Biraogo v. Truth Commission, G.R. No. 192935/G.R. No.

193036
FACTS:
Pres. Aquino signed E. O. No. 1 establishing Philippine Truth Commission
of 2010 (PTC) dated July 30, 2010. PTC is a mere ad hoc body formed
under the Office of the President with the primary task to investigate reports
of graft and corruption committed by third-level public officers and
employees, their co-principals, accomplices and accessories during the
previous administration, and to submit its finding and recommendations to
the President, Congress and the Ombudsman. PTC has all the powers of
an investigative body. But it is not a quasi-judicial body as it cannot
adjudicate, arbitrate, resolve, settle, or render awards in disputes between
contending parties. All it can do is gather, collect and assess evidence of
graft and corruption and make recommendations. It may have subpoena
powers but it has no power to cite people in contempt, much less order
their arrest. Although it is a fact-finding body, it cannot determine from such
facts if probable cause exists as to warrant the filing of an information in our
courts of law.
Petitioners asked the Court to declare it unconstitutional and to enjoin the
PTC from performing its functions. They argued that:
(a) E.O. No. 1 violates separation of powers as it arrogates the power of
the Congress to create a public office and appropriate funds for its
operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative
Code of 1987 cannot legitimize E.O. No. 1 because the delegated
authority of the President to structurally reorganize the Office of the
President to achieve economy, simplicity and efficiency does not
include the power to create an entirely new public office which was
hitherto inexistent like the Truth Commission.
(c) E.O. No. 1 illegally amended the Constitution and statutes when it
vested the Truth Commission with quasi-judicial powers duplicating,
if not superseding, those of the Office of the Ombudsman created
under the 1987 Constitution and the DOJ created under the
Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets
for investigation and prosecution officials and personnel of the
previous administration as if corruption is their peculiar species even
as it excludes those of the other administrations, past and present,
who may be indictable.

Respondents, through OSG, questioned the legal standing of petitioners

and argued that:
1] E.O. No. 1 does not arrogate the powers of Congress because the
Presidents executive power and power of control necessarily include
the inherent power to conduct investigations to ensure that laws are
1
 faithfully executed and that, in any event, the Constitution, Revised
Administrative Code of 1987, PD No. 141616 (as amended), R.A. No.
9970 and settled jurisprudence, authorize the President to create or
form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate
funds because there is no appropriation but a mere allocation of
funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions
of the Ombudsman and the DOJ, because it is a fact-finding body
and not a quasi-judicial body and its functions do not duplicate,
supplant or erode the latters jurisdiction.
4] The Truth Commission does not violate the equal protection clause
because it was validly created for laudable purposes.

ISSUES:
1. WON the petitioners have legal standing to file the petitions and
question E. O. No. 1;
2. WON E. O. No. 1 violates the principle of separation of powers by
usurping the powers of Congress to create and to appropriate funds
for public offices, agencies and commissions;
3. WON E. O. No. 1 supplants the powers of the Ombudsman and the
DOJ;
4. WON E. O. No. 1 violates the equal protection clause.

RULING:
The power of judicial review is subject to limitations, to wit: (1) there must
be an actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have the standing to question the
validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue
of constitutionality must be the very lis mota of the case.
1. The petition primarily invokes usurpation of the power of the Congress
as a body to which they belong as members. To the extent the powers of
Congress are impaired, so is the power of each member thereof, since his
office confers a right to participate in the exercise of the powers of that
institution.
Legislators have a legal standing to see to it that the prerogative, powers
and privileges vested by the Constitution in their office remain inviolate.
Thus, they are allowed to question the validity of any official action which,
to their mind, infringes on their prerogatives as legislators.
With regard to Biraogo, he has not shown that he sustained, or is in danger
of sustaining, any personal and direct injury attributable to the
2
implementation of E. O. No. 1.
Locus standi is a right of appearance in a court of justice on a given
question. In private suits, standing is governed by the real-parties-in
interest rule. It provides that every action must be prosecuted or defended
in the name of the real party in interest. Real-party-in interest is the party
who stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit.
Difficulty of determining locus standi arises in public suits. Here, the plaintiff
who asserts a public right in assailing an allegedly illegal official action,
does so as a representative of the general public. He has to show that he is
entitled to seek judicial protection. He has to make out a sufficient interest
in the vindication of the public order and the securing of relief as a citizen
or taxpayer.
The person who impugns the validity of a statute must have a personal
and substantial interest in the case such that he has sustained, or will
sustain direct injury as a result. The Court, however, finds reason in
Biraogos assertion that the petition covers matters of transcendental
importance to justify the exercise of jurisdiction by the Court. There are
constitutional issues in the petition which deserve the attention of this Court
in view of their seriousness, novelty and weight as precedents
The Executive is given much leeway in ensuring that our laws are faithfully
executed. The powers of the President are not limited to those specific
powers under the Constitution. One of the recognized powers of the
President granted pursuant to this constitutionally-mandated duty is the
power to create ad hoc committees. This flows from the obvious need to
ascertain facts and determine if laws have been faithfully executed. The
purpose of allowing ad hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled to know so that he can
be properly advised and guided in the performance of his duties relative to
the execution and enforcement of the laws of the land.

