G.R. No.
169838 April 25, 2006
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato
Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the
Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western
Police District Chief Gen. PEDRO BULAONG, Respondents.
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G.R. No. 169848 April 25, 2006
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul
Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael
Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita
Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De
los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO
REYES, in his official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his
official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief,
National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief,
Manila Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.
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G.R. No. 169881 April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL
MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU),
represented by its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE
MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines
and that their rights as organizations and individuals were violated when the rally they participated in on October 6,
2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that
they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was
preempted and violently dispersed by the police. They further assert that on October 5, 2005, a group they
participated in marched to Malacañang to protest issuances of the Palace which, they claim, put the country under an
"undeclared" martial rule, and the protest was likewise dispersed violently and many among them were arrested and
suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful
mass actions and that their rights as organizations and those of their individual members as citizens, specifically the
right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive
Response" (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but
police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of
their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was
scheduled to proceed along España Avenue in front of the University of Santo Tomas and going towards Mendiola
bridge. Police officers blocked them along Morayta Street and prevented them from proceeding further. They were
then forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested.
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.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The
Government [And] For Other Purposes
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;
(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the
mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the
mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse
the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the
public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor
vehicle, its horns and loud sound systems.
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
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.
Petitioners Bayan, et al., contend that Batas Pambansa No. 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
5
- Because it 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.
- Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government.
Petitioners Jess del Prado, et al., in turn, argue that 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.
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.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore
B.P. No. 880 cannot put the prior requirement of securing a permit.
As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can
perform their act, and that no law, ordinance or executive order supports the policy.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence that they had been "injured,
arrested or detained because of the CPR," and that "those arrested stand to be charged with violating Batas
Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and
manner regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a)
B.P. No. 880 is content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is
narrowly tailored to serve a significant governmental interest, i.e., the interest cannot be equally well served
by a means that is less intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative
channels for communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the
public assembly’s time, place and manner of conduct. It entails traffic re-routing to prevent grave public
inconvenience and serious or undue interference in the free flow of commerce and trade. Furthermore,
nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rally’s program content or the
statements of the speakers therein, except under the constitutional precept of the "clear and present danger
test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of
holding public assemblies and the law passes the test for such regulation, namely, these regulations need
only a substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court 9 held that a local chief executive has the authority to exercise
police power to meet "the demands of the common good in terms of traffic decongestion and public
convenience." Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and
6 (a), (b), (c), (d), (e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "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" and "imminent and grave danger of a substantive evil" both express the meaning of
the "clear and present danger test."10
7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to
protect public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a
more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in
the streets. It does not replace the rule of maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should
be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P.
No. 880; that his denials of permits were under the "clear and present danger" rule as there was a clamor to stop
rallies that disrupt the economy and to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v.
Fugoso,12 and Jacinto v. CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of
a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation because it
covers all rallies.
ISSUE:
1. constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic
Act No. 7160:
2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):
DEVELOPMENT OF CASE
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising
factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies
of September 20, October 4, 5 and 6, 2005.
2. 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.
HELD:
Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and
exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a
permit for all who would publicly assemble in the nation’s streets and parks. They have, in fact, purposely engaged in
public assemblies without the required permits to press their claim that no such permit can be validly required without
violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to
Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and
convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute for it may be so regulated
that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society under the Police power.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that
simply regulates the time, place and manner of the assemblies.
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 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, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is
possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are
determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms
of others and of meeting the just requirements of morality, public order and the general welfare in a
democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the
United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided
by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Contrary to petitioner’s claim, 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.
Neither is the law 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.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation .
CLEAR AND PRESENT DANGER RULE: "imminent and grave danger of a substantive evil"
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:
Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the
people’s exercise of their right to peacefully assemble and petition, 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. For
without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should,
however, be given to the authorities to ensure proper coordination and orderly proceedings.
CPR – “MAXIMUM TOLERANCE”
(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.
Furthermore, 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
For this reason, 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.
On the other hand, 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 this Decision, the Court goes even one step further 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 mayor’s office to allow
proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior
and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of
Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in
every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of
advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the
public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law.
Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of
maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY
OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other respects, and
the constitutionality of Batas Pambansa No. 880 is SUSTAINED.
