers to Questions — International Development (House of Commons, 8th July 2015).
[161] Ann Elizabeth Mayer, ‘Law and Religion in the Muslim Middle East (1987) 35 Am. J. Comp. L. 127, 152.
[162] Rebecca Dobras, ‘Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religions Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 Ga. J. Int’l & Comp. L. 339, 380.
[163]Pakistan Constitution, Article 19 provides that ‘Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence.’ The freedom of expression provision as provided for by the Irish Constitution is discussed in more detail in section 2.3 Irish Constitution – Article 40.6.1 (i).
[164] Rebecca Dobras, ‘Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religions Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 Ga. J. Int’l & Comp. L. 339, 380.
[165] Rebecca Dobras, ‘Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religions Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 Ga. J. Int’l & Comp. L. 339, 380.
[166] Rudolph Peters, ‘Crime and Punishment in Islamic Law’ (2005) Theory and Practice for Sixteenth to Twenty First Century 144.
[167] Matt Hoffman, ‘Modern Blasphemy Laws in Pakistan and the Rimsha Masih Case: What Effect – If Any – The Case Will Have on Their Future Reform’ (2014) 13 Washington University Global Studies Law Review 371, 392.
[168] The Constitution of Pakistan 1973, Article 20 provides that ‘Subject to law, public order and morality-(a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions’.
[169] Orla Guerin, ‘Pakistani Christian Asia Bibi Has Price on Head’ (BBC News, January 4, 2010).
[170] Pakistan Penal Code 1860, Chapter XV. Before analyzing these diverse provisions, it is helpful to list what they contain. Section 295 prohibits injuring or defiling places of worship with the intent to insult the religion of any class and the punishment is two years imprisonment. Section 295A prohibits deliberate ormalicious acts that outrage religious feelings of others and the punishment is ten years imprisonment.
Section 295B prohibits defiling the Holy Quran and the punishment is imprisonment for life. Section 295C prohibits the use of derogatory remarks with respect to the Holy Prophet and punishment is death or imprisonment for life. Section 296 prohibits disturbing religious assembly and punishment is imprisonment for one year. Section 297 prohibits trespassing or indignity upon burial places and punishment is imprisonment for one year. Section 298 prohibits uttering words that injure religious feelings and punishment is imprisonment for one year. Section 298A prohibits using derogatory remarks about holy personages and punishment is imprisonment for three years. Section 298B prohibits the misuse of epithets or titles of holy people and punishment is imprisonment for three years. Section 298C prohibits that persons of Ahmadi Group claiming to be Muslim and punishment is three years imprisonment.
[171] Javaid Rehman, ‘Freedom of Expression, Apostasy and Blasphemy Within Islam: Sharia, Criminal Justice Systems, and Modern Islamic State Practices’ (2010) 79 Crim. Just. Matter 4, 6.
[172] Human Rights Watch, Persecuted Minorities and Writers in Pakistan (1993).
[173] Rebecca Dobras, ‘Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religions Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 Ga. J. Int’l & Comp. L. 339, 380.
[174] Matt Hoffman, ‘Modern Blasphemy Laws in Pakistan and the Rimsha Masih Case: What Effect – If Any- The Case Will Have on Their Future Reform’ (2014) 13 Washington University Global Studies Law Review 371, 392.
[175] Irish blasphemy laws in early common law are discussed in more detail in section 2.2 Developing the Jurisprudence of Irish Blasphemy Laws.
[176] David D. Forte, ‘Apostasy and Blasphemy in Pakistan’ (1994) 10 Comm. J. Int’L L 27, 50.
[177] Anita M. Weiss, The Society and Its Environment in Pakistan: A Country Study 75, 125.
[178] As discussed in section 2.4 The Defamation Act 2009, Ireland enacted blasphemy laws that applied to all religions.
[179] The Pakistan Constitution, S36 provides ‘The State shall safeguard the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services.’
