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

CONSIDERING

[1] That the Cebu Provincial Board earlier referred to its committee on laws the so-called Anti-Tabloid Ordinance for study;

[2] 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.

[3] 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;

[4] 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 Malacañang which warned that the proposal would violate the Constitution;

[5] 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;

CONSIDERING FURTHER

[6] 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;

[7] 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.”

[8] 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.

STATEMENT OF CEBU MEDIA LEGAL AID ON THE ANTI-TABLOID ORDINANCE OF THE PROVINCE OF CEBU, WHICH WAS OVERHAULED AND RE-TITLED, SEEKING TO BAN OBSCENE PRINTED MATERIALS IN THE PROVINCE AND TO CREATE AN ANTI-OBSCENITY BOARD

We, members of Cebu Media Free Legal Aid (Cemla) Inc., a duly incorporated non-stock, non-profit organization that serves as the legal adviser of the Cebu Citizens-Press Council (CCPC), discussed the above issue on Nov. 24, 2011 and came up with the following position.

[1] As a backgrounder, the Cebu Provincial Board earlier referred to its committee on laws the so-called Anti-Tabloid Ordinance for study;

[2] 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 since the Revised Penal Code’s provisions 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.
[3] 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;

[4] The Provincial Board committee on laws was apparently convinced of Cemla’s legal 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 Malacañang which warned that the proposal would violate the Constitution;

[5] The 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;

[6] 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;

[7] While the new version of the ordinance has responded to some 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.”

[8] Cemla has found these new provisions to be constitutionally flawed since it amounts to unreasonable search and seizure and offensive as they constitute prior restraint and violate due process of law. Cemla submits that AOB has no authority to inspect and investigate printed materials and neither has the governor the authority to order the seizure and confiscation of the materials they think 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 determines and decides.

—Confiscation of property, under the guise of obscenity, is not within the power of the AOB or the governor as it amounts to unreasonable seizure that the Constitution proscribes. 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); and

—Newspapers and magazines are highly perishable commodity. Inspection, investigation, and confiscation before a judicial determination can be had whether the publication is obscene or not constitutes prior restraint and infringes due process.

From the foregoing premises, Cemla most respectfully recommends to the Cebu Citizens-Press Council to express, strongly and clearly, its opposition to Section 9(b) and (c) of the proposed Provincial Board ordinance as they infringe the constitutional provisions on unreasonable searches and seizure, prior restraint, and due process of law, which would impair freedom of the press and property rights of publications.

CONSIDERING

That Cebu Media Legal Aid (Cemla), as legal adviser of Cebu Citizens-Press Council (CCPC), was asked by the CCPC executive director to study House Bill 2901, which seeks amendments to certain provisions of the Revised Penal Code regarding libels, particularly on the impact of the proposed legislation on press freedom and accountability;

That Cemla submitted its recommendations and CCPC has found them meritorious and, if the proposed amendments to the law on libel are approved, CCPC believes they will enhance press freedom without diminishing the duty of journalists to account for what they publish;

NOW THEREFORE, BE IT RESOLVED, as it is hereby resolved that Cebu Citizens-Press Council (CCPC) support the following proposed amendments of House Bill 2901 —

[1] In Section 1, making “any discussion of public concern or criticism of official conduct of public figures, qualifiedly privileged”:

Privileged communication is expanded with respect to public libel, which means there’s no longer a presumption of malice with respect to any discussion about official conduct or conduct of public figures, unless it is shown by the prosecution “to be false and shown to have been made by the defendant knowing its falsity or with reckless disregard of whether it is false or not.”

While the Supreme Court has already decided that the scope of privileged communication covers any discussion on public conduct and about public figures, even in the absence of express legislation, the proposed specific legal provision is both a reminder to public officials and a warning to journalists.

[2] In Section 2, reducing the prescriptive period for the crime of libel to six (6) months counted from the first publication, airing, or exhibition of the libelous material:

Prescriptive period is one year, which is too long for a complainant to decide on whether to sue.

