[Constitutional Convention][8][2 Nov 2013] The Offence Of Blasphemy

Nodin

Cody Pomeray wrote: »

what's only been mentioned in 5 cases? the preamble? The preamble has been brought up in way more than 5 cases.

Me not being a legal student or with access to a legal library, you might give a few more examples.

Cody Pomeray

I really wouldn't be able to list them all, Corway v. Independent Newspapers is another, Thomas Mcnally v Ireland is another, I mentioned Marie Fleming v Ireland I think, The People v Shaw 1982 is another major one, O Shea v Ireland 2003 is another. These are big recent ones, and are some of the most significant decisions of modern legal history, covering matters of major public concern. I think it's unreasonable to expect me to recall or try to go on a library hunt for every significant of them, there are clearly plenty.

Cody Pomeray

http://highcourtsearch.courts.ie/hcslive/terms_conditions.processAction

Nodin

Cody Pomeray wrote: »

I really wouldn't be able to list them all, Corway v. Independent Newspapers is another, Thomas Mcnally v Ireland is another, I mentioned Marie Fleming v Ireland I think, The People v Shaw 1982 is another major one, O Shea v Ireland 2003 is another. These are big recent ones, and are some of the most significant decisions of modern legal history, covering matters of major public concern. I think it's unreasonable to expect me to recall or try to go on a library hunt for every significant of them, there are clearly plenty.

....where/how was it used/referenced in the people v shaw and O'shea v Ireland (which was 2006, I think)? A link, if you could.

Cody Pomeray

Nodin wrote: »

....where/how was it used/referenced in the people v shaw and O'shea v Ireland (which was 2006, I think)? A link, if you could.

Nodin I provided the High Court Search page...

But because this is a fascinating thing to discuss on a Friday night, I will humour you.

During the hearing of the challenge in o'Shea, & O'Shea, counsel for the applicant had raised the preamble. If you read the judgement, Laffoy then refers to the preamble in terms of the promotion of the common good when she agreed to strike down a provision of the Deceased Wife's Sister's Marriage Act.

In doing so, Laffoy quoted another important judgement, Ryan v. Attorney General 1965

“It follows, I think, that the general guarantee in sub-section I must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which flow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all-the right to free movement within the State and the right to marry are examples of this … This also leads to the conclusion that the general guarantee extends to rights not specified in Article 40.”

In DPP v Shaw 1982 IR 1, per Kenny J, I will quote the most relevant extract.

There is a hierarchy of constitutional rights and, when a conflict arises between them, that which ranks higher must prevail. This is the law for the exercise of all three powers of Government and flows from the conception that all three powers must be exercised to promote the common good: see the preamble to the Constitution. The decision on the priority of constitutional rights is to be made by the High Court and, on appeal, by this Court. When a conflict of constitutional rights arises, it must be resolved by having regard to (a) the terms of the Constitution, (b) the ethical values which all Christians living in the State acknowledge and accept and (c) the main tenets of our system of constitutional parliamentary democracy.

Nodin

Cody Pomeray wrote: »

Nodin I provided the High Court Search page...

But because this is a fascinating thing to discuss on a Friday night, I will humour you.

During the hearing of the challenge in o'Shea, & O'Shea, counsel for the applicant had raised the preamble. If you read the judgement, Laffoy then refers to the preamble in terms of the promotion of the common good when she agreed to strike down a provision of the Deceased Wife's Sister's Marriage Act.

In doing so, Laffoy quoted another important judgement, Ryan v. Attorney General 1965



In DPP v Shaw 1982 IR 1, per Kenny J, I will quote the most relevant extract.

I'll concede the latter case but not the former.

Cody Pomeray

It was one of the two bases for the applicant's successful case

[477] Laffoy: The defendants' defence of the consistency of s.3(2) with the Constitution is founded on two constitutional imperatives: the State's obligation to promote the common good, a concept referred to in the Preamble; and

Laffoy then goes on to discuss, in some detail, the constitutional right to marry, which has itself been "unearthed" with regard to the preamble.

