Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 115576 August 4, 1994

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LEONARDO PAQUINTO

AND JESUS CABANGUNAY.

CHAIRMAN SEDFREY A. ORDOEZ, COMM. SAMUEL M. SORIANO, COMM. HESIQUIO

R. MALLILLIN, COMM. NARCISO C. MONTEIRO, COMM. PAULYNN PAREDES-SICAM,
THE COMMISSION ON HUMAN RIGHTS, petitioners,
vs.
DIRECTOR OF PRISONS, respondent.

CRUZ, J.:

Why are Leonardo Paquinto and Jesus Cabangunay still in prison?

These persons are among the civilians who were tried by the military commissions during the
period of martial law. Both were originally condemned to die by musketry, but their sentence was
commuted by the new Constitution to reclusion perpetua.

Their convictions were subsequently nullified by this Court in the case of Olaguer v. Military
Commission No. 34, 1 where we held that the military tribunals had no jurisdiction to try civilians
when the courts of justice were functioning.

Accordingly, in the case of Cruz v. Ponce Enrile, 2 this Court directed the Department of Justice to
file the corresponding informations in the civil courts against the petitioners within 180 days from
notice of the decision.

No information has so far been filed against Paquinto and Cabangunay, but they have remained
under detention.

On May 27, 1992, Ernesto Abaloc, together with Cabangunay and Paquinto, wrote to the United
Nations Human Rights Committee (UNHRC) complaining that their continued detention violated
their rights under Articles 6, 7, 9, 10, 14, and 26 of the International Covenant on Civil and
Political Rights. 3
In its decision dated October 14, 1993, the UNHRC declared their communication as admissible
and requested the Republic of the Philippines to submit a written explanation of their complaint
within six months from the date of transmittal. 4

The Department of Foreign Affairs furnished the Commission on Human Rights with a copy of
the decision. Thereupon, the Commission, through its Chairman Sedfrey A. Ordoez wrote the
Secretary of Justice of its intention to sue for the release of the complaints unless criminal charges
had already been filed against them. 5

On June 7, 1994, the Department of Justice informed the Commission that Abaloc had been
released on September 29, 1992, and that Paquinto and Cabangunay were still detained at the
National Penitentiary. There was the intimation that it would not object to a petition for habeas
corpus that the Commission might choose to file for Paquinto and Cabangunay. 6 This assurance
was later confirmed in a letter from the Department dated May 31, 1994. 7

The present petition for habeas corpus was filed with this Court on June 13, 1994. The writ was
immediately issued, returnable on or before June 22, 1994, on which date a hearing was also
scheduled.

At the hearing, Chairman Ordoez argued for the prisoners and pleaded for their immediate
release in view of the failure of the Department of Justice to file charges against them within the
period specified in the Cruz case. He stressed that their continued detention despite the
nullification of their convictions was a clear violation of their human rights.

For its part, the Office of the Solicitor General, as counsel for the respondent Director of Prisons,
argued that under our ruling in Tan v. Barrios, 8 the Olaguer decision could not be retroactively
applied to decisions of the military tribunals that have already become final or to persons who
were already serving their sentence. It suggested that, under the circumstances, the only recourse
of the prisoners was to reiterate and pursue their applications for executive clemency.

It has been seven years since the Olaguer decision nullifying the convictions of Paquinto and
Cabangunay by the military commissions was promulgated. It has been six years since our
decision in the Cruz case directed the Secretary of Justice to file the appropriate informations
against the civilians still detained under convictions rendered by the military tribunals. The
prisoners have been confined since 1974. We can only guess at the validity of their convictions as
the records of their cases have allegedly been burned.

The loss of these records is the main reason the Department gives for its failure to file the
corresponding charges against the two detainees before the civil courts. It is unacceptable, of
course. It is not the fault of the prisoners that the records cannot now be found. If anyone is to be
blamed, it surely cannot be the prisoners, who were not the custodian of those records. It is
illogical and even absurd to suggest that because the government cannot prosecute them, the
prisoners' detention must continue.
The other excuse of the government must also be rejected. During the hearing, the Office of the
Solicitor General contended that the prisoners had themselves opted to serve their sentences rather
than undergo another trial. Their ultimate objective, so it was maintained, was to secure their
release by applying for executive clemency. To prove this, counsel submitted a letter from one
Atty. Anselmo B. Mabuti to the Secretary of Justice manifesting that Leonardo B. Paquinto
"chooses to complete the service of his sentence so that the Board of Pardons and Parole has
jurisdiction over his case." 9 No mention was made of Jesus Cabangunay.

Upon direct questioning from the Court during the hearing, both Paquinto and Cabangunay
disowned Atty. Mabuti as their counsel and said they had never seen nor talked to him before.
Paquinto denied ever having authorized him to write the letter. Instead, the two prisoners reiterated
their plea to be released on the strength of the Olaguer decision.

The petitioners further contend in their memorandum that a re-examination of the ruling in Cruz v.
Enrile 10 in relation to the case of Tan v. Barrios, 11 is necessary in view of certain supervening
events. These are the failure of the Department of Justice to file the informations against the
prisoners; the decision of the UNHRC declaring admissible the communication
No. 503/1992 of Abaloc, Paquinto and Cabangunay and thus suggesting the violation of their
liberty as guaranteed under the International Covenant on Civil and Political Rights; and the
assurance of the Department of Justice that it would have no objection to the filing of a petition for
habeas corpus by the Commission on behalf of Paquinto and Cabangunay.

The Court stresses that in its en banc resolution dated February 26, 1991, it declared, citing the
Tan case, that "those civilians who were convicted by military courts and who have been serving
(but not yet completed) their sentences of imprisonment for the past many years" . . . "may be
given the option either to complete the service of their sentence, or be tried anew by the civil
courts. Upon conviction, they should be credited in the service of their sentence for the full period
of their previous imprisonment. Upon acquittal, they should be set free."

Accordingly, it directed "the Department of Justice to forthwith comply with the directive in the
"Cruz Cases" for the filing of the necessary informations against them in the courts having
jurisdiction over the offenses involved, without prejudice to said petitioners' exercise of the option
granted to them by this Court's ruling in G.R. Nos. 85481-82, William Tan, et al. v. Hernani T.
Barrios, etc., et al., supra."

The Office of the Solicitor General submitted its memorandum after its second motion for
extension was denied, in view of the necessity to decide this petition without further delay. 12 The
memorandum was admitted just the same, but we find it adds nothing to the respondent's original
arguments.

There is absolutely no question that the prisoners' plea should be heeded. The government has
failed to show that their continued detention is supported by a valid conviction or by the pendency
of charges against them or by any legitimate cause whatsoever. If no information can be filed
against them because the records have been lost, it is not the prisoners who should be made to
suffer. In the eyes of the law, Paquinto and Cabangunay are not guilty or appear to be guilty of any
crime for which they may be validly held. Hence, they are entitled to be set free.

Liberty is not a gift of the government but the right of the governed. Every person is free, save
only for the fetters of the law that limit but do not bind him unless he affronts the rights of others
or offends the public welfare. Liberty is not derived from the sufferance of the government or its
magnanimity or even from the Constitution itself, which merely affirms but does not grant it.
Liberty is a right that inheres in every one of us as a member of the human family. When a person
is deprived of this right, all of us are diminished and debased for liberty is total and indivisible.

WHEREFORE, the petition is GRANTED. Jesus Cabangunay and Leonardo Paquinto should not
be detained in prison a minute longer. They are ordered released IMMEDIATELY.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason,
Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Today is Thursday, March 23, 2017

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by

the Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC),
Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No.
99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz,
private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to
vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special
Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The
petition alleges that both Orders were issued by respondent judge with grave abuse of discretion
amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting
bail to a potential extraditee.

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong
Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect
on June 20, 1997.

On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the
Hong Kong Special Administrative Region.

Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the
offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of
Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of
conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and
October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of
seven (7) to fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request
for the provisional arrest of private respondent. The DOJ then forwarded the request to the
National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19
an application for the provisional arrest of private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private
respondent. That same day, the NBI agents arrested and detained him.

