PRIMICIAS v.

FUGOSO (1948)
Assembly and Petition


FACTS
Primicias applied for a permit to hold a “peaceful public
meeting” at the Plaza Miranda, to be held on November
16, 1947 (Sunday afternoon) for the purpose of
petitioning the government for redress to grievances.
Mayor Fugoso refused to issue said permit, his reason
being “that there is a reasonable ground to believe,
basing upon previous utterances and upon the fact that
passions, specially on the part of the losing groups,
remains bitter and high, that similar speeches will be
delivered tending to undermine the faith and confidence of
the people in their government, and in the duly
constituted authorities, which might threaten breaches of
the peace and a disruption of public order.”

ISSUE
Whether such refusal of the Mayor to grant a permit
amounts to a violation of petitioner’s constitutional right
to assembly and petition the government for redress of
grievances

RULING
Yes. Mayor is ordered to issue a permit in favor of
petitioner for the use of Plaza Miranda for the public
meeting.

The right to freedom of speech and to peacefully assemble
and petition the government for redress of grievances are
fundamental personal rights which are not absolute as
they may be regulated so that the same shall not be
injurious to the equal enjoyment of others having equal
rights.

The Court upheld the second construction (of Sec 1119 of
the Revised Ordinances of 1927 by the Municipal Board of
Manila), i.e, that the applicant has the right to a permit
which shall be granted by the Mayor, subject only to the
latter's reasonable discretion to determine or specify the
streets or public places to be used for the purpose, with
the view to prevent confusion by overlapping, to secure
convenient use of the streets and public places by others,
and to provide adequate and proper policing to minimize
the risk of disorder.

The legislative police power of the Municipal Board to
enact ordinances regulating reasonably the exercise of the
fundamental personal rights of the citizens in the streets
and other public places cannot be delegated to the Mayor
or any other officer by conferring upon him unregulated
discretion or without laying down rules to guide and
control his action. Assuming that the Legislature has
conferred upon the Mayor the power to grant or refuse
licenses and permits of all classes, such grant of
unregulated and unlimited power to grant or refuse a
permit for the use of streets and other public places for
processions, parades, or meetings, would be void because
it is violative of the people’s right to freedom of
assembly.

Jurisprudence (Whitney v. California): “Fear of serious
injury cannot alone justify suppression of free speech and
assembly. Men feared witches and burned women. It is
the function of speech to free men from the bondage of
irrational fears. To justify suppression of free speech there
must be reasonable ground to fear that serious evil will
result if free speech is practiced. There must be
reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable
ground to believe that the evil to be prevented is a serious
one.”

PETITION GRANTED.


HILADO, dissent:

(a) Right not absolute but subject to regulation.
The Mayor of Manila had the duty and power, among
others, "to grant and refuse municipal . . . permits of all
classes . . . for any (other) good reason of general
interest" (Rev. Ad. Code, section 2434) and "to comply
with and enforce and give the necessary orders for the
faithful enforcement and execution of the laws and
ordinances in effect within the jurisdiction of the city."

While people have the right to assemble peaceably on the
highways and to parade on streets, nevertheless the
government may regulate the use of public places wholly
within its control, and the state may regulate the use of
the streets by requiring a permit. The holding during
those hours of a meeting, assembly or rally of the size
and nature in such a public and busy place must have
been expected to greatly inconvenience and interfere with
the right of the public in general to devote said plaza to
the public uses for which it has been destined since time
immemorial. The right of assembly and petition for
redress of grievances is not absolute but subject to
reasonable regulations as regards the time, place, and
manner of its exercise.

Where the regulatory action is predicated upon the
"general comfort and convenience," and is "in consonance
with peace and good order," as in the instant case, such
action is regulation and not "guise of regulation," and
therefore does not abridge or deny the right.


(b) No constitutional right to use public places
under government control, for exercise of right of
assembly and petition, etc.
The action taken by the City Mayor was not even a
regulation of the constitutional right of assembly and
petition, or free speech, claimed by petitioner, but rather
of the use of a public place under the exclusive control of
the city government for the exercise of that right. No
political party or section of our people has any
constitutional right to freely and without government
control make use of such a public place as Plaza Miranda,
particularly if such use is a deviation from those for which
said public places have been by their nature and purpose
immemorially dedicated. Here, the mayor’s action was
exclusively confined to the regulation of the use of Plaza
Miranda for such a purpose and at such a time.

