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This page considers blasphemy regimes outside Australia and
New Zealand.
It covers -
introduction
As noted in the first page of this profile, overseas
legislation and practice regarding blasphemy takes several
forms.
Several jurisdictions feature explicit prohibitions on blasphemous
publication and private speech (eg Pakistan) or rely on commmon
law, although there have been few successful prosecutions
in recent years. Prohibitions generaly relate to a particular
creed or an established church and thus do not cover all faiths.
Other jurisdictions have formally abolished the offence of
blasphemy or blasphemous libel.
Although the interpretation of historic and recent case law
is problematic, there is some movement towards use of hatespeech
legislation rather than specific blasphemy provisions in criminal
or other codes in restricting expression that might offend
adherents of a particular faith/organisation or incite hostility
to those adherents.
The International Covenant on Civil & Political Rights
- noted in our discussion
of human rights - provides for positive and negative rights
regarding freedom of religion, essentially through restraints
on the state.
Article 18 indicates that
1.
Everyone shall have the right to freedom of thought, conscience
and religion.This right shall include freedom to have or
to adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public
or private, to manifest his religion or belief in public
or private, to manifest his religion or belief in worship,
observance, practice and teaching.
2. No one shall be subject to coercion which would impair
his freedom to have or to adopt a religion or belief of
his choice.
3. Freedom to manifest one's religion or beliefs may be
subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order, health
or morals or the fundamental rights and freedoms of others.
Article 20 indicates that
2. Any advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility
or violence shall be prohibited by law.
Canada
The preamble to the Canadian Constitution refers to the supremacy
of God but does not establish a particular religious faith
or Church. The Charter of Rights & Freedoms provides for
freedom of religion.
Section 296 of the Canadian Criminal Code deals with "blasphemous
libel" as part of offences against the person and reputation
-
Offence
(1) Every one who publishes a blasphemous libel is guilty
of an indictable offence and liable to imprisonment for
a term not exceeding two years.
Question of fact (2) It is a question of fact whether or
not any matter that is published is a blasphemous libel.
Saving (3) No person shall be convicted of an offence under
this section for expressing in good faith and in decent
language, or attempting to establish by argument used in
good faith and conveyed in decent language, an opinion on
a religious subject.
Blasphemous libel is not defined in the Code or the Constitution.
In contrast to Tasmania, where there are similar provisions
with a shared basis in UK law, the federal Attorney-General's
consent is not required in order to commence a prosecution.
As noted in the NSW Law Reform Commission report, the Canadian
case law (primarily relating to Quebec) is contradictory and
there is uncertainty about the precise features of the offence,
although it has been construed as encompassing Christian faith
generally (rather than an established Church).
The provisions are not considered to cover non-Christian faiths.
Past writing on reform of the Criminal Code has suggested
abolition of the offence on the basis that is inconsistent
with the Charter of Rights.
It should be noted that the hatespeech provisions of the Criminal
Code create offences of public incitement of and wilful promotion
of hatred against an identifiable group, defined as including
a religion.
UK and Eire
As of December 2004 English common law features an offence
of blasphemy, although there are recurrent suggestions that
it should be superseded by protection under anti-vilification
statutes.
Protection relates to the established Church of England rather
than all religious beliefs and organisations. It was characterised
as encompassing any publication that
contains
any contemptuous, reviling, scurrilous or ludicrous matter
relating to God, Jesus Christ or the Bible, or the formularies
of the Church of England as by law established. It is not
blasphemous to speak or publish opinions hostile to the
Christian religion, or to deny the existence of God, if
the publication is couched in decent and temperate language.
The test to be applied is as to the manner in which the
doctrines are advocated and not to the substance of the
doctrines themselves
Three
salient contemporary cases are the 1970s 'Gay News
Case' (Whitehouse v Lemon) about publication of a 'blasphemous'
poem, litigation regarding Rushdie's Satanic Verses
and censorship of the Visions of Ecstasy film.
