Ms Justice Isobel Kennedy, Chairperson of the Referendum Commission, appeared on RTÉ's Morning Ireland, to answer questions from the public on Friday's referendum on blasphemy.
Can you explain the role of the Referendum Commission?
The Referendum Commission is an independent body, and our job is to communicate factual information about the referendum. We're neutral and impartial. We have a number of different functions: firstly, to explain to the public what the referendum proposals is all about, secondly to make sure that people are aware that referendum is being held, and thirdly to encourage people to vote in the referendum, which as we know is being held this Friday.
What does this referendum mean?
This referendum is about the removal of the word blasphemous from the Constitution. The Constitution says that citizens have the right to express freely their convictions and opinions, but there are certain limitations on that right, so for example under the Constitution the publication or the utterance, that’s the publication or saying of something blasphemous, must be a criminal offence and so blasphemy is a criminal offence and the offence is defined in The Defamation Act of 2009.
And if the majority of the people vote Yes, well then that word will be removed from the Constitution and the Oireachtas will be permitted then to change the law providing that blasphemy is a criminal offence.
And if the majority vote No, then the constitution remains unchanged and blasphemy remains a criminal offence.
So why is this referendum being held?
Ultimately every referendum is held because the Oireachtas has determined that it should be held, so although the Oireachtas decides when a referendum should be held and if a referendum should be held, it is only the people who can actually change the Constitution by voting in the referendum and that is why it is so important for people to vote, because the Constitution belongs to the people.
And what is blasphemy?
The definition of blasphemy is contained within The Defamation Act of 2009 and that's the legal definition of blasphemy and it is an offence to publish or say something that is grossly abusive or insulting in relation to matters held sacred by any religion thereby causing outrage amongst a substantial number of the followers of that religion and with the intention to cause that outrage.
And under the 2009 Act, if somebody is found guilty there are our charges for that?
If a person is found guilty of that offence under Section 36 of The Defamation Act 2009 a person can be fined up to €25,000. There is no prison sentence provided for within the legislation.
Why are we having a referendum on this matter and why now?
The referendum is held because Oireachtas has determined that it should be held, so that is the reason why were having a referendum. And it's very important that the people vote in the referendum because only the people can change the Constitution. And that's what it's all about obviously, an amendment to the Constitution.
The legal definition of blasphemy comes from that Act of nine years ago?
That’s the Defamation Act of 2009: to publish or broadcast something grossly abusive or insulting in relation to matters held sacred by any religion thereby causing outrage amongst a substantial number of the followers of that religion - and with the intention to do so.
Does the article in the Constitution apply equally to all beliefs or religious persuasions and not just Christians or Catholics?
Well the article in the Constitution what that says is that blasphemy is a criminal offence in effect. Blasphemy is then defined under the 2009 Defamation Act and it applies to all religion, not just to Christians or to Catholics, as I said there the definition says in relation to matters held sacred by any religion so it applies equally to all religions.
If there's a Yes vote in the referendum on Friday does the 2009 Act remain in place?
Well what happens if the majority vote Yes the Oireachtas will then be permitted to change the law: the Constitution will no longer require that blasphemy be a criminal offence and unless and until the Oireachtas changes the law then The Defamation Act 2009 remains in place and blasphemy remains on our statute books.
What would the legal effect of a No vote be then?
The legal effect of a No vote would be that the word blasphemous would remain within the Constitution and blasphemy would continue to be a criminal offence and would continue on our statute books.
Why are the words seditious and indecent not also being removed from the same article, and who defines these words?
In addition to referring to blasphemy, Article 46.1 Sub-paragraph 1 of the Constitution states that it is an offence punishable by law to publish or utter something seditious or indecent, but the only proposal in this referendum is to remove the word blasphemous from the Constitution. The other two elements of Article 46 One dealing with sedition and indecency are not the subject of the referendum and therefore they will remain within the Constitution whether there is a Yes or a No vote.
Neither seditious nor the word indecent are defined within the Constitution.
A seditious document is defined in the Offences against the State Act of 1939, and that definition is a very lengthy definition. There is a definition of indecent in the Censorship of Publications Act of 1946. Information regarding these particular terms can be found on our website, which is refcom.ie and in fact for any further additional information that people might require there is further information on that website.
Have people been charged with blasphemy in Ireland?
Nobody has been prosecuted in Ireland under the offence of blasphemy since 1855 and that was a particular case where a redemptorist priest had organised a bonfire to destroy so-called "vile English novels". And in doing so he inadvertently burned a Bible which was hidden amongst the books. He was acquitted of that offence because for the prosecution to proceed it would have had to show that he had intended to burn the Bible.
The next case to come before the courts was a case called Corway and Independent Newspapers, and that came before the High Court in 1996. That concerned a particular article in a newspaper, and at that time a prosecution could not be commenced against a newspaper without the courts giving leave, and Mr Corway was refused leave to commence the prosecution by the courts and so there was no prosecution, so in effect, that prosecution never got off the ground.
The current law is under the Defamation Act of 2009 and there has been no prosecution under that Act for the offence of blasphemy.
And the Stephen Fry case?
That was a case which I think came to the fore in and around 2015. Gardaí launched an investigation into comments made by Mr Stephen Fry on an RTÉ show in which he questioned I think the existence of God in a world where he said there was so much misery. Gardaí failed to find a substantial group of people outraged by Mr Fry’s comments, and so that investigation was in fact dropped.
