COUNCILOR Jessica Resch has proposed to amend Ordinance No. 1498 or Anti-indecency Ordinance, which created the Cebu City Anti-indecency Board (CAIB). The original ordinance was first amended in 2014 by City Ordinance No. 2436. And now they’re planning to make some changes to it again.
Mayor Mike Rama convened CAIB last yearend (in December 2022) after seven years of being inactive. Lucelle Mercado, the board’s chief in the 2013-2016 term of Mayor Rama, has been enlisted anew to lead the campaign. Her first statement on CAIB’s revival was like, we’d fight even more intensely against obscenity.
Such a “war” -- a label Rama pins on many City Hall advocacies -- requires “inspections, operations and investigations” on all the establishments, including even “ordinary stalls/stores.” Necessarily, the matter of search and seizure, a component of a regulatory inspection or raid, becomes an issue once more.
EARLIER CASES IN PB, CITY COUNCIL. Cebu City’s anti-indecency board, through then councilor Lea Ouano-Japson, tried to add -- to the board’s function of confiscating suspected smut -- the phrase “without prior court approval.” Primarily because of the opposition of media, led by Cebu Citizens-Press Council (CCPC) and Cebu Media Legal Aid (Cemla), the proponents dropped the phrase.
Now, eight years hence, Councilor Resch’s proposals of changes on CAIB’s powers and functions and penalties for violation seem to revive the attempt, without expressly saying so and restoring the objected “no-court-approval” qualifier.
Last March 15, 2023, the Sanggunian decided, without discussion, to refer the Resch amendatory ordinance to the committee on laws and styling.
Similarly, in 2011 the Cebu Provincial Board attempted to legislate a right of Capitol through the governor to confiscate smutty “tabloids” and books displayed or circulated in the province. Unlike the Cebu City Council, the PB both acceded to CCPC’s request and laid the issue to rest.
WHY SEIZURE IS BIG DEAL TO MEDIA. To the Supreme Court, in Pita vs. Court of Appeals, only a court of law can determine obscenity and thus confiscation of suspected obscene material or its suppression without court order is unlawful seizure of property.
Copies of newspapers cannot be summarily taken away by regulators, be they at the printing press or the newsstands. Nor can an “offensive” digital story or picture deleted or the paper’s website shut down on the mere order or ruling of CAIB or any of its members or deputies. There’s also a process for that, as laid down by the internet platform.
In City of Manila vs. Honorable Laguio, the SC lists the steps for a regulator to confiscate alleged obscene material. While the City Council resisted in 2014 the attempt to insert the phrase “without prior court order” after “confiscation,” the process is still not qualified in the local ordinance, not even by the changes now being proposed.
EVIDENCE NEEDED TO PROSECUTE. If CAIB or any other regulatory agency requires “evidence to use” in prosecuting violators, it may document the citation or arrest, attested by independent witnesses, and secure physical evidence of the “offensive material” by buying a copy of the book or newspaper or, in case of digital content, have a screen grab of the allegedly obscene text or image.
They don’t need to haul away all the copies at the establishment or close down the news site at once, when the fact of obscenity still has to be judicially established.
A practical and legal reason is that media and its products are not obscene per se. Judicial determination is required before content is deemed lewd. Local regulators are not the final arbiter on what’s criminally obscene or not.
WORD ‘CONFISCATION’ RAISES ISSUE. The five “whereases” of Resch’s amendatory ordinance cite (a) the laws supporting the City Council’s right to enact the ordinance; (b) the City Charter’s mandate to “prohibit and suppress houses of ill repute” and printing and circulation of obscene books and publications; (c) easy access by children to pornography because of “advanced technology”; and (d) the “void in implementation” because selling sculptures depicting male and female genitalia is not yet made unlawful.
No mention about search and seizure. But under the section on powers and functions of CAIB -- specifically (under section 3 [e]), the duty “to cause the prosecution of violators of the ordinance, including the confiscation of the evidence needed for the prosecution of the case” -- the last part about “confiscation” has been added. And under section 11 (“Action by the mayor”), the Resch proposal would have “sex toys or objects which are obscene, indecent, lewd or inimical to the preservation peace and good morals ... confiscated/forfeited in favor of the Government...”
NEED TO SPECIFY MANNER OF SEIZURE. The CAIB will “inspect,” “operate” and “investigate” collectively as a body or by “authorized members” and “deputies.” And, under the amendment, the board can tap the police to enforce its rulings and orders.
That, plus the existing power of the board to demand “full and unconditional access” to all establishments listed in the ordinance for CAIB or its members or deputies to inspect or investigate “at any time of the day or night.”
If any of the said activities includes search and seizure -- and the mention of “confiscation” strongly indicates that -- would the city’s regulators have the power to do it unilaterally, with no court approval?
The silence, or at least ambiguity, of the ordinance may lead to false belief of CAIB and its members that they’ve been granted the power of search and seizure without bothering about court consent.
Councilor Gealon’s committee may deem it prudent to tack on the needed qualifier for the exercise of search and seizure -- and help reduce or prevent cases of abuse or excess.