Canned Thoughts

The regulation of expressions of patriotism within the confines of conservative parameters is but an indicator of veiled fascism.

News article titles like “Charges vs Martin Nievera eyed over anthem rendition” brought this author to write his position on the issue relevant to the non-standard rendition of the Philippine National Anthem by the Philippine singer Martin Nievera, during the Pacquiao-Hatton boxing fight in Las Vegas, Nevada, USA.

News articles refer to Section 50 of Republic Act 8491 (or the “Flag and Heraldic Code of the Philippines”) when they bring about the possibility of the imposition of penalties on the singer for such rendition. Section 50 of the said law provides that:

Any person or juridical entity which violates any of the provisions of this Act shall, upon conviction, be punished by a fine of not less than Five thousand pesos (P5,000) nor more than Twenty thousand pesos (P20,000), or by imprisonment for not more than one (1) year, or both such fine and imprisonment, at the discretion of the court: Provided, That for any second and additional offenses, both fine and imprisonment shall always be imposed: Provided, further, That in case the violation is committed by a juridical person, its President or Chief Executive Officer thereof shall be liable.

Section 50 is a penal provision. It makes a violation of RA 8491 a criminal liability. The covered acts are taken to be illegal, not because the nature of the act necessitates that they be taken as such according to their nature, but because the law, and through this specific law, prohibits these acts from being pursued. It is not malum in se, but malum prohibitum.¹

Nevertheless, the perceived problem with the application of Section 50 herein is the appreciation of jurisdiction over the matter in controversy. There is nothing in RA 8491 which has the import of extending the application of this particular law over acts committed outside of Philippine territory, considering that venue relates directly to jurisdiction in criminal cases or penal matters, similar to the tenor provided in Article 2 of the Revised Penal Code (Act 3815). The act was committed in the United States. The fact that the questioned performance was shown over the Philippines should not provide for the justification in the expansion of the scope relevant to the singer’s act, inasmuch as the artist was not the one responsible for the transmission of such performance to the Filipino audience in Philippine soil.

This is a personal opinion, and not a legal advice.

1. Reaction to: Lupang Hinirang, Not Criminal Conduct [↩]

May 8th, 2009 | Category: Legal Positions | Subscribe to comments | Leave a comment | Trackback URL