[468] Laffoy: "the High Court has jurisdiction to consider whether an Act of the Oireachtas respects, and as far as practicable, defends and vindicates the personal rights of the citizen, including all those rights which result from the Christian and democratic nature of the State..."

If you're not willing to "concede" it, it's hard to avoid the conclusion that you're not basing your position on any facts.

I consider that as clear as day, I don't think there's anything more to ask, except now to find out why you asked the question.

Are you asking the question because you thought the preamble was irrelevant?
or
Are you asking the question because you thought the preamble was causing harm.

I feel I have shown that the preamble has been used in important constitutional cases right up to the present day, and has been used in a positive sense, in vindicating fundamental freedoms.

Even in the only case I can think of where the preamble has been used against the liberal agenda, (Norris v Ireland), the judgements of the Supreme Court which have stood the test of time were those of McCarthy and Henchy in Norris, who used the preamble, and its Christian tone in particular, to find in favour of David Norris, even where they were outvoted.


So to sum up.

1. The preamble's Christian tone has overwhelmingly been used to deduce unenumerated rights, such as the right to bodily integrity, marry, beget children, and so on. What would happen to these unenumerated constitutional rights if we deleted the preamble? You cannot say they would survive.

2. Even where it has not created an express constitutional right, the preamble has been used on many occasions to promote liberal ideals, i.e. fundamental freedoms

3. No theme emerges of the preamble's Christian tone being used to constrain Irish people's liberty or freedoms; quite the opposite.

drkpower

The Christian nature of the preamble has also been used in a very illiberal fashion, the Norris case being a pretty horrible example.

From the earliest days, organised religion regarded homosexual conduct, such as sodomy and associated acts, with a deep revulsion as being contrary to the order of nature, a perversion of the biological functions of the sexual organs and an affront both to society and to God. ... t remains the teaching of all Christian Churches that homosexual acts are wrong. ... The preamble to the Constitution proudly asserts the existence of God in the Most Holy Trinity ... It cannot be doubted that the people, so asserting and acknowledging their obligations to our Divine Lord Jesus Christ, were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs

But this issue can't be resolved by simply weighing up those court judgments that have used the preamble in a liberal fashion, against those that have done so in a regressive manner. There is no particular eviðence to suggest that those 'good' judgments which leaned on the preamble would not have been made had the preamble never existed (or if it were amended to remove God and instead to refer to authority being derived solely from the people).

Ultimately I am happy to go with the judgment of the constitutional review group who considered that the Preamble as it stands is inappropriate, that it's language, reflecting the ethos of the 1930s, is overly Roman Catholic and who recommended the replacement of the present Preamble by the basic formula of enactment of the Constitution by the people of Ireland.

They did not appear concerned that removal of the preamble would have the effect of reversing some judgments that leaned on the preamble and I am comfortable that their assessment is correct.

Cody Pomeray

drkpower wrote: »

The Christian nature of the preamble has also been used in a very illiberal fashion, the Norris case being a pretty horrible example.

I have adverted to that, including its more favourable interpretations by Henchy and McCarthy jj.

Which other examples have you?

But this issue can't be resolved by simply weighing up those court judgments that have used the preamble in a liberal fashion, against those that have done so in a regressive manner.

I'm not surprised someone would say that; the overwhelming majority of the time, the preamble is invoked in order to contribute to fundamental freedoms or to help ground some unenumerated right, as has been discussed at length.

If I wanted the preamble out, I'd not be wanting to weigh up the trend either.

I don't want to retain the preamble for any personal or religious reason. I have no interest in that, and I take the opinion that the Constitutional Review Group made an irresponsible recommendation, given the general theme the preamble has caused to arise in Irish legal history, and given the unknown repercussions for unenumerated personal rights, such uncertainty itself being harmful to society.

They did not appear concerned that removal of the preamble would have the effect of reversing some judgments that leaned on the preamble and I am comfortable that their assessment is correct.

