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The film you won’t see tonight on ABC 5

October 8, 2006

Khavn’s Guimaras film “X”-ed by MTRCB

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TOXIC MANGO is part of the “Guimaras” short film project, but you, the Filipino people, won’t be able to watch it tonight, Oct. 8, 10pm, on ABC-5’s short film program dubbed “Shorts”, because (dis)trusty old MTRCB gave it an X-rating. Judge for yourself (which should have been the arbitrary arbiter MTRCB’s new mantra, thus chanting the end of its most absurd existence, which has deprived the Philippine audience the right to view a number of acclaimed films, by axing/X-ing Mariami Tanangco’s “Binyag” (Clermont-Ferrand 2004), Marie Jamora’s “Quezon City” (The Substation [Singapore] & Emirates Film Competition 2006), and Sockie Fernandez’s “Liyab” (Best Shortfilm, Cinemanila 2003), for Channel 5’s “Shorts”. Coincidentally, these three shortfilms have already been shown in Philippine theaters via Cinemanila, and thus were previously not granted X-ratings by highly inconsistent MTRCB.

TITLE: “the incredibly heart-rending and fantastically forbidden legend of the TOXIC MANGO that bestows a multitude of lessons to all brave citizens of the new planet Alibuhod”

Director, Writer, Producer, Cinematographer, Composer: Khavn

SYNOPSIS
Guima and Aras are ill-fated lovers in this sardonic tale of fruit and worldwide genocide. One day, a black mango suddenly appears in Guima and Aras’ tree. To eat or not to eat: that was their question. “Toxic Mango” is a black & white silent film that ruminates over a dystopic future when the effects of the oil spill
tragedy have reached nightmarish proportions.

TOXIC CREDITS

Leading Cast: Rexie Ian Penaflorida, Dimple Dela Cruz, & Jeck Cogama
Supporting Cast: Meyor Sanchez, Victor Villanueva, Juderick Magbanua, Ihna Figueroa, Irene Ladignon, Lowez Maquinto
Shot on location at Raymen’s Beach Resort, Alibuhod, Guimaras Island
Catering by Valle Verde Mountain Resort; Production Manager: Ihna Figueroa; Production Assistants: Lowez Maquinto & Kristy Tayco; Casting by Bo Parcon; Ilonggo Translation by Lav Diaz & JP Carpio; Edited by Ramil Plofino; Stills by Victor Villanueva; Production Design by Jeck Cogama; Guitar, Simsimia, Egyptian Lute by John Torres;
Thanks: Philippine Independent Filmmakers Multi-Purpose Cooperative, ABC-5, Oscar Nava, Mayor Felipe Hilan A. Nava, MD.

“Guimaras: Short films from the Oil Spill”, a project by the Philippine Independent Filmmakers Cooperative, aims to create awareness among the general public on the effects of the recent oil spill disaster in Western Visayas that is “possibly the worst ever” in the Philippine history. Other filmmakers involved in this omnibus are: Kidlat Tahimik, Raya Martin, Roxlee, Milo Paz, Emman de la Cruz, Jeck Cogama, Paulo Villaluna, Wilfred Galila, Kidlat de Guia, JP Carpio, Seymour Sanchez, Ann Shy, Victor Villanueva, Drei Boquieren and Oscar Nava.

“Shorts” is ABC’s groundbreaking show which champions Pinoy Independent Cinema by showcasing indie short films.

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TIME TO ABOLISH THE MTRCB
by Atty Victor Avecilla

THERE is a need not just to overhaul the MTRCB but to abolish it.

There are sufficient grounds under the law and under the constitution in both Philippine and American jurisprudence to warrant the abolition of the MTRCB. If Congress does not abolish the Board, then I think it’s high time the Supreme Court be asked to declare the Charter of the MTRCB, Presidential Decree 1986, unconstitutional for violations of many provisions of the fundamental law which is the 1987 Constitution.

While I am not a filmmaker, I’d like to think that I understand what filmmaking is all about. Film is not just a collection of certain frames any of which can be deleted at random. Deleting one or several scenes of a motion picture is no different from editing out a paragraph or stanza from a literary piece or article. It’s no different from cutting off any part of a sculpture. It’s also no different from trimming the edges of a painting. It affects the integrity of the piece.

Cinema or the film medium is art. No less than the United States Supreme Court and the Philippine Supreme Court have sustained the view that not only is it an artistic medium, it is a medium that enjoys constitutional protection in much the same way that our broadcast media enjoy constitutional protection under freedom of the press, in much the same way that all forms of expression including buildings and wearing black handbags are deemed acts of freedom of expression.

We can trace film censorship in the Philippines to the pre-war period when we were still under the American colonial rule. At that time, cinema was a relatively new medium. Its influence was little understood. But the American colonial masters recognized a potential danger in cinema.

US jurisprudence on film censorship

In the 1920s, the US Congress enacted a law on censorship of the movies. Movie producers challenged the validity of that American law on the ground that the law was a violation of the first amendment of the US Constitution which states that the US Congress shall be prohibited from enacting any law abridging the freedom of speech and the freedom of expression. But the US Supreme Court ruled that cinema maybe subjected to censorship.