[3] In Section 5, providing that a defamatory article “passed through the said publisher, editor, or business manager for editing and required the latter’s approval for publication” before the said publisher, editor, or business manager may be held liable:

The amendment will correct the gross anomaly of making a publisher, editor, or business manager liable for a material that didn’t pass through him and he didn’t approve for publication. Malice, or ill-will or spite, cannot logically be attributed to a person who hadn’t even seen the offensive material before publication.

[4] In the same section 5, on the requirement of venue, in case of libel filed against a community journalist, providing that “the venue shall be the Regional Trial Court of the province or city where the principal office of the publication is located…”

The amendment will spare community journalists and publications and broadcast stations, which are financially distressed, to bear the additional burden of defending themselves against complaints filed far outside their principal office of publication. Even on flimsy accusations, community journalists and media organizations are already punished by the heavy cost of the lawsuit alone.

CCPC has also supported a similar proposal that Cemla crafted (introduced as House Bill 77 by then Rep. Raul del Mar in the 13^th Congress; approved as House Bill 431 in the 14^th Congress, with Rep. Raul del Mar as principal author and Reps. Matias Defensor Jr., Eduardo Gullas, Amelita Villarosa, Eufrocino Codilla Sr., Neptali Gonzales, Del De Guzman, Victor Agbayani, Rene Velarde, and Roman Romulo as co-authors; and re-filed as House Bill 371 by Rep. Cutie del Mar in the 15th Congress).

BE IT RESOLVED FURTHER that copies of the resolution be provided to proponent Giorgidi B. Aggabao, the members of the House committee on public information; other House members from Cebu; and the Philippine Press Institute (PPI) and Center for Media Freedom & Responsibility (CMFR).

APPROVED BY THE CEBU CITIZENS-PRESS COUNCIL, this sixth day of December, 2011 at the MBF Cebu Press Center in Sudlon, Lahug, Cebu City.

STATEMENT OF CEBU MEDIA LEGAL AID ON HOUSE BILL 2901, INTRODUCED BY GIORGIDI B. AGGABAO, IN THE FIRST REGULAR SESSION OF THE 15TH CONGRESS, PROPOSING AMENDMENTS TO PROVISIONS ON LIBEL IN THE REVISED PENAL CODE

We, members of Cebu Media Free Legal Aid (Cemla) Inc., a duly incorporated non-stock, non-profit organization that serves as the legal adviser of the Cebu Citizens-Press Council (CCPC), commend the initiative of House Rep. Giorgidi B. Aggabao to enhance and strengthen the provisions on libel in the Revised Penal Code.

[1] Under the Revised Penal Code, malice is an element of libel without which there can be no libel. However, Article 354 of the Revised Penal Code also provides that malice is presumed in every defamatory imputation, except in the following qualified privileged communication:

(a)    A private communication made by one person to another in the performance of any legal, moral or social duty; and

(b)    A fair and true report, made in good faith, without any comments or remarks of any judicial, legislative or other official proceedings which are not confidential in nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

The Supreme Court, however, in several decisions, concluded that the two enumerations under Article 354 as aforecited are not exclusive. The Supreme Court, by manner of judicial legislation, has declared that discussions of any matter of public concern or criticism of official conduct or conduct of public figures, although defamatory, are not presumed to be malicious, unless these were made despite knowledge of their falsity or with reckless disregard of whether they are false or not.

Section 1 of House Bill 2901 seeks to expand the scope of qualified privileged communication with respect to libel by incorporating the abovecited judicial legislation into the provisions of libel in the Revised Penal Code.

[2] Article 90 of the Revised Penal Code provides that libel prescribes in one year.

Section 2 of House Bill 2901 seeks to shorten the prescriptive period for libel to six months counted from the date of the first publication, airing or exhibition of the libelous material, which is certainly beneficial to journalists.

