San Beda College Manila

College of Law

SBL HRA Human Rights Debate Tournament 2015

Position Paper (Affirmative)

General Rounds

1H

Commissioner Wilhelm D. Soriano

I. Brief Introduction
Historically speaking, there has been a long-standing argument whether or not Article 133
of the Revised Penal Code is already an archaic crime and should be removed from the
Philippine laws. The latest case that ignited different opinions from the Filipino people is about
Carlos Celdran's conviction whereby his supporters claim that such crime violates the freedom of
speech granted by the constitution lest the faithful argue that such freedom just like any right is
subject to limitations. Hence this paper looked into the legal precepts and political matters
relevant to the topic at hand.

II. Arguments
Case line: Article 133 is an invalid limitation of the freedom of speech.

A. Necessity

The Philippines, having a liberal-democratic government, has the duty to protect the
different rights granted by the Constitution. Article III Section 4 of the 1987 Constitution
provides that no law shall be passed abridging the freedom of speech and of expression. Such
right is the cornerstone of Philippine democracy. According to Justice Douglas, the right to speak
freely and to promote diversity of ideas and programs is one of the chief distinctions that set us
apart from totalitarian regimes.1 However, the conservative or traditional nature of our Revised
Penal Code is incoherent with the goal of the government to protect such right of the people. In
applying Article 133 of the Revised Penal Code, it prevents the State from implementing or
enforcing the rights granted by the Constitution to its full extent.

1 Terminiello vs. City of Chicago, 337 U.S. 1

1. Article 133 of the Revised Penal Code is antiquated

Article 133 of the Revised Penal Code provides that:
Art. 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.

This particular provision has its roots from Article 241 of the Spanish Penal Code of 1870. Its
object and purpose was to protect the dignity of the sovereign power under the sovereign ruler- a
union of church and State. After the termination of the Spanish regime in the Philippines, the
concept of separation of church and State was adopted. In fact, Article II Sec. 6 of the 1987
Constitution explicitly provides for the separation of the church and the State. Hence, the
provision has lost its purpose and such provision no longer holds any relevance in the modern
society. Moreover, to subject the citizens to imprisonment because of criticisms uttered against a
religion would be tantamount to the state endorsing a religion as it prevents people from making
any criticisms out of fear of being punished.

2. It is an invalid curtailment of the freedom of speech and of expression

Article III Section 4 of the 1987 Constitution provides that no law shall be passed
abridging the freedom of speech and of expression. According to the ruling in Terminiello v. City
of Chicago, one of the functions of the freedom of speech is to actually invite dispute. 2 It should
even permit the articulation of even the unorthodox view, though it is hostile or derided by
others, or induces a condition of unrest.3 According to Soriano v. Laguardia, the exercise of freespeech has two elements: 1. freedom from previous restraint or censorship; 2. freedom from

2 Ibid.

3 Ibid.

subsequent punishment4. Article 133 of the Revised Penal Code unduly infringes such right in a
way that it violates the second element of the exercise of the freedom of speech. In providing for
a punishment for exercising such right, citizens would hesitate to speak for fear of violating the
law. Decriminalizing Article 133 would encourage the exercise of the right to free speech and of
expression. While it is concedable that the exercise of free speech must also be regulated, acts
that may be committed under Offending the religious feelings cannot be classified as
unprotected. According to Chavez vs. Gonzalez, unprotected speeches include those words
which are libelous, obscene, those that provoke physical retaliation, and seditious and inciting
speeches. Our laws are of different kinds and doubtless, some of them provide norms of conduct
which even if violated have only an adverse effect on a persons private comfort but does not
endanger national security. There are laws of great significance but their violation, by itself and
without more, cannot support suppression of free speech.5

3. Article 133 is not a valid exercise of Police Power

Police power is the inherent power of the State of promoting the public welfare by
restraining and regulating the use of liberty and property. The elements for the valid exercise for
such power are that there must be a: 1.) Lawful subject; and 2.) Lawful means 6. Lawful subject
simply means that the subject affects the public welfare. The regulation of the State of the
exercise of the peoples right to free speech under Article 133 of the Revised Penal Code is
subject to the general welfare of the people since such exercise of the right to free speech may be
used to the injury of others. It is therefore, under the scope of police power. 7
4 Soriano v. Laguardia

5 Chavez vs. Gonzalez, G.R. No. 168338

6 Fabie v. City of Manila, 21 Phil. 486

7Cruz, Isagani A. "The Police Power." Constitutional Law. Quezon City, Metro Manila,
Philippines: Central Lawbook Pub., 2007. 49. Print..

