Commentary

In defense of free expression

POSTED BY CMFR || 6 SEPTEMBER 2011
Pages: 1 2
By Luis V. Teodoro and Melanie Y. Pinlac
Published in PJR Reports, July-August 2011
THE TEMPEST over artist Mideo Cruz art installation underscored one of the ironies of Philippine society. There
are no laws explicitly partial to religious groups, but journalists, artists, and writers can still be sanctioned when
their work is labeled blasphemous, obscene, and/or immoral.
The latest incident involved an installation by Cruz which contained icons and symbols familiar to Catholics and
other Christians.
The Catholic political party Ang Kapatiran (The Alliace for the Common Good) has accused Cruz and the CCP
Board of violating Article 201 of the Revised Penal Code (RPC)the local version of the blasphemy laws Muslim
and Christian fundamentalists in other countries have put in placeand has filed charges to that effect.
Article 201 is a provision of the RPC on Immoral doctrines, obscene publications and exhibitions and indecent
shows. It imposes the penalty of prision mayor (six to 12 years imprisonment) or a fine ranging from six
thousand to twelve thousand pesos, or both on:
(1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
(2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing
such literature; and the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes,
acts or shows, whether live or in film, which are proscribed by virtue hereof, shall include those which (1) glorify
criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are
contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;
(3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are
offensive to morals.
Defining obscenity
But what is immoral, obscene and/or indecent? Since, as Constitutional law expert Joaquin Bernas, S.J., said in
his Aug. 22 Philippine Daily Inquirer column, only expressions which are libelous and obscene are not
protected by the Constitution, defining what is immoral, obscene, etc. is crucial.
Bernas explained how the courts determine whether a particular work is obscene: (a) whether the average
person, applying contemporary community standards would find that the work, taken as a whole, appeals to
prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law, and (c) whether the work, taken as a whole lacks serious literary,
artistic, political, or scientific value.
The key legal issue is whether a particular work meets the above standards. But Bernas noted that even bad art
is still protected by the Constitution. Since art, even ugly art, is a form of expression, it can be made
punishable only when it presents a clear and present danger of an evil which the state has the right to prevent,
Bernas said.
Protected speech
Other legal experts like law professors Florin Hilbay and Raul Pangalanan said Cruz did not violate any
law. Manila Bulletinlast Aug. 7 quoted Hilbay as saying that the right of Cruz to express himself through
Poleteismo is recognized by the Constitution. It was not as if the CCP exerted extra effort to offend the feelings
of subscribers to the Catholic faith.
(Cruz) work, shocking as it may be, will fall within that (protection of speech) clause, Pangalangan said.
But the Constitutional protection of expression and opinion has not stopped government officials from
threatening to use the powers of the state against the artist and CCP. The conservative Senator Vicente Sotto III
threatened to cut the budget of CCP if it refused to take down the exhibit, and this and other threats resulted in
the exhibits being taken down on Aug. 9 for security reasons.
Some members of the House of Representatives also called for the resignation of the CCP Board. Palawan
1
st
Dist. Rep. Antonio Alvares filed Aug. 11 A Resolution Demanding the Resignation of (CCP) officials for
Allowing Blasphemous Display Masquerading as Art and Inciting Public Outrage (House Resolution No. 01601).
It is still pending.
President Benigno Aquino III joined the senators and representatives who said they were offended by the exhibit
by calling on CCP officials to discuss the Kulo exhibit. There were no reports on what happened during his
meeting with the CCP board, but what he said immediately after the closing of the exhibit was alarming enough.
Aquino told the media that he was pleased with the CCP Boards decision to close the exhibit, adding that
there is no freedom that is absolute though he (Aquino) is not after censorship.
Aquino and company may not be after censorship, but threats of budget cuts, possible criminal liability for
disturbing public order for exhibiting artwork arbitrarily tagged as blasphemous and offensive do
constitute censorship and create a chilling effect not only on artistic freedom but on free expression as well.
Censorship of whatever kind and no matter how piously disguised limits citizens choices only to those ideas the
powerful approve of. It also divests anyone who might use unpopular ways to express his or her opinions, or
who hold opinions different from those of the majority, of their rights.
Not the first
The Kulo controversy is not the only instance of the states undermining free expression due to arbitrary, if
popular, understanding of what is obscene, blasphemous, and immoral.
In 2001, then President Gloria Macapagal Arroyo ordered the Movie and Television Review and Classification
Board (MTRCB) to recall the permit to show the film Live Show after a clamor from moralists and conservatives
including the then archbishop of Manila, most of whom had not even seen the film to competently judge its
worth.
In July 2006, the MTRCB suspended the airing of GMA-7s i-Witness for its episode Lukayo: Hindi Ito
Bastos (Lukayo: This is Not Obscene), a documentary on a tradition in which elderly women in a Laguna town
dance and play with phallic symbols during weddings. The MTRCB declared that it had to protect the viewing
public from obscene materials, even if the materials had been around for practically ages, and were part of
the culture of a Philippine community.
Some foreign movie companies have protested MTRCBs cutting portions of films it had rated X because these
were allegedly too violent, sexually explicit, or otherwise unfit for public viewing, despite the fact that doing so
would mangle the films.
The suppression of the Kulo exhibit occurred in the context of a global campaign against religious defamation
and blasphemy laws. International free expression groups like ARTICLE 19 and Freedom House have called for
the repeal of religious libel and blasphemy laws, saying these are unnecessary and contrary to the right to free
expression.
Paula Schriefer, Freedom Houses director of advocacy, argues that Acts of religious discrimination are a
genuine human rights issue for which everyone agrees a better solution is needed. However, not only do these
laws fail to address the problem, but codifying defamation of religions into international law also sets a
dangerous precedent and provides legitimacy to the rights abuses these laws inevitably create.
In her paper Freedom of speech and offence: why blasphemy laws are not the appropriate response, ARTICLE
19 executive director Agnes Callamard also argued that There cannot be a human rights justification to the
existence and implementation of blasphemy laws.
Callamard also said: In the United States, the Supreme Court steadfastly strikes down any legislation prohibiting
blasphemy, on the fear that even well-meaning censors would be tempted to favor one religion over another, as
well as because it is not the business of governmentto suppress real or imagined attacks upon a particular
religious doctrine.
Necessary
International covenants and declarationsto which the Philippines is a signatoryecho Bernas point: they
declare that restrictions on freedom of expression and opinion may only be applied when necessary.
But what does necessary mean? Mogens Schmidt of the UNESCO Communication and Information Sector wrote
in a conference paper that permissible restrictions in the Covenant (International Covenant on Civil and Political
Rights/ICCPR)refer to a double condition: the limitations must be provided by law AND should be necessary to
protect a number of public areas as well as the rights of othersnecessary here means that there must be
exceptional reasons for such restrictions.
Schmidt quotes ICCPRs Article 18: Freedom to manifest ones religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.
Reckless disregard
What happened to Kulo and Cruz was another example of the medias often reckless disregard for the impact of
its actions on the rest of society. But it is also a case of the state and its agencies favoring one religion over
another on the argument that the majority belong to it.
The suppression of Kulo makes the degree of offensiveness of any form of expression a justification for
censorship, whereas the only acceptable standard is the harm free expression may inflict on society. And yet, it
is the suppression of expression, rather than the offensiveness of a play, a painting, or a film, that inflicts a
greater harm on society because it denies citizens access to ideas, insights and perspectives on matters of
concern which may help them better understand the various environmentswhether social or naturalthat
otherwise resist comprehension.