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JUSTIFYING BLASPHEMY LAWS: FREEDOM OF EXPRESSION, PUBLIC MORALS, AND INTERNATIONAL HUMAN RIGHTS LAW

  • Neville Cox (a1)

Abstract

In its General Comment No. 34 dealing with freedom of expression, the United Nations Human Rights Committee (UNHRC) rejected the idea that a blasphemy law could ever be human-rights compliant, unless its function was to prevent incitement to religious or racial hatred. This is a widely shared view that is consistently endorsed when any international blasphemy controversy (such as that involving the Danish Cartoons in 2005) arises. This article assesses the legitimacy of this view. The International Covenant on Civil and Political Rights (ICCPR) permits freedom of expression to be limited inter alia in the name of public morality, provided that the law in question is also necessary to achieve this end. This article argues that because a blasphemy law can be a response to a public moral vision; therefore a blasphemy law can serve a legitimate purpose insofar as human rights law is concerned. It is further submitted that whereas some blasphemy laws are unacceptably draconian, it is not inherently impossible for such a law to represent a proportionate response to a public morals concern. Thus, the conclusion from the UNHRC is not warranted by the text of the ICCPR. Moreover, there is a risk that, in reaching this conclusion the committee is evincing an exclusively secularist worldview in its interpretation of the ICCPR that undermines its claim to universality.

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1 United Nations Human Rights Committee [UNHRC], General Comment No. 34, Freedom of Opinion and Expression, CCPR C/GC/34, ¶ 48 (September 12, 2011), http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf; United Nations Human Rights Committee, Resolution 2200A (XXI), International Covenant on Civil and Political Rights [ICCPR], article 20 (December 16, 1966), https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

2 UNHRC, General Comment No. 34, ¶ 48. For discussion, see Michael O'Flaherty, “Freedom of Expression: The International Covenant on Civil and Political Rights and the Human Rights Committee's General Comment No. 34,” Human Rights Law Review 14, no. 4 (2012): 627–54, at 652.

3 For analysis of the work of the United Nations in this regard, see Cox, Neville, “Pourquoi Suis-Je Charlie? Blasphemy, Defamation of Religion, and the Nature of Offensive Cartoons,” Oxford Journal of Law and Religion 4, no. 3 (2015): 343–67; Langer, Lorenz, Religious Offence and Human Rights: The Implications of Defamation of Religions (Cambridge: Cambridge University Press, 2014): 160–98; Blitt, Robert, “Should New Bills of Rights Address Emerging International Human Rights Norms? The Challenge of ‘Defamation of Religion,’Northwestern University Journal of International Human Rights 9, no. 1 (2010): 126; Foster, Joshua, “Prophets, Cartoons and Legal Norms: Rethinking the United Nations Defamation of Religion Provisions,” Journal of Catholic Legal Studies 48, no. 1 (2009): 1957; Temperman, Jeroen, “Blasphemy, Defamation of Religions and Human Rights Law,” Netherlands Quarterly of Human Rights 26, no. 4 (2008): 517–45, at 530; Dobras, Rebecca, “Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religions Resolutions and Pakistan's Blasphemy Laws,” Georgia Journal of International and Comparative Law 37, no. 2 (2009): 341–80; Graham, L. Bennett, “Defamation of Religions: The End of Pluralism,” Emory International Law Review 23, no. 1 (2009): 6984, at 69; Holzaepfel, Caleb, “Can I Say That? How an International Blasphemy Law Pits the Freedom of Religion against the Freedom of Speech,” Emory International Law Review 28, no. 1 (2014): 597648, at 616.

4 See, for example, Bielefeld, Heiner, Ghanea, Nazila, and Wiener, Michael, Freedom of Religion or Belief: An International Commentary (Oxford: Oxford University Press, 2016), 494–95.

5 Kahn, Robert, “Flemming Rose, The Danish Cartoon Controversy and the New European Freedom of Speech,” California Western International Law Journal 40, no. 2 (2010): 253–90, at 260; see also Derek Scally “Ten Years on Danish Daily Stands by Muhammad Caricatures,” Irish Times, September 30, 2015, https://www.irishtimes.com/news/world/europe/ten-years-on-danish-daily-stands-by-muhammad-caricatures-1.2371640.

6 See generally Parmar, Sejal, “Freedom of Expression Narratives after the Charlie Hebdo attacks,” Human Rights Law Review 18, no. 2 (2018): 267–96; see, for example, “The Guardian View on Charlie Hebdo: Those Guns were Trained on Free Speech,” Guardian, January 7, 2015, http://www.theguardian.com/commentisfree/2015/jan/07/guardian-view-charlie-hebdo-guns-trained-free-speech.

7 For a multifaceted discussion of these issues, see the various contributions in Temperman, Jeroen and Koltay, András, eds., Blasphemy and Freedom of Expression: Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre (Cambridge: Cambridge University Press, 2017).

