Customs newsmen's Supreme Court suit versus Rozzano Rufino B. Biazon

Customs newsmen's Supreme Court suit 
versus Rozzano Rufino B. Biazon

Republic of the Philippines
Supreme Court
Padre Faura St., Manila


            - versus -                                                         G.R. No. __________________
                                                                                    For:      Prohibition

BUREAU OF CUSTOMS, Represented by


            Press freedom is nothing with nothing to write.  To prevent a person from gathering facts in public offices restrains that person from exercising that sacred right of the LIBERTY OF THE PRESS, the highest among the tier of rights.

            Any form of regulation that hampers or deters the exercise of the right to gather information or facts from public places or elsewhere outside the zone of privacy or the zone of state or national security is as good as restraining the exercise of the right to exercise this right fought for by our forefathers.

            Jurisprudence loves to call the same “prior restraint.” It directly affects the very content or the substance of the freedom of the press.

            And to note, this freedom of the press is not the exclusive province alone of reporters or journalists, but ordinary people living or sojourning in the Philippines.  This is because Section 4 of Article III of the 1987 Constitution grants this right to all people.

            To be clear, let this freedom be restated, to wit:

            “Section 4. No law shall be passed abridging the freedom of expression, of speech, and of the press…”

            The freedom of the press is the touchstone of democracy.

Imagine a country without reporters!

Or imagine a country with reporters but without or limited right to gather information for them to publish.

            Intricately connected with the freedom of the press clause is the inviolable right of the people to information of public interest, saving only a few aspects that affect the very life and limb of the State and the life of the people themselves.  These few exceptions, however, can only be guaranteed supremacy if the existence of the danger to the state’s life and limb and the people’s lives is in the degree of clear and present.

            In the Bureau of Customs that is the respondent in the instant petition, there is no such thing as clear and present danger that exists against the State or the people.

            The Bureau has issued Customs Memorandum Order No. 37-2011 that implements an accreditation procedure that actually works to limit or prevent the access to the facts and information that are found inside the Bureau of Customs offices. These data are undisputedly matters of public interest.  But this memorandum circular limits or prevents the petitioners from these matters.

            Tied intricately to the right to public information and the freedom of the press is the principle of the 1987 Constitution that says: “PUBLIC OFFICE IS A PUBLIC TRUST.”  It has never been “public office is a private trust.”

            The offices inside the zone of the Bureau of Customs have never been a private trust.  They belong to the public’s trust.  In ratifying the 1987 Constitution from where the Bureau of Customs got its authority to exist, the people gave their implied trust that the persons who would be appointed to run the Bureau would take care of the offices inside it.

            Now, the only way for the people to know if those appointed to the Bureau of Customs are performing within expectations is to allow journalists and other persons to see how these Customs officials and personnel perform their work: whether they steal monies from the duties and taxes that should go to the government of the people, by means of allowing or doing the acts permitting mis-declaration and under-declaration of importations, and allowing strictly regulated items, prohibited goods and illegal goods such as drugs.

            Upon these premises, the petitioners who are all involved in the daily exercise of press freedom inside the zone of the Bureau of Customs, respectfully file this Petition for Prohibition seeking a writ from the Honorable Court to enjoin the public respondent that is the Bureau of Customs from implementing its “ACCREDITATION” guidelines seeking to regulate or limit the exercise of the freedom of the press, particularly in the aspect of the gathering of facts from different public offices inside its zone, inside any offices of the Bureau.

            And in so filing this petition, the petitioners are URGENTLY coming to this Honorable Court seeking to uphold and affirm press freedom not only for themselves but also for their posterity and to the freedom itself.

They are seeking the Writ to strike down the questioned memorandum, the Writ to enjoin the Bureau from implementing the same memorandum.

They are also seeking the Court’s succor by issuing urgently a TEMPORARY RESTRAINING ORDER (TRO) to enjoin the Bureau from implementing the same memorandum while this petition is being heard.

The Locus Standi

            First, this case is of transcendental importance considering that this is the first time to happen that journalists question a memorandum of a public office seeking to require first accreditations before allowing them to exercise their freedom of the press.

