BAYAN v. ERMITA

BAYAN v. ERMITA

GR Nos. 169838,169848, 169881

En Banc; April 25, 2006

Azcuna, J.

FACTS:

Several rallies were organized and participated by the petitioners, Bayan, Jess del Prado, KMU, etc on September 26, October 5, and October 6, 2005. According to the petitioners, these rallies were violently dispersed and several participants were injured, arrested and detained by the policemen implementing B.P. 880 and the Calibrated Preemptive Response policy issued by the Malacanang.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR.

They seek to stop violent dispersals of rallies under the no permit, no rally policy and the CPR policy recently announced.

BATAS PAMBANSA BLG. 880; KEY PROVISIONS;

·         Public Assembly Act Of 1985

·         An Act Ensuring the Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Ther Purposes

·         Effectivity: October 22, 1985

SEC. 3. Definition of terms.

·         (a) Public assembly means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances.

·         The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

·         The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

·         xxxx

SEC. 4. Permit when required and when not required.

·         A written permit shall be required for any person or persons to organize and hold a public assembly in a public place.

·         However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act.

SEC. 5. Application requirements.

All applications for a permit shall comply with the following guidelines:

a)    The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used.

b)    The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.

c)    The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly.

d)    Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building.

SEC. 6. Action to be taken on the application.

a)    It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.

b)    The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed.

c)    If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

d)    The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.

e)    If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law.

f)     In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory.

g)    All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.

h)   In all cases, any decision may be appealed to the Supreme Court.

i)     Telegraphic appeals to be followed by formal appeals are hereby allowed.

SEC. 12. Dispersal of public assembly without permit.

When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed.

SEC. 13. Prohibited acts.

The following shall constitute violations of the Act:

a)    The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly;

xxxx

SEC. 14. Penalties.

Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding section shall be punished as follows:

a)    violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months;

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CALIBRATED PRE-EMPTIVE RESPONSE

·         A policy set forth in a press release by Malacañang dated September 21, 2005

Malacanang Official

Manila, Philippines

NEWS Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

•      On Unlawful Mass Actions

•      In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite people against the duly constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations.

•      The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community.

•      Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive government.

•      We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society.

•      The Presidents call for unity and reconciliation stands, based on the rule of law.

Contentions of the Petitioners:

•      BP 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.

•      BP 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought.

•      BP 880 is not content-neutral as it does not apply to mass actions in support of the government.

•      The words lawful cause, opinion, protesting or influencing suggest the exposition of some cause not espoused by the government.

•      The phrase maximum tolerance shows that the law applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test.

•      B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually prohibitions.

•      Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent.

•      Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.

ISSUE:

1.    Whether BP 880 is constitutional;

2.    Whether the CPR policy is constitutional.

RULING:

1.    BP 880 is CONSTITUTIONAL.

o   The provisions of BP 880 practically codify the ruling in Reyes v. Bagatsing.

o   BP 880 is a CONTENT-NEUTRAL REGULATION.

§  It is a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmena v. Comelec, where the Court referred to it as a content-neutral regulation of the time, place, and manner of holding public assemblies.

§  it refers to all kinds of public assemblies that would use public places. The reference to lawful cause does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be peaceable and entitled to protection. Neither are the words opinion, protesting and influencing in the definition of public assembly content based, since they can refer to any subject. The words petitioning the government for redress of grievances come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. 

§  Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

o   BP 880 is not vague.

§  the law is very clear and is nowhere vague in its provisions. Public does not have to be defined. Its ordinary meaning is well-known. Websters Dictionary defines it, thus:

§  public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x x x.

§  Not every expression of opinion is a public assembly. The law refers to rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place. So it does not cover any and all kinds of gatherings.

o   BP 880 is not overbroad

§  It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent.

o   No prior restraint

§  There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

o   Valid Delegation of power

§  As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear and present danger test stated in Sec. 6(a). The reference to imminent and grave danger of a substantive evil in Sec. 6(c) substantially means the same thing and is not an inconsistent standard.

On Freedom Parks

·         Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time:

o   SEC. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable freedom park or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. 

o   In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act.

·         Compliance with Sec. 15

o   Only Cebu City has declared a freedom park Fuente Osmea. That of Manila, the Sunken Gardens, has since been converted into a golf course.

o   The degree of observance of B.P. No. 880s mandate that every city and municipality set aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986.

·         The Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law.

o   For without such alternative forum, to deny the permit would in effect be to deny the right.

o   Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings.

*UPDATE

•      MAY 2006: THE Department of the Interior and Local Government (DILG) has identified twelve freedom parks in Metro Manila, where no prior permit will be needed for public protests.

•      Manila: Plaza Miranda, Plaza Dilao, Plaza Moriones, and Liwasang Bonifacio

•      Quezon City: Quezon Memorial Center

•      Caloocan City: LRT Westside in Grace Park

•      Navotas: Veterans Park

•      Valenzuela: the park in front of the City hall

•      San Juan: Pinaglabanan Park

•      Pasig City: Plaza Rizal

•      Marikina City: the City Hall Freedom Park

•      Makati City: the corner of Paseo de Roxas and Makati Avenue

2.    CPR Policy declared null and void.

·         CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else.

o   The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal term inasmuch as, according to respondents, it was merely a catchword intended to clarify what was thought to be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum tolerance policy embodied in that law.

·         What is to be followed is and should be that mandated by the law itself, namely, maximum tolerance:

o   SEC. 3. Definition of terms. For purposes of this Act:

o   x x x 

o   (c) Maximum tolerance means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

Presumption of Grant of Permit

•      There is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed.

•      In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

In Sum:

•      The so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses.

•      B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, maximum tolerance is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally permits is valid because it is subject to the constitutionally-sound clear and present danger standard.

•      in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayors office to allow proper coordination and orderly activities.