With such reduction in libel’s prescriptive period, complainants would only have six months within which to decide whether or not to sue for libel. Beyond that period, they can no longer sue for libel.

[3] Article 360 of the Revised Penal Code makes editors, publishers or business editors liable for libel to the same extent as if they were the author of the libelous material.

Section 5 of House Bill 2901 seeks to make editors, business managers or publishers liable for libel only if the said libelous material passed through him.

This amendment will correct the anomalous situation of making editors, publishers and business managers liable for libelous materials which they have not even read, more so, approved. The logic behind the amendment is simply that, malice, also known as spite or ill-will or bad motive, could not be attributed to a person who has not even read the alleged offensive material.

[4] The same section of House Bill 2901 further seeks to limit the venue for libel against community journalists to the Regional Trial Court in the place where the principal office of the publication is located.

With such amendment, community journalists, publications and broadcast stations, who are financially distressed, will be spared the additional burden of having to defend themselves in libel cases filed far from their principal place of publication. The sheer act of filing libel cases in distant places, though flimsy and unsubstantiated, can already be taxing on community journalists who have to bear the high costs of litigation.

MEMORANDUM OF UNDERSTANDING: PNP REGIONAL OFFICE 7 AND CEBU MEDIA MANAGERS

RECOGNIZING the importance that the Police can enforce the law in hostage-taking and similar crisis situations without obstruction from the Media and Media can perform its work of covering the news event without unnecessary restriction from Police;

REAFFIRMING the imperative of protecting lives and properties and valuing public safety as paramount in a crisis coverage; and

APPRECIATING the need for the Police to adhere to constitutionally guaranteed rights of access to information and transparency and for Media to exercise its freedom responsibly;

WHEREAS, the Philippine National Police (PNP) through the Police Regional Office (PRO) 7 asked Cebu Media to consider a draft agreement on guidelines regarding coverage of hostage situations, demonstrations and rallies, civil disturbances, police raids and the like which involve operations in a crisis incident;

WHEREAS, the request was raised to the Cebu Citizens-Press Council (CCPC) which suggested that it be taken up not just by police and defense reporters but also by news managers of newspapers and broadcast stations who direct coverage by reporters, photographers and TV camera crews during such crisis incidents;

WHEREAS, the CCPC in its en banc membership meeting last Feb. 25, 2011 at MBF Cebu Press Center, after hearing the region’s top police officers, decided that under CCPC auspices, news managers may agree on a Memorandum of Understanding with PRO 7 after threshing out thorny points and refining the PNP draft;

WHEREAS, on March 23, 2011, a group of representatives from PRO 7 and news managers from Cebu broadcast and print with CCPC officers met at the PNP Media Center and discussed the PNP proposal; and on June 30, 2011, CCPC agreed to discuss further the points raised by some Kapisanan ng mga Brodkaster ng Pilipinas (KBP) members; and since then there have been at least six drafts circulated among the would-be signatories and the final draft reflects the intents of the parties concerned;

AND CONSIDERING that

[1] This Memorandum of Understanding will clarify the position of both Police and Media on the conduct of both sides during coverage of any crisis incident;

[2] The MOU will help avoid unnecessary loss of lives and destruction of properties and reduce the blame-tossing after any fiasco in police operations;

[3] The MOU will encourage both sides to be circumspect in their roles, given the risk involved, without obstructing police work and yet not impeding free flow of information;

NOW THEREFORE, Cebu’s news media managers and police officials DO HEREBY AGREE to adopt this Memorandum of Understanding:

POLICE EXPECTATIONS OF MEDIA

[1] That Media follow basic guidelines on coverage of a crisis situation involving the Police, as defined—

a.    [for print]: in their respective in-house guidelines for news coverage, as supplemented by guidelines from Philippine Press Institute (PPI) and Center for Media Freedom & Responsibility (CMFR);

b.    [for broadcast]: in their respective in-house guidelines for news coverage, supplemented, for KBP members, by the 2007 Broadcast Code of the Philippines as amended on Oct. 20, 2010 and, for non-KBP members, guidelines on crisis coverage issued by press organizations to which they belong.