            There have been so many accreditations procedures that have been implemented by different offices of the government but not one has dared to question any of these administrative issuances yet.

            Second, this issue affects the exercise or the norm of press freedom not only of the present generation but also of the generations to come.

            Third, the petitioners are all directly affected.

The memorandum will directly limit their access to matters of public interest that can only be found in the various offices of the Bureau of Customs.

As such, it is not difficult to see the worst effect of the memorandum on their ability to gather facts, in the form of documents, interviews, photos and other matters that can be a source of information of public interest.

Besides, many of these petitioners live or die depending on the number of news stories they can produce for each day.

They are therefore restrained if not regulated from gathering facts.

The petitioners are all reporters of various newspapers, magazines and broadcast entities.  They can be served with orders or other processes at their counsel, Renta Pe & Associates, on its address written below.     

            The Bureau of Customs is a public corporation created by law and it can be served with summons and other processes at the Office of the Commissioner, care of Commissioner Rozzano Rufino B. Biazon, Bureau of Customs, Port Area 1099 Manila.

The Antecedents

            On supposed date of November 8, 2011, public respondent Bureau of Customs issued Customs Memorandum Order No. 37-2011, signed by incumbent Commissioner Rozzano Rufino B. Biazon.

            A copy of this memorandum is attached hereto as ANNEX “A.”  This is but a photocopy because there was a considerable difficulty for the petitioners to secure a certified true copy. To begin with, they are required first to accredit to be able to enter and request a copy of this document.

            With this circumstance, it is moved to the Honorable Court to issue an order to public respondent Bureau of Customs to submit to the Court a certified true copy of Customs Memorandum Order No. 37-2011, copy furnished the counsel of the petitioner.

            The salient features that adversely affect that ability of the petitioners to cover or gather facts and information from the offices of the Bureau of Customs are as follows:

1.      The administration or implementation of the memorandum is being tasked to the Chief of the Public Information and Assistance Division (PIAD) of the Bureau of Customs;

2.      The requirements of accreditation that are only required from entities applying for business permits, which requirements are not reasonable for the petitioners who are not doing business but public service;

3.      The requirement from reporters, writers and photographers documents and other matters that only add difficulty for the petitioners to cover or gather facts;

4.      The requirement for columnists to get first visitation pass from the PIAD before they are allowed to enter the BOC and conduct media rounds, but they are also required to submit documentation that they are on assignment;

5.      The requirement that the petitioners must agree to “Terms and Conditions” fixed by the Bureau of Customs as if treating the matter of press freedom that does not give any gain as an ORDINARY CONTRACT between parties, including therein interviews to be pre-arranged first with the PIAD, prohibition of loitering without a pass from PIAD, and the information obtain shall be used only on “bona fide” news reporting tantamount to dictating how and what to report or published;

6.      The provision allowing the Bureau of revoke or cancel accreditations on perceived violations that are inherently press freedom issues;

7.      The setting up of procedures by which accreditations shall be obtained; and

8.      The making of the memorandum effective immediately and without any publication.
The contents of the same memorandum can be read at the attached copy thereof.

            In the guise of making it legal, the chief of PIAD, Leny Abaño, consulted last week some of the petitioners upon the pretexts that the petitioner’s views were solicited.

The petitioners suggested the removal of all those difficult requirements as their way of compromising although they knew that any form of memorandum is an “abridgment” of press freedom.

            The petitioners were only shocked on December 13, 2011 upon receipt of photocopies of the said memorandum and to be told that the same shall be fully implemented on Friday.

            Upon reading the memorandum, all the suggestions of the petitioners were rejected.

The Reasons for Allowance

            In the instant case, there is no available plain, speedy, adequate remedy under the ordinary course of the law.

            The attack to press freedom is VERY SERIOUS, ACTUAL, REAL, AND AN INSULT TO ALL THE FILIPINO PEOPLE.

            An ordinary injunction may not lie because of the fact that all issuances are presumed valid and sufficient to be implemented even if these actually and unduly prejudice rights that are sacred.

            The petitioners choose to go direct to the Supreme Court because going to the Regional Trial Courts or the Court of Appeals would be inappropriate. Moreover, the matters involved are issues of transcendental importance and matters of first impression.

