By Pachico A. Seares
Public & Standards Editor
Sun.Star Cebu and Sun.Star Superbalita [Cebu]
Before any public discussion of the anti-tabloid ordinance, this must be made clear:
Opposition of lawyer-journalists of Cebu Media Legal Aid (Cemla) and IBP members and the warning of the Palace to the Cebu Provincial Board rest almost entirely on constitutional defect of the proposed ordinance.
The ordinance which would make tabloids contraband subject to seizure (a) violates a host of “free-speech, free-press” principles, including prior restraint, confiscation of property without due process, and unequal protection, and (b) exceeds the legislature’s authority.
It’s not just legal mumbo-jumbo that we can ignore. It goes into the most basic rights which, removed or diminished, threaten the freedom that protects the other freedoms. It involves a fatally flawed law.
Are opposers just being “lawyerly” or being “legally technical”? Good Lord, it’s the Constitution, which in this country should rank next to the 10 Commandments.
Crux of issue
Any public talk about the proposed ordinance must stab into the crux of the issue. What’s disputed is its constitutionality, whether the courts won’t declare the ordinance void.
There is no quarrel about obscenity. Opposers are categorical about rejecting obscenity and appreciating the concern of the authors over the community’s moral welfare.
If papers, radio stations, TV shows, internet websites, billboards, and many other media violate the obscenity law, drag them to court and prove your case before the prosecutor or judge.
Cebu City Hall has done that against two Bisaya-Cebuano dailies, to which they politely submit. Fiscals and judges will assess the complaint, not some town or city politician whose idea of obscenity must not be the final word.
Not the solution
Solution is not the anti-tabloid ordinance, in its present substance and package.
Not only is the ordinance constitutionally infirm, it places in the hands of politicos the power to decide what’s pornographic, a task that even the courts, all the way to the Supreme Court, have found to be tough.
There are tabloids, especially those from Manila and marketed in Cebu, that are lurid. Just as there are radio or TV programs, internet sites, video games, and God know what else that offend anti-indecency watchers.
Go after them under laws of the Revised Penal Code, which have withstood the test of constitutionality. Don’t pass an ordinance the courts of the land are likely to shoot down on sight.
Lawmakers should be concerned about the validity of the laws they make. Dismissive statements like “it may be illegal, but the problem is obscenity” are off-mark and unresponsive, which reflects poorly on probity and wisdom.
“Aggregate sense”
If they must pass a local ordinance on obscenity, let it be one that doesn’t merely duplicate, though in a flagrantly flawed way, the national law.
What the press may find useful is one that gives editors and other journalists “the aggregate sense” of the community on what’s obscene, the kind that guides them on what produces a “clear and present danger” of collapse of community morals. That way, there may be fewer crimes of pornography that are justified by ignorance of what the community thinks as immoral.
That could be the subject of a PB hearing on the ordinance, not its constitutionality, which, by gosh by golly, should no longer be the subject of debate among those who’re supposed to know their Constitution.
The exercise need not be “suntok sa buwan” (punching the moon, idiom for wasteful and hopeless effort). It can be productive if the ordinance will tell the press what Cebuanos deem obscene.
(publicandstandards@sunstar.com.ph)