After the war in the 1950s, a movie producer decided to challenge before the US Supreme Court the constitutionality of film censorship in the United States. But the victory of film industry in the United States did not come immediately. In the first instance, the US Supreme Court acknowledged that the past doctrine was already passé because we already understand the movies. It ruled that cinema, like newspapers, periodicals and other media of communications, is entitled to constitutional protection.

All through the 1960s and the 1970s, there was a long line of cases where the US Supreme Court categorically upheld the right of producers and artists to express themselves through motion pictures. The established jurisprudence in the United States made clear that while the term cinema is not mentioned in the US Constitution, the US Supreme Court ruled that had the movies been around when Thomas Jefferson and company were contemplating the Constitution of United States, they would have also included the movies under the term of Press. So the United States Supreme Court came up with an expanded interpretation of what constitutes Press, and this included radio, television, cinema and even the videogram and such other media of communication which may not have been invented yet.

A landmark case that clarified once and for all what would constitute valid film censorship at least in the United States is the Freedman vs. Maryland case. The
Freedman ruling is very simple. For film censorship laws to be valid in the United States, these laws must comply with three conditions which are also considered the three constitutional safeguards:

1. A law calling for censorship must place the burden of proving that the motion picture is obscene on the part of the censors and not on the part of the artist or the producer. This means that if the state believes that the motion picture is obscene and therefore must be censored, then it must prove, to the satisfaction of reasonable individuals, that the particular motion picture is obscene. You’re the state, you’re the censor, you claim that the motion picture is obscene, you prove it.

2. The law must also provide that if the censor believes that a particular motion picture is obscene, then he must go to court and apply for an injunction or a court order to prohibit the public exhibition of the motion picture. Now, this is very important because in a system of democracy which the Philippines and the United States like to style themselves to be, there’s a third branch of government to check the abuses of either the legislature or the executive – and that is the judiciary. Hence, in the second Freedman procedural safeguard, the censor has to go to court and convince the judge that he’s entitled to an injunction.

3. The third safeguard is that for the law to be valid, there must be a provision stating that the decision of the censor maybe reviewed by the courts, and the courts will have the final say as to whether or not a particular motion picture should be prohibited. So in the United States, anybody and any state that may want to censor a film would have to satisfy the three Freedman procedural safeguards. This is practically ancient jurisprudence that dates back to the 1970’s and remains in force today. Sad to say, the three Freedman safeguards are absent in the charter of the MTRCB.

Film censorship in the Philippines

Anyway, what happened in the Philippines? During the American-colonial period, the jurisprudence of the United States naturally applied to the Philippines by reason of our colonial relations. The problem, however, is that after the war the Philippine government sought to improve on the film censorship laws instead of abolishing these. It created the Board of Censors for Motion Pictures (BCMP). When television became a popular medium, it came under the jurisdiction of BCMP.

Based on the law, BCMP had two very important powers. The first is its censorial power which is the power to order the deletion of certain scenes from a movie and outright banning of the film. The second is the power to classify motion pictures. Classification may either be for adults only or for general patronage.

After Martial Law was proclaimed in 1972, President Marcos abolished the BCMP and replaced it with the so-called Interim Board of Censors for Motion Pictures. With the interim nature of the board, the members practically abandoned their duties. And so there was the proliferation of pornographic films called bomba films.

In the 1980s, President Marcos established the Board of Review for Motion Pictures and Television (BRMPT). Noticeably missing was the word censorship. This did not mean, however, that it no longer censored movies. On the contrary, the censorial power remained in the BRMPT Charter. That Board was replaced by the existing board, the Movie and Television Review and Classification Board (MTRCB).

Kapit sa Patalim case

Through the years there had never been any serious attempt in the Philippines to challenge the constitutionality of film censorship. But in 1985, the Department of Justice and the Office of the Solicitor General of the Marcos regime convinced Malacañang to ban the Lino Brocka film, “Kapit sa Patalim” because its depiction of social ills allegedly put the country in a bad light. Upon orders of Malacañang, the BRMPT disallowed public exhibition of “Kapit sa Patalim.”

Mr. Gonzales, the Malayan Picture producer of the film decided to challenge all the way to the Supreme Court the BRMPT decision in that leading and clumsy case of Gonzales versus Maria Kalaw Katigbak (BRMPT chair). It was a clumsy case because Supreme Court decision on the case only confused rather than resolved the issue.

Mr. Gonzales’ argument was very simple: “Kapit sa Patalim” is a creation of art. It is not something the government should ban. If the government publicly professes that, notwithstanding the regime of Martial Law, there’s a freedom of expression in the country, the government therefore has no business prohibiting the public exhibition of the film. The Solicitor General opposed the petition, arguing that the state had the power to prohibit certain activities which, in the opinion of the executive department, violate national security.

