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Constitutional Amendments as Transnational Political Projects: From Pakistan to Ireland, to Hungary And Finally to Europe

Renáta Uitz, Central European University

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

On October 31, 2018 the Supreme Court of Pakistan by the judgment of a 3-judge bench acquitted Asia Bibi of blasphemy charges.[1] Ms Bibi has been on death row since her initial conviction in 2010. The criminal prohibition of blasphemy in Pakistan reached its current form in 1986, under the rule of General Zia ul-Huq. The death penalty was imposed after the Federal Shariat Court found that life imprisonment as an alternative punishment was not compatible with the fundamental principles of Islam.[2]

Asia Bibi’s case originated from a petty argument: while working in the fields, Muslim women accused Ms. Bibi, a Christian, with contaminating a bucket of drinking water. The Supreme Court acquitted her due to procedural shortcomings in the case, including inconsistencies in witness statements. That the blasphemy ban is used as a tool of revenge was pointed out by the Supreme Court in 2015, quoting from the Judicial Training Toolkits of the Legal Aid Society:

The majority of blasphemy cases are based on false accusations stemming from property issues or other personal or family vendettas rather than genuine instances of blasphemy and they inevitably lead to mob violence against the entire community.[3]

This 2015 judgment was rendered in the case of a bodyguard who murdered the governor of the state of Punjab after he had visited Ms. Bibi in jail.

The weekend before the acquittal of Asia Bibi, on October 27, 2018, the Irish voters overwhelmingly voted to remove the prohibition of blasphemy from the Irish Constitution (Article 40.6.1). This 37th Amendment was passed by a margin of 64.85% to 35.15%, with each constituency voting in favor.[4]

The 37th Amendment is a major victory for freedom of expression as well as freedom of religion. Equally importantly, it is a remarkable instance of national constitutional actors’ awareness of the transnational impact of words in constitutions.

When in June 2018 the Irish Government tabled the bill required for calling a referendum, Charlie Flanagan, the Minister of Justice said:

In terms of Ireland’s international reputation, this is an important step. […] By removing this provision from our Constitution, we can send a strong message to the world that laws against blasphemy do not reflect Irish values and that we do not believe such laws should exist.[5]

The Irish Council of Churches – an alliance of 14 churches, including the Catholic Church – had already made a representation to the Irish Constitutional Convention in 2013, calling the blasphemy ban “largely obsolete.”[6] After this year’s bill was tabled, voices from the Irish Muslim community urged the government to retain the prohibition and make it effective, in the name of protecting social harmony and “reciprocal respect.” The logic of “reciprocal respect” entails protecting Catholics from mockery masquerading as criticism of religion.[7]

Indeed, UN Special Rapporteurs on freedom of religion have for many years warned that these prohibitions do not prevent religious hatred, but instead, result in measures against religious minorities, and suppress not only religious dissent, but any form of exchange or expression that can be characterized as blasphemous by willing public authorities.[8] As Heiner Bielefeldt, the previous UN special rapporteur put it to Atheists Ireland in connection with their submission to the Irish Constitutional Convention: “Those countries that continue to have an intimidating anti-blasphemy practice like to quote European countries to unmask Western hypocrisy.”[9]

Framing the Irish constitutional referendum as an instance of expressing constitutional identity through constitutional amendment may be a most helpful tool of unmasking hypocrisy in the European discourse on constitutional identity. In recent years references to constitutional identity have become tools to attack the European constitutional project. Recent developments from Hungary illustrate how national constitutional identity discourses have the potential to derail the European constitutional experiment.

Shortly after the third electoral consecutive victory of Viktor Orbán and his FIDESz-led conservative-Christian coalition government – once again with a 2/3s majority in Parliament sufficient to change the constitution – the government tabled the Seventh Amendment of the Fundamental Law to accomplish several long-planned constitutional projects that were halted when the coalition lost its 2/3s majority for much of the 2014-18 parliamentary term. In 2016 the coalition failed to pass a constitutional amendment to defend Hungarian constitutional identity.[10] Instead, it had to settle on the Constitutional Court taking care of this assignment temporarily.[11]

The Seventh Amendment passed in June 2018 includes a robust defense of national constitutional identity (especially revised Article E(2)). Another provision expressly prohibits the settlement of foreign populations in Hungary (Article XIV(1)). The latter is in clear response to the efforts of the European Union to adopt an asylum policy that requires each member state to accept asylum seekers.