8 The same criticism can be made of the manner in which Ireland's restrictive abortion law was deemed by the UNHRC to violate human rights. Human Rights Committee, Views Adopted by the Committee under Article 5 (4) of the Optional Protocol, Concerning Communication No. 2324/2013, U.N. Doc. CCPR/C/116/D/2324/2013 (November 17, 2016). See Paul Cullen, “Ireland's Abortion Law Violated Woman's Human Rights, UN Says,” Irish Times, June 13, 2017, https://www.irishtimes.com/news/health/irish-abortion-law-violated-woman-s-human-rights-un-says-1.3118145.

9 For discussion, see de Zayas, Alfred and Martin, Áurea Roldán, “Freedom of Opinion and Freedom of Expression: Some Reflections on General Comment No. 34 of the UN Human Rights Committee,” Netherlands International Law Review 59, no. 3 (2012): 425–54; Carpenter, Devin, “So Made That I Cannot Believe: The ICCPR and the Protection of Non-Religious Expression in Predominantly Religious Countries,” Chicago Journal of International Law 18, no. 1 (2017): 216–44.

10 Office of the High Commissioner for Human Rights [OHCHR], CCPR General Comment No. 10: Freedom of Expression (Article 19) (June 29, 1983).

11 UNHRC, CCPR General Comment No. 34, ¶¶ 21–49.

12 General Comment No. 22, The Right to Freedom of Thought, Conscience and Religion (Art. 18), UN Doc. CCPR/C/21/Rev/Add.4 (1993), ¶ 32.

13 UNHRC, CCPR General Comment No. 34, ¶ 38.

14 UNHRC, CCPR General Comment No. 34, ¶¶ 39–45.

15 UNHRC, CCPR General Comment No. 34, ¶ 46.

16 UNHRC, CCPR General Comment No. 34, ¶ 47.

17 UNHRC, CCPR General Comment No. 34, ¶ 50: the UNHRC concludes that laws enacted pursuant to Article 20 must also comply with the requirements of Article 19(3).

18 See the Report of the United Nations High Commission for Human Rights on the Expert Workshops on the Prohibition of Incitement to National, Racial or Religious Hatred A/HRC/22/17/Add. 4 (January 11, 2013), https://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf. This report includes as an appendix the Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence (hereafter cited as Rabat Plan of Action). For discussion in the context of blasphemy laws, see Robert Kahn, “Rethinking Blasphemy and Anti-Blasphemy Laws,” in Temperman and Koltay, Blasphemy and Freedom of Expression, 167–93. Generally, for endorsement of the values in this declaration, see Bielefeld, Ghanea, and Wiener, Freedom of Religion or Belief, 30, and especially 501.

19 Rabat Plan of Action, ¶ 17.

20 Rabat Plan of Action, ¶ 19.

21 See, for example, the press release in relation to the Danish Cartoons controversy, Organisation of the Islamic Conference, Statement on Insulting Cartoons (2006), https://www.central-mosque.com/fiqh/oicsttmnt.htm. Generally, see Marie Juul Petersen and Heini í Skorini, “Freedom of Expression vs. Defamation of Religions: Protecting Individuals or Protecting Religions?” Religion and Global Society (blog), March 1, 2017, http://blogs.lse.ac.uk/religionglobalsociety/2017/03/freedom-of-expression-vs-defamation-of-religions-protecting-individuals-or-protecting-religions/.

22 See for discussion, Goolam, Nazeem M., “The Cartoon Controversy: A Note on Freedom of Expression, Hate Speech and Blasphemy,” Comparative and International Journal of Southern Africa 39, no. 3 (2006): 333–50.

23 See, for example, Callamard, Agnes, “Freedom of Speech and Offence: Why Blasphemy Laws Are Not the Appropriate Response,” Equal Voices, no. 18 (June 2006): 712, https://fra.europa.eu/sites/default/files/fra_uploads/8-ev18en.pdf. See also Sturges, Paul, “Limits to Freedom of Expression? The Problem of Blasphemy,” International Federation of Library Associations Journal 41, no. 2 (2015): 112–19.

24 Generally (and in particular for discussion of whether such rights actually exist), see Temperman, Jeroen, Religious Hatred and International Law: The Prohibition of Incitement to Violence or Discrimination (Cambridge: Cambridge University Press, 2016).

25 For discussion, see Mondal, A. A., “Articles of Faith: Freedom of Expression and Religious Freedom in Contemporary Multiculture,” Islam and Christian-Muslim Relations 27, no. 1 (2016): 324.

26 See also Universal Declaration of Human Rights, article 29; American Convention on Human Rights, article 13.

27 Cox, Neville, “The Freedom to Publish ‘Irreligious’ Cartoons,” Human Rights Law Review 16, no. 2 (2016): 195221. For an excellent response, see Lemmens, Koen, “Irreligious Cartoons and Freedom of Expression: A Critical Reassessment,” Human Rights Law Review 18, no. 1 (2018): 89109.

28 Matthew 26:64.

29 Whitehouse v. Lemon [1979] AC 617.

30 Pakistan Penal Code §§ 295, 298. I discuss this below in the section “Public Morality, Necessity, and Blasphemy Laws.”