However, there is no lawful means. Lawful means mean that the method is reasonably
related to the purpose sought to be accomplished and not unduly oppressive upon him 8. The
gravity of the act committed under Article 133 of the Revised Penal Code is not reasonably
equivalent to the commensurability of the penalty imposed on the act. Having no lawful means,
there is an invalid exercise of police power and such provision in the Revised Penal Code
invalidly curtails the right of the people to free speech.

The affirmative bench therefore submits that Article 133 or offending the religious
feelings should be decriminalized.

B. Beneficiality
1. Chilling effect
Sustaining the criminalization of the crime of offending religious feelings results in a
chilling effect on the practice of the freedom of speech on the part of the people, whether they
form part of a religious sect or are critical of the dogmas and traditions of such congregation. In
legal terminology, chilling effect refers to the inhibition or discouragement of the legitimate
exercise of a right... by the potential or threatened prosecution under, or application of, a law or
sanction.9 As an exercise of the States police power, the sanction provided in Art. 133 primarily
involves a limitation on the freedom of speech and expression with reference to freedom of the
practice of religion. This is in recognition of the fact that regardless of the constitutional guaranty

8 Cruz, Isagani A. "The Police Power." Constitutional Law. Quezon City, Metro Manila,
Philippines: Central Lawbook Pub., 2007. 56. Print..

9 Chilling effect. Websters Law Dictionary.

of the protection of said rights, they may still be limited in furtherance of peace and order in
society.
To begin with, the 1884 Penal Code was undergoing revision, the change of sovereignty that
occurred in 1898 as well as the enactment of the fourteenth paragraph of section five of the
Philippine Bill of 190210 were of utmost importance in the deliberation to maintain or abolish the
said provision, which was then designated as Art. 222. As such, the Code Commission decided to
retain the section of crimes against religious worship in the Revised Penal Code, which was
enacted in January 1, 1932.
Article 222 of the Penal Code of 1884 states,
He who with deliberate intention ridicules the Catholic religion by word or
writing, publicly contemning its dogmas, rites, or ceremonies, shall be punished with the
penalty of arresto mayor to prision correccional in its minimum degree, of the deed should
have occurred in churches or on the occasion of acts of worship, and with that of arresto
mayor if the crime should have been committed in other places and not on the occasion of
such acts of worship.
Moreover, the commentator Viada, in Comentarios al Codigo Penal, mentions that
an act, in order to be considered as notoriously offensive to the religious feelings,
must be one directed against religious practice or dogma or ritual for the purpose of
ridicule; the offender, for instance, mocks, scoffs at or attempts to damage an object of
religious veneration; it must be abusive, insulting and obnoxious.11
In the case at hand, the conviction of Carlos Celdran, as decided by Judge Juan O. Bermero, Jr.
of the Regional Trial Court of Manila, Branch 4, and as affirmed by the Court of Appeals, was
founded on the conclusion that the crimes requisites were satisfied, namely: 1) that the acts
10 US vs. Balcorta, G.R. No. 8722, 10 September 1913

11 Viada. Comentarios al Codigo Penal. 707, 708.

complained of were performed a) in a place devoted to religious worship, or b) during the

celebration of any religious ceremony, and 2) that the acts must be notoriously offensive. His act
of raising a placard with the word Damaso written on it, during the ecumenical prayer while
inside the Manila Cathedral, was deemed to have constituted a violation of Art. 133.
In this light, it must be taken into consideration that the crime of offending religious feelings has
always been vulnerable to arbitrary and rather subjective conviction. More importantly, the act of
making the implementation of this law more stringent necessarily results in the self-limitation on
the part of the people to express themselves by reason of the burden of being subject to the fear
of punishment for merely uttering statements that are not essentially intended to offend the
feelings of the religious. In this case, Celdrans act of raising the placard with Damaso written
on it is only a practice of his freedom of expression done in good faith. It is said that sentiments
per se are not credible pieces of evidence that may convict a person of a particular crime, since
there are no standards as to the extent and degree of the offensive effects of a certain statement
that counts as a violation of the said penal provision. Applying this to the Celdran case, there is
no apparent intent to offend any dogma or practice of the Catholic Church for the mere reason of
mockery. As a concerned citizen, he is simply upholding the basic principle of separation of
Church and State by pointing out that the former may not meddle with the affairs of the latter on
the sole basis that the States actions contradict their dogmas. The accused is simply expressing
his advocacy of affording better access to reproductive health through the passing of then House
Bill No. 4244/Senate Bill No. 2865, which has been enacted into law as Republic Act 10354,
otherwise known as An Act Providing for a National Policy on Responsible Parenthood and
Reproductive Health.
2. Richer discourse
Decriminalizing the offense against religious feelings brings about a richer discourse as
regards the interplay between the right of free speech and the right to ones religion. This richer
discourse involves giving more allowance as to the substance of speeches that may be given by
both the religious and those from outside. For one, this is made possible through the exercise of
the right to offend. Such right is inherently limited in a sense that a person, in the exercise of his

