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Jurisprudence and the lyrical 'Damaso'.

"Laws," complained the lawyer Michel de Montaigne, "are often made by fools" and, worse, "they can be adapted to each one of our concerns by means of some twisted, forced, or oblique interpretation." I find these words applicable to the crime of "offending the religious feelings."

Absurd as it may seem, Carlos Celdran's conviction of the crime tells us that in this country one can be jailed for simply expressing the word "Damaso." This absurdity primarily stands on two interpretations. First, "Damaso" is "directed against religious practice, dogma, or ritual for the purpose of ridicule." Second, "Damaso" is a fighting word that "inflicts injury or tends to incite an immediate breach of the peace" and plays "no essential part of any exposition of ideas" (Chaplinsky Doctrine).

Modern jurisprudence runs counter to these two arguments. But first, allow me to historicize.

The Proyecto de Codigo Penal Revisado of 1930, which became Act No. 3815 (Revised Penal Code), included "Article 133. Ofensa a los sentimientos religiosos."

This provision was a transmogrified version of Article 241 of the 1870 Codigo Penal. The proyecto, however, did not cite Article 241. It instead identified three provisions in the 1887 Penal Code as sources of Article 133: "Profanation of the Sacred Eucharist" (Article 220), "Profanation of sacred objects" (Article 221), and "Ridicule of the Catholic religion's dogmas, rituals and ceremonies" (Article 222). All three articles protected solely the Catholic religion and were abrogated by the enactment of the Philippine Bill of 1902.

This reference to Articles 220222 is important for two reasons. First, it means that Article 133, particularly the words "actos notoriamente ofensivos" (notoriously offensive acts), should be strictly construed to cover only acts that profane sacred objects or ridicule any religion's dogmas, rituals and ceremonies.

A different reading, which allows the "faithful" to determine which act is offensive and which is not, would nullify the law for violating the dueprocess and freespeech clauses. Ut res magis valeat quam pereat. An interpretation that validates outweighs one that invalidates. Second, the citation of Article 222 means that Spanish readings of the felony of ridicule (delito de escarnio) (Article 525), which also contains the phrase "ridicule of dogmas, beliefs, rituals and ceremonies," may apply to Article 133.

Let us therefore read the Spaniards. Eugenio Cuallo Calon wrote that "dogma" includes: the dogma of the Immaculate Conception, the dogma of purgatory, the dogma of the Eucharist, and the dogma of Mary's virginity. This enumeration clearly shows that "Damaso" does not belong to this group, and neither does it attack any of them.

Moreover, Spanish jurisprudence suggests that "Damaso" does not fit the legal concept of ridicule. This can be deduced from the cases cited in a Madrid court's 2012 sentencia that acquitted artist Javier Krahe of the felony of ridicule. In one case, the accused exhibited a placard showing the Virgin Mary and Jesus with the label "The Adulteress with her bastard" (Adultera con su bastardo) during a procession. The Audiencia Provincial of Valladolid held that there was "no intent to hurt other people's religious feelings" but only a desire to express a divergent opinion.

In another case, the accused exhibited juxtaposed images of the Virgin Mary and a man's genitals. Seville's Audiencia Provincial ruled that "neither the photograph nor the text questions directly or indirectly a dogma, belief, ritual, or ceremony of the Catholic religion." The accused merely "used a popular image to scandalize and provoke a polemic."

American jurisprudence on free speech is pertinent, too. In Cohen vs. California, the US Supreme Court acquitted Paul Robert Cohen who walked through a court corridor wearing a jacket bearing the words "Fck the Draft." (The fourletter word was spelled out.) This ruling led John Hart Ely to say that fighting words now require an explicit "invitation to a brawl." Kathleen Sullivan goes even further and argues that Cohen swept the notion that there is a word that by its very utterance inflicts injury.

Significantly, our Supreme Court, as pointed out to me by Prof. Harry Roque, has declared that the Chaplinsky Doctrine "had largely been superseded" and "is no longer viable." The high court instead adopted the Cohen rule in the case of MVRS Publications vs. Islamic Da'wah Council.

Now, if the fourletter word is protected speech, how can "Damaso," a character in the novel described by Penguin Books as "the first major artistic manifestation of Asian resistance to European colonialism," be considered an insult?

In this regard, prosecution witness Fr. Oscar Alunday's first encounter with the word is enlightening: "And I saw the word 'Damaso' on the placard. I know that Damaso was the secretary of Saint Jerome. So I thought it was part of the reflection I was thinking personally, "Wow, may style si Mr. Tirona Kakaiba ang sharing niya."

This amusing testimony proves that "Damaso" inflicts no injury by its mere utterance.

Hence, while many may not have appreciated Celdran's theatrical performance at the Manila Cathedral, it is not enough reason for the state to give him a guided tour of Manila's prison cells. The expression of "Damaso" inside a church is not a criminal act, however insulting or vulgar. Besides, as one justice reminds us, "One man's vulgarity is another's lyric."
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Publication:Philippines Daily Inquirer (Makati City, Philippines)
Date:Jan 30, 2015
Words:867
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