[180] Asma T. Uddin, ‘Pakistan’s Facebook Ban Protects the Violent’ (On Faith, May 21, 2010). Available at < http://www.faithstreet.com/onfaith/2010/05/21/pakistans-facebook-ban-protects-the-wrong-party/5036> accessed 26 February 2017.
[181] Rebecca Dobras, ‘Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religions Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 Ga. J. Int’l & Comp. L. 339, 380.
[182] International Commission of Jurists, ‘On Trial: the Implementation of Pakistan’s Blasphemy Laws’ (2009)
[183] Haji Bashir Ahmad v. The State 2005 YLR 985, Lahore.
[184] Malik Muhammad Mumtaz Qadri v. the State, Criminal Appeals No. 210 and 211 of 2015, 26.
[185] US Department of State, ‘International Religious Freedom Freedom Report for 2015, available at <http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm#wrapper?>, accessed 15 March 2017.
[186] Ibid.
[187] Rebecca Dobras, ‘Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religions Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 Ga. J. Int’l & Comp. L. 339, 380.
[188] Human Rights Commission of Pakistan, State of Human Rights 2004: Freedom of Thought, Conscience and Religion (2004) 112, 113.
[189]Zaheer-ud-din v. The State 1993 SCMR 1718.
[190] Amnesty International, Death Threats/Fear for Safety/Possible Death Penalty/Prisoner of Conscience, Al India ASA 33/003/2006 3 February 2006, available at <https://www.amnesty.org/en/documents/asa33/003/2006/en/>, accessed 10 March 2017.
[191] Pakistani Minister Places $100,000 Bounty on Producer of Blasphemous Film, Tehran Times (September 23, 2012).
[192] Declan Walsh, ‘Pakistan Minister Shabaz Bhatti Shot Dead in Islamabad’ The Guardian (2 March, 2011).
[193] US Department of State, ‘International Religious Freedom Freedom Report for 2015, available at <http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm#wrapper?, accessed 15 April 2017.
[194] Ibid.
[195] Rebecca Dobras, ‘Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religions Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 Ga. J. Int’l & Comp. L. 339, 380.
[196] As discussed in section 4.3 Effect of Blasphemy Laws in Pakistan.
[197] Caleb T. Holzaepfel, ‘Can I Say That? How an International Blasphemy Law Pits the Freedom of Religion Against the Freedom of Speech’ (2014) 28 Emory Int’l L. Rev. 597, 648.
[198] Cold Christmas Awaits Pakistan’s Christians, Agence France Presse (December 21, 2012).
[199] Caleb T. Holzaepfel, ‘Can I Say That? How an International Blasphemy Law Pits the Freedom of Religion Against the Freedom of Speech’ (2014) 28 Emory Int’l L. Rev. 597, 648.
[200] As stated in section 4.2 Blasphemy Laws in Pakistan.
[201] Farooq Hassan, ‘Religious Liberty in Pakistan: Law, Reality, and Perception (A Brief Synopsis) 2002 B.Y.U.L Review 283, 297.
[202] International Commission of Jurists, ‘On Trial: The Implementation of Pakistan’s Blasphemy Laws’ (November 2015) available at <http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2015/12/Pakistan-On-Trial-Blasphemy-Laws-Publications-Thematic-Reports-2015-ENG.pdf> accessed 15 March 2017.
[203] International Commission of Jurists, ‘On Trial: The Implementation of Pakistan’s Blasphemy Laws’ (November 2015) available at <http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2015/12/Pakistan-On-Trial-Blasphemy-Laws-Publications-Thematic-Reports-2015-ENG.pdf> accessed 15 March 2017.
[204]International Commission of Jurists, ‘On Trial: the Implementation of Pakistan’s Blasphemy Laws’ (2009)
[205]Matt Hoffman, ‘Modern Blasphemy Laws in Pakistan and the Rimsha Masih Case: What Effect – If any – The Case Will Have on their Future Reform’ (2014) 13(2) Washington University Global Studies Law Review 371, 392.
