In May 2009, at the Oireachtas Committee on Justice, then Fine Gael justice spokesman Charlie Flanagan was clear. Blasphemy provisions in the Defamation Bill being discussed were yet another "Irish solution to an Irish problem" which would ensure it was almost impossible to bring any prosecution.
Listening to politicians on the day, the impression given was consistent. Dealing with blasphemy in the context was not of their choosing. It was being forced on them by advice arising from the Constitution.
Here is then minister for justice Dermot Ahern: "As a republican, my personal position is that church and State should be separate," he said. "But I do not have the luxury of ignoring our Constitution. So, as Minister for Justice I faced a choice – referendum or reform."
Seemed a luxury
It was 2009. Spending on a referendum in the context, any referendum, seemed a luxury which Ireland’s crashed economy could not indulge.
Dermot Ahern said he personally favoured abolishing the offence of blasphemous libel, but favoured reforming the law, rather than a constitutional amendment, at that time.
However, he did amend his proposals on blasphemous libel in the Bill to allow for a defence of “genuine literary, artistic, political, scientific or academic value” in alleged blasphemous material.
The Bill before the committee introduced no new statutory offence in regard to criminal or defamatory libel, he said. He noted how then minister for finance Brian Lenihan had stated twice in the Seanad that an outstanding issue remained to be addressed, in making legislative provision for the offences, including blasphemous libel, contained in Article 40.6.1.i of the Constitution.
‘Hysterical reaction’
So Dermot Ahern was “puzzled as to the hysterical and incorrect reaction whipped up by some media reporters and commentators on this point”, he said, adding that his explanation would disappoint “fantasy conspiracy theorists that have detected dark machinations and bogeymen behind this proposal and have attributed to myself the most debased motives”.
As the responsible minister, he said: “We, as legislators, do not have the luxury of pursuing a ‘do nothing’ approach while we wait for an opportune moment to move a constitutional amendment.”
Successive attorneys general had said he had a constitutional obligation not to leave a legal void, he said. “Until the Constitution is amended, it is necessary that blasphemy remain a crime and that the relevant legislation must make provision for punishment of this crime. There is no alternative to this position.”
He added that he wanted it put on the record that in bringing forward this proposal, neither he nor his department consulted with any religious organisations, nor did they seek or receive any representations in that regard.
This was subsequently confirmed by the leadership of various churches and faith groupings.
That July, in a subsequent Seanad debate, the Bill passed by a single vote after the Government almost suffered a defeat on an amendment by Fine Gael's Eugene Regan which would have deleted the offence of blasphemy altogether.
Outrage expressed
During the debate, Mr Ahern said he had never in his political career received so many emails expressing outrage as he had on the issue.
Senator Ivana Bacik suggested that under the proposed legislation, Fr Willie Russell from Rathkeale, Co Limerick, a critic of those in his parish who appeared to be worshipping a tree with the appearance of the Blessed Virgin Mary, could be open to a charge of blasphemy because he had stated that no one could "worship a tree".
Later that month, then-president Mary McAleese convened a meeting of the Council of State to discuss the constitutionality of both the Defamation Bill and the Criminal Justice (Amendment) Bill 2009.
Following three hours of advice, she signed both Bills into law.
Mr Ahern said modernisation of the law on defamation legislation was “now complete” and added that he believed the legislation struck the right balance “in what is a complex area”.
Preparatory work
The Department of Justice has already confirmed preparatory work has begun on a referendum on blasphemy.
A spokesman for the Department of Justice said the Government had proposed a number of referendums be held during its term, including one on the question of amending Article 40.6.1(i) of the Constitution to remove the offence of blasphemy.
“Preliminary consultations and preparatory work have been undertaken,” the spokesman said.
Further work will be necessary to prepare a Referendum Bill and a Bill to amend the current legislative provision for the offence of blasphemy contained in the Defamation Act 2009, with the “priority and time frame to be decided by Government”.
The offence of blasphemy, included in the Defamation Act, is punishable by a fine of €25,000 under Irish law.
