MOSQUEDA, ET AL VS.

PILIPINO BANANA GROWERS & EXPORTERS

ASSOCIATION, INC., ET AL.
G.R. No. 189185, 16 August, 2016
En Banc, J. Bersamin

“The City of Davao has the authority to enact pieces of legislation that will promote
the general welfare, specifically the health of its constituents. Such authority should not
be construed, however, as a valid license for the City of Davao to enact any ordinance it
deems fit to discharge its mandate. A thin but well-defined line separates authority to
enact legislations from the method of accomplishing the same.”

Facts:

After several committee hearings and consultations with various stakeholders, and
following complaints from nearby residents led by William Mosqueda over aerial spraying
conducted in the banana plantations, the Sangguniang Panlungsod of Davao City
enacted Ordinance No. 0309, Series of 2007, to impose a ban against aerial spraying as
an agricultural practice by all agricultural entities within Davao City. City Mayor Rodrigo
Duterte approved the ordinance on February 9, 2007.

The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA), however,
assailed the constitutionality of the ordinance before the RTC. They alleged that the
ordinance, among other things, violated the equal protection clause and amounted to·
the confiscation of property without due process of law.

After trial, the RTC declared the ordinance as valid and constitutional. It opined
that the ordinance, being based on a valid classification, was consistent with the Equal
Protection Clause; that aerial spraying was distinct from other methods of pesticides
application because it exposed the residents to a higher degree of health risk caused by
aerial drift; and that the ordinance enjoyed the presumption of constitutionality, and could
be invalidated only upon a clear showing that it had violated the Constitution. However,
the RTC recognized the impracticability of the 3-month transition period, and thereby
recommended the parties to agree on an extended transition period.

On appeal, the CA reversed the earlier RTC decision. It declared the ordinance as
void and unconstitutional for being unreasonable and oppressive. It declared that the ban
ran afoul with the Equal Protection Clause inasmuch as it did not make reasonable
distinction between the hazards, safety and beneficial effects of liquid substances that
were being applied aerially. It ruled that the maintenance of the 30-meter buffer zone
within and around the agricultural plantations constituted taking of property without due
process because the landowners were thereby compelled to cede portions of their
property without just compensation.

Issue:

Whether or not Ordinance No. 0309-07 is unconstitutional on due process and

equal protection grounds for being unreasonable and oppressive.

Held:

Yes. The ordinance banning aerial spraying as an agricultural practice by all

agricultural entities within Davao City is unconstitutional as it violates due process and
equal protection clause.

3-month transition period violates the Due Process Clause

Requiring PGBEA and other affected individuals to comply with the

consequences of the ban within the three-month period under pain of
penalty like fine, imprisonment and even cancellation of business permits would
definitely be oppressive as to constitute abuse of police power. The required civil
works for the conversion to truck-mounted boom spraying alone will consume
considerable time and financial resources given the topography and
geographical features of the plantations. As such, the conversion could not be
completed within the short timeframe of three months.

Buffer zone requirement does not amount to taking without just

compensation

The establishment of the buffer zone is required for the purpose of

minimizing the effects of aerial spraying within and near the
plantations. Although Section 3(e) of the ordinance requires the planting of
diversified trees within the identified buffer zone, the requirement cannot be
construed and deemed as confiscatory requiring payment of just compensation. A
landowner may only be entitled to compensation if the taking amounts to a
permanent denial of all economically beneficial or productive uses of the land. The
respondents cannot be said to be permanently and completely deprived of their
landholdings because they can still cultivate or make other productive uses of the
areas to be identified as the buffer zones.

The ordinance also violates the Equal Protection Clause

a. Underinclusiveness

The four most common pesticide treatment methods adopted in Davao City
are aerial, truck-mounted boom, truck-mounted mechanical, and manualspraying.
However, the ordinance imposes the prohibition only against aerial spraying.

The occurrence of pesticide drift is not limited to aerial spraying but results
from the conduct of any mode of pesticide application. Even manual spraying or
truck-mounted boom spraying produces drift that may bring about the same
inconvenience, discomfort and alleged health risks to the community and to the
environment. A ban against aerial spraying does not weed out the harm that the
ordinance seeks to achieve. It suffers from being "underinclusive" because the
classification does not include all individuals tainted with the same mischief that
the law seeks to eliminate. In fact, manual spraying produces more drift than aerial
treatment. As such, the decision of prohibiting only aerial spraying is tainted with
arbitrariness.

b. Overinclusiveness

Aside from its being underinclusive, the assailed ordinance also tends to be
"overinclusive" because its impending implementation will affect groups that have
no relation to the accomplishment of the legislative purpose. Its implementation
will unnecessarily impose a burden on a wider range of individuals than those
included in the intended class based on the purpose of the law.

