By Pachico A. Seares
Public & Standards Editor
Sun.Star Cebu and Sun.Star Superbalita [Cebu]
THE same dog with a new collar, commented IBP Cebu City Chapter president Earl Bonachita when the Cebu Citizens-Press Council (CCPC) discussed at an en banc meeting on Dec. 6 the revised anti-tabloid ordinance of the Cebu Provincial Board.
I see it as a new dog with a new collar but still with a mean streak.
The ordinance has been overhauled, not just revised, according to GMA-7’s Rose Versoza of Cebu Media Legal Aid (Cemla). Cemla, led by president Elias L. Espinoza, studied the new version of the ordinance.
It no longer singles out tabloids, which the original draft did in blissful innocence about what tabloids are. It now covers “obscene printed or written materials within Cebu province” and creates an anti-indecency board (AOB).
What it prohibits is sale, distribution, or exhibition of “any and all kinds of printed or written materials,” including leaflets, streamers, and flyers, whose contents are considered obscene. No longer limited to tabloids and other printed publications.
Class legislation.
Cemla, CCPC’s legal adviser, had objected that the first draft was class legislation against tabloids, violating the Constitution’s equal-protection and prior-restraint clauses and condemning tabloids as contraband.
Is everything fine now with the new version of the ordinance?
There are still serious flaws found in the new draft, which make it constitutionally offensive.
Under Sections 9 (b) and 9 (c), AOB has the power (1) to inspect and investigate all materials to see if they are not obscene and (2) to recommend to the governor “the confiscation or forfeiture of any and all printed or written materials” if they are found to be obscene.
Only the judge.
The power to inspect and the power to seize can’t be lawfully exercised by a government agency like the AOB or a bureaucrat like the governor.
Only the judge can determine obscenity. If the AOB wants to know if the material is obscene, then it must ask for or buy a copy of it. If it wants to investigate the suspected materials, it needs to apply with the court for a search warrant.
Only with the warrant, after meeting legal requirements, may AOB inspect the materials in the printing shop or in a dealer’s possession or the governor to order their seizure.
Obscenity, 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 the judge’s sound discretion.” In Pita vs. Court of Appeals, the SC enumerated the steps on confiscation of obscene materials.
CCPC, adopting Cemla’s view, passed a resolution expressing its objection to the new draft of the PB ordinance. It noted that newspapers and magazines are highly perishable commodity.
“Inspection, investigation, and confiscation before a judicial determination of obscenity constitutes prior restraint and infringes due process on property rights,” CCPC said.
Does the CCPC stance make the citizens-press body a cheerer of obscenity? CCPC has repeatedly said it is against obscenity and submits to the right of local legislatures to legislate against it or prosecute offenders under existing law.
But CCPC isn’t an arbiter on content of newspapers or TV stations, especially on obscenity, which even the Supreme Court finds a daunting task.
Decision to sue.
Personal and collective views of anti-indecency boards and public officials may lead only to a decision to prosecute, not to ban and seize allegedly obscene materials.
Does that get through the heads of guardians of community morals? There’s hope that it does.
That new dog still snarls at the Constitution. It can be an acceptable watchdog only if it doesn’t.
[publicandstandards@sunstar.com.ph]