This is something that is thematic of your posts. You seek to defeat an argument which actually uses references with one that you literally caught from the passing breeze.

drkpower

Cody Pomeray wrote: »

I don't want to retain the preamble for any personal or religious reason. I have no interest in that, and I take the opinion that the Constitutional Review Group made an irresponsible recommendation, given the general theme the preamble has caused to arise in Irish legal history, and given the unknown repercussions for unenumerated personal rights, such uncertainty itself being harmful to society. .

But you haven't done anything to actually convince anyone that the CRG, populated by fairly knowledgable and experienced practitioners, are wrong and you are right.

Your argument isn't much more than that the preamble has been referenced in some cases which recognised various different rights. But that isn't the argument you need to make. You need to convince others that those rights would not have been recognised (a) if the preamble didn't exist or (b) if the preamble was rejigged such that the constitution derived from the people rather than god? Even if you can do that, you need to demonstrate that the negative effects of the preamble are outweighed by the positive). You haven't come close to demonstrating all of that.

And with the weight of the CRG against you, you have quite a lot of work to do.

Cody Pomeray

drkpower wrote: »

But you haven't done anything to actually convince anyone that the CRG, populated by fairly knowledgable and experienced practitioners, are wrong and you are right.

That's because i haven't engaged with it.

I don't think people win arguments by their public reputations. I have made some pretty extensive posts on the subject here, and I'm not really interested in responding to someone who lazily yawns "the constitutional review group disagrees, and they had 7 SCs, or whatever". That's not an argument. but don't let it stop you. This is getting monothematic.

drkpower

Cody Pomeray wrote: »

That's because i haven't engaged with it.

I don't think people win arguments by their public reputations. I have made some pretty extensive posts on the subject here, and I'm not really interested in responding to someone who lazily yawns "the constitutional review group disagrees, and they had 7 SCs, or whatever". That's not an argument. but don't let it stop you. This is getting monothematic.

I don't think we can ignore the views of bodies like the CRG. But, yes, you are right to say that it is conceivable that you could create an argument that would be more convincing than their conclusions. But you haven't. Most particularly, you haven't be enable to demonstrate that the rights recognised in the cases to which you have referred would not have been recognised (a) if the preamble didn't exist or (b) if the preamble was rejigged such that the constitution derived from the people rather than god.

There's no point in blaming me for that.

RangeR

@Cody although I don't really agree with your arguments, depending on how my table swings, I may use your points and play Devils Advocate.

/hanging out in the hotel bar, sipping JD.

Amirani

Good article in the IT today highlighting how useless the current blasphemy section is: http://www.irishtimes.com/news/ireland/irish-news/blasphemy-offence-a-dead-letter-constitutional-convention-told-1.1582160

I think there without doubt has to be some amendment made. Obviously my preference is towards complete removal of blasphemy as an offence, but if it must stay, then the language used in that section has to change.

expectationlost

results via jane suiter https://twitter.com/JaneSuit/status/396979286185623552/photo/1


incitement to hatred in the constitution really?

PopePalpatine

I'm more disappointed that 49% were in favour of legislation on blasphemy.

Days 298

That's disappointing. The current toothless blasphemy law should go but replacing it with an actual incitement to hatred offence? I thought the constitution convention would try gain freedoms not curtail free expression. I wish Dev had just copied the US 1st amendment word for word.

Sad day when one citizen wishes to silence another.

RangeR

<pedant> It's incitement to RELIGIOUS hatred<\pedant>

Not all of us agreed with this clause at all.

P_1

RangeR wrote: »

<pedant> It's incitement to RELIGIOUS hatred<\pedant>

Not all of us agreed with this clause at all.

Isn't that basically blasphemy by another name. Shame but it seems to me that the convention has basically voted for keeping the status quo and renaming it

RangeR

P_1 wrote: »

Isn't that basically blasphemy by another name. Shame but it seems to me that the convention has basically voted for keeping the status quo and renaming it

To be honest, no it's not. Blasphemy is not actually defined anywhere.

