October 17, 2005 · Posted in: In the News
ON the same day that a prayer rally in Mendiola was violently hosed down by police water cannons, a group of lawyers had filed a petition with the Supreme Court to question the constitutionality of the calibrated preemptive response (CPR) enforced against rallies and the “no permit, no rally” policy under Batas Pambansa Blg. 880.
The Free Legal Assistance Group (FLAG) filed the petition on behalf of over two dozen protesters who were arrested and injured in two peaceful mass actions on September 26 and October 5 violently dispersed by the police. The petitioners are also seeking a temporary restraining order on the continued enforcement of the “no permit, no rally” policy and the CPR.
Named respondents were:
- Executive Secretary Eduardo Ermita
- Interior and Local Government Secretary Angelo Reyes
- Philippine National Police (PNP) Chief Arturo Lomibao
- PNP National Capital Regional Police Office (NCRPO) Chief Vidal Querol
- Manila Police District (MPD) Chief Pedro Bulaong
Last September 21, Ermita issued a statement announcing the “rule of calibrated preemptive response” on “unlawful mass actions.” Sought for a clarification of the rule by FLAG, Ermita’s office replied through Undersecretary Edwin Enrile:
At the outset, allow us to emphasize that calibrated pre-emptive response is not an exercise of any emergency power by the Executive. Rather, it is the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest and restore public order. An example would be the strict implementation of the “no permit, no rally” rule. Or the more active enforcement of existing warrants of arrest issued by the courts of law. Thus, it is not accurate to call “calibrated pre-emptive response” a new rule but rather a more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets.
Contrary to Usec Enrile’s reply, FLAG noted that the enforcement of the CPR in the two mass actions was markedly different from “maximum tolerance” as prescribed by BP 880 for dispersal of rallies.
FLAG’s petition holds that the “rule of calibrated preemptive response” violates the Constitution and existing laws based on the following grounds:
- It does not have any legal basis or legal effect since the “rule” was promulgated by a press statement and affirmed by a letter response. To date, no law, or executive or administrative or similar order has been passed promulgating the “rule.”
- It is void for vagueness, and arbitrary, since it delegates wide discretion without discernible standards to law enforcers to determine and act in “more pro-active and dynamic” ways to enforce existing laws, regulations and ordinances.
- It is undue delegation of legislative power, since it effectively repeals the maximum tolerance policy enunciated in Batas Pambansa 880.
- It is being used to silence legitimate dissent, as protestors who oppose the current administration are targeted for dispersal.
FLAG likewise holds that the “no permit, no rally” provision in Batas Pambansa 880 is unconstitutional for the following reasons:
- The right to peaceably assemble is enshrined in the 1987 Constitution: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances” (Sec. 4, Article III, 1987 Constitution).
- In a number of decisions, the Supreme Court upheld the right to peaceably assemble as a “necessary consequence of republican and democratic institutions, and the complement of the right of free speech” (US v. Bustos, et. al., No. 12592, 8 March 1918 (37 Phil. 731); US. V. Perfecto and Mendoza, No. 177493, 4 March 1922 (43 Phil. 58); among others). The Court further held that freedom of assembly “is entitled to be accorded utmost deference and respect” (Reyes v. Bagatsing, G.R. No. L-65366, November 9, 1983).
- In Primicias v. Fugoso, L-1800, 27 January 1948 (80 Phil. 71), the Court held that an ordinance “conferring upon the Mayor power to grant or refuse to grant the permit, … would be tantamount to authorizing him to prohibit the use of the streets and other public places for holding of meetings, parades or processions” and that “would make the ordinance invalid and void or violative of the constitutional limitations.”