[206] Shams Islam, ‘Blasphemy prosecution: Cleric Made Complainant on Court Directive’ The Express Tribune (Pakistan, March 3 2012), available at <http://tribune.com.pk/story/344660/blasphemy-prosecution-cleric-made-complainant-on-court-directive/> accessed 26 March 2017.
[207] Article 20 of the Constitution of Pakistan 1973 (as amended) stating:
Subject to law, public order and morality:
(a) every citizen shall have the right to profess, practice and propagate his religion; and
(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.
[208] Julius Qaiser, ‘The Experience of Minorities Under Pakistan’s Blasphemy Laws’ (2016) 27(1) Islam and Christian – Muslim Relations 95, 115.
[209] Kevin Boyle & Juliet Sheen, Freedom of Religion and Belief: A World Report.
[210] Ibid.
[211] US Department of State, ‘International Religious Freedom Freedom Report for 2015, available at <http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm#wrapper?>, accessed 15 March 2017.
[212] Mohammed Eltayeb, A Human Rights Approach to Combating Religious Persecution: Cases from Pakistan, Saudi Arabia and Sudan (2001) 55.
[213] As referred to in section 4.3 Effect of Blasphemy Laws in Pakistan in more detail.
[214] Matt Hoffman, ‘Modern Blasphemy Laws in Pakistan and the Rimsha Masih Case: What Effect – If Any – The Case Will Have on Their Future Reform’ (2014) 13 Washington University Global Studies Law Review 371, 392.
[215] Ibid. The Rimsha Masih case was discussed in section 4.3 Effects of Blasphemy Laws in Pakistan.
[216] Robert C. Blitt, ‘Defamation of Religion: Rumours of its Death are Greatly Exaggerated’ (2011) 62(2) Case Western Reserve Law Review 347, 397.
[217] Rebecca J. Dobras, ‘Is the United Nations Endorsing Human Rights Violations?: An Analysis of the United Nations’ Combating Defamation of Religious Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 GA. J. INT’L &COMP. L. 339.
[218] HRC Resolution 16/18.
[219] Linda J. Berberian, Comment Pakistan Ordinance XX of 1987: International Implication of Human Rights (1987) 9 Loy L.A Int’l and Comp L. Review 661, 677.
[220] Javid Rehman, ‘Freedom of Expression, Apostasy and Blasphemy Within Islam: Sharia, Criminal Justice Systems, and Modern Islamic State Practices’ (2010) 79 Crim. Just. Matters 4, 6.
[221] As discussed in section 4.3 Effects of Blasphemy Laws in Pakistan.
[222] Linda J. Berberian, Comment Pakistan Ordinance XX of 1987: International Implication of Human Rights (1987) 9 Loy L.A Int’l and Comp L. Review 661, 677.
[223] Javais Rehmen & Stephanie E. Berry, ‘Is Defamation of Religions Passé? The United Nations, Organisation of Islamic Cooperation, and Islamic State Practices: Lessons From Pakistan’ (2012) 44(3) The George Washington International Law Review 431, 472.
[224] Matt Hoffman, ‘Modern Blasphemy Laws in Pakistan and the Rimsha Masih Case: What Effect – If Any – The Case Will Have on Their Future Reform (2014) 13 Washington University Global Studies Law Review 371.
[225] Ibid.
[226] Matt Hoffman, ‘Modern Blasphemy Laws in Pakistan and the Rimsha Masih Case: What Effect – If Any- The Case Will Have on Their Future Reform (2014) 13 Washington University Global Studies Law Review 371.
[227] ‘When nuance is hard to hear: The Muslim Response’ (2015) 414(8921) The Economist 414 (8921) 2, 5.
[228] Baroness Hale of Richmond, ‘Secular Judges and Christian law’ (2015) 17(2) Ecc. L.J. 170, 181.
