Go Damaso!

That is why courts worldwide presume any prior restraint on freedom of expression as being constitutionally infirmed.

I knew cultural activist Carlos Celdran. He was a client. The brother of my best friend in grade school is married to his sister. When he was charged by the Manila Archdiocese for the felony of offending religious feelings, I was the first lawyer whom he called. My advice though was a bit maverick. I said that we should question the constitutionality of the felony and invoke freedom of speech which, in the hierarchy of rights, is preferred, next only to the right to life. The problem with disputing the factual allegations brought against him was taken altogether; he was in fact guilty of the crime charged when he raised the “Damaso” placard while there was a Mass for Bishops being held in the Manila Cathedral. Unfortunately (for him), he listened instead to the advice if another lawyer who opted instead to dispute the facts. I did not represent him during the trial at the Metropolitan Trial Court. He was found guilty for the crime, as I predicted.

Obviously, the other lawyer’s legal tact to dispute the actual allegations led to his conviction. What people do not know is that Carlos was in Spain precisely because he was going to (if not in the process) of seeking asylum. Under the refugee convention, a person persecuted for the right to exercise a fundamental right, such as freedom of speech, is a victim of political persecution and hence, entitled to asylum.

Why was I confident that the law could be declared constitutionally infirmed? Well, that particular felony of “offending religious feelings” was a crime, which we copied verbatim from the Spanish Criminal Code. Obviously, the Spaniards, in the absence of separation between Church and State, considered any act that would offend the Church as also offensive to the State itself.

Moreover, since this was a copy of an ancient penal law, it has been superseded by modern human rights law as provided in the International Covenant on Civil and Political Rights. Truth to tell is until the international community adopted the ICCPR, freedom of speech was unheard of as an enforceable right, even its seed could be found in the not too distant past in England, France and the United States.

Where is the irreconcilable conflict between a statute that provides for incarceration as a penalty for offending religious feelings and freedom of speech? It lies precisely in the normative content of freedom of speech. As ruled in jurisprudence both here, the United States and the rest of the free world, intelligence is what separates mankind from the rest of the animal kingdom. As such people have the faculty to discern for themselves what the truth is and to form their individual positions on issues. In turn, these individual opinions, where there are commonalities, become public opinion. The latter is now recognized as indispensable not only in promoting accountability of public officers, but more importantly, in finding solutions to our civilizational problems.

That is why courts worldwide presume any prior restraint on freedom of expression as being constitutionally infirmed. The burden rests on the state to show some valid exercise of sovereignty, normally the exercise of police power but only on the sole basis that the infringement could prevent a clear and present danger that the State has a right to prevent, to sustain an infringement.

Obviously, our constitutional provision that no law shall be passed abridging freedom of speech and of the press is violated by a penal state that prohibits people from offending religious feelings. In one case involving the Iglesia ni Cristo and the Catholic Church, the Supreme Court ruled that the solution to conflicting religious tenets is not to restrict one, but to have “more proselytization.”

Celdran’s demise at a very young age happened for a reason. He leaves a legacy of a steadfast commitment to freedom of speech, which I hope more of our countrymen will emulate. Let’s all carry placards of “Damaso” if only to reinforce that religions and churches are not exempt from the scope of protection afforded by our freedom of Speech. Go DAMASO!