It can be noted that the imposition of the ban is too broad because
the ordinance applies irrespective of the substance to be aerially applied and
irrespective of the agricultural activity to be conducted. The respondents admit
that they aerially treat their plantations not only with pesticides but also vitamins
and other substances. The imposition of the ban against aerial spraying of
substances other than fungicides and regardless of the agricultural activity being
performed becomes unreasonable inasmuch as it patently bears no relation to the
purported inconvenience, discomfort, health risk and environmental danger which
the ordinance seeks to address. The burden now will become more onerous to
various entities with no connection whatsoever to the intended purpose of the
ordinance.
 The overinclusiveness of Ordinance No. 0309-07 may also be traced to its
Section 6 by virtue of its requirement for the maintenance of the 30 meter buffer
zone. This requirement applies regardless of the area of the agricultural
landholding, geographical location, topography, crops grown and other
distinguishing characteristics that ideally should bear a reasonable relation
to the evil sought to be avoided. As earlier discussed, only large banana plantations
could rely on aerial technology because of the financial capital required therefor.
The establishment and maintenance of the buffer zone will become more
burdensome to the small agricultural landholders because they have to reserve
the 30-meter belt surrounding their property and they will be limited as to the
crops that may be cultivated therein based on the mandate that the zone shall be
devoted to "diversified trees" taller than what are being grown therein.

A substantially overinclusive or underinclusive classification tends to

undercut the governmental claim that the classification serves legitimate political
ends. Where overinclusiveness is the problem, the vice is that the law has a
greater discriminatory or burdensome effect than necessary. In this light, the
ordinance violated the Equal Protection Clause.

Notes:

On substantive due process

In order to declare it as a valid piece of local legislation, it must also

comply with the following substantive requirements, namely:

(1) it must not contravene the Constitution or any statute;

(2) it must be fair, not oppressive;
(3) it must not be partial or discriminatory;
(4) it must not prohibit but may regulate trade;
(5) it must be general and consistent with public policy;
(6) it must not be unreasonable.

On equal protection of laws

The constitutional right to equal protection requires that all persons or

things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed. Equal treatment neither requires universal application of
laws to all persons or things without distinction, nor intends to prohibit legislation
by limiting the object to which it is directed or by the territory in which it is to
operate. The guaranty of equal protection envisions equality among equals
determined according to a valid classification.

On valid classification

A valid classification must be:

(1) based on substantial distinctions;

(2) germane to the purposes of the law;
(3) not limited to existing conditions only;
(4) equally applicable to all members of the class.

On two types of taking

There are two different types of taking that can be identified. A "possessory"
taking occurs when the government confiscates or physically occupies property. A
"regulatory" taking occurs when the government's regulation leaves no reasonable
economically viable use of the property.
 On precautionary principle

The principle involves matters of evidence in cases where there is lack of

full scientific certainty in establishing a causal link between human activity and
environmental effect. In such an event, the courts may construe a set of facts as
warranting either judicial action or inaction with the goal of preserving and
protecting the environment.

The precautionary principle shall only be relevant if there is concurrence

of three elements, namely: uncertainty, threat of environmental damage and
serious or irreversible harm. In situations where the threat is relatively certain, or
that the causal link between an action and environmental damage can be
established, or the probability of occurrence can be calculated, only preventive,
not precautionary measures, may be taken. Neither will the precautionary principle
apply if there is no indication of a threat of environmental harm, or if the
threatened harm is trivial or easily reversible.

Precautionary principle still requires scientific basis

Although the precautionary principle allows lack of full scientific certainty in

establishing a connection between the serious or irreversible harm and the human
activity, its application is still premised on empirical studies. Scientific analysis is
still a necessary basis for effective policy choices under the precautionary principle.
Resort to the principle shall not be based on anxiety or emotion, but from a rational
decision rule, based in ethics. As much as possible, a complete and objective
scientific evaluation of the risk to the environment or health should be conducted
and made available to decision-makers for them to choose the most appropriate
course of action.

