Outright seizure of “obscene” printed materials illegal – CCPC

CEBU, Philippines - The Cebu Citizen’s Press Council yesterday presented to the City Council its objections to some of the proposed amendments to the city’s Anti-Indecency Ordinance.

CCPC contended that some provisions of the proposed amendments are unconstitutional and violate the fundamental right to due process.

The proposed amendments include giving the City Anti-Indecency Board authority to conduct frequent inspections and investigations on all bookstores, magazine shops/stands, newspaper stands, adult stores, theatres (including mini theaters), nightclubs, beerhouses, KTV/cocktail lounges, Spa and Massage Parlors or massage clinics, sauna bath parlors and other similar establishments.

Councilor Lea Japson, the proponent of the amendments, said the purpose of giving CAIB such leeway is to find out whether or not indecent, lewd, or obscene shows, dances, spa and massage services and other performances – whether live or in films or video tapes – are being exhibited, shown, or performed in the establishments mentioned. 

Giving CAIB more teeth would also force owners, managers or promoters to give full and unconditional access and  inspect the establishments at any time of the day (or night) even without any prior court order.

CCPC’s objections are confined to the confiscation of printed materials without court order and due process, clarified Atty. Rose Versoza of the Cebu Media’s Legal Aid and anchor of GMA Cebu’s Balitang Bisdak.

Versoza said that the proposed amendment violates the freedom of the press and the right to “life, liberty or property without due process” stipulated in the 1987 Philippine Constitution.

“We highly object to the amendments because they miserably fail in both substantive and procedural due process. It must be fair, reasonable and just,” she said, adding, that laws and ordinances must not be “arbitrary.”

“The bookstores, newsstands, among others are already condemned since publications are confiscated even before they are given an opportunity to be heard. Therefore, it is highly irregular and unlawful to categories reading materials or publications as contraband just like illegal drugs or unlicensed firearms to confiscate them, or once mere belief or opinion that the materials contain therein are obscene. Reading materials are highly perishable items, confiscate them today even if you return them tomorrow, they will no longer be sold because they already lost their value,” she said.

Versoza pointed out that the amendment also failed to define what obscene, sensual and lewd is.

In fact, she said, Philippine jurisprudence has not “properly and sufficiently” defined obscenity. Also, Article 201 of the Revised Penal Code does not stipulate what constitutes obscenity or obscene publications.

Citing a 1985 Supreme Court ruling, Versoza said obscenity may be defined as “whether the average person applying contemporary community standards or temporary Filipino culture and values or the dominant theme of material taken as a whole appeals to curate interests.”

In line with this, she said “the determination of an obscene material is judicial. And it is not left to the discretion of the police or administrative authorities. If the opinion of the court presents probable cause only then can it issue a search warrant and only then you can go on and confiscate suspected obscene material armed with search warrants.”

Most of the councilors present at the hearing agreed that printed materials cannot be confisca-ed “outright” and obscenity has to be determined properly by the court.

CAIB head Dr. Lucelle Mercado said they have to confiscate materials that are “obviously obscene.”

Meanwhile, lawyer Mark Avila of the Colon Heritage Realty Corporation who represented the theaters, said they are in favor of the amendments as these would strengthen the campaign against obscenity in the city.

He pointed out, nevertheless, that ordinances that are enacted should not to supersede the regulations and mandates of the Movie and Television Review and Classification Board.

Japson said the proposed amendments simply seek to stop all matters relating to whatever forms of indecency, lewdness, obscenity, and pornography in the city. — (FREEMAN)