rights and in the performance of his duties, must act with justice, give everyone his due, and
observe honesty and good faith, as provided in Article 19 of the Civil Code.
In his article entitled On The Importance of the Right to Offend, Kenan Malik says, the
giving of offense is not just inevitable, it is also important. Any kind of social change or social
progress means offending some deeply held sensibilities.12 In the movement toward positive
change, it is important to relieve oneself of restrictive personal beliefs that may prevent him or
her from acknowledging the ways by which other people may approach a socio-political issue
with regard to his or her religion. Otherwise, discourse to promote change is stifled since the
people find themselves in a situation, such as when a practicing Catholic believes that the
provisions of the Reproductive Health law does not contravene the teachings of the Church
regarding pre-marital sex and responsible parenthood, in which they are limited to voice their
opinions on matters relating to the practice of the above-mentioned constitutional freedoms. For
instance, the speech of a member of the clergy during a religious celebration or at least, while he
is inside a place devoted to religious worship, is protected and such practice of the freedoms of
speech and religion may not be hampered by the State. In contrast, members of the Lesbian-GayBisexual-Transgender-Queer (LGBTQ) community do not have free rein as to their speeches if
and when performed in the presence of the religious, regardless of the occasion or place.
This allows even the non-religious to participate in protecting further the interests of every
Filipino citizen since they provide an objective stance on matters where unbiased judgment is
needed. In effect, discourse becomes one that is well founded in law, principle, and sensibility as
to the circumstances of the people contributing in it and those who may benefit from it. On the
whole, the tendencies of limiting others and restricting oneself in terms of the freedoms of
speech and religion are diminished.

C. Practicability
12 Malik, Kenan. On The Importance of The Right to Offend. Retrieved 25 January 2015
<kenanmalik.wordpress.com/2014/01/29/on-the-importance-of-the-right-to-offend/>.

1. The standard of feeling offended is too subjective.

In order to hold a person criminally liable under article 133 of the Revised Penal Code,
the act performed must be notoriously offensive to the feelings of the faithful. The primary
consideration is what the faithful felt when the act was performed. In People vs. Baes13, the
Supreme Court held that in answering the question as to whether an act offends the feelings of
the faithful, it should be viewed or judged from the latters point of view, and not from that of the
offender.

Affirmative bench submits that it is a meaningless standard in curtailing free speech. In

reality, the question is a matter of taste and not of law. Obviously, when people speak out against
or criticize another, it causes offense or emotional distress. It is analogous to instances of
satirical commentaries where a citizen would call a politician stupid or corrupt. Claiming
that one feels offended or emotionally distressed because of such act is the easiest thing in
the world to claim and the most impossible to refute. What can be offensive to one does not
necessarily mean that it offensive to another. Some Muslims find the cartoon depiction of the
Prophet Mohammed offensive, others do not; among them is Maajid Nawaz, a Liberal Democrat
British parliamentary candidate for Hampstead and Kilburn, United Kingdom, who even posted a
cartoon of the Prophet Mohammed on his Twitter account 14. Case in point, the taste for what is
offensive differs among the faithful. In this same line of ratiocination, and relying on the legal
maxim of de gustibus non est disputandum (in matters of taste, there is no dispute), the U.S.
13 G.R. No. L-46000

14 Mason, Rowena. "Maajid Nawaz Defends Decision to Tweet Controversial Cartoon." The
Guardian. N.p., 28 Jan. 2014. Web. 25 Jan. 2015.
<http://www.theguardian.com/politics/2014/jan/28/maajid-nawaz-muslim-lib-dem-candidatecartoon>.

