FIRST DIVISION

[G.R. No. 175241. February 24, 2010.]

INTEGRATED BAR OF THE PHILIPPINES represented by its

National President, Jose Anselmo I. Cadiz, H. HARRY L.
ROQUE, and JOEL RUIZ BUTUYAN,petitioners, vs.
HONORABLE MANILA MAYOR JOSE "LITO"
ATIENZA, respondent.

DECISION

CARPIO MORALES, J : p

Petitioners Integrated Bar of the Philippines 1 (IBP) and lawyers H. Harry

L. Roque and Joel R. Butuyan appeal the June 28, 2006 Decision 2 and the
October 26, 2006 Resolution 3 of the Court of Appeals that found no grave
abuse of discretion on the part of respondent Jose "Lito" Atienza, the then
mayor of Manila, in granting a permit to rally in a venue other than the one
applied for by the IBP.
On June 15, 2006, the IBP, through its then National President Jose
Anselmo Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a letter
application 4 for a permit to rally at the foot of Mendiola Bridge on June 22, 2006
from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and members,
law students and multi-sectoral organizations.
Respondent issued a permit 5 dated June 16, 2006 allowing the IBP to
stage a rally on given date but indicated therein Plaza Miranda as the venue,
instead of Mendiola Bridge, which permit the IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals
a petition for certiorari docketed as CA-G.R. SP No. 94949. 6 The petition
having been unresolved within 24 hours from its filing, petitioners filed before
this Court on June 22, 2006 a petition for certiorari docketed as G.R. No.
172951 which assailed the appellate court's inaction or refusal to resolve the
petition within the period provided under the Public Assembly Act of 1985. 7
The Court, by Resolutions of July 26, 2006, August 30, 2006 and
November 20, 2006, respectively, denied the petition for being moot and
academic, denied the relief that the petition be heard on the merits in view of
the pendency of CA-G.R. SP No. 94949, and denied the motion for
reconsideration. EaHcDS

The rally pushed through on June 22, 2006 at Mendiola Bridge, after
Cadiz discussed with P/Supt. Arturo Paglinawan whose contingent from the
Manila Police District (MPD) earlier barred petitioners from proceeding thereto.
Petitioners allege that the participants voluntarily dispersed after the peaceful
conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal
action, 8 docketed as I.S. No. 06I-12501, against Cadiz for violating the Public
Assembly Act in staging a rally at a venue not indicated in the permit, to which
charge Cadiz filed a Counter-Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by
the first assailed issuance, that the petition became moot and lacked merit. The
appellate court also denied petitioners' motion for reconsideration by the
second assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which
respondent filed his Comment of November 18, 2008 which merited petitioners'
Reply of October 2, 2009.
The main issue is whether the appellate court erred in holding that the
modification of the venue in IBP's rally permit does not constitute grave abuse
of discretion.
Petitioners assert that the partial grant of the application runs contrary to
the Pubic Assembly Act and violates their constitutional right to freedom of
expression and public assembly.
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006
became moot upon the passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. Generally, courts decline jurisdiction over
such case or dismiss it on ground of mootness. However, even in cases where
supervening events had made the cases moot, this Court did not hesitate to
resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar and public. Moreover, as an exception to the
rule on mootness, courts will decide a question otherwise moot if it is capable
of repetition, yet evading review. 9aACEID

In the present case, the question of the legality of a modification of a

permit to rally will arise each time the terms of an intended rally are altered by
the concerned official, yet it evades review, owing to the limited time in
processing the application where the shortest allowable period is five days prior
to the assembly. The susceptibility of recurrence compels the Court to
definitively resolve the issue at hand.
Respecting petitioners' argument that the issues presented in CA-G.R.
SP No. 94949 pose a prejudicial question to the criminal case against Cadiz,
the Court finds it improper to resolve the same in the present case.
Under the Rules, 10 the existence of a prejudicial question is a ground in
a petition to suspend proceedings in a criminal action. Since suspension of the
proceedings in the criminal action may be made only upon petition and not at
the instance of the judge or the investigating prosecutor, 11 the latter cannot
take cognizance of a claim of prejudicial question without a petition to suspend
being filed. Since a petition to suspend can be filed only in the criminal
action, 12 the determination of the pendency of a prejudicial question should be
made at the first instance in the criminal action, and not before this Court in an
appeal from the civil action.
In proceeding to resolve the petition on the merits, the appellate court
found no grave abuse of discretion on the part of respondent because the
Public Assembly Act does not categorically require respondent to specify in
writing the imminent and grave danger of a substantive evil which warrants the
denial or modification of the permit and merely mandates that the action taken
shall be in writing and shall be served on respondent within 24 hours. The
appellate court went on to hold that respondent is authorized to regulate the
exercise of the freedom of expression and of public assembly which are not
absolute, and that the challenged permit is consistent with Plaza Miranda's
designation as a freedom park where protest rallies are allowed without permit.
The Court finds for petitioners.
Section 6 of the Public Assembly Act reads:
Section 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. DacASC

