The constitutional article guaranteeing freedom of expression should be amended to remove all references to sedition and blasphemy, according to the Oireachtas Committee on the Constitution. It recommended that the article should be redrafted along the lines of article 10 of the European Convention on Human Rights, which deals with freedom of expression.
The committee, reconstituted after the last election and chaired by Seán Ardagh, published its first report Thursday.
The work programme of this committee is to examine the protection of fundamental rights under articles 40-44 of the Constitution, and this first report is devoted to article 40.6.1.i.
This guarantees the right of the citizens "to express freely their convictions and opinions," but then qualifies it, saying: "The State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
"The publication or utterance of blasphemous, seditious, or indecent material is an offence which shall be punishable in accordance with law."
The committee pointed out that the Constitution Review Group in 1996 considered this article to be unsatisfactory, and recommended that it should be replaced by a new clause protecting the right of free speech, modelled on article 10 of the European Convention on Human Rights.
It considered that the constitutional offence of blasphemy was inappropriate, and recommended that the references to seditious and indecent material also be deleted.
The committee recalled that the prohibition on blasphemy introduced into the Constitution the common law offence of blasphemy, which was aimed at protecting the then Established Church, the Anglican Church.
In the only Irish case taken under this article, Corway vs. Independent Newspapers, the Supreme Court had concluded that it was impossible to say "of what the offence of blasphemy consists", and also that a special protection for Christianity was incompatible with the religious equality provisions of article 44. This provision was therefore now obsolete.
The committee pointed out that the Defamation Bill, at present before the Oireachtas, abolishes the offence of seditious libel. This means the the reference to sedition in the Constitution will be impossible to enforce, as there will be no such offence.
It also pointed out that there is no definition of indecent material either in the Constitution, in statute or by the judiciary. However, there is "a plethora of legislation" in the area of censorship.
The committee examined in detail the development of case law relating to freedom of expression since the review group report.
It concluded that the courts had, in a number of judgments, interpreted the right to freedom of expression in accordance with article 10 of the European Convention on Human Rights, which was incorporated into Irish law in 2003.
The courts gave considerable weight to the issue of proportionality, the committee pointed out, examining whether the restrictions on freedom of expression sought in these cases were proportionate and no more than was necessary to promote the legitimate aim of the restriction.
The committee concluded that the courts were interpreting article 40.6.1.i in line with article 10 of the European convention, so an amendment to strengthen freedom of expression was not urgent.
However, it stated that "the constitutional imperative to protect free speech should not be dependent on judicial support alone", so it was desirable, to ensure full compliance with the convention, that the Constitution be amended.
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