Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I welcome the opportunity to speak in this debate. Fianna Fáil will be supporting the expeditious passing of this legislation in order that a referendum can take place on 26 October. The purpose of that referendum, if this legislation is enacted, will be to amend Article 40(6) of the Constitution. As people may be aware, that article contains one of the most important rights Irish citizens and others in Ireland have, namely, the right to freely express opinions and convictions. Like every other right, that right is subject to restriction and can be affected when conflicting rights are at stake. However, what we are dealing with specifically in the legislation before the House is a specific restriction of the right to freedom of expression contained within the article. It states the "the publication or utterance of blasphemous [...] matter" shall be an offence. It is clear from the Constitution that there is no ambiguity about it. In 1937 the people made a decision that blasphemy was to be an offence.

The Minister mentioned the decision in 1999 in the case of Corway v. Independent Newspapers. It was a very important judgment, as a result of which - I would have thought even before it - it was apparent that the Legislature would have to give effect to the offence set out in the Constitution. It was for that reason that in 2009 the Oireachtas enacted the Defamation Act, in particular sections 36 and 37 which included a specific offence of blasphemy. Had that not been done, it would have left the public in an invidious position. There would have been a common law and constitutional offence of blasphemy, yet the citizen and the public would not have known how that offence would be committed.

Neither would the citizen or the public have known the penalty for the commission of the offence. It was for that reason that it was thought appropriate, as well as it being constitutionally necessary, to enact within legislation a specific section dealing with the crime of blasphemy. At the time, the then Minister who brought the legislation through the House was heavily criticised for the fact that it was presented as though he was introducing to Ireland the crime of blasphemy. which was incorrect. The crime existed in 1937 as a result of the enactment of the Constitution. It existed in 2008 and 2009 at the time the Defamation Bill was debated. It exists today as a result of the constitutional provision.

It is important to note that the crime of blasphemy has had a lengthy history. Originally, it was dealt with in the Star Chamber and the ecclesiastical courts. It subsequently developed from the mid-17th century as a common law offence. As the Minister indicated, in Ireland it was very much associated with blasphemy against the established religion. Some of the cases to which the Minister referred, the most recent being in 1855, were examples of people burning bibles. In 1855, when a Redemptorist priest accidentally burned a bible, he was prosecuted but acquitted. The truth of the matter is that no one has been prosecuted for blasphemy since 1855. When the Free State Constitution was passed in 1922, there was no reference to blasphemy in it. The right to freedom of expression was contained in the 1922 Constitution, but there was nothing about an offence of blasphemy. However, the drafters of the 1937 Constitution did see fit to specifically include an offence of blasphemy. Sometimes people are critical of the drafters of the 1937 Constitution. I am not as it has served the country extremely well. However, like all documents generated in the 1930s, parts of it are outdated, anachronistic and sexist. We will discuss the latter point tomorrow when we will examine the constitutional article in respect of a woman's place in the home. Notwithstanding that, it is inappropriate for the Constitution to set out offences. It is there to set out the fundamental political and constitutional structures for the State. It should not set out what offences are, whether it is the offence of manslaughter or murder, which are not there. Obviously, owing to the moresof the 1930s, it was thought appropriate that the specific offence of blasphemy should be included in the Constitution.

The Constitution respects and values the right of individuals to express freely their religious convictions. In a republic it is important that we respect and recognise the rights of individuals to express their religious beliefs. However, that right is contained in Article 44 which expressly states, "Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen". Religions have had a successful history in Ireland. However, I believe they are now strong enough to survive the abolition of the crime of blasphemy. They should be able to withstand criticism, ridicule or abuse in the same way many other institutions in the State are subject to ridicule and abuse, yet survive perfectly well. If the people remove the crime of blasphemy, it does not mean that they have disrespect for religions. Irish people have respect for religions. However, religions are entitled to be ridiculed. In many respects, that will also liberate religions. For too long the State has provided a support for religions that they do not need in a modern society. They are strong enough to survive on their own two feet without unnecessary anachronistic crimes being contained in the Constitution. If we remove the offence of blasphemy from the Constitution, there will be nothing to stop the Oireachtas in 50 or 100 years from deciding to include the crime of blasphemy in the Statute Book.

People might think the role of the church and the State is at the heart of this debate. It is unquestionably the case that, when drafted in 1937, the Constitution was influenced by members of the Catholic Church. The Jesuit priest Fr. Edward Cahill had a significant say in it, as well as the future archbishop John Charles McQuaid. We should also be aware that it was not that unusual in the 1930s for the Catholic Church to seek to influence the primary document of the State when one considers the history of this island back to the time of the Tudor conquest. However, that is a debate for another time. What is worth noting is that it is wrong to simply present the drafters of the 1937 Constitution as being in thrall to the Catholic Church. History does not support that argument. We know that the Catholic Church had an influence in respect of Article 44, within which the drafters included a reference to the special position of the Catholic Church. However, that was not satisfactory to the church in Rome. We know that the then Cardinal Eugenio Pacelli, later Pius XII, thought it was of no use. Many in the Catholic Church in Ireland also believed Mr. de Valera did not go far enough.

The great achievement of the Constitution is not in those areas on which we now concentrate a lot but in the fundamental rights section. It was not inspired by any Catholic teaching or doctrine but by the 1919 constitution of the Weimar Republic. We need to recognise that the Constitution of 1937 is a much richer and more complex document than is sometimes presented by those who seek to suggest it was a Catholic document for a Catholic people during a Catholic time. When one looks at other constitutions around the world, one can see the value of the Constitution. America cannot change its constitution because of its constitutional framework. That is why so much energy is invested in the appointment of Supreme Court judges whose function is to interpret the constitution. In Britain sovereignty does not reside with the people but with parliament. Part of the problem in Britain at present is due to this confused constitutional make-up. The great point about the Constitution is that it invested sovereignty in the people. The people can change it if they want to and their elected representatives decide legislation is appropriate. They have done this many times in the past and are able to do it readily through legislation being enacted. That is the great value of the Constitution. It is not frozen in the 1930s. It can be changed readily. It needs to be updated and modernised. but the fundamentals are strong. That is why we have such a successful political system and society.

See this speech in context