[2] That the Media observe the guidelines laid down by their respective news outlets and other media organizations, including those on proper identification of journalists through press IDs or other visible insignia; police lines; preserving crime scenes; conducting interviews with suspects, victims or relatives; broadcasting police plans or movements; withholding some information; and other sensitive situations, trusting the Media to seriously reflect on the adverse consequences of a failed police operation;

[3] That Media practitioners consider not just their personal safety during coverage but also the safety of others—especially those of civilians, victims, and law enforcers—who are caught in the crisis;

[4] That the Media, using its best judgment, avoid language that instigates violence, stirs hysteria, or provokes public hatred or contempt of the authorities, which goes beyond reporting and explaining the news; instead, that Media be encouraged to tell its audience why some information is being withheld;

[5] That the Media conduct its coverage of crisis incidents with: (a) full regard for the personal safety of its journalists, (b) respect for the job of law enforcers, taking care not to disrupt or derail it, and (c) appreciation of the danger to lives and properties of people if police work fails.

[6] That the Media, through the news managers and allied media organizations like the Cebu Citizens-Press Council, disseminate the guidelines among their journalists and to the public.

MEDIA EXPECTATIONS OF POLICE

[1] That the Police designate a spokesperson or liaison during a crisis coverage, whose appointment shall be disseminated immediately to the press at the scene and to the various newsrooms directing coverage; such liaison shall relay police advice or request, and give updates on the police operation;

[2] That the Police know and appreciate how the Media works in covering a crisis incident, what journalists must do even as the story is developing, and its obligation to the public; thus, any restrictions are basically on live coverage and are temporary and shall be lifted as soon as danger to police operations and lives and properties of people has passed;

[3] That the Police respect the decision of an individual news organization on how it conducts its news coverage, knowing that ultimately each news outlet and its news managers are accountable to the public and the law;

[4] That the Police recognize Media’s practice of self-regulation and that exercises in cooperation and dialogue with the Police don’t constitute a waiver of Media’s rights.

[5] That the Police disseminate the guidelines under this memorandum among police officers and personnel.

ENFORCEMENT

The agreement carries no penalty or sanction. But both parties are deeply committed to carrying out their respective roles guided by this agreement out of a shared concern for the welfare of the community and the importance of a well-informed citizenry.

SIGNED this 22nd day of September in the year of our Lord 2011, at Harolds Hotel in Lahug, Cebu City, Philippines.

We, members of Cebu Media Legal Aid (Cemla), which was organized under the auspices of Cebu Citizens-Press Council (CCPC), view with alarm the proposed ordinance pending with the Cebu Provincial Board that would ban tabloids in the towns and cities of the Province.

While the proponents are apparently well-intentioned, concerned about protecting community values, and Cemla rejects obscenity, we believe the proposal is unconstitutional, unnecessary, and dangerous.

UNCONSTITUTIONAL

It violates the Constitution because:

[1] It is ambiguous and misinformed.

Under the ordinance, a tabloid is erroneously defined. It classifies any small-sized and obscene paper as a tabloid. It equates tabloids with obscenity. There are tabloids that are not obscene (most community papers in the country are tabloids) just as there are broadsheets that are obscene. Its ambiguity and deceptiveness are fatal flaws in any legislation.

[2] It is prior restraint, a no-no in a democracy.

It is government ban prior to publication and circulation. Categorizing tabloids as contraband, it prohibits the sale, distribution, possession or exhibition of tabloids and similar reading materials with “immoral or indecent” content. Declaring tabloids as illegal or nuisance per se, which considers them subject to seizure, is a “content-based restraint or censorship” on freedom of speech and the press.

Restriction of circulation already constitutes censorship. How much more treating tabloids and similar reading materials as contraband or nuisance per se?

