The primacy of free speech

Article 133 of the Revised Penal Code is an archaic provision that is anathema to a constitutional democracy and a secular society. It infringes on the freedom of expression which is accorded primacy among the people’s rights. As the Supreme Court held in Chavez vs. Gonzales (Feb. 15, 2008), the freedom of speech “is an indispensable condition for nearly every other form of freedom.”

The challenged penal provision reads: Article 133. Offending the religious feelings. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon 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.

Verily, Article 133 is prior restraint on free speech. It forbids a citizen from expressing views which purported offended parties would subjectively consider “notoriously offensive to the feelings of the faithful.” This is vastly different from the victim’s objectively ascertainable death in murder, bodily infliction in physical injuries, damage to property in arson, or even a damaged reputation in libel.

In Article 133, the proscription of an act under pain of penalty is a veritable prior censorship or restraint on the freedom of expression because one is foreclosed from expressing his opinion or forced to fossilize his thought on a public issue that demands articulation.

What the Constitution protects is more than docile and conventional speech. It truly safeguards controversial and provocative views which challenge audiences.

In Terminiello vs. City of Chicago (1949), it was ruled that the function of free speech “is to invite dispute… Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

Likewise, in Chavez vs. Gonzales it was held that “[t]o be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view ‘induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’”

There was global outrage over the desecration of the freedom of expression in the aftermath of the terror assault in Paris against the editors and cartoonists of Charlie Hebdo.

The caricature of Prophet Mohammad is widely considered seriously offensive to the religious feelings of Muslims, but the world community, including Muslim leaders, consider the controversial lampoons as protected freedom of expression.

“We strongly condemn this brutal and cowardly attack and reiterate our repudiation of any such assault on freedom of speech, even speech that mocks faiths and religious figures,” said the Counsel on American-Islamic Relations, the largest Muslim civil rights organization in the United States.

Israeli Prime Minister Benjamin Netanyahu called the barbaric incident “a murderous attack on free expression.”

The All Dulles Area Muslim Society in Sterling, Virginia, one of the region’s largest mosques, issued a statement that “[a]s Muslims, we encourage responsible speech and reject hate speech in any form, but we firmly believe that all speech, even if mocking and satirical, and even if deeply offensive, should and must be protected.”

Charlie Hebdo finds affinity in the case of Carlos Celdran, who has been convicted, albeit not finally, of violating Article 133. His alleged crime is that in an ecumenical program at Manila Cathedral, he displayed a placard on which was written the word “Damaso,” a reference to a fictional friar in Rizal’s “Noli Me Tangere” who embodied the priests’ dalliance with local maidens and interference in secular affairs of friars.

The information against Celdran reads in full: “That on or about Sept. 30, 2010, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully, and feloniously disrespect, disregard and offended feelings of various religious leaders in the persons of Cardinal Gaudencio Rosales, Papal Nuncio, Ambassador de Villa, and other leaders of different Christian denominations, by then, and there displaying a placard/board bearing the word “Damaso,” while ecumenical service was going on inside the Manila Cathedral Church, Intramuros, which notoriously offended the feelings of the faithful, represented by Msgr. Nestor Cerbo y Cerda, Rector of the Manila Cathedral Church, Intramuros, this City.”

Aside from alleging Celdran’s display of the “Damaso” placard, no other “inculpatory” act was attributed to him in the information. Incidentally, the “offended” religious leaders mentioned in the information, Cardinal Rosales, Papal Nuncio Edward Joseph Adams, Ambassador Henrietta de Villa and Monsignor Cerbo did not testify for the prosecution. They must have realized that Celdran’s advocacy for modern-day Filipino priests and bishops to shun the sordid reputation of Padre Damaso is a reform shibboleth which does not ridicule or castigate, but on the contrary challenges, even elevates.

Celdran’s act was neither an insult to any religious faith nor notoriously offensive to the feelings of the faithful. He was not attacking any religion or dogma. His mission was to challenge clerics to reform themselves by not embracing the importuning of Padre Damaso. This is absolutely protected free speech. Its articulation cannot be subject to prior restraint or subsequent penalty. The liberating mantle of freedom of expression must not be tainted by the obscurantism and unconstitutionality of Article 133.

Edcel C. Lagman is a former representative of the first district of Albay.