Group finds issues in ordinance
Cemla says proposed board can’t give itself power over tabloid content
By Karlon N. Rama
Sun.Star Cebu, December 7, 2011
THE reincarnation of the Provincial Government’s proposed anti-tabloid ordinance, now renamed the Anti-Obscenity Ordinance, triggers discussion among the members of the Cebu Citizens-Press Council (CCPC).
After a review by the Cebu Media Legal Aid (Cemla) and feedback from lawyer Earl Bonachita, president of the Cebu City Chapter of the Integrated Bar of the Philippines, the council found two provisions in the draft law that violates Constitutional guarantees.
“These new provisions (are) constitutionally flawed since it amounts to unreasonable search and seizure, and offensive as they constitute prior restraint and violate due process of law,” the council said in a statement following its last quarterly meeting for 2011 yesterday.
The “flawed” provisions refer to section 9(b) and 9(c) of the proposed anti-obscenity measure. The first grants unto a to-be-created Anti-Obscenity Board (AOB) the power to “conduct inspection and/or investigation on any and all printed or written materials for sale, distribution, or exhibition to the public, to see if such materials are not violative of the ordinance.”
The second, meanwhile, grants unto the same board the “power to recommend to the provincial governor the confiscation or forfeiture of any and all printed or written materials upon finding the same to be obscene.”
Represented in yesterday’s council meeting by its president, lawyer Elias L. Espinoza, Cemla maintains that the proposed AOB cannot give itself the power to “inspect and investigate” because only the court can order seizures. Besides, Espinoza stressed, even the court observes the proper legal steps as enumerated by the Supreme Court in Pita vs. Court of Appeals.
On the governor’s authority to confiscate upon finding that a publication contains obscenity, Cemla said this power is reserved for the courts.
“Obscenity, the Supreme Court has always ruled, is an issue that is proper for judicial determination and should be treated on a case-to-case basis and on the judge’s sound discretion. It is not for a board or the governor to determine obscenity,” the council’s statement read.
The provisions of Sec. 9(b) and 9(c) in the draft ordinance followed the move of the Cebu Provincial Board (PB) to scrap the original measure – the anti-tabloid ordinance.
CCPC also opposed that measure for being “ambiguous and misinformed, having declared tabloids as contraband and equated tabloids with obscenity.”
The CCPC’s position was shared by other sectors, including the Kapisanan ng mga Brodkaster ng Pilipinas.
The PB overhauled the measure but, in so doing, came up with the proposed ordinance creating the AOB and giving it powers.
“Cemla and CCPC recognize the authority of the Provincial Board to enact ordinances aimed to promote the general welfare, as long as they don’t infringe on freedoms guaranteed by the Constitution,” the CCPC statement read.
During its last en banc meeting for 2011, the CCPC board also lauded the initiative of Rep. Giorgidi Aggabao (4th District, Isabela) to amend the Revised Penal Code provision on libel by reducing the prescription period and limiting venues.
If approved, his amendment will give people intending to file libel charges against journalists six months from the time of discovery to initiate their criminal action. The current period is one year.
The second proposed area of amendment, meanwhile, is seen to put an end to using the court to harass community journalists.
Under the amendment, a public official who intends to file a complaint against a journalist can no longer file it in his hometown or the place where his office is located. The complaint can only be filed in the principal area of business of the publication he or she intends to sue.