In the first case Mary Whitehouse of the Festival of Light
initiated a private prosecution (later taken over by the Crown)
against UK magazine Gay News for publishing Professor
James Kirkup's poem
The Love That Dares to Speak Its Name regarding the
body of Christ. In 1979 the House of Lords affirmed a jury's
decision to convict the editor and publisher - who were fined
rather than imprisoned - despite arguments that the crime
was archaic (with the last conviction in 1922, when John Gott
was sentenced to nine months with hard labour for selling
blasphemous pamphlets) and that intent to cause offence could
not be proven beyond reasonable doubt because the publication
was not aimed at a general readership. The Lords held that
intent to outrage was unnecessary; it was sufficient to publish
material that a jury found blasphemous.
The decision was widely criticised, as were official statements
in 2003 that police were considering prosecution of presenter
Joan Bakewell for reading the poem aloud during a BBC television
broadcast.
The narrowness of protection - and arbitrariness of prosecution
- was demonstrated in Regina v Chief Metropolitan Stipendiary
Magistrate ex parte Choudhury, with a ruling in 1990
that the offence of blasphemy does not extend to Islam or
faiths other than Christianity. A private prosecution thus
could not be brought against Salman Rushdie for The Satanic
Verses.
The Choudhury ruling followed the 1985 report by
the Law Commission (a counterpart of the ALRC)that recommended
abolition of the common law offences of blasphemy and blasphemous
libel, characterising them as an unnecessary part of a modern
criminal code.
The Law Commission noted that unbelievers or adherents to
other religious creeds did not have the same privileged status
as the established church. In a reflection of comments that
a deity does not need protection from man it commented that
Ridicule
has long been an acceptable means of focusing attention
upon a particular aspect of religious practice or dogma
which its opponents regard as offending against the wider
interests of society ... in that context use or abuse of
insults may well be a legitimate means of expressing a point
of view upon the matter
A
similar stance was taken in the 2003 report of the House of
Lords Select Committee on Religious Offences.
The importance of discretion in interpretation following Gay
News was highlighted in the 1989 decision by the British Board
of Film Classification (BBFC) to deny a classification to
the video of Nigel Wingrove's Visions of Ecstasy
on the ground that it was blasphemous. The film concerns 16th
century mystic St Teresa of Avila, whose eroticised language
had attracted attention from her contemporaries (including
the Inquisition) and later scholars with exemplary credentials.
Wingrove applied to the European Court of Human Rights, claiming
that the ban breached Article 10 of the European Convention
of Human Rights as disproportionate to the aim of protecting
the public, but received no satisfaction on the ground that
denial was consistent with UK law.
In Scotland the "uttering of profanities against God
or the Holy Scriptures in a scoffing manner out of a reproachful
disposition" is a common law offence. There have been
no recent convictions (the last reported prosecution for blasphemy
was in 1843) and as in England some religious leaders have
suggested that special protection is not required. Uncertainty
about the scope for prosecution and conviction has arguably
deterred some publication.
Article 40.6(1)i of Eire's 1922 Constitution provides that
"publication or utterance" of "blasphemous
matter" is an offence punishable in accordance with law,
with Article 44 stating that
The
State acknowledges that the homage of public worship is
due to Almighty God. It shall hold His Name in reverence,
and shall respect and honour religion.
The
Constitution does not define blasphemy, although standard
reference works characterise it as
the crime which consists of indecent and offensive attacks
on Christianity, or the Scriptures, or sacred persons or
objects calculated to outrage the feelings of the community.
The Constitution declares that the publication or utterance
of blasphemous matter is an offence which shall be punishable
in accordance with law ... The mere denial of Christian
teaching is not sufficient to constitute the offence
Article
8 of the Constitution however specifies that
Freedom
of conscience and the free profession and practice of religion
are, subject to public order and morality, guaranteed to
every citizen, and no law may be made either directly or
indirectly to endow any religion, or prohibit or restrict
the free exercise thereof or give any preference, or impose
any disability on account of religious belief or religious
status
Section
13.1 of the Defamation Act 1961, provides that
Every person who composes, prints or publishes any blasphemous
... libel shall, on conviction thereof on indictment, be
liable to a fine not exceeding five hundred pounds or to
imprisonment for a term not exceeding two years or to both
such fine and imprisonment or to penal servitude for a term
not exceeding seven years
Under section 13(2) the court may make an order for seizure
and detention of all copies of the libel in the possession
of the person or another person named in evidence on oath.
