Cebu Citizens-Press Council

CCPC RESOLUTION ON PROPOSED AMENDMENTS TO CEBU CITY ORDINANCE ON ANTI-OBSCENITY

WHEREAS…

[] Cebu City Councilor Lea Ouano-Japson filed an ordinance proposing amendments to Ordinance #1408, also known as the Anti-Indecency Ordinance, which the Committee on Laws, Ordinances, Public Accountability and Good Government, in its report dated ” August 20, 2014,” said was “within the power” of the City Council to enact;

[] The City Council has scheduled a public hearing on Oct. 8, 2014, a Wednesday, for parties concerned to express their views;

[] The proposed amendments include:

1. The power of the Cebu City Anti-Indecency Board (CCAIB) to “conduct frequent inspections and investigations” on “all bookstores, magazine shops/newspaper stands,” among others, and for that purpose, “owners, managers or promoters shall give full and unconditional access to the BOARD or its duly authorized members or deputies in order to conduct inspection of their establishments at any time of the day or night EVEN WITHOUT ANY PRIOR COURT ORDER” [section 3, b of original ordinance] [emphasis supplied];

2. Expanding the list of unlawful acts, among which are “(l) to sell magazines which contains [sic] sensual sexual stories/columns; (m) to sell tabloids which contains (sic) lewd pictures or titillating stories/columns” [section 7, l and m of original ordinance];

3. Declaring that “printed circulation obscene pictures, films, books, sex toys, shall be CONFISCATED AND USED AS EVIDENCE AGAINST THE VIOLATORS [emphasis supplied] [section 12 of original ordinance].

WHEREAS…

[] The Cebu Citizens-Press Council (CCPC) in a resolution dated Dec. 6, 2011 opposed the then proposed “tabloid ordinance” of the Cebu Provincial Board that sought to empower the governor to confiscate newspapers, magazines, and other printed materials the province obscenity board (to be called Provincial Anti-Obscenity Board) would deem obscene;

[] CCPC, in another resolution dated July 17, 2014, condemned “the practice of unlawful seizures of published materials that would violate the Supreme Court guidelines for determining obscenity and confiscation of obscene materials.”

(CCPC action followed the confiscation last June by CCAIB of 237 magazines from BookSale located at SM City Cebu, without search warrant and authority to seize copies of the publications.)

CONSIDERING…

[] The proposed amendments to the city ordinance were approved and set for public hearing by the Committee on Laws after CCPC had raised and publicized its opposition, thus clearly ignoring its warning that the CCAIB practice violated the Supreme Court dictum on seizures of printed materials that are suspected to be obscene;

[] Warning was cited by CCPC in its two resolutions about the Supreme Court decision of Oct. 5, 1989 (Pita vs. Court of Appeals Scra 362), which ruled that ONLY A COURT OF LAW CAN DETERMINE OBSCENITY, AND THUS CONFISCATION OF PRINTED MATERIALS WITHOUT COURT APPROVAL WOULD BE UNLAWFUL CONFISCATION OF PROPERTY [emphasis supplied];

[] Confusion by CCAIB managers may have been caused by a reported RTC ruling on FHM magazines, which were among those confiscated by CCAIB from BookSale. The court ruled on specific issue/issues, which didn’t or shouldn’t cover all issues, as content of publications vary from issue to issue.

Otherwise, the ruling, if it did ban all issues of FHM magazines, would constitute prior restraint and would be unconstitutional.

[] Basic reason that printed materials—unlike “sex toys” (with which newspapers and magazines are lumped in the proposed amendment)—cannot be confiscated outright is that they’re not contraband or illegal per se. This should not be lost on the Committee on Laws that is presumably composed of, or advised by, lawyers.

CONSIDERING FURTHER…

[] The CCPC has repeatedly declared that it supports efforts of anti-obscenity agencies as long as they don’t impair other freedoms, particularly freedom of speech and press;

[] What CCPC opposes is the violation of procedure laid down by the Supreme Court in interpreting obscenity laws and ordinances—WHICH NO LAW OR ORDINANCE OR EVEN A LOWER COURT RULING CAN VIOLATE;

[] The proposed amendments to the anti-indecency ordinance would fail the test of a valid ordinance (as laid down in the City of Manila vs. Hon. Laguio, GR #118127), which include a guaranty “to protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction without a trial and conviction by ordinary mode of judicial procedure…”

Newspapers and magazines are highly perishable material and would be devalued by unauthorized seizures.