On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari,
prohibition and mandamus with application for preliminary mandatory injunction and/or writ of
habeas corpus questioning the validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest
void.

On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed
as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and
sustaining the validity of the Order of Arrest against private respondent. The Decision became
final and executory on April 10, 2001.

Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region
filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil
Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part,
private respondent filed, in the same case,- a petition for bail which was opposed by petitioner.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for
bail, holding that there is no Philippine law granting bail in extradition cases and that private
respondent is a high "flight risk."

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No.
99-95733. It was then raffled off to Branch 8 presided by respondent judge.

On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying
his application for bail. This was granted by respondent judge in an Order dated December 20,
2001 allowing private respondent to post bail, thus:

In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The
petition for bail is granted subject to the following conditions:

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he
will appear and answer the issues raised in these proceedings and will at all times hold himself
amenable to orders and processes of this Court, will further appear for judgment. If accused fails
in this undertaking, the cash bond will be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and discretion of filing its own motion for
hold departure order before this Court even in extradition proceeding; and

4. Accused is required to report to the government prosecutors handling this case or if they so
desire to the nearest office, at any time and day of the week; and if they further desire, manifest
before this Court to require that all the assets of accused, real and personal, be filed with this Court
soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited
in favor of the government and that the corresponding lien/annotation be noted therein
accordingly.

SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was
denied by respondent judge in his Order dated April 10, 2002.

Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of
discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that
there is nothing in the Constitution or statutory law providing that a potential extraditee has a right
to bail, the right being limited solely to criminal proceedings.

In his comment on the petition, private respondent maintained that the right to bail guaranteed
under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process
resulting in a prolonged deprivation of ones liberty.

Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:

Sec. 13. 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 the writ of habeas corpus is suspended. Excessive bail shall not be required.

Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the
first time that this Court has an occasion to resolve the question of whether a prospective
extraditee may be granted bail.

In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC
of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking
through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the
constitutional provision on bail does not apply to extradition proceedings. It is "available only in
criminal proceedings," thus:

x x x. As suggested by the use of the word "conviction," the constitutional provision on bail
quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has
been arrested and detained for violation of Philippine criminal laws. It does not apply to
extradition proceedings because extradition courts do not render judgments of conviction or
acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of
every accused who should not be subjected to the loss of freedom as thereafter he would be
entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage,
41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional
provision on bail will not apply to a case like extradition, where the presumption of innocence is
not at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended" does not detract from the rule that the
constitutional right to bail is available only in criminal proceedings. It must be noted that the
suspension of the privilege of the writ of habeas corpus finds application "only to persons
judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec.
18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail
merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It
cannot be taken to mean that the right is available even in extradition proceedings that are not
criminal in nature.

At first glance, the above ruling applies squarely to private respondents case. However, this Court
cannot ignore the following trends in international law: (1) the growing importance of the
individual person in public international law who, in the 20th century, has gradually attained
global recognition; (2) the higher value now being given to human rights in the international
sphere; (3) the corresponding duty of countries to observe these universal human rights in
fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the
individual under our fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the individual
person and the sanctity of human rights. Slowly, the recognition that the individual person may
properly be a subject of international law is now taking root. The vulnerable doctrine that the
subjects of international law are limited only to states was dramatically eroded towards the second
half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the
unprecedented spectacle of individual defendants for acts characterized as violations of the laws of
war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle,
Serbian leaders have been persecuted for war crimes and crimes against humanity committed in
the former Yugoslavia. These significant events show that the individual person is now a valid
subject of international law.

On a more positive note, also after World War II, both international organizations and states gave
recognition and importance to human rights. Thus, on December 10, 1948, the United Nations
General Assembly adopted the Universal Declaration of Human Rights in which the right to life,
liberty and all the other fundamental rights of every person were proclaimed. While not a treaty,
the principles contained in the said Declaration are now recognized as customarily binding upon
the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in
granting bail to a prospective deportee, held that under the Constitution,3 the principles set forth in
that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted
the International Covenant on Civil and Political Rights which the Philippines signed and ratified.
Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and
due process.

The Philippines, along with the other members of the family of nations, committed to uphold the
fundamental human rights as well as value the worth and dignity of every person. This
commitment is enshrined in Section II, Article II of our Constitution which provides: "The State
values the dignity of every human person and guarantees full respect for human rights." The
Philippines, therefore, has the responsibility of protecting and promoting the right of every person
to liberty and due process, ensuring that those detained or arrested can participate in the
proceedings before a court, to enable it to decide without delay on the legality of the detention and
order their release if justified. In other words, the Philippine authorities are under obligation to
make available to every person under detention such remedies which safeguard their fundamental
right to liberty. These remedies include the right to be admitted to bail. While this Court in
Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the
various international treaties giving recognition and protection to human rights, particularly the
right to life and liberty, a reexamination of this Courts ruling in Purganan is in order.

First, we note that the exercise of the States power to deprive an individual of his liberty is not
necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as
deportation and quarantine,4 have likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential
history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal
proceedings only. This Court has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the
pendency of administrative proceedings, taking into cognizance the obligation of the Philippines
under international conventions to uphold human rights.

The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for
failure to secure the necessary certificate of registration was granted bail pending his appeal. After
noting that the prospective deportee had committed no crime, the Court opined that "To refuse him
bail is to treat him as a person who has committed the most serious crime known to law;" and that
while deportation is not a criminal proceeding, some of the machinery used "is the machinery of
criminal law." Thus, the provisions relating to bail was applied to deportation proceedings.

In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled
that foreign nationals against whom no formal criminal charges have been filed may be released
on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff
relied upon the Universal declaration of Human Rights in sustaining the detainees right to bail.

If bail can be granted in deportation cases, we see no justification why it should not also be
allowed in extradition cases. Likewise, considering that the Universal Declaration of Human
Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition
cases. After all, both are administrative proceedings where the innocence or guilt of the person
detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in
the light of the various treaty obligations of the Philippines concerning respect for the promotion
and protection of human rights. Under these treaties, the presumption lies in favor of human
liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not
impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines
"extradition" as "the removal of an accused from the Philippines with the object of placing him at
the disposal of foreign authorities to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or the execution of a penalty
imposed on him under the penal or criminal law of the requesting state or government."

Extradition has thus been characterized as the right of a foreign power, created by treaty, to
demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and
the correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal
proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its
nature criminal, for it is not punishment for a crime, even though such punishment may follow
extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different
nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it
a full-blown civil action, but one that is merely administrative in character.13 Its object is to
prevent the escape of a person accused or convicted of a crime and to secure his return to the state
from which he fled, for the purpose of trial or punishment.14

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it
entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed
to attain the purpose of extradition is also "the machinery of criminal law." This is shown by
Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate
arrest and temporary detention of the accused" if such "will best serve the interest of justice." We
further note that Section 20 allows the requesting state "in case of urgency" to ask for the
"provisional arrest of the accused, pending receipt of the request for extradition;" and that release
from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a

criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of
liberty, and forced to transfer to the demanding state following the proceedings. "Temporary
detention" may be a necessary step in the process of extradition, but the length of time of the
detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and remained
incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other
words, he had been detained for over two (2) years without having been convicted of any crime.
By any standard, such an extended period of detention is a serious deprivation of his fundamental
right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition
court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee, however, there is
no provision prohibiting him or her from filing a motion for bail, a right to due process under the
Constitution.

The applicable standard of due process, however, should not be the same as that in criminal
proceedings. In the latter, the standard of due process is premised on the presumption of innocence
of the accused. As Purganan correctly points out, it is from this major premise that the ancillary
presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition
proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention"
is the possibility of flight of the potential extraditee. This is based on the assumption that such
extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears
the onus probandi of showing that he or she is not a flight risk and should be granted bail.