[229] J.R. Spencer, ‘Blasphemy: The Law Commission’s Working Paper’ (1981) Crim LR 810.
[230] See Section 4 Pakistan which gives a number of examples of where the citizen of Pakistan had their rights violated.
[231] According to the 2011 Census, as discussed in section 1 Introduction.
[232] Pakistan Bureau of Statistics, ‘Population by Religion’ available at <http://www.pbs.gov.pk/content/population-religion> accessed 15 February 2017.
[233] Rebecca J. Dobras, ‘Is the United Nations Endorsing Human Rights Violations?: An Analysis of the United Nations’ Combating Defamation of Religious Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 GA. J. INT’L &COMP. L. 339.
[234] See section 4.3 Effects of Blasphemy Laws in Pakistan for examples of violent attacks towards alleged blasphemers and violent protests in the community.
[235] As discussed in section 2.5 The Defamation Act 2009 and section 2.7 The Future of Irish Blasphemy Law.
[236] ‘Press Conference by Secretary-General Ban Ki-moon at United Nations Headquarters’ (19 September 2012) available at <http://www.un.org/press/en/2013/131101_SG.doc.htm> accessed 19 March 2017.
[237] See section 4.3 Effect of Blasphemy Laws in Pakistan.
[238] Michael R. Blood ‘Players Behind Anti Muslim That Incited Protests in Mideast Linked by Anger Towards Islam’ (Associated Press, 15 September 2012).
[239] Ibid.
[240] According to Pew Research & Public Life Project, Laws Against Blasphemy, Apostasy, and Defamation of Religion (2011) between the years of 2006 to 2009.
[241] Pew Research & Public Life Project, Laws Against Blasphemy, Apostasy, and Defamation of Religion (2011) between the years of 2006 to 2009.
[242] International Religious Freedom Report (U.S Department of State, 2007).
available at <http://www.state.gov/g/drl/rls/irf/2007/90233.htm> accessed 15 March 2017.
[243] International Religious Freedom Report (U.S Department of State, 2007).
available at <http://www.state.gov/g/drl/rls/irf/2007/90233.htm> accessed 15 March 2017.
[244] Rebecca J. Dobras, ‘Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religions Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 Ga. J. Int’l & Comp. L. 339, 380.
[245] The severity of punishment is more severe in Pakistan compared with Ireland. In Ireland, according to S36 of The Defamation Act 2009, the punishment is a maximum fine of €25.000. However in Pakistan, an alleged blasphemer can be sentenced to death. Asia Bibi is currently waiting to be put to death after an alleged blasphemy incident.
[246] Jeremy Patrick, ‘The Curious Persistence of Blasphemy’ (2011) 23 Florida Journal of International Law 187, 220.
[247] Freedom of Thought, Conscience and Religion (Human Rights Commission of Pakistan State of Human Rights, 2004) 112, 113.
[248] Press Release, Commission on Human Rights, Commission Adopts Resolutions on Combating Defamation of Religions; Right to Development, U.N. Doc. HR/CN/1082 (Apr. 13, 2004).
[249] Karon Monaghan, ‘Religious Freedom and Equal Treatment: An United Kingdom Perspective’ (2014) 22(2) Journal of Law and Policy, 6, 673, 702.
[250] Laura Tomes, ‘Blasphemy and the Negotiation of Religious Pluralism in Britain’ (2010) Contemporary British Religion and Politics 237, 256.
[251] British Social Attitudes Survey (No.28, 2011).
[252] In Ireland there has been a corresponding rise in the persons professing atheism by 73.6% from 269,800 to 468,400, an increase of 198,600 according to data from the 2016 Census. See Press Statement Census 2016 Summary Results – Part 1, available at http://www.cso.ie/en/media/csoie/newsevents/documents/pressreleases/2017/prCensussummarypart1.pdf, accessed 12 May 2017. This contrasts to England and Wales where there has been persons representing atheism represents 25.1% of the population, an increase from 14.8% of the population in 2001 according to the 2011 Census. See Religion in England and Wales 2011, available at < https://www.ons.gov.uk/peoplepopulationandcommunity/culturalidentity/religion/articles/religioninenglandandwales2011/2012-12-11>, accessed 12 May 2017.
