technical malversation (“Eurogenerals” to be criminally charged)

News peg:  “Eurogenerals” to be criminally charged with technical malversation and corrupt practices.
    The following constitutes “technical malversation” (Article 220 of the Revised Penal Code):
      “Art. 220. Illegal use of public funds or property. – Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total value of the sum misapplied. If by reason of such misapplication, any damage or embarassment shall have resulted to the public service. In either case, the offender shall suffer the penalty of temporary special disqualification.
      “If no damage or embarassment to the public service has resulted, the penalty shall be a fine from 5 to 50 per cent of the sum misapplied.”

Carlos Celdran case. But in the leading case on this, 1939, the justices were divided

News peg: Tour guide and pro-RH advocate Carlos Celdran was convicted by an inferior court of “offending religious feelings” for holding up a placard with the word “Damaso” in front of bishops at the Manila Cathedral.

      What acts are deemed “offending religious feelings” under Art. 133?

     The leading case in what constitutes “offending religious feelings” is People vs. Jose Baes, 1939 —   but even in said case, the justices, the fiscal, the lower courts, were all divided on what constitutes the offense, as follows:


People (as appellee, fiscal dismissed the case – blog admin) vs. Jose Baes (as appellant, complainant Fr. Baes disagreed with dismissal ).  G.R. No. L-46000. May 25, 1939. Supreme Court, en banc

Concepcion, J.:

    “This appeal was given due course by the Court of First Instance of Laguna by virtue of a writ of mandamus issued by this court in G.R. No. 45780. The facts are the following:  In  the justice of the peace court of the municipality of Lumban, Province of Laguna, xxx a complaint was filed of the following tenor: ‘xxx undersigned Parish Priest xxx charges Enrique Villaroca, Alejandro Lacbay and Bernardo del Rosario with an offense against religion committed as follows: That on April 14, 1937, at about 9 o’clock a.m., in … Lumban, Province of Laguna, xxx while holding the funeral of  Antonio Macabigtas, in accordance with the rites of religious sect known as the “Church of Christ”,xxx caused the funeral to pass, xxx through the churchyard xxx, devoted to the religious worship thereof, against the opposition of the undersigned complainant who, through force and threats of physical violence by the accused xxx.’  ”

     “(T)he fiscal, xxx put in the following motion for dismissal: ‘xxx Apparently, the offense consists in that the corpse was that of one who belonged to the Church of The undersigned is of the opinion that the fact act imputed to the accused does not constitute the offense complained of xxx. At most they might be chargeable with having threatened the parish priest, or with having passed through a private property without the consent of the owner. Justice Albert, commenting on the article, has this to say: “An act is said to be notoriously offensive to the religious feelings of the faithful when a person ridicules or makes light of anything constituting a religious dogma; works or scoffs at anything devoted to religious ceremonies; plays with or damages or destroys any object of veneration by the faithful.” The mere act of causing the passage through the churchyard belonging to the Church, of the funeral of one who in life belonged to the Church of Christ, neither offends nor ridicules the religious feelings of those who belong to the Roman Catholic Church.’ “

   “(T)he plaintiff appealed, which appeal was denied but thereafter given due course by the court by virtue of an order of this court. xxx The appealed order is based upon the motion to dismiss filed by the fiscal.

   “xxx(T)he churchyard belongs to the church, and is devoted to the religious services of said church, xxx. Had the fiscal not omitted this essential part, he would not have come to the conclusion xxx

“xxx (W)hether or not the act complained of is offensive to the religious feelings of the Catholics, is a question of fact which must be judged only according to the feelings of the Catholics and not those of other faithful ones, xxx. We, therefore, take the view that the facts alleged in the complaint constitute the offense xxx (if)  said facts should be conclusively established, the court may find the accused guilty of the offense complained of, or that of coercion, or that of trespass xxx.”  – concurred in by  Avanceña, C.J., Villa-Real, and Diaz, JJ.,

Separate Opinions: Moran, J., concurring: “I concur in the dispositive part xxx The lower court, through the provincial fiscal, is thus under a duty to determine: (1) If the churchyard is a place devoted to the religious worship of the Catholic Church, and (2) if the funeral held under the rites of another religion was made to pass through the said churchyard.

   “ If the churchyard of the Catholic Church is like some of those seen in Manila churches where anyone can pass and where goods are even sold to the public, then it is not a place devoted to religious worship, and the fact that a funeral to pass through it, does not constitute a violation of article 133 xxx but, at most, the offense of threats if it is true that the parish priest was threatened when he prohibited the passage of the funeral.”

Laurel, J., dissenting:

“I dissent.