In pursuance of such an order, a member of the Garda Siochana
may enter if necessary by force and search buildings for copies
of the libel.
The Act was used in the unsuccessful prosecution
in 1999 of a newspaper publisher (Corway v. Independent
Newspapers (Ireland) Limited). Provision for returning
such copies in the event of a successful appeal of conviction
is made in section 13(3).
Eire's Prohibition of Incitement to Hatred Act 1989
prohibits publication of material designed to stir up "hatred",
including hatred against a group on account of religious affiliation.
The 1991 Law Reform Commission of Ireland consultation paper
On The Crime of Libel suggested that "there
is no place for the offence of blasphemous libel in a society
which respects freedom of speech". Because blasphemy
as an offence could not be abolished without a constitutional
referendum the Commission recommended creation of a new statutory
offence of blasphemous libel, which would cover matter "the
sole effect of which is likely to cause outrage to a substantial
number of adherents concerning a matter or matters held sacred"
by a religion.
In Sweden a general crime of blasphemy was abolished in 1949,
with a narrower offence of religious insult being abolished
in 1970.
Finland retains a general offense of blasphemy in section
10 of chapter 17 of its penal code. The last major prosecution
was in 1966, with conviction of Hannu Salama for his 1964
novel Juhannustanssit. The novel was publicly burnt;
Salama was imprisoned but pardoned by President Kekkonen in
1968.
Spain, Portugal and Italy
In Spain the crime of blasphemy (reinstated in the 1930s after
overthrow of the Republic) was abolished as part of post-Franco
reforms in 1988. Portugal's legislation was changed in the
1990s.
Spain's Constitutional Court has however ruled that freedom
of expression under Article 20 of the Constitution is circumscribed
by restrictions for the protection of the "rights of
others" - interpreted as an identified individual directly
affected by an offensive expression - or other constitutionally
protected interests. Commentators have suggested that obscenity
or another broad offence to morals, particularly expression
sighted by minors on a non-restricted basis (eg on public
view rather than to consumers choosing to visit a gallery
or a cinema) would provide a mechanism for restricting blasphemous
content. As with Portugal there appears to be no major no
case law regarding offenses against the Roman Catholic church,
other Christian communities or other religious faiths.
Articles 402 through 406 of the Italian criminal code, reflecting
the 1920s concordat with the Vatican, prohibit "offence
to religion", including offence to religion during a
satirical or other performance, even where the offending performance
was objectively aimed at arousing laughter or amusement. There
is uncertainty whether Italian laws against insult to religion
- and the application of the legislation - relate only to
Roman Catholicism. Prosecutions over the past thirty years
appear to have been bundled with restrictions on obscenity
as offences against public morals.
Article 724 of the criminal code covers the minor offence
of "words insulting to religion" ("bestemmia").
US
The US inherited - and during the early colonial period strengthened
- the UK regime, with protection varying on which church was
established in particular jurisdictions.
Chapter 272 (36) of the Massachusetts code (concerned with
"crimes against chastity, morality, decency and good
order") thus provides
that
Whoever
wilfully blasphemes the holy name of God by denying, cursing
or contumeliously reproaching God, his creation, government
or final judging of the world, or by cursing or contumeliously
reproaching Jesus Christ or the Holy Ghost, or by cursing
or contumeliously reproaching or exposing to contempt and
ridicule, the holy word of God contained in the holy scriptures
shall be punished by imprisonment in jail for not more than
one year or by a fine of not more than three hundred dollars,
and may also be bound to good behavior.
The
offence is a relic of the era when New England jurisdictions
such as Connecticut prescribed the death penalty for witchcraft,
blasphemy, "cursing or smiting of parents" and the
"incorrigible stubbornness" of children.