When the use of public streets or places is involved,
public convenience, public safety and public order
take precedence over even particular civil rights.
The constitution, in guaranteeing the right of peaceful
assembly and petition, the right of free speech, etc. does
not guarantee their exercise upon public places, any more
than upon private premises, without government
regulation in both cases, of the owners' consent in the
second.


(c) Authorities cited.
The fact that a law or municipal ordinance was declared
unconstitutional or otherwise void for delegating an
unfettered or arbitrary discretion upon the licensing
authority does not mean that such person has the right
by mandamus to force said authority to grant him the
permit. Here, section 2434 (b)-(m) of the Revised
Administrative Code does not confer upon the Mayor of
Manila an unfettered discretion to grant or refuse the
permit--his power to grant or to refuse the permit is
controlled and limited by the requirement that whatever
his determination, it should be "for any good reason of
general interest."

This case is concerned with an "indignation rally" to be
held at one of the busiest and most frequented public
places in the city, and the public officer who was being
called upon to act on the petition for permit was the chief
executive of the city who was directly responsible for the
keeping and maintenance of peace and public order for
the common good. His power in the premises was not
without limitation or guide and, lastly, the action taken by
him was not an absolute suppression of the right claimed
but was merely a postponement of the use of a public
place for the exercise of that right when popular passions
should have calmed down and public excitement cooled
off sufficiently to better insure the avoidance of public
peace and order being undermined.

If the control exerted does not deny or unwarrantedly
abridge the right of assembly, such control is legally valid.
Such is applicable in this case. If the postponement of the
granting of the permit should be taken as a denial of the
right, then we would practically be denying the discretion
of the proper official, for it would be tantamount to
compelling him to grant the permit outright, which could
necessarily mean that he can never refuse the permit, for
one who cannot even postpone the granting of such
permit much less can altogether refuse it.


(d) Mandamus unavailable.
Mc Quillin on Municipal Cororations, 2nd ed., Revised,
Volume 6 page 878, section 2728: If the issuance of the
license or permit is discretionary with the officer or
municipal board, it is clear that it cannot be compelled
by mandamus, especially where it is not alleged and
shown that the exercise of such discretion was arbitrary.
All the court can do is to see that the licensing authorities
have proceeded according to law.

Here, the reasons stated in the decision of the mayor to
deny the license to the petitioners negative any
arbitrariness in his part.

Some of the reasons cited by the City Mayor:
1. Public peace and order in Manila will be undermined at
the proposed rally considering the passions have not as
yet subsided and tension remains high as an aftermath of
the last political contest.
2. Judging from the tenor of the request for permit
(indignation rally for the purpose of denouncing the
alleged fraudulent manner the elections were conducted
and the nationwide flagrant violations of the Election Law)
and taking into consideration the circumstances under
which said meeting will be held, it is safe to state that
once the people are gathered thereat are incited, there
will be trouble between the opposing elements,
commotion will follow, and then peace and order in Manila
will be disrupted.
3. The moment the crowd becomes mixed with people of
different political colors which is most likely to happen,
public order is exposed to danger once the people are
incited, as they will be incited, considering the purposes
for which the meeting will be held as reported in the
newspapers above mentioned.

(In the mayor’s letter of denial, it was also stated that
immediately after the election returns have been officially
announced, the Nacionalista Party or any party will be
granted permit to hold meetings of indignation and to
denounce alleged frauds.)


CONCLUSION
The Mayor had under the law the requisite discretion to
grant or refuse the permit requested, as well as to revoke
that which had previously been granted. The reasons for
such revocation were amply sufficient to justify his last
action. Further, such denial was not an absolute denial of
the permit, but a mere postponement of the time for
holding the "rally" for good reasons "of general interest"
in the words of section 2434 (b)-(m) of the Revised
Administrative Code.