How many people have been prosecuted and convicted then under the Defamation Act of 2009?
There has been no prosecution under the 2009 Act for the offence of blasphemy.
If the referendum is passed will it prevent the Dáil from passing legislation preventing incitement to hatred?
Well it’s hard to see that if the referendum is passed the Oireachtas will be prevented from passing legislation preventing incitement to hatred. And indeed there is currently an Act which is called the Prohibition of Incitement to Hatred Act of 1989. An attack on religion may amount to an offence under that Act. Now that Act does not refer to blasphemy, but it says that it is an offence to engage in certain words and acts intended or likely in all the circumstances to stir up hatred. And hatred, in the definition section of that Act, includes hatred against groups of persons within the State or elsewhere on account of various aspects, including religion.
Will it allow non-religious people to take all State offices without referring to God?
Well the Constitution sets out declarations to be taken by office holders such as the President, members of the Council of State, and judges, and in each case the declaration in the Constitution refers to God. But regardless of the outcome of the referendum, these articles in the Constitution will remain the same because they are not the subject of the referendum.
Will the referendum limit religious worship in Ireland?
If the majority vote Yes, the only change would be that the Constitution would no longer require that the publication or saying of something blasphemous be a criminal offence. And Article 44 of the Constitution provides that the free practice and expression of religion is, subject to public order and morality, guaranteed to every citizen. So if the majority vote Yes, this will remain unchanged, so it’s therefore very hard to see how if the majority vote Yes, that that would limit religious worship in Ireland.
If the referendum is passed, what legislation currently in place will have to be amended?
If the majority vote Yes the word blasphemous will be removed from the Constitution and the Oireachtas will then be permitted to change the law regarding the criminal offence of blasphemy, and that is the section I have referred to, Section 36 of the Defamation Act of 2009. It will not necessarily have to do so, but it will be for the Oireachtas to take a decision in relation to the passing of laws in relation to the offence of blasphemy.
My dictionary defines blasphemy as "desecration and sacrilege". Will all three of these words be expunged from existence in the event of the referendum being carried?
Well the Constitution uses the word blasphemous, it doesn’t use the words desecration or sacrilege, so therefore if the referendum is passed, only the word blasphemous would be removed from the Constitution, because the other words are not contained within the Constitution.
Does the proposed change to the Constitution require amending legislation to be enacted where the word blasphemy or blasphemous appears in an Act of the Oireachtas?
If the majority votes Yes, the word blasphemous will be removed from the Constitution. This allows the Oireachtas to change the law regarding the offence of blasphemy, and that would include sections 36 and indeed 37 of the Defamation Act of 2009. So if there is a Yes vote, and if the Oireachtas wants to change the law, legislation will be required. Now there are other statutes, such as the Censorship of Films Act, that mention the word blasphemy or blasphemous, but that is different from making blasphemy itself a criminal offence. At present it is up to the Oireachtas whether to maintain these other statutes – they could be changed under the present text of the Constitution, without a referendum, that is under the Censorship of Films Act. The Government has published draft proposals for a bill regarding blasphemy in the event of a Yes vote, and this includes the repeal of sections 36 and 37 of the Defamation Act 2009, and also includes the amendment of the Censorship of Films Act, that is 1923 and 1935, by the removal of the word blasphemous from those particular acts. But legislation would of course be a matter for the Oireachtas. Any proposed legislation is subject to change, and in order for a bill as we know to become law, it must be passed by both houses of the Oireachtas and is subject to change through that particular process.
Can you give an explanation of blasphemy outside the religious context?
The offence of blasphemy, which is what we’re concerned with, is defined in the Defamation Act of 2009, that concerns any religion, so there is no legal definition outside of the religious context. It is an offence to publish or say something that is grossly abusive or insulting in relation to matters held sacred by any religion which intentionally causes outrage to a substantial number of the followers of that religion, that is what the offence of blasphemy is defined as under the Defamation Act of 2009.
If a crucifix is desecrated by somebody at a public, lawful concert, for example, causing huge public offence to Christians and some of no faith, what effect if any would the passing of the referendum have on taking legal steps about the matter compared with options now available?
Blasphemy is currently a criminal offence. I cannot comment on any particular scenario, but it is the position at present that a prosecution may be taken, by the Director of Public Prosecutions, under section 36 of the Defamation Act 2009, in any given case, depending on the circumstances of that case. To do so, the elements of the offence of blasphemy as defined in the 2009 Act would be required
Now if the majority votes Yes to remove the word blasphemous from the Constitution, and the Oireachtas removes the criminal offence of blasphemy from the statute books, then there could be no prosecution for the offence of blasphemy.
However, we have other laws, for instance the Prohibition against Incitement to Hatred Act, or indeed with public order, the DPP could consider whether an offence created by those other laws had been committed in any given case.
Will the current laws pertaining to incitement need to be further updated or are they strong enough in their current form to offer protection to any individual or group?
Well the current laws in relation to incitement to hatred are contained within the Prohibition of Incitement to Hatred Act of 1989. The job of the Referendum Commission is to explain the proposal that is being put before the people, so it’s not for the Referendum Commission to say whether the current laws pertaining to incitement to hatred are or are not strong enough – that is something for the Oireachtas to decide.