“(C)riminal statutes must be strictly

 “Art. 133. Offending religious feelings. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful.

 “As defined, two essential elements must be present under this article, to wit: (1) That the facts complained of were performed in a place devoted to religious worship or during the celebration of any religious ceremony; and (2) that the said act or acts must be notoriously offensive to the feelings of the faithful. It is admitted that the whole incident happened in the “atrio” or “patio” of the Catholic Church of Lumban, Laguna. There was no celebration of any religious ceremony then. The “atrio” coming from the Latin “atrium” means, an open space, generally closed, fronting a building or a church. In this case it is a churchyard. While occasional religious ceremonies may be performed in the “atrio”, nevertheless this does not make the “atrio” a place devoted to religious worship under article 133 of the Revised Penal Code, any more than a public plaza, a street or any other place occasionally used for religious purposes. But assuming that the churchyard in this case is “a place devoted to religious worship” — contrary to what we see and know (Justice Brown, in Hunter vs. New York O. & W. Ry. Co., 23 N.E., 9, 10; 116 N.Y., 615) — is the act complained of “notoriously offensive to the feelings of the faithful?” The imputed dereliction consist in that ‘( blog admin’s note: the complaint was filed in Spanish): los acusados arriba nombrados, estando dirigiendo el entierro segun el rito de una secta religiosa llamada “Iglesia de Cristo”, del cadaver de uno que en vida se llamada Antonio Macabigtas, voluntaria, ilegal y criminalmente hicieron que dicho entierro pasase, como en efecto paso, por el a trio de la Iglesia Catholica Romana frente a dicha Iglesia, el cual a trio es propiedad de dicha Iglesia y esta dedicado a los cultos religiosos de esta Iglesia y esta dedicado a los cultos religiosos deesta Iglesia, contra la oposicion del infrascrito denunciantea quien los acusados mediante fuerza y amenazas de maltrato obligaron a cederles el paso del entierro por dicho atrio.’ (Emphasis is mine.)  

“As I see it the only act which is alleged to have offended the religious “feelings of the faithful” here is that of passing by the defendants through the “atrio” of the church under the circumstances mentioned. I make no reference to the alleged trespass committed by the defendants or the threats imputed to them because these acts constitute different offenses (arts. 280, 281 and 282-285) and do not fall within the purview of article 133 of the Revised Penal Code. I believe that an act, in order to be considered as notoriously offensive to the religious feelings, must be one directed against religious practice or dogma or ritual for the purpose of ridicule; the offender, for instance, mocks, scoffs at or attempts to damage an object of religious veneration; it must be abusive, insulting and obnoxious (Viada, Comentarios al Codigo Penal, 707, 708; vide also Pacheco, Codigo Penal, p. 359). (Underscoring supplied by blog admin). 

 “Why, may I ask, should the mere act of passing of the corpse or funeral cortege in or through a private property be characterized as notoriously offensive to the feelings of any religion or of its adherent or followers?

“The Lord gave, and the Lord hath taken away; blessed by the name of the Lord. (Job. I. 21.)

“In this case, the Lord has recalled the life of one of His creatures: and it must be His wish that the remains shall have the right of way that they may be buried “somewhere, in desolate, wind-swept space, in twilight land, in no man’s land but in everybody’s land.

“Rather than too many religions that will make us hate one another because of religious prejudices and intolerance, may I express the hope that we may grasp and imbibe the one fundamental of all religions that should make us love one another!

“I must decline to accept the statement made in the majority opinion that “whether or not the act complained of is offensive to the religious feelings of the Catholics, is a question of fact which must be judged only according to the feelings of the Catholics and not those of other faithful ones, for it is possible that certain acts may offend the feelings of those who profess a certain religion, while not otherwise offensive to the feelings of those professing another faith.” (Emphasis is mine.) I express the opinion that offense to religious feelings should not be made to depend upon the more or less broad or narrow conception of any given particular religion, but should be gauged having in view the nature of the acts committed and after scrutiny of all the facts and circumstance which should be viewed through the mirror of an unbiased judicial criterion .Otherwise, the gravity or leniency of the offense would hinge on the subjective characterization of the act from the point of view of a given religious denomination or sect, and in such a case, the application of the law would be partial and arbitrary, withal, dangerous, especially in a country said to be “once the scene of religious intolerance and persecution.” (Aglipay vs. Ruiz, 35 Off. Gaz., 2164.)

“I think that the ruling of the lower court in ordering the dismissal of the case and in reserving to the provincial fiscal the presentation of another complaint or complaints under other provisions of the Revised Penal Code, is correct and should be upheld.

      Imperial, J.: “I concur in the preceding dissenting opinion of Justice Laurel.”