31 Corway v. Independent Newspapers (1999) 4 IR 484; (2000) 1 ILRM 426. For analysis, see Cox, Neville, “Case and Comment: Corway v. Independent Newspapers,” Dublin University Law Journal, no. 22 (2000): 201–07; Ranalow, Stephen, “Bearing a Constitutional Cross—Examining Blasphemy and the Judicial Role in Corway v Independent Newspapers,” Trinity College Law Review, no. 3 (2000): 95110.

32 Hunt, Chris, “Community Standards in Obscenity Adjudication,” California Law Review 66, no. 6 (1978): 1277–92.

33 John 19:12.

34 See Kenny, Courtney, “The Evolution of the Crime of Blasphemy,” Cambridge Law Journal 1, no. 2 (1922): 127–42; O'Higgins, Paul, “Blasphemy in Irish Law,” Modern Law Review 23, no. 2 (1960): 151–66.

35 Taylor's Case (1676) 1 Vent. 293; 3 Keble 607 (1676). See Levy, Leonard W., Treason against God: A History of the Offense of Blasphemy (New York: Schocken Books, 1981), 312; Blom-Cooper, Louis, Blasphemy: An Ancient Wrong or a Modern Right? (London: Essex Hall Press, 1981), 3; Webster, Richard, A Brief History of Blasphemy: Liberalism, Censorship and the Satanic Verses (Southwold: Orwell Press, 1990), 23; Kenny, “The Evolution of the Crime of Blasphemy,” 130.

36 Bowman v. Secular Society (1917) AC 406; R v. Bradlaugh (1883) 15 Cox CC, 23; R v. Ramsay & Foote (1883) 15 Cox 217.

37 For assessment of the possibility of blasphemous speech representing a threat to the right to religious freedom of those who are offended by it see Andrew Hambler, “Blasphemy, Religious Rights and Harassment: A Workplace Study,” in Temperman and Koltay, Blasphemy and Freedom of Expression, 681–700.

38 See E.S. v. Austria (2018) Eur. Ct. H. R. 891; Gay News and Lemon v. United Kingdom, 5 Eur. H.R. Rep 123 (1983); Otto-Preminger-Institut v. Austria (1994) Eur. Ct. H. R. 13470/67; Wingrove v. United Kingdom (1996) Eur. Ct .H. R. 17419/90; IA v. Turkey (2005) Eur. Ct. H. R. 590.

39 See Michael Nugent, “If There Was a Creator of the Universe, It Wouldn't Need Its Feelings Protected by Dermot Ahern” The Journal.ie (blog), May 7, 2017, http://www.thejournal.ie/readme/if-there-was-a-creator-of-the-universe-it-wouldnt-need-its-feelings-protected-dermot-aherns-laws-3376833-May2017/.

40 See Feinberg, Joel, Offense to Others (Oxford: Oxford University Press, 1985), 5097. Feinberg distinguishes what he terms “simple offense” (one's senses are targeted) from profound offense (one's moral sensitivities are offended). See also Cox, Neville, “Blasphemy, Holocaust Denial and the Control of Profoundly Unacceptable Speech,” American Journal of Comparative Law 62, no. 3 (2014): 739–74.

41 On the other hand, in July 2017, the Irish journalist, Kevin Myers discovered to his cost (and at the cost of his job) that speech that might be construed as anti-Semitic is also, arguably, “unsayable” in Western European society. See Fintan O'Toole, “Kevin Myers Broke the Only Rule that Matters,” Irish Times, August 1, 2017, https://www.irishtimes.com/opinion/fintan-o-toole-kevin-myers-broke-the-only-rule-that-matters-1.3172618.

42 Cox, “Blasphemy, Holocaust Denial and the Control of Profoundly Unacceptable Speech,” 754; Cox, Neville, “The Ethical Case for a Blasphemy Law,” in The Handbook of Global Communications and Media Ethics, ed. Fortner, Robert and Fackler, Mark (Malden: Wiley-Blackwell, 2011), 263–97, at 264.

43 See Gündüz v. Turkey [2003] Eur. Ct. H.R. 652; Erbakan v. Turkey, App No. 59405/00 Eur. Ct. H.R. (2006).

44 See, for example, Washington Post, “The N-Word: An Interactive Project Exploring a Singular Word,” accessed March 16, 2020, https://www.washingtonpost.com/wp-dre/features/the-n-word.

45 See generally, on the issue of the role of law in protecting the “moral essentials” of a society, Mitchell, Basil, Law, Morality and Religion in a Secular Society (Oxford: Oxford University Press, 1967), 2122.

46 Generally, see Perrone, Roberto, “Public Morals and the European Convention on Human Rights,” Israel Law Review 47, no. 3 (2014): 361–78. See also George, Robert, “The Concept of Public Morality,” American Journal of Jurisprudence 45, no. 1 (2000): 1732; Mooney, Christopher F., “Public Morality and Law,” Journal of Law and Religion 1, no. 1 (1983): 4558.

