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Calibrated Preemptive Response BA AN, et al. vs. Ermita Y Published by Atty. Fred in Elections and Constitutional Law.

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The petitions filed directly with the Supreme Court challenged the constitutionality of both Batas Pambansa 880and the policy of Calibrated Preemptive Response (CPR) issued by Executive Secretary Eduardo Ermita. The Supreme Court decided in this manner: The CPR, insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID CPR serves no valid purpose if it means the same thing as maximum tolerance (Sec. 3 [c] of B.P. 880), and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance. B.P. 880 not unconstitutional B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. The law not vague or overbroad. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. Freedom Parks B.P. 880 provides that every city and municipality must set aside a freedom park within six months from the laws effectivity in 1985, or 20 years ago. 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. According to the SolGen, however, he is aware of only ONE declared freedom park Fuente Osmea in Cebu City. Without such alternative forum, to deny the permit would in effect be to deny the right.

Hence, local governments are given a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayors office to allow proper coordination and orderly activities. Permit Application There is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the

rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. Conclusion 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 constitutionallysound clear and present danger standard. Full text of the decision is here. Commentary: Its good that the Supreme Court tackled the effect in case the mayor fails to act on an application for a permit to rally. The usual practice, as noted in the decision, is for the police to disperse a rally if the rallyists cannot show any permit, even if the rallyists show an unacted application. This is really stupid because the law provides for an automatic grant of permit if the mayors refuse to act on permit applications. If it were otherwise, the authorities could effectively deny this right as they have done in the past by simply refusing to act on the application. In the meantime, the rallyists have been cannonized by firetrucks and beaten black and blue.

On the other hand, the State has the right to regulate the right to assemble. I must agree that B.P. 880 is NOT unconstitutional. Atty. Rene Saguisag (some time ago over at Debate with Mare and Pare) noted that a mass action is meant to cause inconvenience to the public. It is a fact that mass actions cause great inconvenience to the travelling public hence, the need to regulate the time and place of the rally.

Wish list

: Matters that I wish should have been tackled -

1. The CPR is not contained in any presidential or executive issuance. It was merely contained in a press release dated 21 September 2005, which pertinently reads:

* 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.

For a policy which affects the critical public and a basic constitutional right, the CPR should have been contained in an official document. It should not be contained in a press release or a speech because we are not under a monarchy, where the kings (or queens) word is the law.

Moreover, Sec. Ermita said that the CPR is in lieu of maximum tolerance, which creates confusion and is subject to abuse. As in the case of the declaration of state of national emergency, it is a legal deadwood and merely creates confusion among the public.

2. A discussion on the source of the power of mayors to issue the permits would have been good. According to Mayor Lito Atienza (Maynila), Republic Act No. 7160 (the Local Government Code of 1991) gives the Mayor power to deny a permit independently of B.P. No. 880). Moreover, I recall that there was a blanket declaration that ALL permits issued are considered revoked (who made that declaration?). Is this valid?

Share and Enjoy: AYAN VS. EXECUTIVE SECRETARY ERMITA [488 SCRA 226; G.R. NO. 169838; 25 APR 2006] Sunday, February 08, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: Rallies of September 20, October 4, 5 and 6, 2005 is at issue. BAYANs rally was violently dispersed. 26 petitioners were injured, arrested and detained when a peaceful mass action they was preempted and violently dispersed by the police. KMU asserts that 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 cosponsored was scheduled to proceed along Espaa Avenue in front of the UST 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 The Public Assembly Act of 1985, 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 announced on Sept. 21, 2005.

Petitioners Bayan, et al., contend that BP 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.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually prohibitions. 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.

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. Respondents argued that petitioners have no standing. BP 880 entails traffic re-routing to prevent grave public inconvenience and serious or undue interference in the free flow of commerce and trade. It is content-neutral regulation of the time, place and manner of holding public assemblies. According to Atienza RA. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880. and that the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all rallies.

Issue: Whether

or

Not

BP

880

and

the

CPR

Policy

unconstitutional.

Held: No question as to standing. 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. B.P. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. It refers to all kinds of public assemblies 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. Maximum tolerance1 is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

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. Insofar as it would purport to differ from or be in lieu of maximum tolerance, this was declared null and void.

The Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law. Senate vs. Ermita , GR 169777, April 20, 2006 Senate vs. Ermita , GR 169777, April 20, 2006 FACTS: This is a petition for certiorari and prohibition proffer that the President has abused power by issuing E.O. 464 Ensuring Observance of the Principles of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and for Other Purposes. Petitioners pray for its declaration as null and void for being unconstitutional. In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP). The Committee of the Senate issued invitations to various officials of the Executive Department for them to appear as resource speakers in a public hearing on the railway project, others on the issues of massive election fraud in the Philippine

elections, wire tapping, and the role of military in the so-called Gloriagate Scandal. Said officials were not able to attend due to lack of consent from the President as provided by E.O. 464, Section 3 which requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. ISSUE: Is Section 3 of E.O. 464, which requires all the public officials, enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress, valid and constitutional? RULING: No. The enumeration in Section 2 (b) of E.O. 464 is broad and is covered by the executive privilege. The doctrine of executive privilege is premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected. The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. ICHONG VS. HERNANDEZ [101 PHIL 1155; L-7995; 31 MAY 1957] Sunday, February 01, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: Republic Act 1180 or commonly known as An Act to Regulate the Retail Business was passed. The said law provides for a prohibition against foreigners as well as corporations owned by foreigners from engaging from retail trade in our country. This was protested by the petitioner in this case. According to him, the said law violates the international and treaty of the Philippines therefore it is unconstitutional. Specifically, the Treaty of Amity between the Philippines and China was violated according to him.

Issue: Whether

or

Not

Republic

Act

1180

is

valid

exercise

of

police

power.

Held: According to the Court, RA 1180 is a valid exercise of police power. It was also then provided that police power can not be bargained away through the medium of a treaty or a contract. The Court also provided that RA 1180 was enacted to remedy a real and actual danger to national economy posed by alien dominance and control. If ever the law infringes upon the said treaty, the latter is always subject to qualification or amendment by a subsequent law and the same may never curtain or restrict the scope of the police power of the state. Prof. Randolf S. David vs. Gloria Macapagal-Arroyo G.R. No. 171396, May 3, 2006 "Take Care" Power of the President Powers of the Chief Executive The power to promulgate decrees belongs to the Legislature

FACTS: These 7 consolidated petitions question the validity of PP 1017 (declaring a state of national emergency) and General Order No. 5 issued by President Gloria Macapagal-Arroyo. While the cases are pending, President Arroyo issued PP 1021, declaring that the state of national emergency has ceased to exist, thereby, in effect, lifting PP 1017. ISSUE: Whether or not PP 1017 and G.O. No. 5 arrogated upon the President the power to enact laws and decrees If so, whether or not PP 1017 and G.O. No. 5 are unconstitutional HELD: Take-Care Power

This refers to the power of the President to ensure that the laws be faithfully executed, based on Sec. 17, Art. VII: The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. As the Executive in whom the executive power is vested, the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he will, among others, execute its laws. In the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country, including the Philippine National Police under the Department of Interior and Local Government. The specific portion of PP 1017 questioned is the enabling clause: to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction. Is it within the domain of President Arroyo to promulgate decrees?

The President is granted an Ordinance Power under Chap. 2, Book III of E.O. 292. President Arroyos ordinance power is limited to those issuances mentioned in the foregoing provision. She

cannot issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution. This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate decrees. Legislative power is peculiarly within the province of the Legislature. Sec. 1, Art. VI categorically states that the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives. To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos exercise of legislative power by issuing decrees. But can President Arroyo enforce obedience to all decrees and laws through the military? As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and, therefore, cannot be enforced. With respect to laws, she cannot call the military to enforce or implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. Lao Ichong vs Jaime Hernandez 22112010

Excellent

Treaties May Be Superseded by Municipal Laws in the Exercise of Police Power Lao Ichong is a Chinese businessman who entered the country to take advantage of business opportunities herein abound (then) particularly in the retail business. For some time he and his fellow Chinese businessmen enjoyed a monopoly in the local market in Pasay. Until in June 1954 when Congress passed the RA 1180 or the Retail Trade Nationalization Act the purpose of which is to reserve to Filipinos the right to engage in the retail business. Ichong then petitioned for the nullification of the said Act on the ground that it contravened several treaties concluded by the RP which, according to him, violates the equal protection clause (pacta sund servanda). He said that as a Chinese businessman engaged in the business here in the country who helps in the income generation of the country he should be given equal opportunity. ISSUE: Whether or not a law may invalidate or supersede treaties or generally accepted principles. HELD: Yes, a law may supersede a treaty or a generally accepted principle. In this case, there is no conflict at all between the raised generally accepted principle and with RA 1180. The equal protection of the law clause does not demand absolute equality amongst residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced; and, that the equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. For the sake of argument, even if it would be assumed that a treaty would be in conflict with a statute then the statute must be upheld because it represented an exercise of the police power which, being inherent could not be bargained away or surrendered through the medium of a treaty. Hence, Ichong can no longer assert his right to operate his market stalls in the Pasay city market.