The only study conducted to validate the effects of aerial spraying appears
to be the Summary Report on the Assessment and Fact-Finding Activities on the
Issue of Aerial Spraying in Banana Plantations. Yet, the fact-finding team that
generated the report was not a scientific study that could justify the resort to the
precautionary principle. In fact, the Sangguniang Bayan ignored the findings and
conclusions of the fact-finding team that recommended only a regulation, not a
ban, against aerial spraying.

Ordinance No. 0309, Series of 2007

AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL

PRACTICE IN ALL AGRICULTURAL ACTIVITIES BY ALL AGRICULTURAL
ENTITIES IN DAVAO CITY

SECTION 4. SCOPE AND APPLICABILITY - The provisions of this Ordinance shall apply to
all agricultural entities within the territorial jurisdiction of Davao City.

SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be strictly enforced
in the territorial jurisdiction of Davao City three (3) months after the effectivity of this
Ordinance.

SECTION 6. BUFFER ZONE - Consistent with national legislation and government

regulations, all agricultural entities must provide for a thirty (30) meter buffer zone within
the boundaries of their agricultural farms/plantations. This buffer zone must be properly
identified through Global Positioning System (GPS) survey. A survey plan showing the
metes and bounds of each agricultural farm/plantation must be submitted to the City
Mayor's Office, with the buffer zone clearly identified therein.
Submitted by: Edson Yuzon
 MA. GLORIA MACAPAGAL-ARROYO VS HON. LEILA M. DE LIMA
G.R. NO. 199034, April 17, 2018
En Banc, Reyes, Jr., J

An individual’s right to travel is guaranteed by the 1987 Constitution, Section 6 of

Article III. It can only be impaired by a lawful order of the court, interest of national
security, public safety or public health. It is part of the “liberty” of which a citizen cannot
be deprived without due process of law. Thus, the DOJ cannot order the prohibition of a
person to leave the country for it is not one of the powers vested in the Department.

Facts:
On March 19, 1998 DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17,
prescribing the rules and regulations governing the issuance of Hold-Departure Order
(HDO). On April 23, 2007 DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18,
prescribing rules and regulations governing the issuance and implementation of watchlist
orders (WLO). On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the
assailed DOJ Circular No. 41, consolidating DOJ Circular Nos. 17 and 18, which will govern
the issuance and implementation of Hold-Departure Order (HDO), Watchlist Order (WLO),
and Allow-Departure Order (ADO), Section 10 of DOJ Circular Nos. 17 and 18, as well as
all instructions, issuances or orders or parts thereof which are inconsistent with its
provisions.

After the expiration of Gloria Macapagal-Arroyo’s (GMA) term as President, criminal

complaints were filed against her before the DOJ. In view of the foregoing criminal
complaints, De Lima issued DOJ WLO against GMA pursuant to her authority under DOJ
Circular No. 41. She also ordered for the inclusion of GMA’s name in the Bureau of
Immigration watchlist. Two other criminal complaints were filed against GMA and her
husband, Jose Miguel Arroyo. GMA and her husband requested for the issuance of an
ADO, so that she may be able to seek medical attention abroad. Before the resolution of
her application for ADO, GMA filed present Petition for Certiorari and Prohibition under
Rule 65 of the Rules of Court with Prayer for the Issuance of a TRO to annul and set
aside DOJ Circular no. 41 and WLOs issued against her for allegedly being
unconstitutional. Then, De Lima denied GMA’s application for an ADO. On November 15,
2011 the Court issued a TRO from enforcing or implementing DOJ Circular No. 41 and
WLOs.
Commented [m1]:
GMA and her husband then proceeded to the NAIA to take their flights to Singapore
to seek medication. However, the BI officials at NAIA refused them to leave which
resulted to them not being able to join their flights. GMA filed a motion for De Lima to
cease and desist from preventing her from leaving the country. Emphasizing the TRO
issued by the Court is immediately executoryand that openly defying the same is
tantamount to gross disobedience and resistance to a lawful order of the court.

Issue:

Whether of not DOJ Circular No. 41 is unconstitutional for violating the right to
travel of the citizens?

Held:

Yes. The right to travel is part of the “liberty” of which a citizen cannot be deprived
without due process of law. It is part and parcel of the guarantee of freedom of movement
that the Constitution affords its citizens.

The Constitution is inviolable and supreme of all laws.