47 See, for example, Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), 248. See also Perrone, “Public Morals,” 369.

48 Dudgeon v. United Kingdom [1981] Eur. Ct. H.R. 5 at ¶ 49.

49 Devlin, Patrick, The Enforcement of Morals (Oxford: Oxford University Press, 1965), 15.

50 Hart, H. L. A., “Immorality and Treason,” Listener (1959): 162–67. See also Hughes, Graham, “Morals and the Criminal Law,” Yale Law Journal 71, no. 4 (1961): 662–83, 675.

51 See Mooney, “Public Morality and Law,” 46, for the proposition that law becomes a minimum but necessary statement as to the nature of a state's public morality.

52 For criticism see Perrone, “Public Morals and the European Convention,” 363–365.

53 Handyside v. United Kingdom [1976] Eur. Ct. H.R. 5493/72 at ¶ 48.

54 Handyside [1976] Eur. Ct. H.R. at ¶ 48; see Perrone, “Public Morals and the European Convention, 363.

55 See most obviously Dudgeon v. United Kingdom, [1981] Eur. Ct. H.R. 5; Norris v. Ireland [1985] Eur. Ct. H.R. 13. Generally see Perrone, “Public Morals and the European Convention,” 364.

56 Perrone, “Public Morals and the European Convention,” 365.

57 See E.S. v Austria [2018] Eur. Ct. H.R. 891; Gay News and Lemon v. United Kingdom, 5 Eur. H.R. Rep 123 (1983); Otto-Preminger-Institut v. Austria [1994] Eur. Ct. H.R. 26 (Sept. 20, 1994); Wingrove v. United Kingdom [1996] Eur. Ct. H.R. 60; IA v. Turkey, 2005-VIII Eur. Ct. H.R.; Aydin Tatlav v. Turkey Application no. 50692/99 (May 2, 2006) [In French or Turkish]. Generally, see Wintemute, Robert, “Blasphemy and Incitement to Hatred under the European Convention,” King's College Law Journal, no. 6 (1995–1996): 143–46.

58 M'Bala M'Bala v. France [2015] Eur. Ct. H.R. No.25239/13 (October 20, 2015). For analysis, see Frank Cranmer, “Article 10 ECHR Does Not Protect Anti-Semitic Views: M'Bala M'Bala v France,” Law & Religion UK (blog), November 13, 2015, http://www.lawandreligionuk.com/2015/11/13/article-10-echr-does-not-protect-anti-semitic-views-mbala-mbala-v-france/.

59 Murphy v. Ireland [2003] Eur. Ct. H.R. 352.

60 See generally on this issue, Evans, Carolyn, “Individual and Group Religious Freedom in the European Court of Human Rights: Cracks in the Intellectual Architecture,” Journal of Law and Religion 26, no. 1 (2010): 321–43. This is most controversially the case where a woman seeks to challenge a ban on wearing some kind of Islamic veil either in public (SAS v. France [2014] Eur. Ct. H.R. 695; Affaire Belcacami & Oussar v. Belgium [2017] Eur. Ct. H.R. 655) or in some more particular setting (Leyla Sahin v. Turkey [2005] Eur. Ct. H.R. 819).

61 See most notably Lautsi v. Italy [2011] Eur. Ct. H.R. 242.

62 See Petty, Aaron R., “Religion, Conscience, and the European Court of Human Rights,” George Washington International Law Review 48, no. 4 (2016): 807–51, at 836.

63 See SAS [2014] Eur. Ct. H.R., at ¶ 12.

64 UNHRC, General Comment No. 34, ¶ 36. See McGoldrick, Dominic, “A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee,” International and Comparative Law Quarterly 65, no. 1 (2016): 2160.

65 UNHRC, General Comment No. 22, The Right to Freedom of Thought, Conscience and Religion (Art. 18), UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), https://undocs.org/CCPR/C/21/Rev.1/Add.4.

66 UNHRC, General Comment No. 22, ¶ 8.

67 Thus in John 14:6, the founder of Christianity is recorded as having said of himself “I am the Way; I am truth and life. No one can come to the Father except through me.” New Jerusalem Bible (London: Darton, Longman & Todd, 1990). Similarly, the Muslim Shahada (profession of faith) provides that “There is no god but God and Muhammad is the messenger of God.”

68 See, for example, Heathwood, Chris, “Could Morality Have a Source?,” Journal of Ethics and Social Philosophy 6, no. 2 (2012): 119.

69 See Loi 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l'espace public [Law 2010-1192 of October 11, 2010 Prohibiting the Concealment of the Face in Public Space], Journal Officiel de la République Française [Official Gazette of France], October 12, 2010, https://www.legifrance.gouv.fr/eli/jo/2010/10/12. See generally Neville Cox Behind the Veil: A Critical Analysis of European Veiling Laws (Cheltenham: Edward Elgar Publishing, 2019).

70 Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, U.N. Doc. E/CN.4/1985/4 (1984).