For those that wanted to keep it [and I am not one of them], some just believed in it. Some said [privately] that if it's not causing any harm, why take it out?

You may not like the result. I don't like the result. However, the result was by way of vote by a representative [spread not mandate, obviously] of the population. It IS what the majority of people want.

We were not allowed to discuss the wider subject of separation of Church and State [preamble, religious references etc] however, we have it as an option for Any other Amendments in Feb.

I urge you to come to the roadshows. I believe the first two in Cork and Galway were dominated by "rent a crowds" of various interest groups.

expectationlost

the convention may be the place to have what do you call them, sense making, double checking questions, that are used in polls, to check if the people understand what they are calling for

hmmm

It'll be the usual Irish thing, where some over the top guard will arrest some poor sod for 'blasphemy" and then everyone will be "oh how terrible, could he not just have ignored what he said". An Irish solution to an Irish (made) problem.

Dave!

They're discussing this on Vincent Browne tonight

_Kaiser_

Nodin wrote: »

"In the Name of the Most Holy Trinity, from Whom
is all authority and to Whom, as our final end, all
actions both of men and States must be referred,

We, the people of Éire,
Humbly acknowledging all our obligations to our
Divine Lord, Jesus Christ, Who sustained our fathers
through centuries of trial,

Gratefully remembering their heroic and
unremitting struggle to regain the rightful
independence of our Nation,

And seeking to promote the common good, with
due observance of Prudence, Justice and Charity, so
that the dignity and freedom of the individual may be
assured, true social order attained, the unity of our
country restored, and concord established with other
nations,

Do hereby adopt, enact, and give to ourselves this
Constitution."
http://archive.constitution.ie/reports/ConstitutionofIreland.pdf

Not only would I get rid of all that religious dogma, I'd also remove the "800 years" reference/inference as well - it's another antiquity we can do without, especially as we were (surprisingly and yet reassuringly) so grown-up about it last year when the Queen dropped by.

But the above does serve to highlight just how in need of rewriting this document is considering the first two paragraphs would have us on bended knee swearing loyalty to an organisation that robbed (by preaching poverty while simultaneously seeking donations to one of the wealthiest organisations on the planet) and abused generations of the citizens that same document is designed to protect, and stunted the social growth of our country for decades.

Reform can't come soon enough IMO.

RangeR

eMail in [a few days ago]. Draft attached. Happy reading.

‘afternoon all,

Apologies for the delay, but attached please find the draft report of our meeting to discuss the removal of blasphemy from the constitution.......as always, I’d welcome views, suggestions and amendments......I’d like to get it published next week, if possible, so if you could get back to me by the 20th (next Monday), I’d be grateful.......

The Steering Group are meeting on Weds to make the arrangements for our Dáil Reform meeting, so I’ll be in touch again towards the end of the week........

Kindest regards,

expectationlost

the full annoucement

CONVENTION ON THE CONSTITUTION PUBLISHES REPORT ON REMOVAL OF THE OFFENCE OF BLASPHEMY FROM CONSTITUTION
https://www.constitution.ie/NewsDetails.aspx?nid=c3da154f-3e87-e311-877e-005056a32ee4

the report https://www.constitution.ie/AttachmentDownload.ashx?mid=b96d3466-4987-e311-877e-005056a32ee4

https://www.constitution.ie/AttachmentDownload.ashx?mid=b37871b4-3d87-e311-877e-005056a32ee4 press release

CONVENTION ON THE CONSTITUTION PUBLISHES REPORT ON
REMOVAL OF THE OFFENCE OF BLASPHEMY FROM
CONSTITUTION
SIXTH REPORT OF THE CONVENTION FORMALLY LAID BEFORE
HOUSES OF OIREACHTAS
Monday, 27 January 2014:


