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With Due Respect

Regulating rallies and demos

According to the learned Justice Secretary (and incoming solicitor general) Menardo I. Guevarra, the Philippine National Police has no legal authority to ban rallies and demonstrations that activists are planning to hold during the ceremonies to swear-in President-elect Ferdinand “Bongbong” Marcos Jr. on June 30 at the National Museum.

HOWEVER, HE POSED A CAVEAT: While the “right of peaceful assembly, regardless of one’s political beliefs or affiliation, is guaranteed by the Constitution,” it is “subject to reasonable regulations to maintain peace and order, including the requirement to obtain a prior permit.”

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I think there is no question about the primacy of the constitutional right of peaceful assembly. The real issues revolve around the nature and extent of the laws and regulations that the state could approve and implement. Some of these are:

May the right of free assembly be exercised by anyone, anywhere, any day, any time, and for any reason? Is a permit always indispensable? If so, which entity is authorized to issue permits? Is the right reserved only for citizens? May foreigners exercise it also? May peaceful assemblies be held on any public or private property? For 24/7 and for any length of time, like weeks, months, years?

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These questions have befuddled libertarians, judges, government officials, academicians, and even ordinary folks. Many decisions, sometimes conflicting and confounding, have been issued by our courts.

NONETHELESS, I THINK BAYAN MUNA V. EXECUTIVE SECRETARY ERMITA (April 25, 2006) penned by the erudite Justice Adolfo S. Azcuna and supported unanimously by his colleagues including me as the then chief justice provides some answers. (No single decision can exhaustively answer all the above questions.)

Here, the petitioners claimed that their right to peaceful assembly was violated when their rallies were “violently” dispersed by the police as allegedly authorized by Batas Pambansa No. 880 (BP 880) and the policy of “calibrated preemptive response” (CPR) of the then-president.

Briefly, BP 880 laid down guidelines on the holding of public assemblies including what to require in applications for rally permits, the permissible conduct of law-enforcing authorities, and the prohibited acts and their penalties. It mandates “maximum tolerance” in dealing with rallies and demos.

CPR, on the other hand, was announced in a Malacañang press release dated Sept. 21, 2005, the pertinent parts of which stated, “[CPR] will now be enforced, 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.”

TO CATCH THE ESSENCE OF THE DECISION, LET ME QUOTE ITS SUMMATION, “… the Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that ‘in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected to heightened scrutiny.’

“For this reason, the so-called [CPR] 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, BP 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.

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“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 BP 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.”

Comments to [email protected]

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