71 This is explicit in the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR.

72 Handyside v. United Kingdom, 1997-III Eur. Ct. H.R.

73 See Lingens v. Austria (No.2) [1986] 9815/82 Eur. Ct. H. R. 7 1, 15 (1986); Bladet Tromso and Stensaas v. Norway [1999] Eur. Ct. H. R. 29 at ¶ 66; Feldek v. Slovakia [2001] Eur. Ct. H. R. 463 at ¶ 75; Pedersen v. Denmark [2004] Eur. Ct. H. R. 693 at ¶ 64; Selisto v. Finland [2004] Eur. Ct. H. R. 634 at ¶ 55, Turhan v. Turkey [2005] Eur. Ct. H. R. 311 at ¶ 24, Ukrainian Media Group v. Ukraine [2005] Eur. Ct. H. R. 198 at ¶¶ 59–62; Wirtschafts-Trend Zeitschriften-Verlags Gmbh v. Austria [2005] Eur. Ct. H. R. 862 at ¶ 32; Semik-Orzech v. Poland [2011] Eur. Ct. H. R. 923; Sorguc v. Turkey [2009] Eur. Ct. H. R. 979; Bodrozic v. Serbia [2009] Eur. Ct. H. R. 978; Dlugolecki v. Poland [2009] Eur. Ct. H. R. 345.

74 For a general overview, see Rollinson, Katherine, “An Analysis of Blasphemy Legislation in Contemporary Ireland and Its Effects upon Freedom of Expression in Literary and Artistic Works,” Syracuse Journal of International Law and Commerce 39, no. 1 (2011): 189218.

75 Defamation Act 2009 (Act. No. 31/2009), http://www.irishstatutebook.ie/eli/2009/act/31/enacted/en/. See generally, Neville Cox and Eoin McCullough, Defamation: Law and Practice (Dublin: Clarus Press, 2014), 4; Irish Law Reform Commission, “1991 Report on the Civil Law of Defamation,” December 19, 1991, at 54, https://www.lawreform.ie/_fileupload/Reports/rDefamation.htm; “Report of the Legal Advisory Group on Defamation” (legislation, European Union, 2003), 5–9.

76 Defamation Act 2009, § 36; see Jacob, Katherine, “Defending Blasphemy: Exploring Religious Expression under Ireland's Blasphemy Law,” Case Western Reserve Journal of International Law 44, no. 3 (2012): 803–45.

77 See Cox, Neville, Blasphemy and the Law in Ireland (Lewiston: Edwin Mellen Press, 2000), 47; Cox, Neville, “Sacrilege and Sensibility: The Value of Irish Blasphemy Law,” Dublin University Law Journal, no. 19 (1997): 87112.

78 See, for example, Constitution of Ireland, article 6 (all powers of government derive from God); Constitution of Ireland, article 44 (acknowledgement that the homage of public worship is owed to God).

79 Inglis, Tom, Moral Monopoly: The Rise and Fall of the Catholic Church in Ireland (Dublin: University College Dublin Press, 1998); Fuller, Louise, Irish Catholicism since 1950: The Undoing of a Culture (Dublin: Gill & MacMillan, 2004); Fanning, Bryan, Histories of the Irish Future (London: Bloomsbury, 2015), 174; Manuel, Paul Christophe, The Catholic Church and the Nation-State Comparative Perspectives (Washington, DC: Georgetown University Press, 2006), 117–28.

80 hAdhmaill, Féilim Ó, “The Catholic Church and Revolution in Ireland,” Socialist History, no. 43 (2013): 125; English, Richard, Irish Freedom: The History of Nationalism in Ireland (London: Macmillan, 2006), 219.

81 Constitution of Ireland article 44 §1.2 provided that “The State recognizes the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of citizens”; Constitution of Ireland article 44 §1.3 further recognized the Church of Ireland, the Presbyterian and Methodist churches, the Society of Friends in Ireland, the Jewish Congregations, “and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.”

82 For a magisterial account of these developments, see Hogan, Gerard, The Origins of the Irish Constitution, 1928–1941 (Dublin: Royal Irish Academy, 2012); see Keogh, Dermot and McCarthy, Andrew J., The Making of the Irish Constitution 1937 (Douglas Village: Mercier Press, 2007).

83 Irish Constitution, article 40 § 6.1; see generally Cox, Blasphemy and the Law in Ireland, 48; Hogan, Gerard and Whyte, Gerry, JM Kelly: The Irish Constitution (Dayton: LexisNexis Butterworths, 2003), 7.5.70.

84 The referendum was passed by a majority of 68.5 percent in favor and 31.5 percent against. See Emma Graham-Harrison, “Ireland Votes to Oust ‘Medieval’ Blasphemy Law,” Guardian, October 27, 2018, https://www.theguardian.com/world/2018/oct/27/ireland-votes-to-oust-blasphemy-ban-from-constitution.

85 See “Blasphemy Referendum to Take Place on Same Day as Presidential Election,” Irish Examiner, September 21, 2018, https://www.irishexaminer.com/breakingnews/ireland/blasphemy-referendum-to-take-place-on-same-day-as-presidential-election-870630.html.

86 [1999] 4 IR 484; [2000] 1 ILRM 426.