The Convention of the Constitution has today Monday, 27th of January published its report on the removal of the offence of blasphemy from the Constitution. The report recommends that the offence of blasphemy is removed and replaced with a new general provision to include a prohibition on incitement to religious hatred. The
report also recommends creating a new set of detailed legislative provisions to include incitement to hatred on a statutory footing.
The recommendations of the report, which has been formally submitted to the Houses of the Oireachtas, will be considered by the Government who have undertaken to respond within four months.
The Convention of the Constitution considered the removal of the offence of blasphemy from the Constitution in November 2013. Members of the Convention heard presentations by academics and legal experts on the blasphemy provision, covering its origins and historical context, its development over the years, what it was intended to do and how it operated in Ireland and how it relates to the existing legislation, specifically the Defamation Act 2009.
Members also heard evidence from various interest groups on either side of the issue including Atheist Ireland, the Humanist Association, the Irish Council of Civil Liberties, and the Islamic Cultural Centre of Ireland.
The report can be downloaded at www.constitution.ie
Speaking today the Chairman of the Convention of the Constitution Mr. Tom Arnold said, “Today’s report is the sixth report that the Convention has laid before the Houses of the Oireachtas. I would like to take this opportunity to commend the members of the Convention for the commitment they showed to the discussion and I look forward to the response of the Government within 4 months”.

the report https://www.constitution.ie/AttachmentDownload.ashx?mid=b96d3466-4987-e311-877e-005056a32ee4

they voted to have incitement to religious hatred in legislation(isn't it already there), I was a bit confused above the results page

The report recommends that the offence of blasphemy is removed and replaced
with a new general provision to include a prohibition on incitement to religious hatred. The
report also recommends creating a new set of detailed legislative provisions to include
incitement to hatred on a statutory footing.

they proposing two types of incitement to religious hatred changes one to replace blasphemy in the constitution and they took question four as vote in favour of putting it in legislation too but it shouldn't do because people didn't vote in favour of legislating for it in question 3 (by 1%) hat tip to atheist ireland for pointing to a couple of flaws in the report http://www.atheist.ie/2014/01/flawed-blasphemy-report-would-maintain-religious-privilege/

expectationlost

RangeR wrote: »

eMail in [a few days ago]. Draft attached. Happy reading.

could you get and upload up the sheet with the questions about blasphemy thanks

RangeR

expectationlost wrote: »

could you get and upload up the sheet with the questions about blasphemy thanks

I'll see what I can do. And to answer one question. Incitement to hatred is in the constitution, not religious hatred, from memory. This was already discussed a page or two back.

RangeR

RangeR wrote: »

I'll see what I can do. And to answer one question. Incitement to hatred is in the constitution, not religious hatred, from memory. This was already discussed a page or two back.

Strike that. I knew it was familiar. It was me and you having the same discussion on the previous page. And you uploaded the question sheet on the previous page.

RangeR

expectationlost wrote: »

they took question four as vote in favour of putting it in legislation too but it shouldn't do because people didn't vote in favour of legislating for it in question 3 (by 1%) hat tip to atheist ireland for pointing to a couple of flaws in the report http://www.atheist.ie/2014/01/flawed-blasphemy-report-would-maintain-religious-privilege/

Your interpretation is flawed. You are talking of point four [incitement to religious hatred] but looking at vote 3 [blasphemy legislation]. They are two different questions.

We voted 82% in favour to legislate for incitement to religious hatred.

I don't see the issue or conflict.

Aetiest Ireland are mistaken. They say

Also, despite what the report says, the Convention did not vote to recommend a law prohibiting incitement to religious hatred.

It's there in the report, in black and white. We voted 82% in favour. Your post even shows the ballot result.

expectationlost

RangeR wrote: »

Your interpretation is flawed. You are talking of point four [incitement to religious hatred] but looking at vote 3 [blasphemy legislation]. They are two different questions.

We voted 82% in favour to legislate for incitement to religious hatred.

I don't see the issue or conflict.

It's there in the report, in black and white. We voted 82% in favour. Your post even shows the ballot result.

I linked to the ballot result, not the question sheet

but question 4 starts In the event that the constitutional favours a legislative provision, that means it based on the previous question. (Just like 1 and 2 are linked)