The Constitution is the fundamental, paramount and supreme law of the nation.
It is deemed written in every statute and contract. If a law or an administrative rule
violates any norm of the Constitution, that issuance is null and void and has no effect.
The more precious gifts of democracy that the Constitution affords us are enumerated in
the Bill of Rights contained in Article III. In particular, Section 1 thereof provides:

Section 1. No person shall be deprived of life, liberty or property

withour due process of law, nor shall any person be denied the equal protection
of the laws.

Surely, the Bill of Rights operates as a protective cloak under which the individual
may assert his liberties. Nonetheless, “The Bill of Rights itself does not purport to be an
absolute guaranty of individual rights and liberties. Even liberty itself, the greates of all
rights, is not unrestricted license to act according to one’s will. It is subject to the far
overriding demands and requirements of the greater number.

The right to travel and its limitations

Article III, Section 6:

Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by law.

Liberty under the foregoing clause includes the right to choose one’s residence, to
leave whenever he pleases and to travel wherever he wills. It is apparent, however, that
the right to travel is not absolute. There are constitutional, statutory and inherent
limitations regulating the right to travel. Section 6 itself provides that the right to travel
may be impaired only in the interest of national security, public safety or public health,
as may be provided by law. As a further requirement, there must be an explicit provision
of statutory law or the Rules of Court providing for the impairment. Also, liberty of abode
may only be impaired by a lawful order of the court.
In any case, when there is a dilemma between an individual claiming the exercise
of a constitutional right vis-à-vis the state’s assertion of authority to restrict the same,
any doubt must, at all times, be resolved in favor of the free exercise of the right, absent
any explicit provision of law to contrary.
The issuance of DOJ Circular No. 41 has no legal basis
DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent
the scrutiny and concurrence of lawmakers and submitted to the President for approval.
It is a mere administrative issuance apparently designed to carry out the provisions of an
enabling law which the former DOJ Secretary believed to be Executive Order No. 292,
otherwise known as the “Administrative Code of 1987”. She opined that DOJ Circular No.
41 was validly issued pursuant to the agency’s rule making powers provided in Section 1
and 3 Book IV, Title III Chapter 1 of E.O. No. 292 and Sec. 50, Chapter 11, Book IV of
the mentioned code.
It is important to stress that before there can even be a valid administrative
issuance, there must first be a showing that the delegation of legislative power is itself
valid. It is valid only if there is a law that (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate; and (b) fixes a
standard the limits of which are sufficiently determinate and determinable to which the
delegate must conform in the performance of his functions.
The provisions being relied upon by the former DOJ Secretary do not particularly
vest the DOJ the authority to issue DOJ Circular No. 41 which effectively restricts the
right to travel through the issuance of WLOs and HDOs. They are mere general provisions
designed to lay down the purposes of the enactment and the broad enumeration of the
powers and functions of the DOJ. In no way can they be interpreted as a grant of power
to curtail a fundamental right as the language of the provision itself does not lend to that
stretched construction.
The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292 which
simply provides for the types of issuances that administrative agencies, in general, may
issue. It does not speak of any authority or power but rather a mere clarification on the
nature of the issuances that may be issued by a secretary of head of agency.
The questioned circular does not come under the inherent power of the executive
department to adopt rules and regulations as clearly the issuance of HDO and WLO is not
the DOJ’s business. As such, it is a compulsory requirement that there be an existing law,
complete and sufficient in itself, conferring the expressed authority to the concerned
agency to promulgate rules. On its own, the DOJ cannot make rules, its authority being
confined to execution of laws. The DOJ is confined to filling in the gaps and the necessary
details in carrying into effect the laws as enacted. Without a clear mandate of an existing
law, an administrative issuance is ultra vires.
Unfortunately, all the supposed statutory authorities relied upon by the DOJ did
not pass the completeness test and sufficient standard test. The DOJ miserably failed to
establish the existence of the enabling law that will justify the issuance of the questioned
circular.
The exceptions to the right to travel are limited to those stated in Section
6, Article III of the Constitution
It bears reiterating that the power to issue HDO is inherent to the courts. The
courts may issue HDO against an accused in a criminal case so that he may be dealt with
in accordance with law. It does not require legislative conferment or constitutional
recognition; it co-exist with the grant of judicial power. The inherent powers of the courts
are essential in upholding its integrity and largely beneficial in keeping the people’s faith
in the institution by ensuring the it has the power and the means to enforce its
jurisdiction.

Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law.

