Cebu Citizens-Press Council

CEMLA’S STAND ON PROPOSED ANTI-OBSCENITY ORDINANCE
Nov. 24, 2011

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.