Only the Highest Court of the land has the absolute authority to say what the law is and how to apply it correctly.  With this, it is deemed better for all Filipinos and journalists to resolve in the soonest possible time this tug-of-war issue of whether it is legal for any government agency or bureau to require accreditations first from the press before allowing its members to do media rounds in public offices within that agency or bureau.

            Thus, for the petitioners to go first to the RTC or the CA will only delay the concerns of the highest liberty enshrined in the Bill of Rights.

            The petitioners subscribe to Dr. Martin Luther King Jr. who once said: “A RIGHT DELAYED IS A RIGHT DENIED.”

            Injury to the freedom of the press is not an ordinary injury to individuals like the petitioners who can be done by the doctors.

            Injury to the freedom of the press cannot be measured in terms of money.  It cannot be compensated, unlike in damages resulting from private transactions.

            As such, it is the position of the petitioners subject to the wisdom of the Court that propriety dictates that this petition should be allowed before the Supreme Court.

The Application for Temporary Restraining Order

            The right and the press freedom sought to be prevented are very clear and unmistakable.  Let alone the explicit pronouncement of Section 4 of Article III of the Constitution that says: “NO LAW SHALL BE PASSED ABRIDGING THE FREEDOM OF EXPRESSION, OF SPEECH, AND OF THE PRESS…”

            The injury to the petitioners and to the bigger cause of press freedom is actual and happening at the time this petition is being written.

            The Bureau through PIAD has already started issuing forms to be filled up by the petitioners.

            The situation therefore is one that is THE URGENT MOMENT OF NOW.  The attack to press freedom is HAPPENING NOW.

            As this petition is being written, the petitioners were warned that those who cannot comply with the accreditation requirements cannot be allowed to enter the Bureau of Customs to make media rounds.

            Damage to the petitioners and the cause of press freedom is GRAVE and IRREPARABLE.

            No amount of money can compensate the petitioner’s injuries and the injuries to the cause of press freedom.

            As such, it is being prayed for earnestly that while the instant petition is being heard, a Temporary Restraining Order (TRO) be issued first enjoining the Bureau of Customs from implementing the said Customs Memorandum Order No. 37-2011.

The Issue

            Whether or not public respondent Bureau of Customs committed grave abuse of discretion in issuing and implementing Customs Memorandum Order No. 37-2011.

The Discussions

            There is no doubt. The Bureau of Customs committed grave abuse of discretion tantamount to lack or excess of jurisdiction.

            It threaded on the zone forbidden by the Constitution for it to thread.

            A matter of press freedom cannot be abridged as sacredly protected by the Constitution when it pronounces: “NO LAW SHALL BE PASSED ABRIDGING THE FREEDOM OF EXPRESSION, OF SPEECH, AND OF THE PRESS…”

            That directive of the Constitution is directed against the Congress of the Philippines.

            Now, if the Congress that has the virtually unlimited power to make all kinds of laws is prohibited, HOW MUCH MORE FOR AN AGENCY OR A BUREAU LIKE THE BUREAU OF CUSTOMS?

            This is the wisdom behind why it is legally untenable to subject the exercise of the freedom of the press to a licensure examination. 

            The memorandum issued that is actually being implemented setting forth requirements has the legal effect of a law.   This is because the Bureau of Customs is now implementing its provision promulgated by the Customs Commissioner and it actually limits the rights of the petitioners as daily or regular practitioners of the liberty of the press.

            Now, this memorandum being implemented virtually like a law in the Bureau of Customs and in many other offices of the government cannot be permitted.

This is because it is censorship.  It is a prior restraint to the exercise of the liberty so dearly fought for with blood by the forefathers.

            Imagine alone the provisions of the memorandum that requires of the petitioners to submit documents like they are applying for business permits when all they have been doing and intend to do inside the Bureau of Customs have not been for private businesses, not been to gain from the imports, not been to be brokers, but solely to be able to get information that they need to cater the public need.