The point is that the DOJ may not justify its imposition of restriction on the right
to travel of the subjects of DOJ Circular No. 41 by resorting to an analogy. Contrary to its
claim, it does not have inherent power to issue HDO, unlike the courts, or to restrict the
right to travel in anyway. It is limited to the powers expressly granted to it by law and
may not extend the same on its own accord or by any skewed interpretation of its
authority.
The key is legislative enactment
The court recognizes the predicament which compelled the DOJ to issue the
questioned circular, but the solution does not lie in taking constitutional shortcuts. Any
law or issuance, therefore, must not contradict the language of the fundamental law of
the land; otherwise, it shall be struck down for being unconstitutional. The DOJ may not
promulgate rules that have a negative impact on constitutionally-protected rights without
the authority of a valid law. Even with the predicament of preventing the proliferation of
crimes and evasion of responsibility, it may not overstep constitutional boundaries and
skirt the prescribed legal processes.
It is true that the subjects of DOJ Circular No. 41 are individuals who may have
committed a wrong against the state does not warrant the intrusion in the enjoyment of
their basic rights. They are nonetheless innocent individuals an suspicions on their guilt
do not confer them lesser privileges to enjoy. The constitution is an overarching sky that
covers all in its protection. It affords protection to citizens without distinction. Even the
most despicable person deserves the same respect in the enjoyment of his rights as the
upright and abiding.
The resolution of the issues in the instant petitions was partly aimed at
encouraging the legislature to do its part and enact the necessary law so that the DOJ
may be able to pursue its prosecutorial duties without trampling on constitutionally
protected rights. Without a valid legislation, the DOJ’s actions will perpetually be met with
legal hurdles to the detriment of the due administration of justice. The challenge therefore
is for the legislature to address this problem in the form of a legislation that will identify
permissible intrusions in the right to travel. Unless this is done, the government will
continuously be confronted with questions on the legality of their actions to the detriment
of the implementation of government processes and realization of its objectives.

Submitted by: Bolivia Magalong

 The BILL OF RIGHTS

FREEDOM OF EXPRESSION

Section 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.

Importance

As a democratic country that functions on the free exchange of ideas, the freedom
of self-expression is indispensable for the preservation of our liberty and the principles of
democracy. It grants freedom for any thought, which a citizen may have. That being said,
while it provides liberty for the thought that we love and for those that appeal to us, it
also provides liberty for the thought that we abhor and despise.

Restrictions and Regulations

Said freedom is not absolute. The government in the exercise of its Police Power
in order to protect and promote public interest and safety, imposes restrictions and
regulations on the freedom of expression. These are (1) Content–based Restrictions
and (2) Content–neutral Regulations
Content – based Restrictions deal with the subject matter of the speech. It is
concerned with the contents or ideas that are to be conveyed. Basically, it is a restriction
on what to say, its goal and its message. Seeing as it infringes and limits a person’s
exercise of his constitutional right, it is accorded with a heavy presumption of invalidity
and strict scrutiny, thus subject to the clear and present danger test. The government
must then prove that such restriction is necessary in order to further an important
government interest and that there is the existence of a clear and present danger,
Content – neutral Regulations, on the other hand, are concerned with the
incidents of a speech. It does not intrude upon the subject matter or the message. It
merely regulates the time, place and manner of a speech. It limits when, where and how
to speak. Thus, it not being an outright violation of a person’s constitutional right, a
substantial government interest is enough for its validity. It is only subjected to
intermediate scrutiny.

Even if a regulation furthers a government interest, if it infringes upon the right to the
freedom of expression, it should be invalidated.

BP 880
THE PUBLIC ASSEMBLY ACT
An Act Ensuring The Free Exercise By The People Of Their Right To Peaceably Assemble
And Petition The Government For Other Purposes
Promulgated: October 22, 1985