87 See Inglis, Moral Monopoly, 70; Penet, Jean-Christophe, “From Idealised Moral Community to Real Tiger Society: The Catholic Church in Secular Ireland,” Estudios Irlandeses, no. 3 (2008): 143–53; Mary Kenny, “The End of Catholic Ireland,” Guardian, May 8, 2012, https://www.theguardian.com/commentisfree/belief/2012/aug/08/end-of-catholic-ireland.

88 For an excellent evaluation, see Maher, Eamon and O'Brien, Eugene, Tracing the Cultural Legacy of Irish Catholicism: From Galway to Cloyne and Beyond (Manchester: Manchester University Press, 2017), 2336.

89 Figures from 2016 (when compared to previous census figures in 2011) indicate a 3 percent reduction in those identifying as Roman Catholic (now 78.3 percent of the population) and a 73.6 percent increase in those saying that they had no religious beliefs. See “Religion,” in Census of Population 2016, Profile 8: Travellers, Ethnicity and Religion (Dublin: Central Statistics Office, 2017), 71–74, http://www.cso.ie/en/media/csoie/releasespublications/documents/population/2017/Chapter_8_Religion.pdf.

90 Thus, for example, in Ryan v. Attorney General [1965] IR 294 at 314, Judge Kenny in the High Court referred to Pope John XXIII's 1963 papal encyclical Pacem in Terris [Peace on Earth] in support of his conclusion that the Constitution included an unenumerated right to bodily integrity.

91 This manifested itself, in spring 2017, in widespread opposition (including from the Minister for Health) to the notion that the Sisters of Charity order might have some involvement in the governance of a new national maternity hospital to be built on its land. See, for example, “Poll Shows Overwhelming Opposition to Catholic Church Involvement in New Maternity Hospital,” Irish Examiner, April 24, 2017, http://www.irishexaminer.com/breakingnews/ireland/poll-shows-overwhelming-opposition-to-catholic-church-involvement-in-new-maternity-hospital-786989.html; Michael O'Regan, “Harris Reiterates Maternity Hospital Will Be Independent,” Irish Times, May 3, 2017, https://www.irishtimes.com/news/politics/oireachtas/harris-reiterates-maternity-hospital-will-be-independent-1.3070137.

92 At the time of writing, this logic is being applied in particular to the capacity of schools run by religious institutions to grant priority of admission to children who are members of the relevant religious faith. See Vivienne Clarke and Carl O'Brien, “School ‘Baptism Barrier’ is Unfair on Parents, Says Bruton,” Irish Times, June 29, 2017, https://www.irishtimes.com/news/education/school-baptism-barrier-is-unfair-on-parents-says-bruton-1.3137790.

93 See O'Brien, Kathryn A., “Ireland's Secular Revolution: The Waning Influence of the Catholic Church and the Future of Ireland's Blasphemy Laws,” Connecticut Journal of International Law 18, no. 1 (2002): 395430.

94 In theory, the government might have followed the Law Reform Commission's advice and tacked a blasphemy referendum on to the “other” constitutional referendum on which the Irish people were asked to vote that year—a referendum seeking (for the second time) endorsement of the EU Lisbon Treaty. It would, however, have been strategically very unwise for the government to have linked that referendum (in the minds of those who might vote against it because of a concern with erosion of traditional and religious Irish values), with a referendum seeking to abolish the blasphemy clause. See Bruno Waterfield, “Vatican Issues Lisbon Treaty Warning to Irish Voters,” Telegraph, October 1, 2009, http://www.telegraph.co.uk/news/worldnews/europe/ireland/6251741/Vatican-issues-Lisbon-Treaty-warning-to-Irish-voters.html.

95 See “We Believed That We Would Never See a Prosecution for It,” Broadsheet, May 8, 2017, http://www.broadsheet.ie/2017/05/08/we-believed-that-we-would-never-see-a-prosecution-for-it/.

96 See Ryan Nugent, “We Made Blasphemy Law ‘Almost Impossible to Prosecute’—Former Minister Says about Stephen Fry Garda Investigation,” Irish Independent, May 8, 2017, http://www.independent.ie/irish-news/we-made-blasphemy-law-almost-impossible-to-prosecute-former-minister-says-about-stephen-fry-garda-investigation-35690071.html. It can of course, be argued that the creation of an unenforceable blasphemy law honors the constitution no more effectively than if no such law was enacted.

97 Defamation Act 2009, § 36.

98 See Joelle Fiss and Jocelyn Getgen Kestenbaum, Respecting Rights? Measuring the World's Blasphemy Laws, United States Commission on International Religious Freedom, July 2017, https://www.uscirf.gov/sites/default/files/Blasphemy%20Laws%20Report.pdf.

99 Blasphemy (Abolition of Offences and Related Matters) Act, 2019 (Act No. 43/2019).

100 See Padraig Reidy, “Who asked for Ireland's Blasphemy Law?,” Guardian, July 9, 2009, https://www.theguardian.com/commentisfree/libertycentral/2009/jul/09/ireland-blasphemy-laws.