The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region. Failure to comply with these obligations is a setback in our foreign
relations and defeats the purpose of extradition. However, it does not necessarily mean that in
keeping with its treaty obligations, the Philippines should diminish a potential extraditees rights
to life, liberty, and due process. More so, where these rights are guaranteed, not only by our
Constitution, but also by international conventions, to which the Philippines is a party. We should
not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard
for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying
bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof
of preponderance of evidence in civil cases. While administrative in character, the standard of
substantial evidence used in administrative cases cannot likewise apply given the object of
extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his
Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and convincing evidence" should be used in
granting bail in extradition cases. According to him, this standard should be lower than proof
beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must
prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the
orders and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to show that he is not
a flight risk. Consequently, this case should be remanded to the trial court to determine whether
private respondent may be granted bail on the basis of "clear and convincing evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to
determine whether private respondent is entitled to bail on the basis of "clear and convincing
evidence." If not, the trial court should order the cancellation of his bail bond and his immediate
detention; and thereafter, conduct the extradition proceedings with dispatch.

SO ORDERED.
Today is Thursday, March 23, 2017

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-69866 April 15, 1988

ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG DANILO DE

LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN, ALAN JAZMINEZ,
EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-
MARCELINO, JOSEPH OLAYER, CARLOS PALMA, MARCO PALO, ROLANDO SALUTIN,
BENJAMIN SESGUNDO, ARTURO TABARA, EDWIN TULALIAN and REBECCA
TULALIAN petitioners,
vs.
MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL.
GERARDO B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL. PANFILO M.
LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT. PEDRO
TANGO, 1ST LT. ROMEO RICARDO, 1ST LT. RAUL BACALSO, MSGT BIENVENIDO
BALABA and REGIONAL TRIAL COURT, National Capital Judicial Region, Branch XCV (95),
Quezon City, respondents.

YAP, J.:

This petition for certiorari presents vital issues not heretofore passed upon by this Court. It poses
the question whether the suspension of the privilege of the writ of habeas corpus bars a civil action
for damages for illegal searches conducted by military personnel and other violations of rights and
liberties guaranteed under the Constitution. If such action for damages may be maintained, who
can be held liable for such violations: only the military personnel directly involved and/or their
superiors as well.

This case stems from alleged illegal searches and seizures and other violations of the rights and
liberties of plaintiffs by various intelligence units of the Armed Forces of the Philippines, known
as Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes
against known communist-terrorist (CT) underground houses in view of increasing reports about
CT plans to sow disturbances in Metro Manila," Plaintiffs allege, among others, that complying
with said order, elements of the TFM raided several places, employing in most cases defectively
issued judicial search warrants; that during these raids, certain members of the raiding party
confiscated a number of purely personal items belonging to plaintiffs; that plaintiffs were arrested
without proper warrants issued by the courts; that for some period after their arrest, they were
denied visits of relatives and lawyers; that plaintiffs were interrogated in violation of their rights to
silence and counsel; that military men who interrogated them employed threats, tortures and other
forms of violence on them in order to obtain incriminatory information or confessions and in order
to punish them; that all violations of plaintiffs constitutional rights were part of a concerted and
deliberate plan to forcibly extract information and incriminatory statements from plaintiffs and to
terrorize, harass and punish them, said plans being previously known to and sanctioned by
defendants.

Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in the

amount of at least P150,000.00 each or a total of P3,000,000.00; exemplary damages in the
amount of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees amounting to
not less than P200,000.00.

A motion to dismiss was filed by defendants, through their counsel, then Solicitor-General Estelito
Mendoza, alleging that (1) plaintiffs may not cause a judicial inquiry into the circumstances of
their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas
corpus is suspended; (2) assuming that the courts can entertain the present action, defendants are
immune from liability for acts done in the performance of their official duties; and (3) the
complaint states no cause of action against the defendants. Opposition to said motion to dismiss
was filed by plaintiffs Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo
Mansos and Rolando Salutin on July 8, 1983, and by plaintiffs Edwin Lopez, Manuel Mario
Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer, Rodolfo
Benosa, Belen Diaz, Flores, Rogelio Aberca, Alex Marcelino and Elizabeth Marcelino on July 21,
1983. On November 7, 1983, a Consolidated Reply was filed by defendants' counsel.

Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95, Judge
Willelmo C. Fortun, Presiding, 1 issued a resolution granting the motion to dismiss. I sustained,
lock, stock and barrel, the defendants' contention (1) the plaintiffs may not cause a judicial inquiry
into the circumstances of their detention in the guise of a damage suit because, as to them, the
privilege of the writ of habeas corpus is suspended; (2) that assuming that the court can entertain
the present action, defendants are immune from liability for acts done in the performance of their
official duties; and (3) that the complaint states no cause of action against defendants, since there
is no allegation that the defendants named in the complaint confiscated plaintiffs' purely personal
properties in violation of their constitutional rights, and with the possible exception of Major
Rodolfo Aguinaldo and Sergeant Bienvenido Balabo committed acts of torture and maltreatment,
or that the defendants had the duty to exercise direct supervision and control of their subordinates
or that they had vicarious liability as employers under Article 2180 of the Civil Code. The lower
court stated, "After a careful study of defendants' arguments, the court finds the same to be
meritorious and must, therefore, be granted. On the other hand, plaintiffs' arguments in their
opposition are lacking in merit."
A motion to set aside the order dismissing the complaint and a supplemental motion for
reconsideration was filed by the plaintiffs on November 18, 1983, and November 24, 1983,
respectively. On December 9, 1983, the defendants filed a comment on the aforesaid motion of
plaintiffs, furnishing a copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W.
Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L. Rosales,
Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon
Esguerra and Felicitas Aquino.

On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further
proceeding in the case and leaving the resolution of the motion to set aside the order of dismissal
to Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve [the] aforesaid
pending motion with the cold neutrality of an impartial judge and to put an end to plaintiffs
assertion that the undersigned has no authority or jurisdiction to resolve said pending motion."
This order prompted plaintiffs to reesolve an amplificatory motion for reconsideration signed in
the name of the Free Legal Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys.
Joker P. Arroyo, Felicitas Aquino and Arno Sanidad on April 12, 1984. On May 2,1984, the
defendants filed a comment on said amplificatory motion for reconsideration.

In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting on
the motion to set aside order of November 8, 1983, issued an order, as follows:

It appearing from the records that, indeed, the following plaintiffs, Rogelio Aberca, Danilo de la
Fuente and Marco Palo, represented by counsel, Atty. Jose W. Diokno, Alan Jasminez represented
by counsel, Atty. Augusta Sanchez, Spouses Alex Marcelino and Elizabeth Protacio-Marcelino,
represented by counsel, Atty. Procopio Beltran, Alfredo Mansos represented by counsel, Atty.
Rene Sarmiento, and Rolando Salutin, represented by counsel, Atty. Efren Mercado, failed to file a
motion to reconsider the Order of November 8, 1983, dismissing the complaint, nor interposed an
appeal therefrom within the reglementary period, as prayed for by the defendants, said Order is
now final against said plaintiffs.

Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on May
28,1984, alleging that it was not true that plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco
Palo, Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando
Salutin failed to file a motion to reconsider the order of November 8, 1983 dismissing the
complaint, within the reglementary period. Plaintiffs claimed that the motion to set aside the order
of November 8, 1983 and the amplificatory motion for reconsideration was filed for all the
plaintiffs, although signed by only some of the lawyers.

