Amnesty calls for Yes vote in Blasphemy Referendum

On 26 October, people will have the chance to vote to remove the offence of Blasphemy from Irish law.

Voting ‘Yes’ in the Blasphemy Referendum is a vote for freedom of expression here and around the world. It will not in any way impair the rights of followers of any religion or belief.

5 reasons to vote yes

  1. Blasphemy – defined in law as causing “outrage” – should not be a crime as it violates freedom of expression. This blasphemy provision was part of the original 1937 Constitution, and is a legacy of a very different Ireland.
  2. Ireland’s Constitution has been cited by other States to justify their anti-blasphemy laws, which they have used to violate human rights.  For instance, Pakistan has used Ireland’s law to defend its own severe blasphemy laws, under which people – particularly from minority religions, including Christians – are harassed, imprisoned and subjected to the death penalty.
  3. Removing the crime of blasphemy from our Constitution will not in any way impact on people’s freedom of religion or belief. This is a right protected in another Article of the Constitution. It is also protected in international human rights law, and one which Amnesty actively defends.
  4. Removing it does not mean people will have less protection from faith-based hate crimes. People need to feel they can practise their religion without fear of discrimination, intimidation, or violence.  The government has a responsibility to ensure that hate crimes and hate speech are criminalised, and that these laws are enforced.  Blasphemy laws do not serve that purpose.
  5. Blasphemy laws can have chilling effect on artists, writers, film-makers and comedians. Just because no one has been prosecuted to date doesn’t mean they won’t be in the future. We have the opportunity now to future proof the Constitution that we may not have again.

The Referendum Commission’s guide to this referendum is available here.

What is this referendum about?

Article 40.6.1˚ of the Constitution says that publishing or saying something blasphemous must be a criminal offence. This referendum will decide if this should continue. The word ‘blasphemous’ in Irish law means that it causes “outrage” – not that anyone is threatened or harmed. If the referendum is passed, the Oireachtas will be free to amend the 2009 Defamation Act so that blasphemy is no longer a criminal offence.
This blasphemy provision was part of the original 1937 Constitution, and is a legacy of a very different Ireland. The Law Reform Commission reviewed it in 1991, and concluded that “there is no place for an offence of blasphemous libel in a society which respects freedom of speech”. It recommended that it be deleted from the Constitution. So too did the Constitutional Convention in 2013.

Amnesty International believes that a Yes vote in this referendum is very important, as it will support freedom of expression here and around the world.

What exactly does the Constitution say?

Article 40.6.1˚ of the Constitution says that people in Ireland have the right “to freely express their convictions and opinions”. However, it also says that “organs of public opinion” cannot be used to “undermine public order or morality or the authority of the State”. So constitutional limits are set on freedom of expression.

However, Article 40.6.1˚ goes beyond those limits. It also says that the “utterance or publication of blasphemous … matter” must be a criminal offence. For this reason, section 36 of the Defamation Act 2009 created the criminal offence of “blasphemy”, with a possibly fine of €25,000.

The Constitution does not define blasphemy. The Defamation Act 2009 does – it is “something 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”. It must be done with the intention to cause such outrage.

The Defamation Act says it is a defence for a person accused of this crime if they can prove that a reasonable person would find genuine literary, artistic, political, scientific or academic value in what they said or published.

So the crime is of causing “outrage”, not of causing any actual harm to any person or group.

Has anyone been convicted of this blasphemy crime?

No. While no one has been prosecuted or convicted, complaints have been made to the Gardaí. States cannot defend having an unreasonable criminal offence in their law by saying they do not enforce that law. Having that law in itself can cause fear and thereby violate people’s freedom of expression. Also, just because no one has been prosecuted to date doesn’t mean they won’t be in the future.

What does international human rights law say?

Everyone has the right to freedom of expression. In the UN system, this is provided by Article 19 of the International Covenant on Civil and Political Rights (ICCPR). This right can be limited though, where that is necessary to protect the rights of others.

So, for instance, a person’s freedom of expression can be restricted by the State if they incite hate or violence against another person or group. In fact the ICCPR expressly requires that “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence … be prohibited by law” (Article 20(2)).

So freedom of expression can be restricted where the rights of other people will be affected.

However, under international human rights law, no one has the right not to be offended or “outraged”. Causing offence by itself is not a justification for a state’s restricting anyone’s freedom of expression, and certainly not for making such expression a crime.

The UN Human Rights Committee, which oversees the ICCPR, specifically says: “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant” (General Comment No 34). In 2014, this Committee expressed concern at Ireland’s blasphemy law (in its ‘Concluding Observations’ on the state’s implementation of the ICCPR).

Does this blasphemy provision protect my freedom of religion or belief?

No. This provision has nothing to do with freedom of religion. A separate article, Article 44.2.1° of the Constitution protects people’s “freedom of conscience and the free profession and practice of religion”, and will not be affected by this referendum. People’s freedom of religion or belief is also protected under international human rights law. It is an important right that Amnesty International actively defends around the world.

The crime of blasphemy is not necessary or useful to protect that right though. In fact, blasphemy laws have been used in other countries to target and suppress minority religions. For instance, Pakistan has cited Ireland’s law to defend its own severe blasphemy laws, under which people – particularly from minority religions, including Christians – are harassed, imprisoned and subjected to the death penalty.

The Irish Catholic Bishops’ Conference and the Church and Society Commission of the Church of Ireland have recently called the blasphemy provision in the Constitution “largely obsolete”. Both have stated concern at how blasphemy laws like Ireland’s are used to justify violence and oppression against minorities in other parts of the world.

Of course, people need to feel able to manifest and practise their religion without fear of discrimination, intimidation or violence. Under international human rights law, the government has a responsibility to ensure that hate crimes and hate speech are criminalised and that such laws are enforced. It also has an obligation to ensure that its laws protect people from discrimination because of their religion or belief. Blasphemy laws do not serve those purposes.