101 Cathal McMahon, “Gardaí Launch Blasphemy Probe into Stephen Fry Comments on ‘The Meaning of Life,’” Irish Independent, May 6, 2017, http://www.independent.ie/irish-news/news/garda-launch-blasphemy-probe-into-stephen-fry-comments-on-the-meaning-of-life-35684262.html.

102 Cathal McMahon, “Stephen Fry Blasphemy Probe Dropped after Gardaí Fail to Find a ‘Substantial Number of Outraged People,’” Irish Independent, May 8, 2017, http://www.independent.ie/irish-news/stephen-fry-blasphemy-probe-dropped-after-garda-fail-to-find-substantial-number-of-outraged-people-35692915.html; see “No Blasphemy Investigation into Stephen Fry's Comments,” Raidió Teilifís Éireann, May 9, 2017, https://www.rte.ie/entertainment/2017/0508/873567-no-blasphemy-investigation-into-stephen-frys-comments/.

103 Conor Pope, “Referendum on Blasphemy Being Prepared as Complaint Made against Stephen Fry,” Irish Times, May 8, 2017, https://www.irishtimes.com/news/ireland/irish-news/referendum-on-blasphemy-being-prepared-as-complaint-made-against-stephen-fry-1.3074334.

104 Patsy McGarry, “End Blasphemy Laws Campaign Launched by International Coalition,” Irish Times, January 30, 2015, https://www.irishtimes.com/news/social-affairs/religion-and-beliefs/end-blasphemy-laws-campaign-launched-by-international-coalition-1.2085483. See also Venice Commission, Blasphemy, Insult and Hatred: Finding Answers in a Democratic Society (Strasbourg: Council of Europe, 2010), http://www.venice.coe.int/webforms/documents/?pdf=CDL-STD(2010)047-e.

105 Generally, see Unsworth, Clive, “Blasphemy, Cultural Divergence and Legal Relativism,” Modern Law Review 58, no. 5 (1995): 658–77.

106 See Nick Bramhill, “Byrne Describes Catholic Church as “‘Force for Evil’” Irish Times, March 31, 2013, https://www.irishtimes.com/news/byrne-describes-catholic-church-as-force-for-evil-1.1344551.

107 See for example Anna O'Donoghue, “Hozier Says He's ‘Mortified’ over Stephen Fry Blasphemy Probe,” Irish Examiner, May 8, 2017, http://www.irishexaminer.com/breakingnews/entertainment/hozier-says-hes-mortified-over-stephen-fry-blasphemy-probe-788794.html. Very significantly, the singer's comments were made after the blasphemy investigation was concluded.

108 For the alternative viewpoint, see Temperman, “Blasphemy, Defamation of Religions and Human Rights Law.”

109 Lombardi, Clark B., “Designing Islamic Constitutions: Past Trends and Options for a Democratic Future,” International Journal of Constitutional Law 11, no. 3 (2013): 615–45, 632.

110 See Brian J. Grim, “Laws Penalizing Blasphemy, Apostasy and Defamation of Religion are Widespread,” Pew Research Center, November 21, 2012, http://www.pewforum.org/2012/11/21/laws-penalizing-blasphemy-apostasy-and-defamation-of-religion-are-widespread/.

111 See generally Pakistan Penal Code §§ 295, 298.

112 This order was reaffirmed by the Federal Shariat Court in December 2013 (see also Muhammad Ismail Qureshi v. The Islamic Republic of Pakistan, Shariat Petition No.6/L of 1987 (1990)) and would now appear to be the law. See “Death Penalty Order Deepens Hard-line Islamist Trend in Pakistan, Critics Say,” Morning Star News, December 30, 2013, http://morningstarnews.org/2013/12/death-penalty-order-deepens-hard-line-islamist-trend-in-pakistan-critics-say/.

113 Alexander Smith, “Pakistani Christians Burned Alive Were Attacked by 1,200 People,” NBC News, November 7, 2014, http://www.nbcnews.com/news/world/pakistani-christians-burned-alive-were-attacked-1-200-people-kin-n243386.

114 Samira Shackle, “The Lahore Court's Decision to Uphold Asia Bibi's Death Penalty Is Far From Just,” Guardian, October 18, 2014; “Pakistan Court Upholds Asia Bibi Death Sentence,” BBC, October 16, 2014, http://www.bbc.com/news/world-asia-29640245. See generally Bibi, Asia and Tollet, Anne-Isabelle, Blasphemy: The True, Heartbreaking Story of the Woman Sentenced to Death over a Cup of Water (London: Virago Press, 2012), and, in relation to the eventual acquittal of Asia Bibi, “Asia Bibi Blasphemy Acquittal Upheld by Pakistani Court,” BBC, January 29, 2019, https://www.bbc.com/news/world-asia-47040847.

115 Mubasher Bukhari, “Pakistani Police Officer Axes Man to Death over Blasphemy,” Reuters, November 6, 2014, http://www.reuters.com/article/2014/11/06/us-pakistan-blasphemy-idUSKBN0IQ15220141106.