The “over-breadth doctrine” prohibits government from achieving its purpose “by means that sweep unnecessarily broadly…” Legitimate interest of government can be satisfied without going so far as to reach into “protected freedom.” Over-breadth “should be slain in sight whenever it rears its ugly head.”

Furthermore, under the Local Government Code, local governments may regulate but not prohibit activities or trades that are not illegal per se. Banning tabloids would therefore be “ultra vires,” or outside the authority
of the Provincial Board.

[3] It is a breach of the equal protection clause.

It targets tabloids mostly if not solely. While it mentions “similar reading materials” purportedly to cover the rest of the print industry, it omits broadcast (radio and TV), the cinemas, billboards, advertising vehicles, and allied sources of information, and the new media in the internet where obscenity may also be found.

The ordinance impresses us that the sole source of obscenity are only reading materials, principally the tabloids. Equal protection clause requires that laws are “implemented and applied equally and uniformly on all persons under similar circumstances…”

Can material in a tabloid be more gross than similar material in, say, internet or broadcast?

[4] It transgresses due process of law.

The ordinance allows, without prior hearing and lawful court order, confiscation and detention of tabloids and printed materials by the local government unit that finds them obscene.

By considering the reading materials obscene and contraband, government impedes and destroys legitimate business of publications, a property right that can’t be taken away without due process of law.

UNNECESSARY

[1] There are existing laws in the Revised Penal Code that prohibit obscenity, which laws have met the constitutional standard of validity.

A local government ordinance is needless unless it spells out the “aggregate sense of the community” on what is obscene, which is not necessarily what bureaucrats say is obscene.

But what is obscene? What does the community collectively see as obscene? Surely, not just how a group of functionaries defines it.

[2] The Supreme Court test before government can validly interfere with constitutionally guaranteed right of the press is whether “a clear and present danger” of the evil feared by the ordinance exists. “There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger.”

The ordinance merely assumes that because some reading materials contain a feature or features the proponents deem “sexually provocative,” the morals of the populace are already endangered.

DANGEROUS

The ordinance may be open to abuse as determination of what is obscene is left to town and city mayors who may have grudges against publications that publish adverse news or opinion.

Under both U.S. and Philippine jurisprudence, there is no clear and specific definition of obscenity. Our Supreme Court has consistently ruled that obscenity is determined by the courts, not just on the say-so of public officials or functionaries of boards or commissions.

Thus, the grave danger posed by the enforcement of the proposed ordinance.

(The volunteer lawyers of Cebu Media Legal Aid are Piedad “Bingo” Gonzalez, Fritz Quiñanola, Pedro Rosito, Elias Espinoza, Francisco Malilong Jr., Maria Dee Seares-Del Rosario, Pachico Seares, Rosemarie Versoza, Eddie Barrita, Lucille Karen Isberto, Ruphil Bañoc and Ian Manticajon.)

[This resolution was submitted by Cebu Media Legal Aid (Cemla), a loose group of lawyer volunteers, to the Cebu Citizens-Press Council (CCPC) at its quarterly en banc membership meeting at the MBF Cebu Press Center on June 30, 2011. The CCPC approved the policy.]

CONSIDERING that

[] Two local legislatures, the Cebu Provincial Board and the Cebu City Council, in separate incidents wanted the presence of journalists in their sessions to explain what they reported in their newspapers;

[] For a news story, reporter Rene Borromeo wrote in The Freeman of July 7, 2008 and for an opinion column Efren Lonzon wrote in Sun.Star Superbalita [Cebu] of May 18, 2011, the two legislative bodies separately invited the two journalists;

[] While they were both invitations, in the more recent incident, a city councilor in a letter to a newspaper made the threat, thinly veiled, to subpoena columnist Lonzon, citing Section 5, Article XV of the Rules of Procedure of the City Council, which in effect says that any person summoned to appear before it and refuses without justifiable cause may be cited in contempt;

[] In the two incidents, the journalists refused the invitations but explained their absence; fortunately, the two legislatures didn’t push the attendance of the journalists: the Provincial Board and, more recently, the City Council considered the matter closed;