2. There will be no appropriation but only an allotment or allocations of

existing funds already appropriated. There is no usurpation on the part of
the Executive of the power of Congress to appropriate funds. There is no
need to specify the amount to be earmarked for the operation of the
commission because, whatever funds the Congress has provided for the
Office of the President will be the very source of the funds for the
commission. The amount that would be allocated to the PTC shall be
subject to existing auditing rules and regulations so there is no impropriety
in the funding.

3. PTC will not supplant the Ombudsman or the DOJ or erode their
respective powers. If at all, the investigative function of the commission will
complement those of the two offices. The function of determining probable
3
cause for the filing of the appropriate complaints before the courts remains
to be with the DOJ and the Ombudsman. PTCs power to investigate is
limited to obtaining facts so that it can advise and guide the President in the
performance of his duties relative to the execution and enforcement of the
laws of the land.

4. Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the investigative
power of the President, the Court finds difficulty in upholding the
constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article
III (Bill of Rights) of the 1987 Constitution.
The petitioners assail Executive Order No. 1 because it is violative of this
constitutional safeguard. They contend that it does not apply equally to all
members of the same class such that the intent of singling out the
"previous administration" as its sole object makes the PTC an "adventure in
partisan hostility."66 Thus, in order to be accorded with validity, the
commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo.67
The petitioners argue that the search for truth behind the reported cases of
graft and corruption must encompass acts committed not only during the
administration of former President Arroyo but also during prior
administrations where the "same magnitude of controversies and
anomalies"68 were reported to have been committed against the Filipino
people. They assail the classification formulated by the respondents as it
does not fall under the recognized exceptions because first, "there is no
substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who
abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to
end corruption."69 In order to attain constitutional permission, the petitioners
advocate that the commission should deal with "graft and grafters prior and
subsequent to the Arroyo administration with the strong arm of the law with
equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the
"previous administration" as the initial subject of the investigation, following
Section 17 thereof, the PTC will not confine itself to cases of large scale
graft and corruption solely during the said administration.71 Assuming
arguendo that the commission would confine its proceedings to officials of
the previous administration, the petitioners argue that no offense is
committed against the equal protection clause for "the segregation of the
transactions of public officers during the previous administration as
possible subjects of investigation is a valid classification based on
4
substantial distinctions and is germane to the evils which the Executive
Order seeks to correct."72 To distinguish the Arroyo administration from
past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale
graft and corruption in the previous administration which have eroded
public confidence in public institutions. There is, therefore, an urgent call for
the determination of the truth regarding certain reports of large scale graft
and corruption in the government and to put a closure to them by the filing
of the appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the peoples faith and confidence in
the Government and in their public servants.
Second. The segregation of the preceding administration as the object of
fact-finding is warranted by the reality that unlike with administrations long
gone, the current administration will most likely bear the immediate
consequence of the policies of the previous administration.
Third. The classification of the previous administration as a separate class
for investigation lies in the reality that the evidence of possible criminal
activity, the evidence that could lead to recovery of public monies illegally
dissipated, the policy lessons to be learned to ensure that anti-corruption
laws are faithfully executed, are more easily established in the regime that
immediately precede the current administration.
Fourth. Many administrations subject the transactions of their predecessors
to investigations to provide closure to issues that are pivotal to national life
or even as a routine measure of due diligence and good housekeeping by a
nascent administration like the Presidential Commission on Good
Government (PCGG), created by the late President Corazon C. Aquino
under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of
her predecessor former President Ferdinand Marcos and his cronies, and
the Saguisag Commission created by former President Joseph Estrada
under Administrative Order No, 53, to form an ad-hoc and independent
citizens committee to investigate all the facts and circumstances
surrounding "Philippine Centennial projects" of his predecessor, former
President Fidel V. Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of
the equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however,
to provide for a more specific guaranty against any form of undue favoritism
or hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.74
5
"According to a long line of decisions, equal protection simply requires that
all persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed."75 It "requires public bodies
and institutions to treat similarly situated individuals in a similar
manner."76 "The purpose of the equal protection clause is to secure every
person within a states jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by
its improper execution through the states duly constituted authorities."77 "In
other words, the concept of equal justice under the law requires the state to
govern impartially, and it may not draw distinctions between individuals
solely on differences that are irrelevant to a legitimate governmental
objective."78
The equal protection clause is aimed at all official state actions, not just
those of the legislature.79 Its inhibitions cover all the departments of the
government including the political and executive departments, and extend
to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken. 80
It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such classification, however,
to be valid must pass the test of reasonableness. The test has four
requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions
only; and
(4) It applies equally to all members of the same class.81 "Superficial
differences do not make for a valid classification."82
For a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class.83 "The
classification will be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and obligations imposed. It
is not necessary that the classification be made with absolute symmetry, in
the sense that the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice; and as
long as this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a class differs
from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application of the
law to him."84
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It
must be of such a nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out or
"underinclude" those that should otherwise fall into a certain classification.
6
As elucidated in Victoriano v. Elizalde Rope Workers' Union85 and
reiterated in a long line of cases,86
The guaranty of equal protection of the laws is not a guaranty of equality in
the application of the laws upon all citizens of the state. It is not, therefore,
a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in
fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that of
inequality, so that it goes without saying that the mere fact of inequality in
no manner determines the matter of constitutionality. All that is required of
a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for
real differences, that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard
is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be
struck down as violative of the equal protection clause. The clear mandate
of the envisioned truth commission is to investigate and find out the truth
"concerning the reported cases of graft and corruption during the previous
administration"87 only. The intent to single out the previous administration is
plain, patent and manifest. Mention of it has been made in at least three
portions of the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of
7
the people, committed by public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action
or measure to be taken thereon to ensure that the full measure of justice
shall be served without fear or favor.
SECTION 2. Powers and Functions. The Commission, which shall have
all the powers of an investigative body under Section 37, Chapter 9, Book I
of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption
referred to in Section 1, involving third level public officers and higher, their
co-principals, accomplices and accessories from the private sector, if any,
during the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
[Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but
just a member of a class, that is, a class of past administrations. It is not a
class of its own. Not to include past administrations similarly situated
constitutes arbitrariness which the equal protection clause cannot sanction.
Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are not
substantial enough to merit the restriction of the investigation to the
"previous administration" only. The reports of widespread corruption in the
Arroyo administration cannot be taken as basis for distinguishing said