In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to
reconsider its order of May 11, 1984 declaring that with respect to certain plaintiffs, the resolution
of November 8, 1983 had already become final, and (2) to set aside its resolution of November 8,
1983 granting the defendants' motion to dismiss. In the dispositive portion of the order of
September 21, 1984, the respondent court resolved:
(1) That the motion to set aside the order of finality, dated May 11, 1984, of the Resolution of
dismissal of the complaint of plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan
Jasminez Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin is
deed for lack of merit;

(2) For lack of cause of action as against the following defendants, to wit:

1. Gen Fabian Ver

2. Col. Fidel Singson

3. Col. Rolando Abadilla

4. Lt. Col. Conrado Lantoria, Jr.

5. Col. Galileo Montanar

6. Col. Panfilo Lacson

7. Capt. Danilo Pizaro

8. 1 Lt Pedro Tango

9. Lt. Romeo Ricardo

10. Lt. Raul Bacalso

the motion to set aside and reconsider the Resolution of dismissal of the present action or
complaint, dated November 8, 1983, is also denied but in so far as it affects and refers to
defendants, to wit:

1. Major Rodolfo Aguinaldo, and

2. Master Sgt. Bienvenido Balaba

the motion to reconsider and set aside the Resolution of dismissal dated November 3, 1983 is
granted and the Resolution of dismissal is, in this respect, reconsidered and modified.

Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul and
set aside the respondent court's resolution of November 8, 1983, its order of May 11, 1984, and its
resolution dated September 21, 1984. Respondents were required to comment on the petition,
which it did on November 9, 1985. A reply was filed by petitioners on August 26, 1986.

We find the petition meritorious and decide to give it due course.

At the heart of petitioners' complaint is Article 32 of the Civil Code which provides:

ART. 32. Any public officer or employee, or any private individual who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and
liberties of another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process

(7) of law;

(8) The right to a just compensation when private property is taken for public use;

(9) The right to the equal protection of the laws;

(10) The right to be secure in one's person, house, papers, and effects against unreasonable
searches and seizures;

(11) The liberty of abode and of changing the same;

(12) The privacy of cmmunication and correspondence;

(13) The right to become a member of associations or societies for purposes not contrary to law;

(14) The right to take part in a peaceable assembly to petition the Government for redress of
grievances;

(15) The right to be free from involuntary servitude in any form;

(16) The rigth of the accused against excessive bail;

(17) The rigth of the aaccused to be heard by himself and counsel, to be informed of the nature
and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses
face to face, and to have compulsory process to secure the attendance of witness in behalf;
(18) Freedom from being compelled to be a witness against ones self, or from being forced to
confess guilt, or from being induced by a promise of immunity or reward to make such confession,
except when the person confessing becomes a State witness;

(19) Freedom from excessive fines or cruel and unusual punishment, unless the same is imposed
or inflicted in accordance with a statute which has not been judicially declared unconstitutional;
and

(20) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or omission
constitutes a criminal offense, the against grieved party has a right to commence an entirely
separate and distinct civil action for damages, and for other relief. Such civil action shall proceed
independently of any criminal prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission
constitutes a violation of the Penal Code or other penal statute.

It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply
cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may
seek to violate those sacred rights with impunity. In times of great upheaval or of social and
political stress, when the temptation is strongest to yield borrowing the words of Chief Justice
Claudio Teehankee to the law of force rather than the force of law, it is necessary to remind
ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the
transient needs or imperious demands of the ruling power. The rule of law must prevail, or else
liberty will perish. Our commitment to democratic principles and to the rule of law compels us to
reject the view which reduces law to nothing but the expression of the will of the predominant
power in the community. "Democracy cannot be a reign of progress, of liberty, of justice, unless
the law is respected by him who makes it and by him for whom it is made. Now this respect
implies a maximum of faith, a minimum of Idealism. On going to the bottom of the matter, we
discover that life demands of us a certain residuum of sentiment which is not derived from reason,
but which reason nevertheless controls. 2

Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that as
public officers they are covered by the mantle of state immunity from suit for acts done in the
performance of official duties or function In support of said contention, respondents maintain that

Respondents are members of the Armed Forces of the Philippines. Their primary duty is to
safeguard public safety and order. The Constitution no less provides that the President may call
them "to prevent or supress lawless violence, invasion, insurrection or rebellion, or imminent
danger thereof." (Constitution, Article VII, Section 9).

On January 17, 1981, the President issued Proclamation No. 2045 lifting martial law but providing
for the continued suspension of the privilege of the writ of habeas corpus in view of the remaining
dangers to the security of the nation. The proclamation also provided "that the call to the Armed
Forces of the Philippines to prevent or suppress lawless violence, insuitection rebellion and
subversion shall continue to be in force and effect."

Petitioners allege in their complaint that their causes of action proceed from respondent General
Ver's order to Task Force Makabansa to launch pre-emptive strikes against communist terrorist
underground houses in Metro Manila. Petitioners claim that this order and its subsequent
implementation by elements of the task force resulted in the violation of their constitutional rights
against unlawful searches, seizures and arrest, rights to counsel and to silence, and the right to
property and that, therefore, respondents Ver and the named members of the task force should be
held liable for damages.

But, by launching a pre-emptive strike against communist terrorists, respondent members of the
armed forces merely performed their official and constitutional duties. To allow petitioners to
recover from respondents by way of damages for acts performed in the exercise of such duties run
contrary to the policy considerations to shield respondents as public officers from undue
interference with their duties and from potentially disabling threats of hability (Aarlon v.
Fitzgerald 102 S. Ct. 2731-1 Forbes v. Chuoco Tiaco, 16 Phil. 634), and upon the necessity of
protecting the performance of governmental and public functions from being harassed unduly or
constantly interrupted by private suits (McCallan v. State, 35 Cal. App. 605; Metran v. Paredes, 79
Phil. 819).

xxx xxx xxx

The immunity of public officers from liability arising from the performance of their duties is now
a settled jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v. Nicolas, 102 Phil. 944; Spalding
v. Vilas, 161 US 483; 40 L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz v. Economon, 438 US
478; 57 L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco Tiaco,
supra; Miller v. de Leune, 602 F. 2d 198; Sami v. US, 617 F. 2d 755).

Respondents-defendants who merely obeyed the lawful orders of the President and his call for the
suppression of the rebellion involving petitioners enjoy such immunity from Suit. 3

We find respondents' invocation of the doctrine of state immunity from suit totally misplaced. The
cases invoked by respondents actually involved acts done by officers in the performance of
official duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and
Crossfield: 4

No one can be held legally responsible in damages or otherwise for doing in a legal manner what
he had authority, under the law, to do. Therefore, if the Governor-General had authority, under the
law to deport or expel the defendants, and circumstances justifying the deportation and the method
of carrying it out are left to him, then he cannot be held liable in damages for the exercise of this
power. Moreover, if the courts are without authority to interfere in any manner, for the purpose of
controlling or interferring with the exercise of the political powers vested in the chief executive
authority of the Government, then it must follow that the courts cannot intervene for the purpose
of declaring that he is liable in damages for the exeercise of this authority.

It may be that the respondents, as members of the Armed Forces of the Philippines, were merely
responding to their duty, as they claim, "to prevent or suppress lawless violence, insurrection,
rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite
the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre-
emptive strikes against alleged communist terrorist underground houses. But this cannot be
construed as a blanket license or a roving commission untramelled by any constitutional restraint,
to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and
protected by the Constitution. The Constitution remains the supreme law of the land to which all
officials, high or low, civilian or military, owe obedience and allegiance at all times.

Article 32 of the Civil Code which renders any public officer or employee or any private
individual liable in damages for violating the Constitutional rights and liberties of another, as
enumerated therein, does not exempt the respondents from responsibility. Only judges are
excluded from liability under the said article, provided their acts or omissions do not constitute a
violation of the Penal Code or other penal statute.

This is not to say that military authorities are restrained from pursuing their assigned task or
carrying out their mission with vigor. We have no quarrel with their duty to protect the Republic
from its enemies, whether of the left or of the right, or from within or without, seeking to destroy
or subvert our democratic institutions and imperil their very existence. What we are merely trying
to say is that in carrying out this task and mission, constitutional and legal safeguards must be
observed, otherwise, the very fabric of our faith will start to unravel. In the battle of competing
Ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that
psychological struggle is faith in the rule of law. Once that faith is lost or compromised, the
struggle may well be abandoned.

