OSG defends Carlos Celdran, wants him cleared over ‘Damaso’ stunt

Despite being convicted of offending religious feelings, cultural activist Carlos Celdran has found an ally in the Office of the Solicitor General which moved for his acquittal.

This is the third time in recent months that the OSG, which usually represents the government in court cases, has not sided with the government, and instead defends the other party in the case.

In a manifestation filed with the Supreme Court, the OSG agreed with Celdran that Article 133 of the Revised Penal Code, used as grounds to convict him, should be struck down as unconstitutional.

The manifestation stemmed from a petition filed by Celdran in October 2015 accusing the Court of Appeals of erring when it affirmed the January 2013 decision of the Metropolitan Trial Court of Manila Branch 4 and an August 12, 2013 decision of the Manila Regional Trial Court, both finding him guilty of "offending religious feelings."

Celdran asked the SC to order his acquittal and declare Article 133 of the Revised Penal Code on "offending religious feelings" as unconstitutional.

Celdran was charged in 2010 after he, dressed as national hero Jose Rizal, held up a placard with the word “Damaso” before the Papal Nuncio, Gaudencio Cardinal Rosales and several bishops in protest of the Catholic Church's opposition to the then reproductive health bill.

"Damaso" was a reference to the villainous friar from Rizal's novel "Noli Me Tangere."

Insisting Celdran should be acquitted, the OSG, in its manifestation, said Article 133 was "simultaneously overbroad and void for vagueness."

The OSG said Article 133 does not provide objective standards that would allow a person to know whether he or she is committing the crime. The same article also potentially includes or may be construed as including protected speech, and thus suffers from overbreadth.

"Mr. Celdran's act was aimed at arousing public discussion... in the context of the State's reproductive health agenda. Viewed from this perspective, Mr. Celdran's 'act' is in fact political speech of the classical form. It is no different from the use of pamphlet," argued the OSG.

The OSG added that the same article under the RPC violates the "non-establishment clause" and amounts to "viewpoint discrimination."

The OSG said Article 133 offers a State support for the Church as it privileges the practice of religious beliefs over others, violating the non-establishment clause, which states that the State cannot favor one side of a debate by handicapping the critic from the other side.

The OSG said Article 133 is a form of "viewpoint discrimination" because it promotes certain ideas while restricting others opposed to them, which is violation of the Constitution.

The OSG said even assuming that Article 133 should not be declared unconstitutional, the prosecution still failed to prove Celdran's guilt beyond reasonable doubt.

The OSG said during the course of the trial, none of the witnesses for the prosecution were able to identify any religious dogma, ritual or belief that they felt ridiculed or insulted.

Tribune of the people

Late last year, the OSG refused to represent the Commission on Elections (Comelec) in the cases filed by Sen. Grace Poe against the poll body over her disqualification in the May presidential race.

The OSC said it can no longer lawyer for the Comelec because it was already defending Poe in a separate case filed with the Senate Electoral Tribunal challenging her qualifications as senator.

Even before the Poe cases, the OSG had already acted as a "tribune of the people," and dropped the government's National Historical Commission of the Philippines (NHCP) as its client in the Torre de Manila case pending before SC.

The NHCP had earlier written the Manila city government that the 49-storey Torre de Manila cannot possibly obstruct the front view of the Rizal monument in Luneta. The OSG opposed the NHCP and maintained that the structure impaired the sightline of the monument.

Manila court, CA

The Manila court initially found Celdran guilty of violating Article 133 of the RPC, which penalizes offending religious feelings. The decision was upheld by the Manila Regional Trial Court Branch 32, and by the CA in January 2015.

In his petition with the SC, Celdran said the CA erred when it held that Article 133 of the RPC does not violate the 1987 Philippine Constitution. He said the crime of "offending the religious feelings" violates the non-establishment clause, his right to due process, and his right to free speech.

He also stressed that the criminal intent required in Article 133 does not exist in his case. He said his intention was limited to political criticism and not to the mockery of the audience's religious beliefs, or of a particular religion.

Celdran also said the word "Damaso" is a political speech protected by freedom of expression, and that his conviction failed the "totality of injurious effects test." He said the word "Damaso" was not directed against religious practice or dogma, and was not "notoriously offensive."

Celdran said in the first place, there was nothing to suggest that he indeed was referring to the infamous friar in "Noli Me Tangere" when he held up the sign inside the church. — RSJ, GMA News