Supreme Court held in Pope vs. Illinois15 that it is quite impossible to arrive at an objective
assessment of what is offensive or obscene; hence, it is useless to argue about taste, and even
more useless in litigating it. What article 133 simply does is to punish unpopular speeches that
the faithful consider as offensive based on their subjective religious taste. In Hustler Magazine
vs. Falwell16, Chief Justice Rehnquist eloquently said that at the heart of the freedom of
expression is the recognition of the fundamental importance of the free flow of ideas and
opinions on matters of public interest and concern. Freedom to speak one's mind is not only an
aspect of individual liberty, but essential to the quest for truth and the vitality of society as a
whole. In the world of debate about public affairs, many things done with motives that are less
than admirable are nonetheless protected by the Bill of Rights. Moreover, the U.S. Supreme
Court also held in the case of FCC vs. Pacifica Foundation17 that the fact that society may find
speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion
that gives offense, that consequence is a reason for according it constitutional protection. For it is
a central tenet of the freedom of expression that the government must remain neutral in the
marketplace of ideas.

Therefore, it is impracticable to deny a person his/her freedom to express his/her views

solely on the basis of anothers claim of being offended by its exercise.

2. Article 133 it unduly protects the religious from being offended

15 481 U.S. 497 (1987)

16 485 U.S. 46 (1988)

17 438 U.S. 726 (1978)

By virtue of the right to freely express ones self, as enshrined in Sec. 4, Art. III of the 1987
Constitution, religious people are allowed to simultaneously hold rallies along side LGBT rallies
and publicly shame those present there calling them out as devils and threats to the sanctity of
the family; and a priest to lambaste a woman during the baptism of her child for being an
unmarried mother. No matter how notoriously offensive the speeches might be, they cannot be
held criminally liable because they were in the exercise of their freedom of expression. But
whenever these same religious people are notoriously offended in inside their churches or during
their religious ceremonies by those who they criticize, the former can file a criminal complaint
under article 133 against the latter for offending their religious feelings.

As earlier argued under beneficiality, there is a value in an uninhibited and robust public
debate. The Philippine Supreme Court held, in Chavez vs. Gonzales18 (citing Her Majesty The
Queen vs. Keegstra), that the freedom of expression should promote the free flow of ideas
essential to political democracy and democratic institutions. ; it promotes a marketplace of
ideas, which includes, but is not limited to, the search for truth; and it is intrinsically valuable as
part of the self-actualization of speakers and listeners. Moreover, Justice Holmes of the U.S.
Supreme Court said in his classic dissent in Abram vs. U.S19., which has also been cited by the
Philippine Supreme Court in Babst vs. National Intelligence Board20, Persecution for the
expression of opinions seems to me perfectly logical. If you have no doubt of your premises or
your power and want a certain result with all your heart you naturally express your wishes in law
and sweep away all opposition...But when men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by free trade in ideas. . . The best test of
truth is the power of the thought to get itself accepted in the competition of the market, and that
18 G.R. No. 168338

19 250 U.S. 616 (1919)

20 G.R. No. L-62992

truth is the only ground upon which their wishes safely can be carried out. Article 133 provides
an imbalance within the marketplace of idea by providing more protection to the religious. It
offers an exclusive recourse for them through the filing of criminal charges against those who
would attack their religious beliefs, while that same recourse is not available to those whose
beliefs they attack.

Therefore, it is practicable to repeal article 133 because it removes the double standard in
terms of the exercise of free speech in society.

III. Conclusion

The affirmative bench submits that it is necessary, beneficial, and practicable that Article 133 of
the Revised Penal Code should be decriminalized. It is necessary to decriminalize because the
purpose of the provision has already become irrelevant and finds no application in the modern
society, thus is antiquated. Article 13 also invalidly curtails the rights of the citizens to free
speech and of expression by imposing an undue punishment on individuals who choose to
exercise their right of speech as provided in the Constitution. Such imposition of undue
punishment thereby creates a chilling effect among the people in such a way that they are
implicitly discouraged to legitimately exercise their right to free speech and of expression out of
fear or being sanctioned under the penal laws. Decriminalizing Article 13 would invite a richer
discourse as regards the interplay between the right to free speech and the right to ones religion.
The policy is also practicable because the provision failed to even provide an objective standard
for the commission of the offense. That the primary consideration is viewed from the viewpoint
of the faithful is too subjective is a matter of taste and not a matter of law. The provision also
unduly protects the religious from criticisms in such a way that the religious are free to voice out
their opinions as a matter of an exercise of their right to express without any fear of criminal
liability while the reverse does not have the same effect. Pursuant to the foregoing, the

affirmative bench therefore submits that Article 133 of the Revised Penal Code be
decriminalized.