NOW THEREFORE, on recommendation of Cebu Media Legal Aid (Cemla), the Cebu Citizens-Press Council hereby resolves that it:

[1] STRONGLY OPPOSE the proposed amendments to the Cebu City anti-indecency ordinance on the power of CCAIB to confiscate without court order, printed materials in bookshops and newsstands;

[2] REQUEST and AUTHORIZE Cemla and CCPC representatives to present formally the position of the Council at the scheduled public hearing.

[3] INCLUDE as attachment and part of this resolution the two CCPC resolutions of Dec. 6, 2011 and July 17, 2014.

APPROVED this 25th day of September, 2014 during an en banc membership meeting of the Cebu Citizens-Press Council at Quest Hotel and Conference Center in Cebu City, Philippines.

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.

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.

RESOLUTION REPEATING AND CLARIFYING STAND OF CEBU CITIZENS-PRESS COUNCIL (CCPC) ON OBSCENITY AND CONFISCATION OF PRINTED PUBLICATIONS BY THE ANTI-INDECENCY BOARD

WHEREAS…

[] Last month, the Cebu City Anti-Indecency Board (CCAIB), without any search warrant, barged into BookSale located inside SM City Cebu and confiscated FHM, Cosmopolitan and Maxim magazines and Kamasutra books for allegedly being obscene and/or pornographic.

[] The Cebu Citizens-Press Council, through its deputy director, was asked by media to comment on the confiscation of the 237 magazines from the dealer by the Cebu City Anti-Indecency Board (CCAIB).

[] CCPC’s press statement, released by its executive director on July 8, 2014, restated the position the Council adopted last Dec. 6, 2011, which opposed the provision of the then proposed “tabloid ordinance” of the Cebu Provincial Board that would have empowered the governor to confiscate newspapers, magazines and other printed materials the province obscenity board (to be called Provincial Anti-Obscenity Board) would deem obscene.

[] The same resolution, recommended by Cebu Media Legal Aid (Cemla), the Council’s legal adviser, cited the Supreme Court decision of Oct. 5, 1989 (Pita vs. Court of Appeals, 178 Scra 362) that only a court of law can determine obscenity, and thus confiscation of printed materials without court imprimatur would be unlawful confiscation of private property.

[] The same resolution emphasized that any authority delegated by government, local or national, to an agency or body tasked to enforce anti-obscenity rules should be subject to that requirement: no confiscation unless obscenity is first determined by a court of law.

CONSIDERING…

[] The CCPC believes that the requirement apparently is derived from the controversy over defining the kind of obscenity that must be suppressed for public good and from the fact that materials to be seized are often not contraband or illegal per se. While the body or agency implementing the anti-obscenity law or ordinance can recommend, it is for the court to decide what is obscene and may be removed from circulation even before start of trial.

[] CCAIB, from its public statements, believes that it observed due process in the recent raids and confiscation, which belief is patently erroneous as it violated a clear and specific requirement of the Supreme Court. With this, it is feared that CCAIB might extend its warrantless seizures to other newspapers, magazines and publications, which it classifies as obscene.

[] Newspapers and magazines are highly perishable; seizing and impounding them and, worse, burning or shredding them before their obscenity is decided by a court of law would injure private business—and more: it would constitute prior restraint and thus impede and violate free speech and free press.

[] Ordinance No. 1408 of the Cebu City Council, approved by the city mayor on Sept. 27, 1991, cannot be deemed superior to, and must conform with, the Supreme Court precept of determination of obscenity prior to any seizure, as promulgated in a string of cases, notably the Pita vs. Court Appeals ruling of Oct. 5, 1989.

CONSIDERING FURTHER…

[] CCPC’s view is misunderstood by some anti-obscenity advocates as the Council’s support to lewdness and pornography, which is erroneous as CCPC supported and will continue to support efforts of anti-obscenity agencies as long as they don’t impair other freedoms.

NOW THEREFORE, on motion of all members present, be it RESOLVED, as it is hereby resolved, that CCPC categorically and vigorously restate its position:

[1] While it appreciates the motive of anti-obscenity agencies of government and private sectors, it condemns the practice of unlawful seizures of published materials that would violate the Supreme Court guidelines for determining obscenity and confiscation of obscene materials;

[2] The Council requests higher government officials to whom local anti-indecency boards are accountable to caution them to observe due process as prescribed by law and jurisprudence.

APPROVED THIS 17th day of July, 2014 during the 35th en banc session of the Cebu Citizens-Press Council at the MBF Cebu Press Center, Sudlon, Lahug, Cebu City, Philippines.