In September 2010, Carlos Celdran, outraged by the Church’s intervention in the debates over reproductive health rights, did the unthinkable. Sporting a dark suit a la Jose Rizal, he went to the Manila Cathedral where an assembly was then marking the anniversary of the “May They Be One” campaign and launching a project aimed at distributing five million Bibles to poor families. One of the witnesses said that while someone was reading a passage from the Bible, Celdran “proceeded towards the center in front of the altar and suddenly brought out a placard approximately one-fourth of an illustration board with the word ‘DAMASO’ written on it.”
For this stunt, Celdran was prosecuted and recently convicted by a trial court for violation of Article 133 of the Penal Code or Offending the Religious Feelings, a crime committed by “anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful.”
The important question in Celdran’s case is not whether he is guilty of offending religious feelings; it is whether Article 133 is constitutional in the first place or compatible with nonestablishment and free speech rights. In other words, the issue is: Does the government have the authority to jail people for exercising their right to speak in a way that offends the feelings of the faithful? No.
First. Article 133 is a close cousin to the concept of lese majeste, that set of criminal offenses meant to sanction disrespect toward the crown or its agents. It was understandable for Spain to impose such penalties at home or in its colonies given that it operated under theocratic foundations. Thus, to defame the King or his subalterns is to defame God’s temporal embodiment.
Article 133 relies on the same theory because it was meant to prohibit disrespect toward the Church and its doctrines. But the Philippines is no longer a theocracy, and our Constitution categorically declares the separation of church and state. If the Philippine Supreme Court in the early days of the American colonial regime rejected lese majeste as a basis for convicting (then journalist, later justice) Gregorio Perfecto on the ground that libel against ministers of the crown no longer had any place in the Philippines, with greater reason should we reject Article 133.
Second. Our Constitution and jurisprudence frown upon regulations that penalize citizens for what they say, given the stunningly bad record of the government in policing controversial or dangerous ideas. Article 133 is a classic case of a content-based regulation, that is, a criminal offense based on the substance of what the speaker says, in this case Celdran’s act of raising the “Damaso” sign before the altar. Was this offensive to the feelings of many of those inside the Manila Cathedral? Of course it was, but that is also constitutionally beside the point.
What consequences should follow from Celdran’s speech? On the part of those who were offended, they are entitled to a very wide spectrum of reactions short of inflicting violence on Celdran: They can picket his famed Intramuros tours and appeal for a boycott, set up blogs and comment all they want on Facebook to criticize him, teach their children the value of disagreeing without being disagreeable, or act like a good Christian and accept Celdran’s apology.
On the part of the government, nothing, except to ensure that no acts of violence are committed by those offended and their supporters, on the one hand, and Celdran and his supporters, on the other. The principle of free speech prohibits the government from sending people to jail simply because it disagrees with the speaker or it deems the speech too hurtful. It requires Celdran to internalize the cost of his own actions, valued in terms of the undying hatred of conservative Catholics or his rock-star status among progressives. Put differently, our Constitution mandates that whatever consequence which follows from Celdran’s disrespect flows from the value of such act in the marketplace of ideas, not in the prosecutor’s office or the sala of Judge Juan Bermejo.
Third. Article 133 is also patently unconstitutional because it smacks of viewpoint discrimination. Why should offending the feelings of the faithful be so privileged in our society that only critics would be visited with jail terms? We are offended by many ideas on a daily basis, yet we cannot ask the government to require people who harbor inane ideas or beliefs to spend some quality time with convicted rapists, murderers, and thieves. If Msgr. Nestor Cerbo, the complainant in the case, decided to do a Celdran and raised a Satanist placard in a meeting among secularists and post-theists, those poor evolutionists cannot file a complaint for Offending the Feelings of the Rational and bother the good monsignor with a court case.
The point here is that the government cannot, through the criminal justice system, especially immunize certain institutions, ideas, and practices from public criticism without violating the Constitution. Such privileging is a species of support for the Church, and a form of establishment violative of the principle of secularism. It cannot favor one side of the debate by handicapping the critic from the other side with a threat of punishment. In the contest between the religious and the secularists for the hearts and minds of the Filipino people, the government, as umpire, cannot take sides by declaring that only the latter but not the former can commit a foul.
Florin T. Hilbay is associate professor at the University of the Philippines College of Law and director of the Institute of Government and Law Reform.