Bayan Muna v.

Ermita
FACTS:
The Petitions in these consolidated cases assailed (1) Batas Pambansa 880
-- in toto by petitioners; but only Sections 4, 5, 6, 12, 13(a), and 14(a) by
others -- and (2) the policy of “Calibrated Preemptive Response” (CPR).
The first petitioners, Bayan, et al., in G.R. No. 169838, 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, 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, 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. Three other rallyists were
arrested.
In brief, Batas Pambansa 880 (or the Public Assembly Act) of 1985 had laid
down guidelines on the holding of public assemblies or rallies, including
when and what to require in applications for a permit, what action to take on
applications, permissible conduct of law enforcement authorities, and
prohibited acts and their penalties. CPR, on the other hand, was a policy
announced in a Malacañang press release which states:
“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.”

Petitioners contended that Batas Pambansa 880 violated the Constitution,

as well as the International Covenant on Civil and Political Rights and other
human rights treaties of which the Philippines was a signatory. This law
supposedly required a permit before one could stage a public assembly,
regardless of the presence or absence of a clear and present danger. Batas
Pambansa 880, they said, also curtailed the choice of venue and was thus
repugnant to the freedom-of-expression clause, because the time and place
of a public assembly formed part of the message for which expression was
sought. Furthermore, this law was allegedly not content-neutral, as it did not
apply to mass actions in support of the government. As to the CPR policy,
they argued that it was preemptive, in that the government could take action
even before the rallyists performed their act; and was not supported by any
statute. Moreover, CPR was said to have contravened the maximum
tolerance policy of Batas Pambansa 880 and violated the Constitution,
because the policy caused a chilling effect on the people’s exercise of the
right to assemble peaceably. Respondents argued that CPR was simply the
responsible and judicious use of means allowed by existing laws and
ordinances to protect public interest and restore public order.

ISSUE:
Whether or not Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12
13(a) and 14(a) Constitutional
(a)Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the Universal
Declaration of Human Rights?

Whether or not Calibrated Preemptive Response (CPR) is Constitutional:

(a)is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26;
and October 4, 5 and 6, 2005?

HELD:
By a unanimous 13-0 vote, the Court, through Justice Adolfo S. Azcuna,
held that the standing of petitioners could not be seriously challenged. Their
rights as citizens to engage in peaceful assembly and to petition for the
redress of grievances, as guaranteed by the Constitution, were directly
affected by Batas Pambansa 880, which required a permit for all who would
publicly assemble in the nation’s streets and parks.
Article III, Section 4 of the Constitution, provides:
“SEC. 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.”
In the realm of constitutional protection, primacy is given to the right to
assemble peaceably and petition for redress of grievances, as well as to
exercise freedoms of speech, of expression, and of the press. These rights
constitute the very basis of a functional democratic polity, without which all
the other rights would be meaningless and unprotected.

No Absolute Ban on Assemblies

Batas Pambansa 880, however, is not an absolute ban on public
assemblies. It merely regulates the time, place and manner (TPM) of
assemblies, as adverted to in Osmeña v. Comelec.[8] In that earlier case,
the Court referred to Batas Pambansa 880 as a “content-neutral” regulation
for holding public assemblies.
in Primicias v. Fugoso, the 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. In Primicias, this Court said:

The right to freedom of speech, and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of
the people recognized and guaranteed by the constitutions of democratic
countries. But it is a settled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights 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. The power to regulate the exercise of such and other constitutional
rights is termed the sovereign "police power," which is the power to
prescribe regulations, to promote the health, morals, peace, education,
good order or safety, and general welfare of the people. This sovereign
police power is exercised by the government through its legislative branch
by the enactment of laws regulating those and other constitutional and civil
rights, and it may be delegated to political subdivisions, such as towns,
municipalities and cities by authorizing their legislative bodies called
municipal and city councils to enact ordinances for the purpose.
A fair and impartial reading of the law readily shows that it applies to all
kinds of public assemblies that will use public places. 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 be denied only on the ground of clear and
present danger to public order, public safety, public convenience, public
morals, or public health. This limitation on the exercise of the right is
recognized even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights.
The law is not over-broad, because the exercise of the right to peaceful
assembly and petition is regulated only to a certain extent: to that which is
needed for avoiding the clear and present danger of the substantive evils
that Congress has the right to prevent. Neither is there any prior restraint,
since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayors, the law provides a precise
and sufficient standard – the clear and present danger test. The reference to
“imminent and grave danger of a substantive evil” substantially means the
same thing and does not result in an inconsistent standard.

Creation of Freedom Parks Creation of Freedom Parks

Finally, Section 15 of the law has provided for an alternative forum through
the creation of freedom parks, where no prior permit is needed for peaceful
assembly and petition at any time. This provision states:
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.

The solicitor general stated during the Oral Argument, though, that to his
knowledge only Cebu City had declared a freedom park: Fuente Osmeña.
The Court considered the existence of freedom parks an essential part of
the law’s system of regulation of the people’s exercise of their right to
assemble and petition peacefully. It was thus constrained to rule in this
wise: after thirty (30) days from the finality of the Decision in this case, no
prior permit may be required for the exercise of that right in any public park
or plaza of a city or municipality, until that locality shall have complied with
Section 15 of the law. Without this alternative forum, to deny the permit
would in effect be to deny the right. Advance notices of any rally should,
however, be given to the authorities to ensure proper coordination and
orderly proceedings.
No Purpose Served by CPR (Caliberated Preemptive Response)
The Court ruled that CPR served no valid purpose if it meant the same as
the maximum tolerance mandated by the said law; otherwise, the policy was
illegal. Maximum tolerance meant the highest degree of restraint that the
military, police and other peace-keeping authorities should observe during
the holding or the dispersal of a public assembly. Accordingly, such
tolerance should be followed, as mandated by the law itself
The Supreme Court further addressed the kind of situation that arose when
a rally was immediately dispersed, because the mayor had not acted on the
application for a permit; and when the rallyists could not produce one after
the police had demanded a permit. The Court held that, as a necessary
consequence of maximum tolerance, rallyists who could show the police an
application duly filed two days prior to the rally may assemble publicly in
accordance with their application. They would not need to show a permit,
the grant of which would then be presumed under the law. The authorities
would have the burden to show that there was a denial of the application, in
which case the rally may be peacefully dispersed following the procedure of
maximum tolerance prescribed by law.

Strict Scrutiny – requires that the classification serve a compelling state

interest and is necessary to achieve such interest. This level is used when
suspect classifications or fundamental rights are involved