Michael McDowell (Independent) | Oireachtas source

This proposal to amend the Constitution is something which needs much more consideration than it has been given in public for a number of reasons. If one looks at the entire section of the Constitution and the article to do with free speech, it is quite clear that free speech and freedom of expression are guaranteed, subject to public order and morality. It is not an unqualified right of free speech and this amendment will not change that.

It is a curious feature of the proposed amendment of the Constitution that there has not been a fair analysis of what the term "public morality" as a constraint on the general right of freedom of expression actually means. Would there be a right to use freedom of expression as a defence for making statements in public, or publishing them, that would be considered blasphemous by most people if the right of the State to protect public morality is taken into account?

I approach this from a liberal perspective but I wonder why, in the terms of the Constitution, the criminalisation of blasphemy, indecency and sedition were expressly inserted by the sentence and paragraph with which we are dealing. They were expressly inserted as a qualification of the right to free speech. I have no doubt that historically it emanated from a desire to ensure that free speech would not have been used, in the context of 1937, as a defence for what would otherwise have been considered outright blasphemy in publications or utterances. Therefore, this provision and this sentence must be looked at carefully.

We are leaving an article in the Constitution which says, oddly, that the utterance of sedition or indecency is an offence that is, and must be, punishable by law. That is an interesting concept. To utter something indecent is mandated by the Constitution as a criminal offence and punishable in accordance with law. The same is currently true of blasphemy. When one thinks about it, clearly it was not desirable that this kind of criminal legislation was inserted into our Constitution and that something was asserted to be a crime without defining it and it had to be a crime as a matter of constitutional obligation on the State and punishable in accordance with law. What is left when the word blasphemy is taken out? There remains an article saying that the utterance or publication of indecency or sedition is an offence punishable by law. Sedition has a clear meaning. It is an undermining of the State and a challenge to the State's authority combined with some kind of urge of rejection and overthrow of the State's authority. That is what most people would understand by the term "seditious".

Indecency, on the other hand, is a concept that is utterly flexible depending on the mores of the time. What was considered indecent in 1937 is different to what is considered indecent today. Many things that are published and uttered today and are not considered indecent in 2018 would certainly have scandalised and shocked jurors and judges to the point of a certain conviction in 1937. We have a conundrum now that a paragraph is being left in the Constitution that says that the publication of seditious or indecent matter is an offence which shall be punishable in accordance with law but that blasphemy can never fall into that category.

Senator Bacik said she welcomes the proposal to repeal the section. I wonder about a possible case in which utter and gross blasphemy is published in a magazine. If something is published that would offend the great majority of practising Catholics, like a black mass, a complete inversion of the mass, or an association of it with something sexual, or defecatory, or something similar, is that not to be a criminal offence? Is that to be decriminalised but indecency to remain criminalised?

A better amendment would have been that the right of free speech and freedom of expression guaranteed by the article may be regulated by the State on the grounds of blasphemy, indecency or sedition and not to say that it is a criminal offence punishable by law but merely say that there is a right on the part of the Oireachtas to defend religious sensibility at some extreme level. I am mystified that we should now say nothing in Ireland can be prosecuted on the grounds that it causes massive offence by its blasphemous character and it cannot be restrained in any way, whereas something which is indecent - pornography of some kind, although these days it would have to be extreme pornography - is still to be criminalised under the Constitution.

This is an all Stages debate and it can be discussed again later, since we are dealing with the Second Stage now, but I would like the Minister of State to explain to me if he thinks that nothing could be published in Ireland of a blasphemous nature that should attract any sanction at all in any circumstance. To those who say that we need to consider Islam, Judaism, Christianity and various other religions, I say we should remember that Christianity was the central religion of the community that adopted this Constitution and the Preamble still reflects that. I ask the Minister of State to be clear. Is it to be the case, as we discuss the principle of this, that nothing of whatever foul, offensive and demeaning nature, striking at the very heart of the Christian faith, can be sanctioned in any way by the State? That is a radical proposal.I would like people to realise that the withdrawal of this word from the Constitution, coupled with the Minister's stated intention to repeal the relevant sections of the Defamation Act, means this is the situation that will exist after those two steps are taken. I wonder if the great majority of Irish people think that is a good idea. It could have been done differently. We could have said that the State "may" curtail the right of free speech to protect its authority through sedition, protect public morality through laws on indecency or protect religious sensibility on the grounds of blasphemy. We could have had a different clause in the Constitution. I doubt that most people would, hand on heart, say that in future anything, no matter how offensive, no matter how repugnant to religion, can be published with impunity in the Irish State. Is that where we are going?