POSITION OF THE CEBU CITIZENS-PRESS COUNCIL ON THE PROPOSED ORDINANCE, ORIGINALLY TITLED ANTI-TABLOID ORDINANCE BUT ALREADY OVERHAULED AND RE-TITLED, SEEKING TO BAN OBSCENE PRINTED MATERIALS IN CEBU PROVINCE AND TO CREATE AN ANTI-OBSCENITY BOARD
 That the Cebu Provincial Board earlier referred to its committee on laws the so-called Anti-Tabloid Ordinance for study;
 That the Cebu Media Legal Aid (Cemla), CCPC’s legal adviser, vigorously opposed the original proposal because:
a) it violated the Constitution since it
—was ambiguous and misinformed, having declared tabloids as contraband and equated tabloids with obscenity;
—constituted prior restraint;
—breached equal protection of laws; and
—transgressed due process of law; which are all gross and serious flaws that made the proposal constitutionally offensive at its core;
b) it was unnecessary because existing laws in the Revised Penal Code prohibit obscenity and they have met the constitutional standard of validity; and
c) it was dangerous, as it entrusted enforcement, which included seizure of printed materials, including tabloids, to town and city mayors in the province who might have ax to grind against the publications.
 That CCPC heard the position of Cemla and that of the authors of the ordinance (who sent representatives) during CCPC’s en banc meeting last Sept. 22, 2011 at Harolds Hotel;
 That the Provincial Board committee on laws was apparently persuaded by Cemla stand and the opposition of other sectors, including Integrated Bar of the Philippines (IBP) Cebu City chapter, Kapisanan ng mga Brodkaster ng Pilipinas (KBP) Cebu, and Malacańang which warned that the proposal would violate the Constitution;
 That the said PB committee on laws totally overhauled the original ordinance and came up with a new version which proposed the prohibition of the “sale, distribution and exhibition of obscene printed or written materials” and the creation of an Anti-Obscenity Board;
 That CCPC recognizes the right of local legislatures to enact ordinances aimed to promote the general welfare, as long as they don’t infringe on freedoms guaranteed by the Constitution, and CCPC also opposes obscenity as defined by the Supreme Court;
 That while the new version of the ordinance has responded to many of the objections of Cemla and other organizations, it includes among the powers of the proposed Anti-Obscenity Board (AOB):
—under Section 9 (b) the power “to conduct inspection and/or investigation on any and all printed or written materials for sale, distribution, or exhibition to the public, to see if such materials are not violative” of the ordinance; and
—under Section 9 (c) the power “to recommend to the provincial governor the confiscation or forfeiture of any and all printed or written materials upon finding the same to be obscene.”
 That Cemla has found those provisions to be constitutionally offensive as they constitute prior restraint and violate due process of law since, Cemla submits, the AOB has no authority to inspect and investigate printed materials and neither has the governor the authority to seize and confiscate materials they find to be obscene:
—Obscenity, the Supreme Court has always ruled, is an issue that is “proper for judicial determination and should be treated on a case-to-case basis and on the judge’s sound discretion.” It is not for the board or the governor to determine obscenity. They may file a complaint for obscenity but it’s the court that decides.
—Confiscation of property, under the guise of obscenity, is not within the power of the AOB or the governor. Only the court can order the seizure after proper legal steps are taken which are enumerated in Pita vs. Court of Appeals (GR #80806, Oct. 5, 1989);
—Newspapers and magazines are highly perishable commodity. Inspection, investigation, and confiscation before judicial determination of obscenity constitute prior restraint and violation of due process;
NOW THEREFORE BE IT RESOLVED, AS IT HEREBY RESOLVES, that the Cebu Citizens-Press Council express, strongly and clearly, its opposition to Section 9 (b) and (c) of the proposed Provincial Board ordinance as they offend the constitutional provisions on prior restraint and due process of law, which would impair freedom of the press and property rights of publications;
BE IT ALSO RESOLVED that a copy of the resolution be provided to the Provincial Board for its consideration and that Cemla volunteers through its president Elias Espinoza be authorized to represent CCPC at any public hearing the Provincial Board may call on the proposed ordinance;
BE IT RESOLVED FINALLY that a copy of the Cemla position on the issue be annexed to this document.
UNANIMOUSLY APPROVED this sixth day of December, 2011, during CCPC’s 25th en banc meeting at the MBF Cebu Press Center, Sudlon, Lahug, Cebu City, Philippines.