administration from earlier administrations which were also blemished by
similar widespread reports of impropriety. They are not inherent in, and do
not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it,
"Superficial differences do not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1 chooses to
limit the scope of the intended investigation to the previous administration
only. The OSG ventures to opine that "to include other past
administrations, at this point, may unnecessarily overburden the
commission and lead it to lose its effectiveness."89The reason given is
specious. It is without doubt irrelevant to the legitimate and noble objective
of the PTC to stamp out or "end corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing evidence or that
the earlier reports involving the earlier administrations were already
inquired into is beside the point. Obviously, deceased presidents and cases
which have already prescribed can no longer be the subjects of inquiry by
the PTC. Neither is the PTC expected to conduct simultaneous
investigations of previous administrations, given the bodys limited time and
resources. "The law does not require the impossible" (Lex non cogit ad
impossibilia).91
8
Given the foregoing physical and legal impossibility, the Court logically
recognizes the unfeasibility of investigating almost a centurys worth of graft
cases. However, the fact remains that Executive Order No. 1 suffers from
arbitrary classification. The PTC, to be true to its mandate of searching for
the truth, must not exclude the other past administrations. The PTC must,
at least, have the authority to investigate all past administrations.
While reasonable prioritization is permitted, it should not be arbitrary lest
it be struck down for being unconstitutional. In the often quoted language of
Yick Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in appearance, yet, if
applied and administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the
denial of equal justice is still within the prohibition of the constitution.
[Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its
scope is limited. The Court, however, is of the considered view that
although its focus is restricted, the constitutional guarantee of equal
protection under the laws should not in any way be circumvented. The
Constitution is the fundamental and paramount law of the nation to which
all other laws must conform and in accordance with which all private rights
determined and all public authority administered.93 Laws that do not
conform to the Constitution should be stricken down for being
unconstitutional.94While the thrust of the PTC is specific, that is, for
investigation of acts of graft and corruption, Executive Order No. 1, to
survive, must be read together with the provisions of the Constitution. To
exclude the earlier administrations in the guise of "substantial distinctions"
would only confirm the petitioners lament that the subject executive order
is only an "adventure in partisan hostility." In the case of US v. Cyprian,95 it
was written: "A rather limited number of such classifications have routinely
been held or assumed to be arbitrary; those include: race, national origin,
gender, political activity or membership in a political party, union activity or
membership in a labor union, or more generally the exercise of first
amendment rights."
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally
belong to the class.96 "Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the
number included within a class, but must be of such a nature as to
embrace all those who may thereafter be in similar circumstances and
conditions. Furthermore, all who are in situations and circumstances which
are relative to the discriminatory legislation and which are indistinguishable
from those of the members of the class must be brought under the
influence of the law and treated by it in the same way as are the members
9
of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to the
validity of a law under the equal protection clause."98 "Legislation is not
unconstitutional merely because it is not all-embracing and does not
include all the evils within its reach."99 It has been written that a regulation
challenged under the equal protection clause is not devoid of a rational
predicate simply because it happens to be incomplete.100 In several
instances, the under inclusiveness was not considered a valid reason to
strike down a law or regulation where the purpose can be attained in future
legislations or regulations. These cases refer to the "step by step"
process.101 "With regard to equal protection claims, a legislature does not
run the risk of losing the entire remedial scheme simply because it fails,
through inadvertence or otherwise, to cover every evil that might
conceivably have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and intentional as
can be gleaned from the fact that it was underscored at least three times in
the assailed executive order. It must be noted that Executive Order No. 1
does not even mention any particular act, event or report to be focused on
unlike the investigative commissions created in the past. "The equal
protection clause is violated by purposeful and intentional
discrimination."103
To disprove petitioners contention that there is deliberate discrimination,
the OSG clarifies that the commission does not only confine itself to cases
of large scale graft and corruption committed during the previous
administration.104The OSG points to Section 17 of Executive Order No. 1,
which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the
judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations,
such mandate may be so extended accordingly by way of a supplemental
Executive Order.
The Court is not convinced. Although Section 17 allows the President the
discretion to expand the scope of investigations of the PTC so as to include
the acts of graft and corruption committed in other past administrations, it
does not guarantee that they would be covered in the future. Such
expanded mandate of the commission will still depend on the whim and
caprice of the President. If he would decide not to include them, the section
would then be meaningless. This will only fortify the fears of the petitioners
that the Executive Order No. 1 was "crafted to tailor-fit the prosecution of
officials and personalities of the Arroyo administration."105
The Court tried to seek guidance from the pronouncement in the case
of Virata v. Sandiganbayan,106 that the "PCGG Charter (composed of
10
Executive Orders Nos. 1, 2 and 14) does not violate the equal protection
clause." The decision, however, was devoid of any discussion on how such
conclusory statement was arrived at, the principal issue in said case being
only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the
Supreme Court, in the exercise of its constitutionally mandated power of
Judicial Review with respect to recent initiatives of the legislature and the
executive department, is exercising undue interference. Is the Highest
Tribunal, which is expected to be the protector of the Constitution, itself
guilty of violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the Court, but
it seems that the present political situation calls for it to once again explain
the legal basis of its action lest it continually be accused of being a
hindrance to the nations thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the
1987 Constitution, is vested with Judicial Power that "includes the duty of
the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there
has been a grave of abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial
review which is the power to declare a treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation unconstitutional. This power also includes the duty
to rule on the constitutionality of the application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other
regulations. These provisions, however, have been fertile grounds of
conflict between the Supreme Court, on one hand, and the two co-equal
bodies of government, on the other. Many times the Court has been
accused of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a good
source of enlightenment, to wit: "And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it
by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them."107
Thus, the Court, in exercising its power of judicial review, is not imposing its
own will upon a co-equal body but rather simply making sure that any act of
government is done in consonance with the authorities and rights allocated
to it by the Constitution. And, if after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of
11
proscribing the actions under review. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble
intentions, all geared towards the betterment of the nation and its people.
But then again, it is important to remember this ethical principle: "The end
does not justify the means." No matter how noble and worthy of admiration
the purpose of an act, but if the means to be employed in accomplishing it
is simply irreconcilable with constitutional parameters, then it cannot still be
allowed.108 The Court cannot just turn a blind eye and simply let it pass. It
will continue to uphold the Constitution and its enshrined principles.
"The Constitution must ever remain supreme. All must bow to the mandate
of this law. Expediency must not be allowed to sap its strength nor greed
for power debase its rectitude."109
Lest it be misunderstood, this is not the death knell for a truth commission
as nobly envisioned by the present administration. Perhaps a revision of
the executive issuance so as to include the earlier past administrations
would allow it to pass the test of reasonableness and not be an affront to
the Constitution. Of all the branches of the government, it is the judiciary
which is the most interested in knowing the truth and so it will not allow
itself to be a hindrance or obstacle to its attainment. It must, however, be
emphasized that the search for the truth must be within constitutional
bounds for "ours is still a government of laws and not of men."110

WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is

hereby declared UNCONSTITUTIONAL insofar as it is violative of the equal
protection clause of the Constitution.

Garcia v. Drilon, G.R. No. 179267, June 25, 2013

FACT
Rosalie filed a petition for issuance of temporary protection order for herself
and in behalf of her minor children before the Regional Trial Court of
Bacolod City against her husband, Jesus. According to her, they were
married in 2002. They had three children. She was a dutiful wife whose
wife revolved around her husband. On the other hand, her husband is a
domineering, and demands absolute respectf from his wife and his
children. He forbade her to pray or to communicate with her friends; even
her law schooling was put on hold. Things started to get for the worse when
she discovered his affair with a bank manager. They had a series of fights
were she suffered physical and emotional abuse; even their daughter were
not spared her fathers wrath. Their small children were also aware of their
fights. All of these abuses she suffered at the hands of her husband
pushed her to the brink of despair that she attempted suicide, but her
12
husband did not bring her to the hospital; he just left home, and did not
communicate with his wife, nor extended any sympathy or compassion to
his wife. Her husband got all the more angry when she reported the bank
manager to the company, so that he packed his things and left home. She
alleged that Jesus controls the bulk of the family business and have
unlimited access to funds. She is afraid that if she leaves her, he will
support them financially, as he had not done any accounting of the
business.
The RTC then issued a temporary protection order in favour of Rosalie and
her children, effective for 30 days; the TPO was also amended upon motion
by Rosalie. In his opposition to the TPO, he alleged that the motion did not
comply with the 3-day notice rule, and asked that one vehicle be turned
over to its rightful owner, as well as reduce the bond.
During the pendency of the civil case at the RTC, Jesus filed a petition for
prohibition with prayer for issuance of temporary restraining order, claiming
that RA 9262 is unconstitutional, and the issued TPOs the product of an
invalid law.
The Court of Appeals denied the petition for prohibition, alleging that Jesus
should have assailed the constitutionality of the law at the lower court. His
challenge to the protection orders issued by the courts were a collateral
attack on the validity of the law. Jesus moved to reconsider, but the same
was denied, hence he elevated the case to the Supreme Court. Among the
issues raised by Jesus to assail the constitutionality of Republic Act 9262 is
that it is violative of the Constitution for being discriminatory, violates the
equal protection clause, as well as the due process clause, as well as an
improper delegation to the barangay in the issuance of barangay protection
orders.
ISSUE
WON the CA committed serious error in failing to conclude that RA 9262 is
discriminatory, unjust and violative of the equal protection clause.
HELD
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed. The oft-repeated disquisition in the early case of Victoriano v.
Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in
the application of the laws upon all citizens of the state. It is not, therefore,
a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in
13
fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that of
inequality, so that it goes without saying that the mere fact of inequality in
no manner determines the matter of constitutionality. All that is required of
a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for
real differences; that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard
is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A.
9262 is based on a valid classification as shall hereinafter be discussed
and, as such, did not violate the equal protection clause by favoring women
over men as victims of violence and abuse to whom the State extends its
protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that
women are more likely than men to be victims of violence; and the
widespread gender bias and prejudice against women all make for real
differences justifying the classification under the law. As Justice McIntyre
succinctly states, "the accommodation of differences ... is the essence of
true equality."
The mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every
classification of persons or things for regulation by law produces inequality
in some degree, but the law is not thereby rendered invalid.