(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
application [sic] 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. (underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v.
Ermita, 13 the Court reiterated:
. . . Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It
is entitled to be accorded the utmost deference and respect. It is not to
be limited, much less denied, except on a showing, as is the case
with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to
the 1935 Constitution, Justice Malcolm had occasion to stress that it is a
necessary consequence of our republican institutions and complements
the right of free speech. To paraphrase the opinion of Justice Rutledge,
speaking for the majority of the American Supreme Court in Thomas v.
Collins, it was not by accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single guarantee with the rights
of the people peaceably to assemble and to petition the government for
redress of grievances. All these rights, while not identical, are inseparable.
In every case, therefore, where there is a limitation placed on the exercise
of this right, the judiciary is called upon to examine the effects of the
challenged governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental to the
 maintenance of democratic institutions, is the danger, of a character
both grave and imminent, of a serious evil to public safety, public
morals, public health, or any other legitimate public
interest. 14(emphasis supplied) HDTcEI

The Court in Bayan stated that the provisions of the Public Assembly Act
of 1985 practically codified the 1983 ruling in Reyes v. Bagatsing. 15 In
juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent portion
of the Reyes case, the Court elucidated as follows:
. . . [The public official concerned shall] appraise whether there may be
valid objections to the grant of the permit or to its grant but at another
public place. It is an indispensable condition to such refusal
or modification that the clear and present danger test be the standard for
the decision reached. If he is of the view that there is such an imminent
and grave danger of a substantive evil, the applicants must be heard on
the matter. Thereafter, his decision, whether favorable or adverse, must
be transmitted to them at the earliest opportunity. Thus if so minded, they
can have recourse to the proper judicial authority. 16 (italics and
underscoring supplied)
In modifying the permit outright, respondent gravely abused his discretion
when he did not immediately inform the IBP who should have been heard first
on the matter of his perceived imminent and grave danger of a substantive evil
that may warrant the changing of the venue. The opportunity to be heard
precedes the action on the permit, since the applicant may directly go to court
after an unfavorable action on the permit.
Respondent failed to indicate how he had arrived at modifying the terms
of the permit against the standard of a clear and present danger test which, it
bears repeating, is an indispensable condition to such modification. Nothing in
the issued permit adverts to an imminent and grave danger of a substantive
evil, which "blank" denial or modification would, when granted imprimatur as
the appellate court would have it, render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is
not, however, unfettered discretion. While prudence requires that there be
a realistic appraisal not of what may possibly occur but of what may
probably occur, given all the relevant circumstances, still the assumption
especially so where the assembly is scheduled for a specific public
place is that the permit must be for the assembly being held there. The
exercise of such a right, in the language of Justice Roberts, speaking
for the American Supreme Court, is not to be "abridged on the plea
that it may be exercised in some other place." 17 (emphasis and
underscoring supplied)
 Notably, respondent failed to indicate in his Comment any basis or
explanation for his action. It smacks of whim and caprice for respondent to just
impose a change of venue for an assembly that was slated for a specific public
place. It is thus reversible error for the appellate court not to have found such
grave abuse of discretion and, under specific statutory provision, not to have
modified the permit "in terms satisfactory to the applicant." 18
aATCDI

WHEREFORE, the assailed Decision and Resolution of the Court of

Appeals in CA-G.R. SP No. 94949 are REVERSED. The Court DECLARES
that respondent committed grave abuse of discretion in modifying the rally
permit issued on June 16, 2006 insofar as it altered the venue from Mendiola
Bridge to Plaza Miranda.
SO ORDERED.
Puno, C.J., Leonardo-De Castro, Bersamin and Villarama, Jr., JJ., concur.
(Integrated Bar of the Philippines v. Atienza, G.R. No. 175241, [February 24,
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2010])