[] The presence of such a provision in the house rules, at least in the case of the City Council, may spur bolder moves in the future, using their perceived power to drag journalists before legislators by issuing subpoenas instead of invitations; and

CONSIDERING FURTHER that

[] Local legislatures have not been granted by the Local Government Code the power to issue compulsory process and the power to punish for contempt and any such subpoena or summons would be “ultra vires” and therefore null and void (as decided by the Supreme Court in Arturo Umbac vs. Sangguniang Panglungsod of Dumaguete [GR #72492 of Nov. 5, 1987], which Atty. Fritz Quiñanola cited in a published letter reacting to the threat of the city councilor cited earlier;

[] Journalists are accountable for what they write or broadcast to their publishers and editors or station owners and news directors and to their public, not to public officials who may be aggrieved by the publication;

[] There are remedies available for any person offended by a publication or broadcast: right of reply in the opinion or news section or segment, letters to the management or the press council (depending upon the nature of the complaint), or even lawsuits, but they don’t include summoning a journalist before the local legislators, where an inquiry may quickly turn into an inquisition;

[] Such a forum may be used by the local legislature or any other government office or agency to hit back at, or harass, journalists and their news organizations and thus would create a climate of fear and intimidation;

NOW THEREFORE,

The Cebu Citizens-Press Council hereby declares this as position of the Council:

It encourages journalists and their news organizations to reject any subpoena or summons from local legislatures and to be cautious about invitations to explain before them news or opinion published in print or broadcast, without, however, disregarding accountability under established procedures and practices of the industry.

ENACTED this 30th day of June, 2011, at the quarterly en banc meeting of the Cebu Citizens-Press Council at the MBF Cebu Press Center in Sudlon, Lahug, Cebu City, Philippines.

[Cemla volunteers, mostly from media ranks, serve as legal arm of CCPC and help provide legal assistance to journalists. The members include Bingo Gonzalez, Fritz Quiñanola, Pedro Rosito, Elias Espinoza, Francisco Malilong Jr., Maria Dee Del Rosario, Rosemarie Versoza, Eddie Barrita, Lucille Karen Isberto, Ruphil Bañoc and Ian Manticajon.]

The shooting to death of radio news anchor Marlina Flores-Sumera of dzME last Thursday in Malabon prompts journalists anew to ask the Government to be more efficient in catching and prosecuting murderers so as to curb the impunity. The state’s record is hardly enviable.

While upgrading standards of publishing and broadcasting may help in stopping the serial attacks on journalists, it is still effective law enforcement that protects citizens who are at risk because of their work.

The Cebu Citizens-Press Council (CCPC) joins the rest of the journalism community in condemning the murder. May the criminal justice system
move more swiftly than it usually does.

Pachico A. Seares
Executive Director

March 25, 2011

POLICE officials and the media will work together to craft guidelines on media coverage during crisis situations and the protection of journalists from sexual harassment.

This comes after police officials led by Regional Investigation and Detective Management Branch Chief Patrocinio Comendador and Regional Police Community Relations (PCR) Division Chief and Public Information Officer Mariano Natuel discussed with media practitioners a draft memorandum of understanding (MOU) between the two parties that would restrict certain aspects of coverage when a crisis, such as a hostage-taking incident, is in progress.

The dialogue was held yesterday during the 22nd quarterly meeting of the Cebu Citizens-Press Council (CCPC) en banc at the MBF Cebu Press Center in Lahug.

Natuel said the police was open to comments on the document drafted by the Philippine National Police (PNP).

Comendador acknowledged, for instance, that while the draft agreement talked about the responsibilities of journalists, it did not tackle the responsibilities of the police.

During the meeting attended by editors-in-chief, news editors, news directors, and members of the Cebu Media Legal Aid, among others, CCPC executive director Pachico Seares suggested the formation of a small group composed of representatives from the police and the media to polish the guidelines, which do not have to be signed by the parties.