116 See “Family Pleads for Muhammad Ashgar, Briton on Blasphemy Charge in Pakistan,” Guardian, September 25, 2014, https://www.theguardian.com/uk-news/2014/sep/26/family-pleads-mohammad-asghar-briton-blasphemy-charge-pakistan.

117 Thus § 298B and § 298C of Pakistan's penal code (adopted in 1984) deal specifically with misuse of terms by members of the Ahmadi community.

118 See also Asad Hashim, “Living in Fear under Pakistan's Blasphemy Law,” Al Jazeera, May 17, 2014, http://www.aljazeera.com/indepth/features/2014/05/living-fear-under-pakistan-blasphemy-law-20145179369144891.html.

119 See ICCPR, Article 6(2).

120 See, generally, American Association for the International Commission of Jurists, Siracusa Principles: On the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Geneva: American Association for the International Commission of Jurists, 1985), https://www.icj.org/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf.

121 In its submission to the Constitutional Convention in 2013, Atheist Ireland quoted Heiner Bielefeld, United Nations Special Rapporteur on Freedom of Religion, who said, “There is a growing consensus within the human rights community that we have to move away from anti-blasphemy laws which, as countless examples demonstrate, generally have intimidating effects on religious or belief minorities, dissenters, converts and others. Rather than resorting to blasphemy legislation, what we ought to do is try to overcome stereotypes, prejudices by enhancing interreligious and intercultural communication, including between believers and nonbelievers. Moreover, potential target groups of national, racial, or religious hatred may need support and protection and we should try to be creative in expressing sympathy for their vulnerable situation so that they can rightly feel not to be left alone.” Athiest Ireland, “Athiest Ireland Asks Constitutional Convention to Remove Blasphemy Offence,” September 19, 2013, https://atheist.ie/2013/07/atheist-ireland-asks-constitutional-convention-to-remove-blasphemy-offence/. Generally, see Bielefeld, Ghanea, and Wiener, Freedom of Religion or Belief.

122 See Evans, Malcolm D., “From Cartoons to Crucifixes: Current Controversies Concerning the Freedom of Religion and the Freedom of Expression before the European Court of Human Rights,” Journal of Law and Religion 26, no. 1 (2010): 345–70.

123 It is notable, after all, that 64 of the 193 states that are members of the United Nations have religious symbols as part of their national flags. Twenty-one of these states have signs associated with Islam. See Marshall, Tim, Worth Dying For: The Power and Politics of Flags (London: Elliott & Thompson, 2017), 134.

124 On the connection between the underlying motivations of blasphemy and hate speech laws, see Houser, Justin Kirk, “Is Hate Speech Becoming the New Blasphemy? Lessons from an American Constitutional Dialectic,” Penn State Law Review 114, no. 2 (2009): 571619, at 571. See also John C. Knechtle, “Blasphemy, Defamation of Religion and Religious Hate Speech: Is There a Difference that Makes a Difference?,” in Temperman and Koltay, Blasphemy and Freedom of Expression, 194–222.

125 Cox, “Blasphemy, Holocaust Denial and the Control of Profoundly Unacceptable Speech,” 739.

126 Cox, Neville, “The Clash of Unprovable Universalisms—International Human Rights and Islamic Law,” Oxford Journal of Law and Religion 2, no. 2 (2013): 307–29.

127 UN General Assembly, Universal Declaration of Human Rights, 217 [III] A (1948).

128 See Mashood, Baderin, “A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence?,” Human Rights Law Review 1, no. 2 (2001): 265303, at 266.

129 The strong Western, secular leanings of the text of the Universal Declaration of Human Rights are demonstrated in a comparison between it and the 1991 Cairo Declaration of Human Rights in Islam, which, obviously, has a clear religious focus. Organization of the Islamic Conference, Cairo Declaration on Human Rights in Islam (August 5, 1990), http://www.fmreview.org/sites/fmr/files/FMRdownloads/en/FMRpdfs/Human-Rights/cairo.pdf. For analysis, see Mayer, Anne Elizabeth, “Universal Versus Islamic Human Rights: A Clash of Cultures or Clash with a Construct,” Michigan Journal of International Law 15, no. 2 (1994): 307404.

130 To take the most obvious clash, the Organisation of Islamic Cooperation, the body that sponsored the various Defamation of Religion resolutions passed by the United Nations between 1999 and 2011 has fifty-seven member states and thus, theoretically, represents nearly a quarter of the world's population.

131 Cox, “The Freedom to Publish ‘Irreligious’ Cartoons,” 207.

132 Generally see Baderin, “A Macroscopic Analysis of the Practice of Muslim State Parties,” 266.

133 This was the term coined by Eleanor Roosevelt in relation to the Universal Declaration of Human Rights. For a superb account of the work of the first Human Rights Commission, see Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2002), 173.

Keywords

JUSTIFYING BLASPHEMY LAWS: FREEDOM OF EXPRESSION, PUBLIC MORALS, AND INTERNATIONAL HUMAN RIGHTS LAW

  • Neville Cox (a1)

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