If you can kiss and touch in public why can’t people do the same inside bars and night clubs?

This was the question posed by the Club Owners Association of Dagupan City (COAD) in reaction to Draft Ordinance Number 0-332 in the city council entitled: “Providing for supplementary Measures against the Flesh Trade.”

In a letter dated December 5, 2006 to City Councilor Farah Marie Decano, author of said draft ordinance, Atty. Napoleon Arenas Jr, COADC’s legal counsel, said that the controversial measure is “violative of procedural and substantive due process” and “contrary to existing penal laws.”

Arenas said it is hard to imagine the relevance of the measure in curbing immorality and prostitution by prohibiting “caressing, kissing, necking, petting and/ or engaging in sexual intercourse” in clubs or bars between two consenting adults.

In citing Supreme Court in De la Cruz vs. Judge Paras, G.R. 42571-72, July 25, 1983 wherein the High Court ruled as unconstitutional an ordinance passed by the municipality of Bocaue, Bulacan, refusing the extension of business permits of club owners and licenses of professional dancers, Arenas said to ban expressions of affection between two adults is even worse for it is a clear invasion of both personal and property rights.

“It interferes in the personal right and liberty of persons,” Arenas stressed.

“The city has no business in the confines of clubs and bars of the acts of two consenting adults, short of sexual intercourse, who are merely expressing their feelings in a manner that is not contrary to law or morals,” he added.

Arenas said the proposed ordinance has no other motive except to kill bars and clubs, which are traditionally and customarily allowed without undue restrictions, aside from those pertaining to health, like sanitary comfort rooms and living quarters of its employees.

“To impose unnecessary and unreasonable restrictions at the guise of police power will practically reduce these bars and clubs to perdition,” he said.

Arenas also cited that well-established is the rule that municipal ordinances cannot amend, much less supplant, existing laws involving the same act or subject matter.

He said the acts or subject-matter covered by the draft ordinance as “embracing, kissing, necking, petting and/ or engaging in sexual intercourse” is already penalized by the Revised Penal Code while the act of embracing, kissing and holding a woman’s breast constitutes acts of lasciviousness.

Arenas pointed out that the penalty of eight months imprisonment imposed under the draft ordinance is stiffer than that imposed for the acts of lasciviousness and unjust vexation under the Revised Penal Code.

For her part, Decano stated in the explanatory note of the said proposed measure that when the city of Dagupan was branded by a national television network as the prostitution capital of Pangasinan, “the report was damaging and hurtful to the people of Dagupan.”

She said while there are existing laws such as the Revised Penal Code on Prostitution and White Slave Trade and the Anti-Trafficking in Persons Act, “this draft ordinance seeks to supplement whatever may be lacking in said laws in order that the flesh trade may be curbed.”

Last November 24, a public/committee hearing was held at the city council session hall where club owners and workers expressed opposition to the said proposed measure. — EVA

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