We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the
suspension of the privilege of the writ of habeas corpus. Respondents contend that "Petitioners
cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed
at the same purpose-judicial inquiry into the alleged illegality of their detention. While the main
relief they ask by the present action is indemnification for alleged damages they suffered, their
causes of action are inextricably based on the same claim of violations of their constitutional
rights that they invoked in the habeas corpus case as grounds for release from detention. Were the
petitioners allowed the present suit, the judicial inquiry barred by the suspension of the privilege
of the writ will take place. The net result is that what the courts cannot do, i.e. override the
suspension ordered by the President, petitioners will be able to do by the mere expedient of
altering the title of their action."

We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the
writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal
arrest and detention and other violations of their constitutional rights. The suspension does not
render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the
individual to seek release from detention through the writ of habeas corpus as a speedy means of
obtaining his liberty.

Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly
recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding the
following to its text:

However, when the action (for injury to the rights of the plaintiff or for a quasi-delict) arises from
or out of any act, activity or conduct of any public officer involving the exercise of powers or
authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the
same must be brought within one (1) year.

Petitioners have a point in contending that even assuming that the suspension of the privilege of
the writ of habeas corpus suspends petitioners' right of action for damages for illegal arrest and
detention, it does not and cannot suspend their rights and causes of action for injuries suffered
because of respondents' confiscation of their private belongings, the violation of their right to
remain silent and to counsel and their right to protection against unreasonable searches and
seizures and against torture and other cruel and inhuman treatment.

However, we find it unnecessary to address the constitutional issue pressed upon us. On March 25,
1986, President Corazon C. Aquino issued Proclamation No. 2, revoking Proclamation Nos. 2045
and 2045-A and lifting the suspension of the privilege of the writ of habeas corpus. The question
therefore has become moot and academic.

This brings us to the crucial issue raised in this petition. May a superior officer under the notion of
respondent superior be answerable for damages, jointly and severally with his subordinates, to the
person whose constitutional rights and liberties have been violated?

Respondents contend that the doctrine of respondent superior is applicable to the case. We agree.
The doctrine of respondent superior has been generally limited in its application to principal and
agent or to master and servant (i.e. employer and employee) relationship. No such relationship
exists between superior officers of the military and their subordinates.

Be that as it may, however, the decisive factor in this case, in our view, is the language of Article
32. The law speaks of an officer or employee or person 'directly' or "indirectly" responsible for the
violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the
one directly responsible) who must answer for damages under Article 32; the person indirectly
responsible has also to answer for the damages or injury caused to the aggrieved party.
By this provision, the principle of accountability of public officials under the Constitution 5
acquires added meaning and asgilrnes a larger dimension. No longer may a superior official relax
his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does
not have to answer for the transgressions committed by the latter against the constitutionally
protected rights and liberties of the citizen. Part of the factors that propelled people power in
February 1986 was the widely held perception that the government was callous or indifferent to, if
not actually responsible for, the rampant violations of human rights. While it would certainly be
go naive to expect that violators of human rights would easily be deterred by the prospect of
facing damage suits, it should nonetheless be made clear in no ones terms that Article 32 of the
Civil Code makes the persons who are directly, as well as indirectly, responsible for the
transgression joint tortfeasors.

In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson, Col.
Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo Kintanar, Col. Panfilo Lacson, Capt.
Danilo Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of
their subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept
as defendants on the ground that they alone 'have been specifically mentioned and Identified to
have allegedly caused injuries on the persons of some of the plaintiff which acts of alleged
physical violence constitute a delict or wrong that gave rise to a cause of action. But such finding
is not supported by the record, nor is it in accord with law and jurisprudence.

Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of alleged
physical violence" which constituted delict or wrong. Article 32 clearly specifies as actionable the
act of violating or in any manner impeding or impairing any of the constitutional rights and
liberties enumerated therein, among others

1. Freedom from arbitrary arrest or illegal detention;

2. The right against deprivation of property without due process of law;

3. The right to be secure in one's person, house, papers and effects against unreasonable
searches and seizures;

4. The privacy of communication and correspondence;

5. Freedom from being compelled to be a witness against one's self, or from being forced to
confess guilt, or from being induced by a promise of immunity or reward to make a confession,
except when the person confessing becomes a state witness.

The complaint in this litigation alleges facts showing with abundant clarity and details, how
plaintiffs' constitutional rights and liberties mentioned in Article 32 of the Civil Code were
violated and impaired by defendants. The complaint speaks of, among others, searches made
without search warrants or based on irregularly issued or substantially defective warrants; seizures
and confiscation, without proper receipts, of cash and personal effects belonging to plaintiffs and
other items of property which were not subversive and illegal nor covered by the search warrants;
arrest and detention of plaintiffs without warrant or under irregular, improper and illegal
circumstances; detention of plaintiffs at several undisclosed places of 'safehouses" where they
were kept incommunicado and subjected to physical and psychological torture and other inhuman,
degrading and brutal treatment for the purpose of extracting incriminatory statements. The
complaint contains a detailed recital of abuses perpetrated upon the plaintiffs violative of their
constitutional rights.

Secondly, neither can it be said that only those shown to have participated "directly" should be
held liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those
directly, as well as indirectly, responsible for its violation.

The responsibility of the defendants, whether direct or indirect, is amply set forth in the complaint.
It is well established in our law and jurisprudence that a motion to dismiss on the ground that the
complaint states no cause of action must be based on what appears on the face of the complaint. 6
To determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no
others, should be considered. 7 For this purpose, the motion to dismiss must hypothetically admit
the truth of the facts alleged in the complaint. 8

Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of
action the complaint against all the defendants, except Major Rodolfo Aguinaldo and Master Sgt.
Bienvenido Balaba. The complaint contained allegations against all the defendants which, if
admitted hypothetically, would be sufficient to establish a cause or causes of action against all of
them under Article 32 of the Civil Code.

This brings us to the last issue. Was the trial court correct in dismissing the complaint with respect
to plaintiffs Rogelio Aberca, Danilo de la Puente, Marco Palo, Alan Jazminez, Alex Marcelino,
Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin, on the basis of the alleged
failure of said plaintiffs to file a motion for reconsideration of the court's resolution of November
8, 1983, granting the respondent's motion to dismiss?

It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by
'plaintiffs, through counsel. True, the motion was signed only by Atty. Joker P. Arroyo, counsel for
Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin
Guzman; Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V.
Sanidad, counsel for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer; and Atty.
Alexander Padilla, counsel for Rodolfo Benosa.

But the body of the motion itself clearly indicated that the motion was filed on behalf of all the
plaintiffs. And this must have been also the understanding of defendants' counsel himself for when
he filed his comment on the motion, he furnished copies thereof, not just to the lawyers who
signed the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran,
Rene Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro Efla Jr., Arno
Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas S.
Aquino.

In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so
on behalf of all the plaintiff. They needed no specific authority to do that. The authority of an
attorney to appear for and in behalf of a party can be assumed, unless questioned or challenged by
the adverse party or the party concerned, which was never done in this case. Thus, it was grave
abuse on the part of respondent judge to take it upon himself to rule that the motion to set aside the
order of November 8, 1953 dismissing the complaint was filed only by some of the plaintiffs,
when by its very language it was clearly intended to be filed by and for the benefit of all of them.
It is obvious that the respondent judge took umbrage under a contrived technicality to declare that
the dismissal of the complaint had already become final with respect to some of the plaintiffs
whose lawyers did not sign the motion for reconsideration. Such action tainted with legal infirmity
cannot be sanctioned.

Accordingly, we grant the petition and annul and set aside the resolution of the respondent court,
dated November 8, 1983, its order dated May 11, 1984 and its resolution dated September 21,
1984. Let the case be remanded to the respondent court for further proceedings. With costs against
private respondents.

SO ORDERED.

