Bearing a Constitutional Cross: Examining Blasphemy and the Judicial Role in Corway v. Independent Newspapers
| Author | Stephen Ranalow |
| Position | Junior Sophister Law student and Scholar, Trinity College, Dublin |
| Pages | 95-110 |
BEARING
A
CONSTITUTIONAL
CROSS
EXAMINING BLASPHEMY
AND
THE JUDICIAL
ROLE
IN
COR
WAY
V.
INDEPENDENT
NEWSPAPERS
STEPHEN
RANALOW*
Introduction
The crime
of
blasphemy
enshrined
in
Article
40.6.1'.i
is
something
of
a
constitutional
oddity.' The
existence
of
a
penal
clause
within
what
is
essentially
a
political declaration
seems
inappropriate
2 -
after
all,
a
constitution
is
characterised
by
"its
great outlines
...
and
important
object
...
unburdened
by
the
prolixity
of
a
legal
code".
3
The
absence
of
a
blasphemy prosecution
in
Ireland
since
1855
had
meant
that
the
unusual
status
of
this
offence
was
an
issue
of
limited
interest.
4
But
the
recent
case
of
Corway
v.
Independent
Newspapers
5
has
changed
this situation
and
focused
attention
on
a
once
neglected corner
of
the
Constitution.
This attention
is
merited because
Corway
has
placed
the
subject
of
blasphemy
into
the
realm
of
a
larger political
and
legal debate.
The
fact
that
a
freedom
of
speech
clause
should include
a
blasphemy
proviso
demonstrates
the
dual
philosophies
underlying
the
Constitution.
In one
sense
it
is
a
sign
of
the
Constitution's
strength
that
it
is
informed
by
both
Roman
Catholic
social
teachings
and
classical
liberal
rights
theory
-
this
is
an
accurate reflection
of
the
people's
core
values,
which
is
a
fundamental
requirement
of
any
constitution.
But
as
the
concepts
of
Catholicism
and
liberalism
have
increasingly
been
perceived
in
public
debate
as
mutually
exclusive,
the
Constitution's
ideological fault-line
has
become
one
of
its
greatest
weaknesses.
The
challenge
of
reconciling
these
two
philosophies
has
been
met
through
the use
of
creative
decision-making,
which
although
invariably
Junior
Sophister
Law
student and
Scholar, Trinity College,
Dublin.
The
author
wishes
to
acknowledge
the
advice and
encouragement
of
Dr.
Neville Cox, and the helpful comments
of
Oran
Doyle and
Robert Cannon. Any errors
and
omissions
remain
those
of
the
author.
Article
40.6.1
".i
states
in
its
third
paragraph, "The
publication
or utterance
of
blasphemous,
seditious,
or
indecent
matter
is
an
offence
which
shall
be
punishable
in
accordance
with
law".
2
Albeit
a
political document
which
phrases
its
aspirations
and
guarantees
in
terms
of
legal
rights.
See
McGimpsey
v.
Ireland
110,
at
441,
at
448-449.
3
McCulloch
v.
Maryland
17
US
(4 Wheat)
316 (1819), at
407
per
Chief
Justice
Marshall.
4
R.
v.
Petcherine
(1855)
7
Cox
79.
5
Unreported,
Supreme
Court,
30
July
1999,
Barrington
J.
© 2000
Stephen Ranalow and
Dublin University
Law
Society
Trinity
College
Law
Review
controversial,
has been
instrumental
in
defining
the
Irish
judicial
function. 6
This
article
will
examine
the
Corway judgment
in
this
context,
and
in
doing
so
argue that
the
decision
marks
both
a
significant
and
unjustified
break from
the
Supreme
Court's
creative
tradition.
Litigation
and
Judgment
In
the
aftermath
of
the
1995
divorce
referendum,
The
Sunday
Independent
ran
a
cartoon depicting
a
stout
comic
priest offering
the
Eucharist
to the
three
leaders
of
the
coalition
government,
each
of
whom
was
holding
his
hands
up
in
rejection. Above
this
was
a
caption
which
read,
"Hello
Progress
-
Bye-Bye
Father?",
an
obvious
play on
the anti-divorce
lobby's
campaign slogan
of
"Hello
Divorce
-
Bye-Bye
Daddy".
7
The
cartoon caused
considerable
offence and
the
newspaper
received
many
letters
complaining
that
the
Eucharist
had
been
portrayed
in
an
insulting light.
One
individual
in
particular,
John
Corway,
a
Dublin
carpenter,
was so
outraged
by
the
publication that
he
sought
leave
under
section
8
of
the
Defamation Act,
1961,
to
commence
a
private criminal
prosecution for
blasphemous libel
against
the
publishers
and
the
editor
of
The
Sunday Independent.
8
In
the
High
Court
Geoghegan
J.
dismissed
the
plaintiff's
motion
on
the
grounds
that
a
prosecution
would
not
be
in
the
public
interest
and
that
the
cartoon
had
not achieved
prima facie
the
requisite
actus
reus.
9
In
the
Supreme
Court
the sole
judgment
of
Barrington
J.
(Hamilton
C.J.,
Murphy,
Lynch
and
Barron
JJ.
concurring) rejected
the
appeal,
reiterating
Geoghegan
J.'s
second
ground'
°
and
adding
another:
In
this
[uncertain]
state
of
the
law,
and
in
the
absence
of
any
legislative
definition
of
the
constitutional
offence
of
blasphemy,
it
is
impossible
to
say
of
what
the
offence
of
blasphemy
consists...."
6
The
most famous
of
these cases
were
McGee
v.
Attorney
General
284;
29;
Attorney
General
v.
X
1;
In
re
Ward
of
Court
[19951
2
ILRM
401;
79;
Attorney
General
(SPUC)
v.
Open-Door Counselling
593;
477;
Society
for
Separation
of
Church
and
State
v.
Minister
for
Education
81.
7
The
Sunday
Independent,
26
November
1995.
8
Defamation
Act,
1961,
section
8,
requires
that
an
order
by
a
judge
of
the High
Court
be
obtained
before
a
prosecution
for
inter
alia
blasphemous
libel
can
proceed.
The
issue
in
Corway
focused
on
the
motion seeking this order rather than
an
actual trial.
9
432,
at
435-437.
10
Unreported,
Supreme Court,
30
July
1999,
Barrington
J.,
at
22-23.
1
Ibid.,
at
21-22.
[Vol.
3
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