A new Article R(4) makes it the duty of all state organs to defend not only Hungary’s constitutional identity but also its Christian culture. This latter detail was added in the spirit of PM Orbán declaring that after the 2018 elections Hungary will commit itself to building a Christian democracy (and not simply an illiberal one). To clarify, in July 2018 PM Orbán explained that

Christian democracy is, by definition, not liberal: it is, if you like, illiberal. … Liberal democracy is in favour of multiculturalism, while Christian democracy gives priority to Christian culture; this is an illiberal concept. Liberal democracy is pro-immigration, while Christian democracy is anti-immigration; this is again a genuinely illiberal concept.[12]

This reads like a constitutional identity-building program aiming to reach way beyond the Hungarian borders. The success of this attempt depends on several constitutional actors, national and supranational. The fates of these constitutional actors are entangled through each other’s deeds, in a precarious matrix. A particular constitutional actor cannot be expected to save the day in one jurisdiction simply because its counterpart did so in another. Courts or voters may work wonders in one country yet their counterpart may be anodyne or powerless in another. Furthermore, even the most familiar words should be read most carefully, when removed from or inserted into constitutions. No matter how familiar a phrase or situation sounds, a closer look at the context may turn a fine case of transnational borrowing into a cautionary tale about mockery and hypocrisy.

Suggested citation: Renata Uitz, Constitutional Amendments as Transnational Political Projects: From Pakistan to Ireland, to Hungary And Finally to Europe, Int’l J. Const. L. Blog, Nov. 8, 2018, at: http://www.iconnectblog.com/2018/11/constitutional-amendments-as-transnational-political-projects-from-pakistan-to-ireland-to-hungary-and-finally-to-europe/

[1] Asia Bibi v. The State, et al., Criminal Appeal no. 39-L of 2015, Judgment of October 31, 2018, at http://www.supremecourt.gov.pk/web/user_files/File/Crl.A._39_L_2015.pdf.

[2] Muhammad Ismail Qureshi v. Pakistan through Secretary, Law and Parliamentary Affairs (PLD 1991 FSC 10)

[3] Malik Muhammad Mumtaz Qadri v. the State, Criminal Appeals No. 210 and 211 of 2015, Judgment of January 5, 2015, at www.supremecourt.gov.pk/web/user_files/File/Crl.A._210_2015.pdf, para 26.

[4] https://electionsireland.org/results/referendum/refresult.cfm?ref=201837R

[5] Minister Flanagan announces Government approval for the holding of a Referendum on the removal of the offence of blasphemy from the Constitution, press release, June 12, 2018, http://www.justice.ie/en/JELR/Pages/PR18000186

[6] The Irish Council of Churches says blasphemy reference in Constitution is ‘largely obsolete’, November 2, 2013, at https://www.thejournal.ie/irish-council-of-churches-blasphemy-1158078-Nov2013/

[7] Susan Gately, Reference to Blasphemy in the Constitution is „Largely Obsolete” Say Bishops, June 15, 2018,  at https://www.irishtimes.com/news/social-affairs/religion-and-beliefs/reference-to-blasphemy-in-the-constitution-is-largely-obsolete-say-all-churches-1.3076011. Referene to excerpts from comments by Dr Ali Selim of the Islamic Cultural Centre in Dublin.

[8] A/72/365, Elimination of All Forms of Religious Intolerance, August 28, 2017,  at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/72/365

[9] John Hamill, How the Islamic States at the United Nations use the Irish blasphemy law to justify their own laws, October 19, 2018, at https://www.blasphemy.ie/2018/10/19/how-the-islamic-states-at-the-united-nations-use-the-irish-blasphemy-law-to-justify-their-own-laws/.

[10] https://verfassungsblog.de/national-constitutional-identity-in-the-european-constitutional-project-a-recipe-for-exposing-cover-ups-and-masquerades/

[11] 22/2016 (XII. 5.) AB decision. See Gábor Halmai, The Hungarian Constitutional Court and Constitutional Identity, January 10, 2017, at https://verfassungsblog.de/the-hungarian-constitutional-court-and-constitutional-identity/

[12] Prime Minister Viktor Orbán’s speech at the 29th Bálványos Summer Open University and Student Camp, 28 July 2018, Tusnádfürdő (Băile Tuşnad), http://www.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-speech-at-the-29th-balvanyos-summer-open-university-and-student-camp

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Published on November 8, 2018
Author:          Filed under: Analysis
 

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