14
Navarro v. CA, G.R. No. 121087, August 26, 1999

Marquez v. Desierto, G.R. No. 135882, June 27, 2001

Before an in camera inspection may be allowed, there must be a
pending case before a court of competent jurisdiction. Further, the
account must be clearly identified, the inspection limited to the
subject matter of the pending case before the court of competent
jurisdiction. The bank personnel and the account holder must be
notified to be present during the inspection, and such inspection may
cover only the account identified in the pending case.
15
Facts:
Pursuant to an investigation regarding the PEA AMARI project,
Ombudsman Desierto ordered petitioner Marquez to produce several bank
documents for purposes of inspection in camera relative to various
accounts maintained at Union Bank of the Philippines, Julia Vargas Branch,
where petitioner is the branch manager..
The order of the Ombudsman to produce for in camera inspection the
subject accounts with the Union Bank of the Philippines, Julia Vargas
Branch, was based on a pending investigation at the Office of the
Ombudsman against Amado Lagdameo, et. al. for violation of R.A. No.
3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement between
the Public Estates Authority and AMARI.
Marquez filed a petition for declaratory relief, seeking to clarify if such an
action will violate RA. No. 1405.
Issue:
Whether the order of the Ombudsman to have an in camera inspection of
the questioned account is allowed as an exception to the law on secrecy of
bank deposits (R.A. No.1405).

Held:
An examination of the secrecy of bank deposits law (R. A. No. 1405) would
reveal the followingexceptions:
1. Where the depositor consents in writing;
2. Impeachment case;
3. By court order in bribery or dereliction of duty cases against public
officials;
4. Deposit is subject of litigation;
5. Sec. 8, R. A. No. 3019, in cases of unexplained wealth as held in the
case of PNB vs. Gancayco

No. Before an in camera inspection may be allowed, there must be a

pending case before a court of competent jurisdiction. Further, the account
must be clearly identified, the inspection limited to the subject matter of the
pending case before the court of competent jurisdiction. The bank
personnel and the account holder must be notified to be present during the
inspection, and such inspection may cover only the account identified in the
pending case.

In the case at bar, there is yet no pending litigation before any court of
competent authority. What is existing is an investigation by the Office of the
Ombudsman. In short, what the office of the ombudsman would wish to do
is to fish for additional evidence to formally charge Amado Lagdameo, et.
al., with the Sandiganbayan. Clearly, there was no pending case in court
16
which would warrant the opening of the bank account for inspection.

Zones of privacy are recognized and protected in our laws. The Civil Code
provides that [e]very person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons and punishes as
actionable torts several acts for meddling and prying into the privacy of
another. It also holds public officer or employee or any private individual
liable for damages for any violation of the rights and liberties of another
person, and recognizes the privacy of letters and other private
communications. The Revised Penal Code makes a crime of the violation
of secrets by an officer, revelation of trade and industrial secrets, and
trespass to dwelling. Invasion of privacy is an offense in special laws like
the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act, and the
Intellectual Property Code.

Burgos v. Chief Of Staff, 133 SCRA 800 (1984)

Facts:
On 7 December 1982, Judge Ernani Cruz-Pao, Executive Judge of the
then CFI Rizal [Quezon City], issued 2 search warrants where the premises
at 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building,
Quezon Avenue, Quezon City, business addresses of the "Metropolitan
Mail" and "We Forum" newspapers, respectively, were searched, and office
and printing machines, equipment, paraphernalia, motor vehicles and other
articles used in the printing, publication and distribution of the said
newspapers, as well as numerous papers, documents, books and other
written literature alleged to be in the possession and control of Jose
Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized. A
petition for certiorari, prohibition and mandamus with preliminary mandatory
and prohibitory injunction was filed after 6 months following the raid to
question the validity of said search warrants, and to enjoin the Judge
Advocate General of the AFP, the city fiscal of Quezon City, et.al. from
using the articles seized as evidence in Criminal Case Q- 022782 of the
RTC Quezon City (People v. Burgos). The prayer of preliminary prohibitory
injunction was rendered moot and academic when, on 7 July 1983, the
Solicitor General manifested that said articles would not be used until final
resolution of the legality of the seizure of said articles.

Issue:
Whether the continued sealing of the printing machines in the offices of
Metropolitan Mail and We Forum is anathematic to the democratic
framework.
17
Held:
The premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum newspapers. As a consequence of
the search and seizure, these premises of the Metropolitan Mail and We
Forum were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued. Such closure is in
the nature of previous restraint or censorship abhorrent to the freedom of
the press guaranteed under the fundamental law, and constitutes a virtual
denial of Burgos, et. al.'s freedom to express themselves in print. Thus
state of being is patently anathematic to a democratic framework where a
free, alert and even militant press is essential for the political enlightenment
and growth of the citizenry. Although the public officers would justify the
continued sealing of the printing machines on the ground that they have
been sequestered under Section 8 of PD 885, as amended, which
authorizes "the sequestration of the property of any person, natural or
artificial, engaged in subversive activities against the government and its
duly constituted authorities in accordance with implementing rules and
regulations as may be issued by the Secretary of National Defense." It is
doubtful, however, if sequestration could validly be effected in view of the
absence of any implementing rules and regulations promulgated by the
Minister of National Defense

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS

(KMP), and GABRIELA 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, G.R. No. 169848, May, 2006
AZCUNA, J.:

The Facts:

Petitioners come in three groups.

