Of Padre Damaso and other thingsBy Fr. Joaquin G. Bernas S. J.
Philippine Daily Inquirer
| February 3, 2013 at 11:27 pm
The Celdran Case. Article 133 of the Revised Penal Code punishes “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.”
There are two elements in the offense: (1) That the act or acts complained of are performed in a place devoted to religious worship or during the celebration of any religious ceremony; and (2) that the act or acts must be notoriously offensive to the feelings of believers.
When you strip the provision of its religious element, what you have is something similar to the offenses of violation of domicile (Article 128) or interruption of a meeting (Article 131). Both of these two offenses can also result in offended feelings, but feelings are not factored into these offenses. However, 128 and 131 can be violated only by public officers.
What has attracted attention to Article 133 is the religious element in the offense. Essentially, what is punished in Article 133 is speech, whether oral or symbolic, which offends the feelings of others because of its religious content or surrounding circumstance.
Hence, an important question that must be asked is whether Article 133 violates freedom of expression and free exercise or nonestablishment of religion, especially since the crime is listed among crimes against the fundamental law. Freedom of speech is violated when speech is restrained or punished even if the speech does not present a clear and present danger of a substantive evil which the state has the right to prevent. Free exercise of religion is violated when a person is prevented from or punished for externalizing his religious belief or is forced to do something contrary to his religious belief. Nonestablishment of religion is violated when the state shows preference for one religion over others or prefers religion to no religion.
Carlos Celdran is being ordered punished for offending the feelings of others by speaking, orally or symbolically, against religious values dearly held by others. In other words, he is being punished for religious speech. I thought that this kind of offense already disappeared after the events of 1902.
What about his disturbance of a religious gathering? If Celdran were a public officer, which he is not, you might hold him under Article 131 as a disturber of a peaceful meeting, an offense that is religion-free. Perhaps it is enough that Celdran is already apologetic.
Incidentally, the penal codes of, at least, California and New York, have provisions similar to our Article 133. But not everything American is worth imitating!
Finally, Article 133 also raises an intriguing question: When a priest or bishop castigates or consigns to the netherworld those who oppose the Reproductive Health Law in a sermon before a captive audience of churchgoers, should he be penalized by the State or canonically censured for offending religious feelings? After all, defenders of the RH Law also have feelings! What is good for the gander should also be good for the goose.
Comelec in eye of brewing storm. Elections are important. For that reason, the Comelec is given by the Constitution special powers during an election period (which this year started last Jan. 13 and ends on June 12). It says: “The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information…”
An important campaign tool used by politicians is speech in its various forms. Hence, during this period regulatory instruments used by the Comelec can come into conflict with the important and highly protected right of speech. However, according to the Supreme Court, the technical effect of the constitutional provision is that, when a Comelec regulation during the election period comes into conflict with the right of free speech, there is no presumption of invalidity. Until candidates or parties succeed in declaring the regulation invalid, it continues to be in effect. A few conflicts on this issue have gone to court and the Comelec has not won all of them.
With the increasing heat of the election season, conflicts are again bound to arise. The first hot one that has arisen is the recent requirement of prior approval by the Comelec for a candidate to guest on any bona fide newscast, bona fide news interview, bona fide news documentary. The Comelec regulation elaborates thus: “To determine whether the appearance or guesting in a program is bona fide, the broadcast stations or entities must show that: (1) prior approval of the Commission was secured; and (2) candidates and parties were afforded equal opportunities to promote their candidacy.”
On its face, the need for prior approval is a form of prior restraint, and it is. Normally it would be presumed to be invalid. But, as stated earlier, it stays in effect until a court declares it invalid because, under jurisprudence on the special power of the Comelec during the election period, it is presumed to be valid.
More conflicts may be coming before the end of the election period. If you are interested in the possible sources of conflict, look up Resolution No. 9616 on the Comelec website.