“Public Assembly”
Any rally, demonstration, march, parade, procession or any other form of mass
concerted action held in a public place
 For any of these purposes: (1) Presenting a lawful cause (2) Expressing an
opinion on any particular issue (3) Protesting or influencing any state of affairs, or (4)
Petitioning the government for redress of grievances.
“Public Place”
Any highway, avenue, street, park, plaza or any open space of public ownership
where the people are allowed access
“Maximum Tolerance”
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.
Permit to Assemble (Sec.4)
The state’s police power includes regulation of the exercise of rights and the
power to prescribe regulations to promote public health, safety and welfare.
BP 880 requires a permit in order to organize or hold a public assembly in a public
place. However, BP 880 also allows public assemblies to be held without need of permits
in the following places;
(1) Freedom Parks (2) Private Property, with the consent of the owner or the one who
has legal possession, or (3) Campus of a government-owned and operated educational
institution, subject to the rules and regulations of the same
Freedom Parks (Sec.15)
Every city and municipality is required to have at least one (1) freedom park in
their respective jurisdiction where demonstrations and meetings may be held at any time
without need of a prior permit
Current freedom parks: Plaza Miranda, Plaza Dilao, Liwasang Bonifacio,
Pinaglabanan Park, Quezon City Memorial Circle, Veterans Park, Plaza Rizal
Application for permits (Sec. 5)
1. In writing, must include names of organizers, purpose, date, time, number of
participants and transport and address systems to be used
2. Filed with office of the mayor at least five (5) working days before assembly
3. Office of the mayor shall cause the same to be immediately posted at a
conspicuous place in the city/municipal building

Action to be taken on application (Sec. 6)

1. Mayor of official acting on his behalf must grant the permit
» Unless there is clear and convincing evidence that assembly will create
a clear and present danger to public order, safety, morals, or health

2. Mayor must act on application within two (2) working days from date of
application
» Failure to do so, permit is deemed granted
» If mayor refuses to accept, application shall be posted on premises of
office and is deemed to have been filed

3. If mayor views there to be imminent and grave danger, he must inform

applicant who shall be heard on the same

4. Action on permit shall be in writing and served within 24 hours

 5. If application is denied or terms are modified, applicant may contest the
decision in a court of law

Public assemblies and law enforcement

As a general rule, law enforcement shall not interfere in public assemblies, but
they may be stationed 100 meters away in order to maintain public peace and order (Sec.
9) Police assistance may be requested by leaders or organizers, however, they must be
in complete uniform with nameplates and units, no firearms and no ant-riot devices may
be used unless actual violence occurs (Sec. 10)
Dispersal of Public Assembly (Sec. 11 and 12)
If with permits, law enforcement shall call the attention of the leaders at the first
sign of impending violence and warn them that if violence persists, the assembly will be
dispersed.
If without permits, law enforcement shall peacefully disperse the assembly.

CALIBRATED PREEMPTIVE RESPONSE POLICY (CPR)

On September 21, 2005, the Arroyo Administration set forth the CPR policy in
response to unlawful mass actions, anti-government groups, and proliferation of rallies.
It instructs the PNP and LGUs to enforce a “No permit, no rally” policy, disperse groups
that run afoul of said rule and arrest all violators. It furthers states that the authorities
will not stand aside while those with ill intent and inciting masses of people to actions
that are inimical to the public order.

Lastly, The CPR policy was implemented in lieu of BP 880’s Maximum Tolerance
policy, which states that authorities must exercise the highest degree of restraint for the
protection and advancement of the people’s right to freely assemble. However, to ease
the minds of the people, Malacañang stated that there is no need for alarm, because the
CPR policy is nothing new, seeing as it means the same as the Maximum Tolerance Policy.

The Calibrated Preemptive Response Policy set forth by Malacañang in 2005 and
the Maximum Tolerance Policy promulgated by BP 880 in 1985 are the main issues in the
following case of Bayan v Ermita, En Banc, GR 169838, April 25, 2006.

BAYAN v ERMITA
G.R. No. 169838, April 25, 2006
En Banc, AZCUNA, J.