[253] The Incitement to Racial and Religious Hatred Act 2006, Section 29J provides ‘Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.’
[254] Incitement to Racial and Religious Hatred Act 2006.
[255] Karon Monaghan, ‘Religious Freedom and Equal Treatment: An United Kingdom Perspective’ (2014) 22(2) Journal of Law and Policy, 6 , 673, 702.
[256] Atkinson’s Religious Hate Worry, (BBC News, Dec. 7, 2004), available at <http://news.bbc.co.uk/2/hi/uk_news/politics/4073997.stm.>, accessed 15 March 2017.
[257] Alex Bailin, ‘Criminalising Free Speech?’ (2011) 9 Crim. L.R. 705, 711.
[258] Incitement to Racial and Religious Hatred Act 2006.
[259] Rex Ahdar and Ian Leigh,Religious Freedom in the Liberal State (Oxford University Press, 2013) 379.
[260] Russell Sandberg, Religion, Law and Society (Cambridge University Press, 2014).
[261] HL Deb 30 January 2002 c318.
[262] As discussed in section 4 Blasphemy Laws in Pakistan.
[263] As discussed in section 4 Pakistan and Blasphemy.
[264] Pew Research Religion and Public Life Project, Laws Against Blasphemy, Apostasy, and Defamation of Religion (2011) available at http://www.pewforum.org/2011/08/09/rising-restrictions-on-religion6/ accessed 19 March 2017.
[265] Ibid.
[266] Ibid.
[267] Ibid.
[268] The inadequacies were detailed in section 2.5 The Defamation Act 2009, 2.6 The Constitutional Convention and 2.7 The Future of Blasphemy Law.
[269] Sixth Report of the Convention on the Constitution: The Removal of the Offence of Blasphemy from the Constitution
(January, 2014).
[270] Bunreacht na hÉireann, Article 40.6.1 (i).
[271] See for example AG v. Paperlink [1984] ILRM 373 (Costello J).
[272] Sixth Report of the Convention on the Constitution:The Removal of the Offence of Blasphemy from the Constitution
(January, 2014).
[273] Tom Daly, ‘Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1(i) of the Constitution’ (2009) 31 D.U.L.J. 228, 262.
[274] As stated in 2.7 The Future of Blasphemy Law.
[275] Sixth Report of the Convention on the Constitution: The Removal of the Offence of Blasphemy from the Constitution
(January, 2014).
[276] Corway v. Independent Newspapers [1999] 4 IR 484.
[277] See Human Rights First, ‘Blasphemy Laws Exposed: The Consequences of Criminalizing ‘Defamation of Religions’, available at <www.humanrightsfirst.org/wp-content/uploads/Blasphemy_Cases.pdf>. accessed on 15 March 2017.
[278] Prohibition of Incitement to Hatred Act 1989.
[279] See the discussion of the Incitement to Religious Hatred Act 2006 in section 4.3.
[280] As discussed in section 4.2 Blasphemy Laws in Pakistan and 5.3 Effect of Blasphemy Laws in Pakistan.
[281] Asma T. Uddin, ‘Blasphemy Laws in Muslim Majority Countries’ (2011) The Review of Faith and International Affairs 1, 9.
[282] As mentioned in section 3.4 The Criminal Justice and Immigration Act 2008, the Incitement to Religious Hatred Act 2006 provides for restrictions on expression.
[283] Leonard A. Leo, Felice D. Gaer et al, ‘Protecting Religions from Defamation: A Threat to Universal Human Rights Standards’ (2011) 34(2) Harvard Journal of Law & Public Policy.