At the federal level the state blasphemy statutes and local
ordinances have essentially been rejected as inconsistent
with the First Amendment's protection of free speech. The
landmark judicial ruling was by the US Supreme Court in Joseph
Burstyn, Inc v Wilson during 1952. New York had banned
exhibition of Roberto Rossellini's The Miracle as
"sacrilegious", with the court accepting that the
state law was an unconstitutional prior restraint on freedom
of speech.
It
is not the business of government in our nation to suppress
real or imagined attacks upon a particular religious doctrine,
whether they appear in publications, speeches or motion
pictures.
Justice
Clarke commented that
In
seeking to apply the broad and all-inclusive definition
of 'sacrilegious' given by the New York Courts, the censor
is set adrift upon a boundless sea amid a myriad of conflicting
currents of religious views, with no charts but those provided
by the most vocal and powerful orthodoxies. New York cannot
vest such unlimited restraining control over motion pictures
in a censor. Under such a standard the most careful and
tolerant censor would find it virtually impossible to avoid
favoring one religion over another, and he would be subject
to an inevitable tendency to ban the expression of unpopular
sentiments sacred to a religious minority.
The
ruling has been acknowledged in subsequent litigation over
the exhibition of films - notably Scorsese's The Last
Temptation of Christ (Nyack v. MCA Inc in 1990) - and
the graphic arts, with opponents of particular works accordingly
seeking restrictions on funding bodies such as National Endowment
for the Arts (eg over Serrano's Piss Christ) or organising
boycots of media groups and curatorial institutions.
India, Pakistan and Indonesia
Section 298 of the Indian Penal Code 1860 prohibits intentional
wounding of religious feelings by word or gesture, supplementing
Section 295A regarding "intentional and malicious"
outraging of religious feelings of any class of citizens by
the spoken or written word. Those offences are wider than
the common law in that they protect the religious feelings
of any person or class of citizens in India.
Pakistan has attracted international attention for prosecutions
and the strengthening of blasphemy law during the past decade,
with indications that there have been over 2,000 arrests and
that trials (sometimes resulting in the death sentence) have
taken place in secret. 1982 legislation made desecrating the
Koran or derogatory remarks about it punishable by life imprisonment.
In 1984 that was amended, with
derogatory
remarks, etc., in respect of the Holy Prophet ... either
spoken or written, or by visible representation, or by any
imputation, innuendo, or insinuation, directly or indirectly
... shall be punished with death, or imprisonment for life,
and shall also be liable to fine.
The Federal Sharia Court ruled in 1990 that the "penalty
for contempt of the Holy Prophet ... is death and nothing
else", a ruling apparently respected by military and
non-sharia courts. The blasphemy legislation is complemented
by provisions in the Anti-Terrorist Act against inciting religious
hatred. A view of the regime is provided in the US State Department's
2003 International Religious Freedom report.
Section 156(a) of the Indonesian Criminal Code prohibits conduct
that affronts a "recognised religion" (identified
as Islam, Buddhism, Hinduism, Roman Catholicism or Protestantism).
Section 19 of the Main Press Ordinance 1982 prohibits
publication of blasphemous material, permitting prosecution
of authors and publishers and withdrawal of the publishing
license.
Recent cases have been restricted to Islam. They include prosecution
of Monitor editor Arswendo Atmowiloto (fined $5,000
and sentenced to five years imprisonment) for a 1990 opinion
poll perceived as derogatory of the Prophet Mohammed and the
trial in 1995 of dissident intellectual Permadi Satrio Wiwoho.
South Africa
Blasphemy remains a common law crime in South Africa, reflecting
the republic's UK heritage, with restrictions in the Publications
Act 1974 (prohibiting publication and distribution of
"blasphemous material") and other information law.
The last reported prosecution for blasphemy as such was in
1934. However impiety appears to have featured in assessments
of "moral harm" in the censorship of local and imported
print publications, film and other works and in restriction
of theatrical performances.
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