Each party could follow the guidelines voluntarily as part of its self-regulation efforts.

Restrictions

Kapisanan ng mga Brodkaster ng Pilipinas-Cebu officials Ruphil Bañoc and Leo Lastimosa said existing restrictions in the Broadcast Code could be considered in the discussions by the small group.

In 2009, the CCPC produced a brochure on safety tips for journalists covering natural disasters, public health emergencies and civil disorders, among others.

Natuel said he would show the brochure to the PNP and possibly incorporate some of its elements in the final guidelines.

Also discussed at the meeting was the need to protect journalists from sexual harassment.

Last week, a newspaper correspondent filed an administrative complaint against a local police chief for allegedly putting a hand on her breast and attempting to kiss her.

Law

Lawyer Jonathan Capanas, CCPC secretary, said Republic Act 7877 or the Anti-Sexual Harassment Act of 1995 may not protect journalists from harassment by news sources, as the law deals only with harassment by those with authority or moral ascendancy over others, such as employers over employees, or teachers over students.

While there are regulatory bodies like the Civil Service Commission that could punish policemen for certain offenses, Capanas said there is nothing about sexual harassment in the code of conduct governing the civil service.

Natuel suggested that the matter of protecting journalists from sexual harassment be taken up as well by the small group to be formed by the CCPC.

Deputy Provincial Director for Operations Teofilo Siclot, Mandaue City Police Office (MCPO) Director Noel Gillamac, Lapu-Lapu City Police Office Director Anthony Obenza, Supt. Arnel Banzon of the Cebu City Police Office PCR and the MCPO’s Carlos Gocotano also attended the dialogue.

The Cebu Citizens-Press Council (CCPC) and Cebu Media Legal Aid (Cemla) have noted that following the complaint filed by Cebu Daily News publisher/acting editor-in-chief Eileen Mangubat for the paper’s correspondent Carmel Loise Matus against Police Supt. Henry Biñas for alleged sexual advances on Matus last Feb. 8, 2011, these steps have been taken:

[] Sr. Supt. Patrocinio Comendador, chief of the Investigation & Detective Management Branch of the Regional Police Office, announced he will recommend a summary proceeding by hearing officers “if there’s substantial evidence to support the charge”;

[] Supt. Biñas has been reassigned from Talisay City, where he was police chief at the time of the questioned incident, to the Provincial Security Service Group after he resigned from the post last Feb. 18;

[] Key officers of the Cebu Federation of Beat Journalists (CFBJ), umbrella group of associations of reporters and photographers, on CCPC’s request, met last Feb. 17 to look into the incident and passed a resolution asking the police for a speedy inquiry;

[] Cebu Media Legal Aid (Cemla) volunteers met last Feb. 21 to assess the complaint, hear publisher Mangubat and CFBJ president Elias Baquero, and consider the published denial of Supt. Biñas;

[] CCPC members were apprised about the incident and presented with the documents on the case and a recommendation of executive director Pachico Seares;

Those developments considered, Cebu Citizens-Press Council and Cebu Media Legal Aid hereby announce that:

– They ask the police to complete its summary proceeding on the complaint as soon as possible, trusting that PNP will be professional and fair in resolving the case;

– CCPC will hold a sober and non-confrontational dialogue between news managers from print and broadcast media and top-ranking police officers in the region on common problems such as the rules in covering crisis incidents and problems that may arise between news reporters and news sources during any coverage (schedule is Friday, Feb. 25, 2011 at MBF Cebu Press Center);

– Support of Cemla lawyers is available when needed and sought for by complainants and other media practitioners in legal distress, its mandate as an adjunct of the Cebu Citizens-Press Council.

Issued this 22nd day of February, 2011, at the MBF Cebu Press Center, Cebu City, Philippines.

Certified correct as approved by majority of the members of CCPC and Cemla:

CHERRY ANN T. LIM
Assistant Executive Director
Cebu Citizens-Press Council