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
18
was preempted and violently dispersed by the police. They further assert
that on October 5, 2005, a group they participated in marched to
Malacaang 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 Espaa 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.
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.

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title . This Act shall be known as The Public Assembly Act of
1985.
Sec. 2. Declaration of policy. The constitutional right of the people
peaceably to assemble and petition the government for redress of
grievances is essential and vital to the strength and stability of the
State. To this end, the State shall ensure the free exercise of such right
without prejudice to the rights of others to life, liberty and equal protection
of the law.
Sec. 3. Definition of terms. For purposes of this Act:

(b) Public place shall include any highway, boulevard, avenue, road,
19
street, bridge or other thoroughfare, park, plaza square, and/or any open
space of public ownership where the people are allowed access.

(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.

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:
1. 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.

2. The application shall incorporate the duty and responsibility of

applicant under Section 8 hereof.
3. 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.
4. 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.

1. 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.
2. The mayor or any official acting in his behalf shall act on the
20
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.

3. 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.

4. The action on the permit shall be in writing and served on the

applica[nt] within twenty-four hours.

5. 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.
6. 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 if in terms satisfactory to the applicant
shall be immediately executory.

7. 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.

8. In all cases, any decision may be appealed to the Supreme Court.

CPR, on the other hand, is a policy set forth in a press release by
Malacaang dated September 21, 2005, shown in Annex A to the Petition
in G.R. No. 169848, thus:

Malacaang Official
Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

21
In view of intelligence reports pointing to credible plans of anti-government
groups to inflame the political situation, sow disorder and incite people
against the duty constituted authorities, 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. 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.
We appeal to the detractors of the government to engage in lawful and
peaceful conduct befitting of a democratic society.
The Presidents call for unity and reconciliation stands, based on the rule of
law.

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.

They argue that B.P. No. 880 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. The words lawful cause, opinion,
protesting or influencing suggest the exposition of some cause not
espoused by the government. Also, the phrase maximum tolerance
shows that the law applies to assemblies against the government because
they are being tolerated. As a content-based legislation, it cannot pass the
strict scrutiny test.

Furthermore, the law delegates powers to the Mayor without

providing clear standards. The two standards stated in the laws
(clear and present danger and imminent and grave danger) are
22
inconsistent.
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. And even assuming that the legislature
can set limits to this right, the limits provided are unreasonable: First,
allowing the Mayor to deny the permit on clear and convincing evidence of
a clear and present danger is too comprehensive. Second, the five-day
requirement to apply for a permit is too long as certain events require
instant public assembly, otherwise interest on the issue would possibly
wane.

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. Furthermore, it
contravenes the maximum tolerance policy of B.P. No. 880 and violates the
Constitution as it causes a chilling effect on the exercise by the people of
the right to peaceably assemble.

I s s u e s:
1. On the constitutionality of Batas Pambansa No. 880, specifically
Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:

1. Are these content-neutral or content-based regulations?

2. Are they void on grounds of overbreadth or vagueness?

3. Do they constitute prior restraint?
4. Are they undue delegations of powers to Mayors?

5. Do they violate international human rights treaties and the

Universal Declaration of Human Rights?

2. On the constitutionality and legality of the policy of Calibrated

Preemptive Response (CPR):

1. Is the policy void on its face or due to vagueness?

2. Is it void for lack of publication?

3. Is the policy of CPR void as applied to the rallies of September 26

and October 4, 5 and 6, 2005?

23
H e l d:
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 nations 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 law and dispersed the public assemblies held without the
permit.

Section 4 of Article III 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.
The first point to mark is that the right to peaceably assemble and petition
for redress of grievances is, together with freedom of speech, of
expression, and of the press, a right that enjoys primacy in the realm of
constitutional protection. For these rights constitute the very basis of a
functional democratic polity, without which all the other rights would be
meaningless and unprotected. As stated in Jacinto v. CA, the Court, as
early as the onset of this century, in U.S. v. Apurado already upheld the
right to assembly and petition, as follows:
There is no question as to the petitioners rights to peaceful assembly to
petition the government for a redress of grievances and, for that matter, to
organize or form associations for purposes not contrary to law, as well as to
engage in peaceful concerted activities. These rights are guaranteed by no
less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights,
Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence
abounds with hallowed pronouncements defending and promoting the
peoples exercise of these rights. As early as the onset of this century, this
Court in U.S. vs. Apurado, already upheld the right to assembly and petition
and even went as far as to acknowledge:
It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater, the grievance and the more intense
the feeling, the less perfect, as a rule will be the disciplinary control of the
leaders over their irresponsible followers. But if the prosecution be
permitted to seize upon every instance of such disorderly conduct by
24
individual members of a crowd as an excuse to characterize the assembly
as a seditious and tumultuous rising against the authorities, then the right
to assemble and to petition for redress of grievances would expose all
those who took part therein to the severest and most unmerited
punishment, if the purposes which they sought to attain did not happen to
be pleasing to the prosecuting authorities. If instances of disorderly
conduct occur on such occasions, the guilty individuals should be sought
out and punished therefore, but the utmost discretion must be exercised in
drawing the line between disorderly and seditious conduct and between an
essentially peaceable assembly and a tumultuous uprising.

