In the ongoing debate about whether Martin Nievera’s rendition of Lupang Hinirang during the Pacquiao-Hatton fight should be the subject of criminal prosecution for allegedly violating the Flag law, reliance has been had on the literal provision of the law which prohibits the ‘rendering of the song’ in a manner that departs from the original score of the national anthem. Little thought has been devoted on whether even assuming there is a breach of the law, the matter could be acted upon by our courts and whether the flag law itself could stand the scrutiny of constitutionality.
First, the said rendition cannot be made the subject matter of any criminal proceeding because it was sang outside Philippine jurisdiction, in Las Vegas, Nevada. It therefore cannot fall within the jurisdiction of Philippine courts.. It is axiomatic that criminal jurisdiction is anchored principally on territorial jurisdiction, that is, courts can only hear and decide cases over incidents that took place within its territorial jurisdiction. While this rule is subject to exceptions, such as in cases involving piracy, counterfeiting of currency, and prosecution of war crimes and torture, the singing of the national anthem in an altered manner does not fall within the exceptions.
Second, and more importantly, the Flag law itself is subject to attack on the ground that it is unconstitutional for violating freedom of expression . In the recent case of David vs. Arroyo, our Supreme Court said that any act, including a law, that curtails a protected right, such as freedom of expression, is presumed to be unconstitutional. The burden of proving that the singing of an anthem in an altered manner falls within the state’s police power lies with the State. Nothing short of a clear and present danger arising from the altered rendition could sustain the infringement of the freedom particularly here where Mr. Martin Nievera can rightfully invoke artistic license.
The situation is analogous to statutes declaring flag burning as criminal offense in the United States. In these cases, the US Supreme Court has consistently ruled that these statutes are unconstitutional for violating freedom of expression. As held in the case of Texas vs. Johnson: “If there is a bedrock principle underlying the First Amendment, it is clear that Government may not prohibit the expression of an idea simply because society itself finds the idea itself offensive or disagreeable.”
Martin’s singing of our beloved Lupang Hinirang in Las Vegas may have been in bad taste but it certainly does not constitute criminal conduct. Call it artistic license exercised in bad judgment but it is still constitutionally-protected free expression and therefore not subject to criminal prosecution.