The Supreme Court found itself in a tight situation because this was still the martial law period. Its ruling was nothing but disturbing. According to the Supreme Court: “If the Censor’s body does not want to be accused of exercising unconstitutional power, then its powers are limited to the classification of films.” That is very polite language used on an intimidating leadership. But the message came through. It was a polite way of telling the board: if you decide to censor certain films you are treading on unconstitutional grounds.

But the Supreme Court was not able to muster the eight votes necessary to come up with doctrinal decisions. A doctrinal decision is a decision that binds future cases. Lacking the necessary eight votes, the petition was dismissed. Eventually, realizing that public opinion against the government was gaining ground, the government allowed public exhibition of the film “Kapit sa Patalim.”

Unconstitutionality of MTRCB

Sad to say, however, the confusing decision remains in our statute books. Which brings us to the question: is it now possible to ask the Supreme Court to declare the Charter of the MTRCB unconstitutional?

The Charter of the MTRCB, Presidential Decree of 1986, is a verbatim reproduction of the Charter of the BRMPT. The same unconstitutional features remain. One might ask why the PD still exists when Marcos is already a personality of the past. Sad to say, the transitory provisions of the 1987 Constitution state that all Presidential Decrees which are not repealed by Congress and are not inconsistent with the Constitution remain in force and effect. Up to today, Congress has not repealed, much less amended, PD 1986.
Since the Supreme Court during the martial law period sustained the power of President Marcos to enact legislation, the PDs which have not been repealed enjoy the same status as the Republic Acts.

What features in the MTRCB Charter are unconstitutional? First and foremost, the Charter violates all three Freedman procedural safeguards. On that score, we can already ask the Supreme Court to declare it unconstitutional.

The second has to do with the powers and actions of the board. There’s a doctrine in Constitutional Law which says that if the government prohibits certain acts and it does not define those acts clearly, then that law is unconstitutional under the so called Void for Vagueness Doctrine. The MTRCB Charter enumerates the grounds on which the Board may censor certain films. But included in the enumeration is the disturbing proviso “such as but not limited to.” With this proviso, you can actually have a ridiculous situation where, hindi lang siguro magustuhan ng censor and make-up ng producer o director, pwede nang i-ban ang pelikula. You thus have a body of censors more powerful than Congress. Congress always has to define what it wants to prohibit, but here we have a Board that can prohibit anything for whatever reason without being held accountable.

Another unconstitutional feature of the Charter is that its standard procedure is violative of administrative due process. Administrative due process requires that the standards for the exercise of power must be clearly defined. For example, when a film is judged by the board as obscene, we must know what constitutes obscenity. The standard for obscenity must be defined. Yang mga nakahubad diyan, malaswa na ba agad yan? If such were the case, so many of our statues in Manila and even here in UP would be banned.

The definition provided in the Charter is insufficient, because anything can be obscene as far as the definition of pornography is concerned. Take the clause, “those which serve no other purpose but to satisfy the market for violence or pornography” may be banned. What is disturbing here is that when the Board determines if a film is pornographic, they look at intent, not content. Intent is used to judge content. Isn’t this silly? But it’s there. It’s the law.

The Charter adopts a standard which no less than our Supreme Court has abandoned as early as 1947. Before 1947, issues involving freedom of expression were resolved by the Supreme Court by applying the so-called Dangerous Tendency Test. Under this, citizens may be prevented from expressing themselves when what they say will be dangerous to the state. But how can the court determine when an exercise of the freedom of speech is proper or improper? Fortunately, civilized men and women prevailed after the war and the Dangerous Tendency Test was abandoned by no less than the Supreme Court when it categorically declared in the case of Premicias and Formoso that the state has no business censoring any activity of any individual in the country unless such speech, such movie, such television program amounts to a clear and present danger of a substantive evil which the state may reasonably protect itself against.

In simple terms, what does this mean? If the state wants to prohibit you from delivering a speech or from putting up a play, or if the state wants you to shut up, then the state must show you that your speech/play/remark will be of such clear and present danger that the security of the state will be undermined. An action can be banned only if it is shown that it can cause death or injury to the public or it may be a threat to public health. For example, no one is allowed to shout “Sunog” in a crowded theater because this may result in a stampede and thus cause danger to life and limb.

It’s high time that the industry gets together to challenge the serious threat of the Charter of the MTRCB to our fundamental freedom, the freedom to express ourselves. The founders of the American Constitution recognized that the freedom of speech is even more important than due process of law. No wonder they made it the first amendment to the United States Constitution: that no law shall be passed that violates freedom of speech, etc. On that score therefore, I would propose that concerned artists in the Philippines and all those who believe that now is the time to press for a change in the censorship law, should file a petition in the Supreme Court challenging the constitutionality of PD 1986, the MTRCB Charter.

(From our mailbox courtesy Gerry Kaimo. For more shorts by Khavn, click here.)

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2 comments

  1. i am currently working with argumentative research paper and this material is a great help! thanks and more power!


  2. Can anyone have an access to those censored film? just curious..



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