Bayan et al, Del Prado et al, and Kilusang Mayo Uno at their own instances in 2005,
have staged peaceful assemblies but were all preempted and violently dispersed by law
enforcement authorities implementing the CPR policy and BP 880. This in turn caused
physical injuries and arrests of the members of said groups. All parties assail the validity
and constitutionality of BP 880 and the CPR policy.
Bayan, Del Prado and KMU all argue that the said laws violate the freedom of
expression because it requires a permit in order to validly exercise the right. Bayan
contends that BP 880 is not a content neutral regulation because it does not support
mass actions in support of the Government, the word “Maximum Tolerance” shows that
the government does not support assemblies but rather tolerate it, and that the words
“Lawful Cause, Opinion, Protesting or Influencing” are aimed at the subject matters of
the assembly. KMU argues that since the constitution sets no limits on the exercise of the
right to freedom of expression, BP 880 cannot put the requirement of securing permits.
Del Prado, et al., and KMU both argue that the CPR policy alters the policy of maximum
tolerance and that it causes a chilling effect, because the people in exercising their
constitutional right are in fear of possible punishment.
BP 880 is valid
The requirement of permits in order to stage a public assembly falls within the
state’s exercise of its Police Power, for the protection and promotion of the safety, public
order and general welfare of the people. The delegation of the power to issue permits to
the mayors is valid, because it is subject to the constitutionally-sound “clear and present
danger”
BP 880 is a content-neutral regulation
The Supreme Court upheld the constitutionality of BP 880, ruling that it also does
not impose an absolute ban on public assemblies. The court emphasized that BP 880 is
a content-neutral regulation seeing as it does not concern itself with the subject matters
of a public assembly. It merely regulates the time, place, and manner of the assembly.
It refers to all kinds of public assemblies, whether in support or in contrast to the actions
of the government.
The court also clarified the meanings of the words used in BP 880 in order to
highlight the content-neutrality of BP 880. The words “Lawful Cause” do not make it
content based because assemblies really have to be for a lawful cause. Otherwise, it
would be unlawful. “Opinion”, “Protesting”, and “Influencing” refers to any subject.
“Petitioning the government for redress of grievances” comes from the Constitution itself
so its use cannot be avoided. And lastly, “Maximum Tolerance” is not the State tolerating
assemblies. Rather, it is implemented in furtherance of the citizen’s exercise of his
constitutional right as it provides for the protection and benefit of all rallyists.
CPR serves no valid purpose
The courts struck down the CPR policy seeing as it serves no valid purpose,
because if it means the same as Maximum Tolerance, it is useless, as it is a restatement
of what is already promulgated. And if it means something other than Maximum
Tolerance, it is illegal because what is to be followed is that which is mandated by law,
in this case BP 880. They ruled CPR to be merely confusing to the people and is used by
law enforcement to justify abuses. It is a “darkness that shrouds our freedom”

Submitted by: Gio Semeniano

 Article III, Section 13
Right To Bail

Section 13, Article III of the 1987 Constitution

All persons, except those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to
bail shall not be impaired even when the privilege of writ of habeas corpus is
suspended. Excessive bail shall not be required.
Section 7, Rule 114 of the Rules of court
Capital offense or an offense punishable by reclusion perpetua or life
imprisonment, not bailable. — No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment, shall be admitted
to bail when evidence of guilt is strong, regardless of the stage of the criminal
prosecution.
Bail, its form and purpose
BAIL – is the security given for the release of a person in custody of the law,
furnished by him or a bondsman, to guarantee his appearance before any court
as may be required. (Rule 114, sec. 1, ROC)
Purpose: to relieve an accused from imprisonment until his conviction and yet
secure his appearance at the trial. It is granted because in all criminal prosecutions,
the accused is presumed innocent.
Form: it may be in the form of cash deposit, property bond, bond secured from a
surety company, or recognizance.
Who may avail?
General Rule: All persons under custody of the law.
Exceptions:
(1.) Those not yet in custody of the law.
(2.) Those charged with capital offense or an offense punishable by reclusion
perpetua, or death if the evidence of guilt is strong.
(3.) Under the Rules 114, sec. 24 of ROC, “No bail shall be allowed after a
judgment of conviction has become final. x x x In no case shall bail be allowed
after the accused has commenced to serve sentence.”
(4.) Traditionally, right to bail is not available to military.

Exception to the exception:

(2.) The judge, however, has no authority to deny bail without taking into account
the evidence presented, at the time the accused applied for bail, as to his guilt.
There must be a hearing. Even when the evidence of guilt is strong, bail may be
granted where there is no probability that the defendant would flee
rather than face the verdict of the court, or after conviction, on humanitarian
ground where the life or health of the convict may be endangered by continued
confinement pending appeal.
 Enrile v Sandiganbayan
G.R. No. 213847, August 18, 2015
En Banc, Bersamin, J.

Facts
The Office of the Ombudsman charged Enrile and several others with plunder in
the Sandiganbayan on the basis of their purported involvement in the diversion and
misuse of appropriations under the Priority Development Assistance Fund (PDAF). Enrile
respectively filed his Omnibus Motin and Supplemental Opposition, praying, among
others, that he be allowed to post bail should probable cause be found against him.
Sandiganbayan, however, denied Enrile’s motion.
Thereafter, Enrile filed his Motion to Fix Bail which was heard by the
Sandiganbayan. He argued that he should be allowed to post bail because: (a) the
Prosecution had not yet established that the evidence of his guilt was strong; (b) although
he was charged with plunder, the penalty as to him would only be reclusion temporal,
not reclusion perpetua; and (c) he was not a flight risk, his age and physical condition
must further be seriously considered.

