I did not want to write about Carlos Celdran. As a religious person myself, I found what he did—picketing and disturbing a religious event—offensive and in bad taste. I probably would have been incensed if I were one of those then worshipping at Manila Cathedral.

But because public opinion, at least among netizens, appears to be evenly split between those who support and condemn his conviction for offending religious feelings penalized by Article 122 of the Revised Penal Code, it appears that as a legal educator, I should at least comment on the case.

Art. 122, like the Revised Penal Code’s provisions on libel, is yet another archaic and Jurassic crime which has lost its place in modern-day democracies. It is a form of Lest Majeste that finds reason in the fact that Spanish colonial rule was exemplified by the union of church and state. Criticize the church and one criticizes the crown, as well.

Given the precarious nature of Spanish colonial rule in the Philippines, with us Indios even rejecting to speak the language, I suppose during those times, the law could be defended as an exercise of police power of a waning colonial power.

It is sad hence that when the Philippine Commonwealth enacted the current Revised Penal Code that took effect on January 2, 1930, its drafters still incorporated the crime of offending religious feelings when the Supreme Court had already ruled that Lest Majeste, being a political crime, had ceased to be a crime with the onslaught of American colonial rule.

As a crime intended to bolster Spanish colonial rule, it is utterly inconsistent with the modern-day concept of freedom of expression and freedom of religion. The rule, as we argued in the Supreme Court in our challenge against the Cybercrime Prevention Act, is that because of our constitutional commitment to freedom of expression as a means of arriving at the truth and as a means of reigning in abusive government though a full discussion of public issues, words alone should not be actionable unless they lead to a clear and present danger that the State has a right to prevent. Anent religious freedom, the Constitution guarantees the absolute freedom to believe, referred to as the free exercise clause, and a non-derogable guarantee that it will not favor or endorse a religion, referred to as the establishment clause.

Here, Art. 133 of the Revised Penal Code which punishes “anyone who, in a place devoted to religious worship or during a celebration of nay religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful“ violate both constitutional guarantees. For one, even assuming what he did was “notoriously” offensive, which is doubtful given that the priest themselves have opted not to charge him with the crime, the reality is such cannot amount to a “clear and present danger”. Furthermore, to subject Celdran to imprisonment for offending feelings would be tantamount to the state endorsing a religion. Why would it jail a person solely because he offended the feelings of members of a religion?

Perhaps in this controversy, it is best to remember the ruling of the Supreme Court in Iglesia ni Kristo versus Court of Appeals. This was a case where the MTRCB gave an “x” rating to pre-taped programs of the Iglesia ni Kristo criticizing religious dogmas of the Catholic Church, including the satire of the Virgin Mary. Here, the Court ruled that the “x” rating was a prior restraint and a violation of the guarantee of state neutrality in the realm of religious beliefs.

According to former Chief Justice Reynato Puno: “The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country. In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.”

Harry Roque Jr. is a professor of law at the University of the Philippines. 

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