Again, 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 enact ordinances for
purpose
Reyes v. Bagatsing further expounded on the right and its limits, as
follows:

It is thus clear that the Court is called upon to protect the exercise of the
cognate rights to free speech and peaceful assembly, arising from the
denial of a permit. The Constitution is quite explicit: No law shall be
passed abridging the freedom of speech, or of the press, or the right of the
people peaceably to assemble and petition the Government for redress of
grievances. Free speech, like free press, may be identified with the liberty
to discuss publicly and truthfully any matter of public concern without
25
censorship or punishment. There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings
unless there be a clear and present danger of a substantive evil that [the
State] has a right to prevent. Freedom of assembly connotes the right of
the people to meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost deference and
respect. It is not to be limited, much less denied, except on a showing, as
is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935
Constitution, Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of
free speech. To paraphrase the opinion of Justice Rutledge, speaking for
the majority of the American Supreme Court in Thomas v. Collins, it was
not by accident or coincidence that the rights to freedom of speech and of
the press were coupled in a single guarantee with the right of the people
peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not identical, are inseparable. In every
case, therefore, where there is a limitation placed on the exercise of this
right, the judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other
legitimate public interest.
3. Nowhere is the rationale that underlies the freedom of expression and
peaceable assembly better expressed than in this excerpt from an opinion
of Justice Frankfurter: It must never be forgotten, however, that the Bill of
Rights was the child of the Enlightenment. Back of the guaranty of free
speech lay faith in the power of an appeal to reason by all the peaceful
means for gaining access to the mind. It was in order to avert force and
explosions due to restrictions upon rational modes of communication that
the guaranty of free speech was given a generous scope. But utterance in
a context of violence can lose its significance as an appeal to reason and
become part of an instrument of force. Such utterance was not meant to
be sheltered by the Constitution. What was rightfully stressed is the
abandonment of reason, the utterance, whether verbal or printed, being in
a context of violence. It must always be remembered that this right likewise
provides for a safety valve, allowing parties the opportunity to give vent to
their views, even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason for
the expression of dissent. It means more than just the right to be heard of
26
the person who feels aggrieved or who is dissatisfied with things as they
are. Its value may lie in the fact that there may be something worth hearing
from the dissenter. That is to ensure a true ferment of ideas. There are, of
course, well-defined limits. What is guaranteed is peaceable
assembly. One may not advocate disorder in the name of protest, much
less preach rebellion under the cloak of dissent. The Constitution frowns
on disorder or tumult attending a rally or assembly. Resort to force is ruled
out and outbreaks of violence to be avoided. The utmost calm though is
not required. As pointed out in an early Philippine case, penned in 1907 to
be precise, United States v. Apurado: It is rather to be expected that more
or less disorder will mark the public assembly of the people to protest
against grievances whether real or imaginary, because on such occasions
feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will
be the disciplinary control of the leaders over their irresponsible
followers. It bears repeating that for the constitutional right to be invoked,
riotous conduct, injury to property, and acts of vandalism must be
avoided. To give free rein to ones destructive urges is to call for
condemnation. It is to make a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and
present danger of a substantive evil, on the choice of Luneta as the place
where the peace rally would start. The Philippines is committed to the view
expressed in the plurality opinion, of 1939 vintage of, Justice Roberts in
Hague v. CIO: Whenever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges,
immunities, rights and liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute,
but relative, and must be exercised in subordination to the general comfort
and convenience, and in consonance with peace and good order; but must
not, in the guise of respondents, be abridged or denied. The above
excerpt was quoted with approval in Primicias v. Fugoso. Primicias made
explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision,
where this Court categorically affirmed that plazas or parks and streets are
outside the commerce of man and thus nullified a contract that leased
Plaza Soledad of plaintiff-municipality. Reference was made to such plaza
being a promenade for public use, which certainly is not the only purpose
that it could serve. To repeat, there can be no valid reason why a permit
should not be granted for the proposed march and rally starting from a
27
public park that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to
the gates of the US embassy, hardly two blocks away at the Roxas
Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the
matter. In holding that the then Mayor Fugoso of the City of Manila should
grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: Our conclusion finds support in the decision in the
case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case,
the statute of New Hampshire P.L. chap. 145, section 2, providing that no
parade or procession upon any ground abutting thereon, shall be permitted
unless a special license therefor shall first be obtained from the selectmen
of the town or from licensing committee, was construed by the Supreme
Court of New Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held valid. And the
Supreme Court of the United States, in its decision (1941) penned by Chief
Justice Hughes affirming the judgment of the State Supreme Court, held
that a statute requiring persons using the public streets for a parade or
procession to procure a special license therefor from the local authorities is
not an unconstitutional abridgment of the rights of assembly or of freedom
of speech and press, where, as the statute is construed by the state courts,
the licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or procession,
with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary
discretion to issue or refuse license, * * *. Nor should the point made by
Chief Justice Hughes in a subsequent portion of the opinion be ignored:
Civil liberties, as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself would
be lost in the excesses of unrestricted abuses. The authority of a
municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of the means
of safeguarding the good order upon which they ultimately depend. The
control of travel on the streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the use of highways in
that relation is designed to promote the public convenience in the interest
of all, it cannot be disregarded by the attempted exercise of some civil right
which in other circumstances would be entitled to protection.