Issues
1. Whether or not Enrile is bailable as a matter of right; he is deemed to fall within the
exception only upon occurrence of two circumstances:
a. where the offense is punishable by reclusion perpetua; and
b. when evidence of guilt is strong.
2. Whether or not Enrile may be bailable as he is not a flight risk.
Ruling
1. YES.
Bail as a matter of right: The right to bail is expressly afforded by Section 13,
Article III (Bill of Rights) of the Constitution. The accused shall be presumed
innocent until the contrary is proved.
All criminal cases within the competence of the Metropolitan Trial Court, Municipal
Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court are
bailable as matter of right because these courts have no jurisdiction to try capital
offenses, or offenses punishable with reclusion perpetua or life imprisonment.
Likewise, bail is a matter of right prior to conviction by the Regional Trial Court
(RTC) for any offense not punishable by death, reclusion perpetua, or life
imprisonment, or even prior to conviction for an offense punishable by death,
reclusion perpetua, or life imprisonment when evidence of guilt is not strong.
Bail as a matter of discretion: The general rule is that any person, before being
convicted of a criminal offense, shall be bailable, unless he is charged with a
capital offense, or with an offense punishable with reclusion perpetua or life
imprisonment, and the evidence of his guilt is strong.
Granting of Bail,
Discretionary
(1.) Upon conviction by the RTC of an offense not punishable by death, reclusion
perpetua, or life imprisonment.
 (2.) If the RTC has imposed a penalty of imprisonment exceeding six years,
provided none of these circumstances are present:
a. That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteracion;
b. That he has previously escaped from legal confinement, evaded
sentence, or violated the conditions of his bail without valid justification;
c. That he committed the offense while under probation, parole, or
conditional pardon;
d. That the circumstance of his case indicate the probability of flight in
released on bail; or
e. That there is undue risk that he may commit another crime during the
pendency of his appeal.
Admission to Bail,
Subject to Judicial Discretion
Such discretion may be exercised only after the hearing called to ascertain
the degree of guilt of the accused for the purpose of whether or not he should be
granted provisional liberty.
Guidelines in resolving bail applications of the accused:
a. In all cases, whether bail is a matter of right or of discretion, notify the
prosecutor of the hearing of the application for bail or require him to submit his
recommendation;
b. Where bail is a matter of discretion, conduct a hearing of the application
for bail regardless of whether or not the prosecution refuses to present evidence
to show that the guilt of the accused is strong for the purpose of enabling the
court to exercise its sound discretion;
c. Decide whether the guilt of the accused is strong based on the summary
of evidence of the prosecution;
d. If the guilt of the accused is not strong, discharge the accused upon the
approval of the bail bond. Otherwise, petition should be denied.

2. YES. Enrile may be bailable because he is not a flight risk.

The Supreme Court is mindful of the Philippines’ responsibility in the
international community arising from the national commitment under the Universal
Declaration of Human Rights.
National Commitment to Uphold Human Rights
Authorizes the grant of bail not only to those charged in criminal proceedings but
also to extradites upon a clear and convincing showing: (1.) that the detainee will
not be a flight risk or a danger to the community; and (2.) that there exist special,
humanitarian, and compelling circumstances.
Enrile’s social and political standing and his having immediately surrendered
to the authorities upon his being charged in court indicate that the risk of his flight
or escape from this jurisdiction is highly unlikely. His personal disposition from the
onset of his indictment for plunder, formal or otherwise, has demonstrated his
utter respect for the legal processes of this country.
State of Health
The currently fragile state of Enrile’s health presents another compelling
justification for his admission to bail, but which the Sandiganbayan did not
recognize. There is no question at all that Enrile’s advanced age and ill health
required special medical attention.
Bail for the provisional liberty of the accused, regardless of the crime
charged, should be allowed independently of the merits of the charge, provided
his continued incarceration is clearly shown to be injurious to his health or to
endanger his life. Denying him bail despite imperiling his health and life would not
serve the true objective of preventive incarceration during trial.

Submitted by: Reyzen Mendiola