Today is Thursday, March 23, 2017

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,

vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

FERNANDO, C.J.:+.wph!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate
the boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1
against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB
L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to hold a
peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the
Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once
there, and in an open space of public property, a short program would be held. 2 During the course
of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based
on the resolution adopted on the last day by the International Conference for General
Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila,
would be presented to a representative of the Embassy or any of its personnel who may be there so
that it may be delivered to the United States Ambassador. The march would be attended by the
local and foreign participants of such conference. There was likewise an assurance in the petition
that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps
would be taken by it "to ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory
injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been
informed of any action taken on his request on behalf of the organization to hold a rally. On
October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor
General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied.
Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for
refusing a permit was due to police intelligence reports which strongly militate against the
advisability of issuing such permit at this time and at the place applied for." 6 To be more specific,
reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal
elements to infiltrate and/or disrupt any assembly or congregations where a large number of
people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the
recommendation of the police authorities, that "a permit may be issued for the rally if it is to be
held at the Rizal Coliseum or any other enclosed area where the safety of the participants
themselves and the general public may be ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The
Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the
Court granting the mandatory injunction prayed for on the ground that there was no showing of
the existence of a clear and present danger of a substantive evil that could justify the denial of a
permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the
ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No.
7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is
without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's
stand on the matter.

1. 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." 10 Free
speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any
matter of public concern without censorship or punishment. 11 There is to be then no previous
restraint on the communication of views or subsequent liability whether in libel suits, 12
prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be
a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom
of assembly connotes the right people to meet peaceably for consultation and discussion of matters
Of public concern. 17 It is entitled to be accorded the utmost deference and respect. It is hot to be
limited, much less denied, except on a showing, as 's the case with freedom of expression, of a
clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to
the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of
our republican institutions and complements the right of free speech. 19 To paraphrase opinion of
Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20
it was not by accident or coincidence that the right to freedom of speech and of the press were
toupled in a single guarantee with the and to petition the rights of the people peaceably to
assemble and to petition the government for redress of grievances. All these rights, while not
Identical, are inseparable. the every case, therefo re 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.
21

2. 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."
22 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 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: 23
"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." 24 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
one's 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.

3. 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: 25 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 it must not, in the
guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in
Primicias v. Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v.
Rojas," 28 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," 29
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 or oposed march and rally starting from a public dark
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 block-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 vs. 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 'De permitted
unless a special license therefor shall first be explained 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, ...
" 30 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." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as
noted, would have arisen. So, too, if the march would end at another park. As previously
mentioned though, there would be a short program upon reaching the public space between the
two gates of the United States Embassy at Roxas Boulevard. That would be followed by the
handing over of a petition based on the resolution adopted at the closing session of the Anti-Bases
Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations
adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the
instrument of ratification was signed by the President on October 11, 1965, and was thereafter
deposited with the Secretary General of the United Nations on November 15. As of that date then,
it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving
State is under a special duty to take appropriate steps to protect the premises of the mission against
any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment
of its dignity. " 32 The Constitution "adopts the generally accepted principles of international law
as part of the law of the land. ..." 33 To the extent that the Vienna Convention is a restatement of
the generally accepted principles of international law, it should be a part of the law of the land. 34
That being the case, if there were a clear and present danger of any intrusion or damage, or
disturbance of the peace of the mission, or impairment of its dignity, there would be a justification
for the denial of the permit insofar as the terminal point would be the Embassy. Moreover,
respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or
staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra
vires, its invocation as a defense is understandable but not decisive, in view of the primacy
accorded the constitutional rights of free speech and peaceable assembly. Even if shown then to be
applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the
judgment must be confined within the limits of previous decisions. The law declared on past
occasions is, on the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of
the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory
injunction allowing the proposed march and rally scheduled for the next day. That conclusion was
inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public
interest. There was no justification then to deny the exercise of the constitutional rights of tree
speech and peaceable assembly. These rights are assured by our Constitution and the Universal
Declaration of Human Rights. 35 The participants to such assembly, composed primarily of those
in attendance at the International Conference for General Disbarmament, World Peace and the
Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas
Boulevard to the gates of the United States Embassy located at the same street. To repeat, it is
settled law that as to public places, especially so as to parks and streets, there is freedom of access.
Nor is their use dependent on who is the applicant for the permit, whether an individual or a
group. If it were, then the freedom of access becomes discriminatory access, giving rise to an
equal protection question. 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 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." 36 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. Even then, only the guilty parties should be held accountable. 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." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and
Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the
General rule is that a permit should recognize the right of the applicants to hold their assembly at a
public place of their choice, another place may be designated by the licensing authority if it be
shown that there is a clear and present danger of a substantive evil if no such change were made.
In the Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and present
danger test was satisfied. The present situation is quite different. Hence the decision reached by
the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does
not suffice. Not that it should be overlooked. There was in this case, however, the assurance of
General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that
the police force is in a position to cope with such emergency should it arise That is to comply with
its duty to extend protection to the participants of such peaceable assembly. Also from him came
the commendable admission that there were the least five previous demonstrations at the Bayview
hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event
occurred. It was made clear by petitioner, through counsel, that no act offensive to the dignity of
the United States Mission in the Philippines would take place and that, as mentioned at the outset
of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.'
" 40 Assistant Solicitor General Montenegro expressed the view that the presence of policemen
may in itself be a provocation. It is a sufficient answer that they should stay at a discreet distance,
but ever ready and alert to cope with any contingency. There is no need to repeat what was pointed
out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide
the proper police protection to those exercising their right to peaceable assembly and freedom of
expression.

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, then, 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. Clearly then, to the extent that there may be inconsistencies between this
resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in
the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of
Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five
hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be
admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on
Diplomatic Relations. There was no showing, however, that the distance between the chancery and
the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied.
it does not follow that respondent Mayor could legally act the way he did. The validity of his
denial of the permit sought could still be challenged. It could be argued that a case of
unconstitutional application of such ordinance to the exercise of the right of peaceable assembly
presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to
pass on that issue was obviated, Should it come, then the qualification and observation of Justices
Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the
rights to free speech and peaceable assembly demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification
of the permit sought and order the respondent official, to grant it. Nonetheless, as there was
urgency in this case, the proposed march and rally being scheduled for the next day after the
hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in
the resolution of October 25, 1983. It may be noted that the peaceful character of the peace march
and rally on October 26 was not marred by any untoward incident. So it has been in other
assemblies held elsewhere. It is quite reassuring such that both on the part of the national
government and the citizens, reason and moderation have prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave

Today is Thursday, March 23, 2017

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 169838 April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr.

Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
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,
Respondents.

x---------------------------------x
G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti
Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary
Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie
Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny
Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal
capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District
(MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.

x---------------------------------x

G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary
General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG
MAYO UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ,
ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO
LASTRELLA, and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO
LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.

DECISION

AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838,1 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. 169848,2
who allege that they were injured, arrested and detained when a peaceful mass action they held on
September 26, 2005 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. 169881,3 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.4 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:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other
form of mass or concerted action held in a public place for the purpose of presenting a lawful
cause; or expressing an opinion to the general public on any particular issue; or protesting or
influencing any state of affairs whether political, economic or social; or petitioning the
government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for religious
purposes shall be governed by local ordinances; Provided, however, That the declaration of policy
as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in strike
areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its
implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, 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.

(d) "Modification of a permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system
and similar changes.

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 the 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 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.

Sec. 7. Use of Public throroughfare. Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic to another direction
so that there will be no serious or undue interference with the free flow of commerce and trade.

Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of the leaders and
organizers of a public assembly to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in accordance with the terms of the
permit. These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit;|avvphi|.net

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting
the lawful activities of the public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the
permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.

Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right
peaceably to assemble and the freedom of expression is primordial. Towards this end, law
enforcement agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently on
the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as
herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but may
be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle
high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used
unless the public assembly is attended by actual violence or serious threats of violence, or
deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent
shall call the attention of the leaders of the public assembly and ask the latter to prevent any
possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the participants
are thrown at the police or at the non-participants, or at any property causing damage to such
property, the ranking officer of the law enforcement contingent shall audibly warn the participants
that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not
stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning
to the participants of the public assembly, and after allowing a reasonable period of time to lapse,
shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public assembly
unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such
arrest shall be governed by Article 125 of the Revised Penal Code, as amended;

(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall
not constitute a ground for dispersal.

Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without
a permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. The following shall constitute violations of the Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer without
having first secured that written permit where a permit is required from the office concerned, or
the use of such permit for such purposes in any place other than those set out in said permit:
Provided, however, That no person can be punished or held criminally liable for participating in or
attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf;

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a
permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person
to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the
like;

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.

Sec. 14. Penalties. Any person found guilty and convicted of any of the prohibited acts defined
in the immediately preceding section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to
six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished
by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one
day to six years without prejudice to prosecution under Presidential Decree No. 1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment
of one day to thirty days.

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 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.

Sec. 16. Constitutionality. Should any provision of this Act be declared invalid or
unconstitutional, the validity or constitutionality of the other provisions shall not be affected
thereby.

Sec. 17. Repealing clause. All laws, decrees, letters of instructions, resolutions, orders,
ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby
repealed, amended, or modified accordingly.

Sec. 18. Effectivity. This Act shall take effect upon its approval.

Approved, October 22, 1985.

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

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 duly 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.5

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.

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.

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
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.

Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor
Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National
Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police
District (MPD) Chief Gen. Pedro Bulaong.

Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public
officers and private individuals acting under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that they had been
"injured, arrested or detained because of the CPR," and that "those arrested stand to be charged
with violating Batas Pambansa [No.] 880 and other offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the
time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test for
such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to content of
regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant governmental interest,
i.e., the interest cannot be equally well served by a means that is less intrusive of free speech
interests; and (c) B.P. No. 880 leaves open alternative channels for communication of the
information.6

3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement
of the public assemblys time, place and manner of conduct. It entails traffic re-routing to prevent
grave public inconvenience and serious or undue interference in the free flow of commerce and
trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a
rallys program content or the statements of the speakers therein, except under the constitutional
precept of the "clear and present danger test." The status of B.P. No. 880 as a content-neutral
regulation has been recognized in Osmea v. Comelec.7

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and
manner of holding public assemblies and the law passes the test for such regulation, namely, these
regulations need only a substantial governmental interest to support them.

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to
exercise police power to meet "the demands of the common good in terms of traffic decongestion
and public convenience." Furthermore, the discretion given to the mayor is narrowly
circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "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" and "imminent and grave danger of a substantive
evil" both express the meaning of the "clear and present danger test."10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and
ordinances to protect public interest and restore public order. Thus, it is not accurate to call it a
new rule but rather it is a more pro-active and dynamic enforcement of existing laws, regulations
and ordinances to prevent chaos in the streets. It does not replace the rule of maximum tolerance
in B.P. No. 880.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in
G.R. No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor
power to deny a permit independently of B.P. No. 880; that his denials of permits were under the
"clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy and
to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and
Jacinto v. CA,13 have affirmed the constitutionality of requiring a permit; 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.

The petitions were ordered consolidated on February 14, 2006. After the submission of all the
Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal
issues, as follows:

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:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

(d) Are they undue delegations of powers to Mayors?

(e) 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):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6,
2005?

During the course of the oral arguments, the following developments took place and were
approved and/or noted by the Court:

1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their
petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or
CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no
longer be used as a legal term inasmuch as, according to respondents, it was merely a "catchword"
intended to clarify what was thought to be a misunderstanding of the maximum tolerance policy
set forth in B.P. No. 880 and that, as stated in the affidavit executed by Executive Secretary
Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the
maximum tolerance policy embodied in that law.

The Court will now proceed to address the principal issues, taking into account the foregoing
developments.

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,15 the Court, as early as the onset of this century, in U.S. v.
Apurado,16 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 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 become a delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner 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 therefor, 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,17 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 to enact ordinances for
the purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:

1. 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 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 rights 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.

2. 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 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
regulation, 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 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 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. Even then,
only the guilty parties should be held accountable. 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

(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 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, place and manner of the assemblies. This was adverted
to in Osmea v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the
time, place, and manner of holding public assemblies.21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies22 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, thus:

Universal Declaration of Human Rights

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29

1. Everyone has duties to the community in which alone the free and full development of his
personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as
are determined by law solely for the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of morality, public order and the
general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles
of the United Nations.

The International Covenant on Civil and Political Rights

Article 19.

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties
and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such
as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or
morals.

Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions.
"Public" does not have to be defined. Its ordinary meaning is well-known. Websters Dictionary
defines it, thus:23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by

common interests or characteristics x x x.

Not every expression of opinion is a public assembly. The law refers to "rally, demonstration,
march, parade, procession or any other form of mass or concerted action held in a public place."
So it does not cover any and all kinds of gatherings.

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. 716024 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 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.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has
declared a freedom park Fuente Osmea.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.

If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality
set aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of
freedom that rose from the peaceful revolution of 1986.

Considering that the existence of such freedom parks is an essential part of the laws system of
regulation of the peoples exercise of their right to peacefully assemble and petition, the Court is
constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit
may be required for the exercise of such right in any public park or plaza of a city or municipality
until that city or municipality shall have complied with Section 15 of the law. For without such
alternative forum, to deny the permit would in effect be to deny the right. Advance notices should,
however, be given to the authorities to ensure proper coordination and orderly proceedings.

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:

14. 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.

15. 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.

16. 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 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.25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880,
CPR serves no valid purpose if it means the same thing as maximum tolerance 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, which specifically means the following:

Sec. 3. Definition of terms. For purposes of this Act:

xxx

(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.
xxx

Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right
peaceably to assemble and the freedom of expression is primordial.1avvphil.net Towards this end,
law enforcement agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently on
the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as
herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but may
be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle
high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used
unless the public assembly is attended by actual violence or serious threats of violence, or
deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent
shall call the attention of the leaders of the public assembly and ask the latter to prevent any
possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the participants
are thrown at the police or at the non-participants, or at any property causing damage to such
property, the ranking officer of the law enforcement contingent shall audibly warn the participants
that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not
stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning
to the participants of the public assembly, and after allowing a reasonable period of time to lapse,
shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public assembly
unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such
arrest shall be governed by Article 125 of the Revised Penal Code, as amended;

(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall
not constitute a ground for dispersal.

xxx

Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without
a permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;

(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person
to disperse the public assembly;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:

xxx

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.

Furthermore, 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.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. In several policy addresses, Chief
Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the
courts with a heavy presumption against their validity. These laws and actions are subjected to
heightened scrutiny."26

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.

In this Decision, the Court goes even one step further in safeguarding liberty by giving local
governments 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.

WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly 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. Furthermore, 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.
The petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa
No. 880 is SUSTAINED.

No costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 168338 February 15, 2008

FRANCISCO CHAVEZ, petitioner,

vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and
NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents.

CONCURRING OPINION

SANDOVALGUTIERREZ, J.:

"Where they have burned books,

they will end in burning human beings."

These are the prophetic words of the German Author Heinrich Heine when the Nazis fed to the
flames the books written by Jewish authors. True enough, the mass extermination of Jews
followed a few years later. What was first a severe form of book censorship ended up as genocide.

Today, I vote to grant the writs of certiorari and prohibition mindful of Heines prophecy. The
issuance of the Press Release by the National Telecommunications Commission (NTC) is a form
of censorship. To allow the broadcast media to be burdened by it is the first misstep leading to the
strangling of our citizens. We must strike this possibility while we still have a voice.

I fully concur with the well-written ponencia of Mr. Chief Justice Reynato S. Puno and that of Mr.
Justice Antonio T. Carpio.

The Universal Declaration of Human Rights guarantees that "everyone has the right to freedom of
opinion and expression." Accordingly, this right "includes the freedom to hold opinions without
interference and impart information and ideas through any media regardless of frontiers." 1 At the
same time, our Constitution mandates that "no law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the people to peaceably assemble and petition
the government for redress of grievances."

