Criminal law professor questions constitutionality of the crime of "offending religious feelings"

Posted at 01/29/2013 11:41 AM

The crime of “offending religious feelings” – for which Carlos Celdran was convicted is unconstitutional – believes Ibarra Gutierrez III, a criminal law professor at the University of the Philippines.

“I don’t think it’s constitutional,” he told me in an interview.

Gutierrez gave several reasons.

“First of all, it is strangely placed. It appears in one chapter of the Revised Penal Code – under “Crimes Against the Fundamental Laws of the State. Look at the other crimes (under this section). They all refer to a situation where a government official violates the Bill of Rights such as arbitrary detention, illegal search and seizure.

"At the very last (of the same section), you have a crime that does not punish a government official who commits crimes against the Bill of Rights but a crime that offends religious feelings."

I looked and indeed the provision was strangely placed, tacked on like an afterthought.

The Bill of Rights does mention religion but only with respect to a person’s right to freely exercise it.

Prof. Gutierrez also expressed the belief that the State

“has no business prosecuting crimes anchoring on religious feelings. The problem is, it calls upon the court to make a determination of what the religious faithful will find offensive…what will ridicule the church.”

He said this would mean that the court would have to make a judgment in relation to doctrines of a particular church.

Third, he called the crime “archaic” and a throwback to the Spanish colonial period when the native population in the Philippines was ruled by a theocracy and Church and State were one.

To non-lawyers like me, the name “Revised Penal Code” was highly misleading since it initially gave me the impression the revision was recent. It turns out our Code of Crimes was last revised back in 1930 yet. It replaced the previous Spanish Penal Code but apparently carried over quite a number of the latter’s provisions.

I asked Prof. Gutierrez to recall previous cases where the court ruled that religious feelings were offended.

He said one case was penned by the late Justice Jose P. Laurel before World War II. It involved a man who had a non-Catholic buried with Catholic rites in a Catholic cemetery.

Another more recent case involved a man who – during a religious rally of the Iglesia ni Cristo, had climbed the stage and started debating with the church minister. In that case, he said, the lower court convicted the man. But on appeal, he was acquitted because the judge ruled that a religious rally held in a public plaza is not a religious ceremony, he explained.

So I guess Prof. Gutierrez has just answered a question I had posed earlier – if the Catholic Church chooses to have an outdoor religious ceremony-cum-rally against the reproductive health law, can those who might hold counter-rallies in the vicinity be held liable for offending religious feelings?