The promised referendum to remove the reference to blasphemy from the Constitution should go further, and entirely revamp the very limited guarantee of freedom of expression, writes EOIN O'DELL
CONSTITUTIONAL RIGHTS are bulwarks against arbitrary State power. The right to liberty prevents unwarranted detention. The right to property prevents random expropriation of land or possessions. Rights should therefore be as clearly expressed as possible. And they should be interpreted as extensively as possible.
However, rights are not absolute, and justifiable limitations are sometimes necessary. Hence, the right to liberty can be lost by those properly convicted of criminal offences. And the duty to pay tax is a legitimate (if unwelcome) limitation on the right to property. But such limitations should also be as clearly expressed as possible. They should be plainly justified. They should only be imposed where it is necessary to do so. And they should be interpreted as strictly as possible.
By these standards, the protection of freedom of expression in the Irish Constitution is a very puny right indeed. The clause begins by making this right subject to public order and morality. The right itself is very confined, covering only the expression of convictions and opinions, and not speech generally. The media’s liberty of expression is made subject to public order and morality (again) and the authority of the State. And the clause ends by requiring that blasphemy, sedition and indecency be offences punishable by law.
This language and structure unjustifiably make the exceptions more important than the right. The text of the right itself is very grudging indeed. And the constitutional crime with which it concludes is quite simply indefensible. Worse, in a peculiar inversion of the norm, the courts until very recently interpreted the right very narrowly, and the exceptions very broadly.
For these reasons, official bodies and reports have frequently criticised the text of the Constitution’s freedom of expression guarantee, and have suggested that it be replaced at the first opportunity.
The Supreme Court has begun to grapple with these problems. For example, in 1998, the court began the process of redressing the imbalance between the right and its restrictions. In particular, the court held that free speech is fundamental both for personal development and as a foundation of democracy. But it was not until 2007 that legislation was found to infringe the constitutional protections of speech. And it was only in that same year that the Supreme Court unambiguously asserted that the right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society.
In 1999, the Supreme Court held that the common law crime of blasphemous libel was too uncertain to give content to the constitutional crime. At the time, this seemed like a victory for freedom of speech, but it was recently undone by Part 5 of the Defamation Act, 2009, which now provides for a crime of blasphemy.
However, in the last week, Minister for Justice Dermot Ahern has stated that, if there is to be a referendum on other issues later in the year, he will propose an additional amendment to delete the reference to blasphemy.
This is very welcome, but it does not address the significant problems underlying the free speech guarantee as a whole. Deleting one objectionable word, rather than thoroughly revising the whole gruesome clause, would be equivalent to repairing a single broken slate on the roof of a house which needs complete refurbishment.
Many constitutions, charters and international conventions have lucid definitions of freedom of expression, and clearly provide for limited exceptions. A replacement for the current Irish constitutional provision should follow this pattern.
The freedom of expression guarantee in the Irish Constitution is an example of the wrong way to protect free speech. The forthcoming referendum should replace it with something far better suited to the needs of a modern constitutional democracy.
Dr Eoin O’Dell is a fellow and senior lecturer in law at Trinity College Dublin. He blogs at http://www.cearta.ie