xxx
6. x x x The principle under American doctrines was given
utterance by Chief Justice Hughes in these words: The question, if the
rights of free speech and peaceable assembly are to be preserved, is not
28
as to the auspices under which the meeting is held but as to its purpose;
not as to the relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the Constitution
protects. There could be danger to public peace and safety if such a
gathering were marked by turbulence. That would deprive it of its peaceful
character. It is true that the licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or not a permit would be
granted. It is not, however, unfettered discretion. While prudence requires
that there be a realistic appraisal not of what may possibly occur but of
what may probably occur, given all the relevant circumstances, still the
assumption especially so where the assembly is scheduled for a specific
public place is that the permit must be for the assembly being held
there. The exercise of such a right, in the language of Justice Roberts,
speaking for the American Supreme Court, is not to be abridged on the
plea that it may be exercised in some other place.
xxx

8. By way of a summary. The applicants for a permit to hold an

assembly should inform the licensing authority of the date, the public place
where and the time when it will take place. If it were a private place, only
the consent of the owner or the one entitled to its legal possession is
required. Such application should be filed well ahead in time to enable the
public official concerned to appraise whether there may be valid objections
to the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. If he is of the
view that there is such an imminent and grave danger of a substantive evil,
the applicants must be heard on the matter. Thereafter, his decision,
whether favorable or adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, they can have recourse to the proper
judicial authority. Free speech and peaceable assembly, along with the
other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the
judiciary, even more so than on the other departments rests the grave
and delicate responsibility of assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitiously termed by Justice Holmes as
the sovereign prerogative of judgment. Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such
rights, enjoying as they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
29
(G.R. No. L-65366, November 9, 1983, 125 SCRA 553, 569)
8. By way of a summary. The applicants for a permit to hold an assembly
should inform the licensing authority of the date, the public place where and
the time when it will take place. If it were a private place, only the consent
of the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of
the permit or to its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and present danger
test be the standard for the decision reached. If he is of the view that there
is such an imminent and grave danger of a substantive evil, the applicants
must be heard on the matter. Thereafter, his decision, whether favorable
or adverse, must be transmitted to them at the earliest opportunity. Thus if
so minded, they can have recourse to the proper judicial authority.
B.P. No. 880
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 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

30
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.
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,
31
place and manner of the assemblies. This was adverted to in Osmea v.
Comelec,[1] where the Court referred to it as a content-neutral regulation
of the time, place, and manner of holding public assemblies.[2]
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers
to all kinds of public assemblies[3] 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.

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.
As to the delegation of powers to the mayor, the law provides a precise
and sufficient standard the clear and present danger test stated in Sec.
6(a). The reference to imminent and grave danger of a substantive evil in
Sec. 6(c) substantially means the same thing and is not an inconsistent
standard. As to whether respondent Mayor has the same power
independently under Republic Act No. 7160[4] is thus not necessary to
resolve in these proceedings, and was not pursued by the parties in their
arguments.

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:
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
32
need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective
mayors shall establish the freedom parks within the period of six months
from the effectivity this Act.

The Court now comes to the matter of the CPR. As stated earlier, the
Solicitor General has conceded that the use of the term should now be
discontinued, since it does not mean anything other than the maximum
tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor
General, thus:

The truth of the matter is the policy of calibrated preemptive response is

in consonance with the legal definition of maximum tolerance under
Section 3 (c) of B.P. Blg. 880, which is the highest degree of restraint that
the military, police and other peacekeeping authorities shall observe during
a public assembly or in the dispersal of the same. Unfortunately, however,
the phrase maximum tolerance has acquired a different meaning over the
years. Many have taken it to mean inaction on the part of law enforcers
even in the face of mayhem and serious threats to public order. More so,
other felt that they need not bother secure a permit when holding rallies
thinking this would be tolerated. Clearly, the popular connotation of
maximum tolerance has departed from its real essence under B.P. Blg.
880.

It should be emphasized that the policy of maximum tolerance is provided

under the same law which requires all pubic assemblies to have a permit,
which allows the dispersal of rallies without a permit, and which recognizes
certain instances when water cannons may be used. This could only mean
that maximum tolerance is not in conflict with a no permit, no rally policy
or with the dispersal and use of water cannons under certain circumstances
for indeed, the maximum amount of tolerance required is dependent on
how peaceful or unruly a mass action is. Our law enforcers should
calibrate their response based on the circumstances on the ground with the
view to preempting the outbreak of violence.
Thus, when I stated that calibrated preemptive response is being enforced
in lieu of maximum tolerance I clearly was not referring to its legal definition
but to the distorted and much abused definition that it has now acquired. I
only wanted to disabuse the minds of the public from the notion that law
enforcers would shirk their responsibility of keeping the peace even when
confronted with dangerously threatening behavior. I wanted to send a
33
message that we would no longer be lax in enforcing the law but would
henceforth follow it to the letter. Thus I said, we have instructed the PNP
as well as the local government units to strictly enforce a no permit, no rally
policy . . . arrest all persons violating the laws of the land . . . unlawful mass
actions will be dispersed. None of these is at loggerheads with the letter
and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants
to even claim that I ordered my co-respondents to violate any law.

In sum, this Court reiterates its basic policy of upholding the fundamental
rights of our people, especially freedom of expression and freedom of
assembly. 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.
WHEREFORE, the petitions are GRANTED in part, and 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.

34