            To be clear about this, let the particular provision be cited in toto, to wit:

III.1 Requirements for Accreditation

a.       Publication

1.       Completed Application Form;

2.       For partnership and corporations, Certified True Copy of Securities & Exchange Commission (SEC) Registration, Articles of Partnership/Incorporation, By-Laws and latest General Information Sheet;

3.       For sole proprietorships, Certified True Copy of Department of Trade & Industry (DTI) Registration;

4.       Certification True Copy of Mayor’s Permit;

5.       Certified True Copy of Bureau of Internal Revenue (BIR) Certificate of Registration;

6.       Publisher’s (sic) Association of the Philippines, Inc. Certificate of Registration;

7.       Proof that the publication has been consistently in circulation for at least six (6) months;

8.       Proof that the publication has a weekly circulation of at least 3,000 copies;

Imagine also that the memorandum requires the petitioners that the publication of the petitioners “must at all times be compliant to the Philippine Journalist’s Code of Ethics.” (See paragraph a of “IV. TERMS AND CONDITIONS”, Customs Memorandum Order No. 37-2011).  If the Congress cannot do this, how much more for the Bureau of Customs?

This amounts to legislating the Journalist’s Code of Ethics into a law of the land when it is only a code agreed upon among all journalists only, a private undertaking.

Imagine also the requirement of the memorandum for the petitioners to make pre-arrangements before they can interview any Customs official.  (See paragraph e, Supra)  It is very sure that the matters to be asked are matters that belong to the sphere of public trust.  So what is the authority of the Bureau to be the lawmaker on this matter that belong the sphere of the public? 

Allowing the Bureau to do away with this setup will allow the Bureau officials to hide their misdeeds and allow them to protect them at the same time successfully by implementing this censorship.  The fact alone that the Bureau would have the advance knowledge who should be interviewed will give its venomous officials a time to implement controls to suppress the mouths that would speak the truth. 

            Imagine also that the same memorandum requires that all information that would be gathered by the petitioners shall “only be used for ‘bona fide’ news reporting.” (See paragraph h, Supra) Does this mean that news reports about shenanigans are not “bona fide”?  The same memorandum does not define what is bona fide and what is not.  This is therefore clearly intended to suppress “bad press.”

            Imagine also that the same memorandum requires of reporters, writers and photographers to make them apply as if they would sell goods on the sidewalks of Divisoria or be one who would be allowed to exercise a profession when to exercise press freedom is a vocation and not a profession.  (See III.1 b. Requirements for Accreditation, Supra) 

            Imagine also that the same memorandum is to be implemented by the Bureau through its PIAD office to make it as the “hatchet man” against the press.  This is very clear under its provision requiring all applications to be submitted to the PIAD.  At the same time, it requires columnists who would do interviews inside any offices of the Customs to get first accreditation ID from the PIAD and must prove first their purposes and assignments.  If this is so, then the intended discovery would not happen because of prior knowledge by errant officials being targeted for site inspections or detective journalism works or interviews.   (See III.2.1 and III.2.2, supra)

            And, the harshest of all, the memorandum makes the Bureau of Customs as a QUASI-JUDICIAL BODY OR A JUDGE TO HEAR AND DECIDE PRESS FREEDOM ISSUES AGAINST PETITIONERS IF EVER THEY ARE ACCREDITED.  This is very clear to be a usurpation of the powers of the Congress.  It has converted itself into a court and judge for the journalists they accredited.  (See V, V.1, and V.2, Supra) More so, it is like giving it the power to penalize or punish press freedom practitioners for news reports published not to the liking of the officials of the Bureau.

            These are very clear to be making public respondent Bureau of Customs both as a censor, a judge, and an executioner of its decision to punish the media for news reports not palatable to its officials.

            Hence, what is happening now at the Bureau of Customs is that it is now a MARTIAL LAW ZONE suppressing press freedom.

The Prayers

            WHEREFORE, it is respectfully prayed of the Honorable Court that it issues immediately Temporary Restraining Order (TRO) enjoining the Bureau of Customs from implementing Customs Memorandum Order No. 37-2011, and after due notice and hearing a Writ prohibiting it forever from carrying out the same memorandum.

Other reliefs just and equitable are also prayed for.  December 14, 2011.

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