These guarantees are testaments to the value that humanity accords to the above-mentioned
freedoms commonly summed up as freedom of expression. The justifications for this high
regard are specifically identified by Justice Mclachlin of the Canadian Supreme Court in Her
Majesty The Queen v. Keegstra,2 to wit: (1) Freedom of expression promotes the free flow of
ideas essential to political democracy and democratic institutions, and limits the ability of the
State to subvert other rights and freedoms; (2) it promotes a marketplace of ideas, which includes,
but is not limited to, the search for truth; (3) it is intrinsically valuable as part of the self-
actualization of speakers and listeners; and (4) it is justified by the dangers for good government
of allowing its suppression.

These are the same justifications why censorship is anathema to freedom of expression.
Censorship is that officious functionary of the repressive government who tells the citizen that he
may speak only if allowed to do so, and no more and no less than what he is permitted to say on
pain of punishment should he be so rash as to disobey.3 Censorship may come in the form of prior
restraint or subsequent punishment. Prior restraint means official governmental restrictions on the
press or other forms of expression in advance of actual publication or dissemination.4 Its most
blatant form is a system of licensing administered by an executive officer.5 Similar to this is
judicial prior restraint which takes the form of an injunction against publication.6 And equally
objectionable as prior restraint is the imposition of license taxes that renders publication or
advertising more burdensome.7 On the other hand, subsequent punishment is the imposition of
liability to the individual exercising his freedom. It may be in any form, such as penal, civil or
administrative penalty.

The Issuance of the Press Release

Constitutes Censorship

In the case at bar, the first issue is whether the Press Release of the NTC constitutes censorship.
Reference to its pertinent portions is therefore imperative. Thus:

Considering that these taped conversations have not been duly authenticated nor could it be said at
this time that the tapes contain an accurate or truthful representation of what was recorded therein,
it is the position of the [NTC] that the continuous airing or broadcast of the said taped
conversations by radio and television stations is a continuing violation of the Anti-Wiretapping
Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these
radio and television stations. It has been subsequently established that the said tapes are false
and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and
television companies are hereby warned that their broadcast/airing of such false information
and/or willful misrepresentation shall be a just cause for the suspension, revocation and /or
cancellation of the licenses or authorizations issued to said companies.

x xx x x x

The [NTC] will not hesitate, after observing the requirements of due process, to apply with full
force the provisions of said Circulars and their accompanying sanctions on erring radio and
television stations and their owners/operators.

The threat of suspension, revocation and/or cancellation of the licenses or authorization hurled
against radio and television stations should they air the Garci Tape is definitely a form of prior
restraint. The license or authorization is the life of every media station. If withheld from them,
their very existence is lost. Surely, no threat could be more discouraging to them than the
suspension or revocation of their licenses. In Far Eastern Broadcasting v. Dans,8 while the need
for licensing was rightly defended, the defense was for the purpose, not of regulation of broadcast
content, but for the proper allocation of airwaves. In the present case, what the NTC intends to
regulate are the contents of the Garci Tapes the alleged taped conversation involving the
President of the Philippines and a Commissioner of the Commission on Election. The reason
given is that it is a "false information or willful misrepresentation." As aptly stated by Mr. Justice
Antonio T. Carpio that "the NTC action in restraining the airing of the Garci Tapes is a content-
based prior restraint because it is directed at the message of the Garci Tapes."

History teaches us that licensing has been one of the most potent tools of censorship. This
powerful bureaucratic system of censorship in Medieval Europe was the target of John Miltons
speech Areopagita to the Parliament of England in 1644.9 Under the Licensing Act of 1643, all
printing presses and printers were licensed and nothing could be published without the prior
approval of the State or the Church Authorities. Milton vigorously opposed it on the ground of
freedom of the press. His strong advocacy led to its collapse in 1695. In the U.S., the first
encounter with a law imposing a prior restraint is in Near v. Minnesota.10 Here, the majority
voided the law authorizing the permanent enjoining of future violations by any newspaper or
periodical if found to have published or circulated an "obscene, lewd and lascivious" or
"malicious, scandalous and defamatory" issue. While the dissenters maintained that the injunction
constituted no prior restraint, inasmuch as that doctrine applied to prohibitions of publication
without advance approval of an executive official, the majority deemed the difference of no
consequence, since in order to avoid a contempt citation, the newspaper would have to clear future
publications in advance with the judge. In other similar cases, the doctrine of prior restraint was
frowned upon by the U.S. Court as it struck down loosely drawn statutes and ordinances requiring
licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in
the licensor whether or not to issue them, and as it voided other restrictions on First Amendment
rights.11 Then there came the doctrine that prior licensing or permit systems were held to be
constitutionally valid so long as the discretion of the issuing official is limited to questions of
times, places and manners.12 And in New York Times Company v. United States,13 the same
Court, applying the doctrine of prior restraint from Near, considered the claims that the
publication of the Pentagon Papers concerning the Vietnam War would interfere with foreign
policy and prolong the war too speculative. It held that such claim could not overcome the strong
presumption against prior restraints. Clearly, content-based prior restraint is highly abhorred in
every jurisdiction.

Another objectionable portion of the NTCs Press Release is the warning that it will not hesitate
"to apply with full force the provisions of the Circulars and their accompanying sanctions on
erring radio and television stations and their owners/operators. This is a threat of a subsequent
punishment, an equally abhorred form of censorship. This should not also be countenanced. It
must be stressed that the evils to be prevented are not the censorship of the press merely, but any
action of the government by means of which it might prevent such free and general discussion of
public matters as seems absolutely essential to prepare the people for an intelligent exercise of
their rights as citizens.14 There is logic in the proposition that the liberty of the press will be
rendered a "mockery and a delusion" if, while every man is at liberty to publish what he pleases,
the public authorities might nevertheless punish him for harmless publications. In this regard, the
fear of subsequent punishment has the same effect as that of prior restraint.

It being settled that the NTCs Press Release constitutes censorship of broadcast media, the next
issue is whether such censorship is justified.

II

The Issuance of the Press Release

Constitutes an Unjustified Form of Censorship

Settled is the doctrine that any system of prior restraint of expression comes to this Court bearing
a presumption against its constitutional validity.15 The Government thus carries a heavy burden of
showing justification for the enforcement of such a restraint.16

Various tests have been made to fix a standard by which to determine what degree of evil is
sufficiently substantial to justify a resort to abridgment of the freedom of expression as a means of
protection and how clear and imminent and likely the danger is. Among these tests are the Clear
and Present Danger, Balancing, Dangerous Tendency, Vagueness, Overbreadth, and Least
Restrictive Means.

Philippine jurisprudence shows that we have generally adhered to the clear and present danger
test. Chief Justice Puno, in his ponencia, has concluded that the Government has not hurdled this
test. He cited four (4) reasons to which I fully concur.

The justification advanced by the NTC in issuing the Press Release is that "the taped
Conversations have not been duly authenticated nor could it be said at this time that the tape
contains an accurate and truthful representation of what was recorded therein" and that "its
continuous airing or broadcast is a continuing violation of the Anti-Wiretapping Law."

To prevent the airing of the Garci Tapes on the premise that their contents may or may not be true
is not a valid reason for its suppression. In New York Times v. Sullivan,17 Justice William
Brennan, Jr. states that the authoritative interpretation of the First Amendment guarantees have
consistently refused to recognize an exception for any test of truth whether administered by
judges, jurists, or administrative officials -- and especially not one that puts the burden of proving
truth on the speaker. He stressed that "the constitutional protection does not turn upon the truth,
popularity, or social utility of the ideas and belief which are offered." Moreover, the fact that the
tapes were obtained through violation of the Anti-Wiretapping Law does not make the broadcast
media privy to the crime. It must be stressed that it was a government official who initially
released the Garci Tapes, not the media.
In view of the presence of various competing interests, I believe the present case must also be
calibrated using the balancing test. As held in American Communication Association v. Douds,18
"when a particular conduct is regulated in the interest of public order, and the regulation results in
an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which
of these two conflicting interests demand the greater protection under the circumstances presented.
In the present case, perched at the one hand of the scale is the governments interest to maintain
public order, while on the other hand is the interest of the public to know the truth about the last
national election and to be fully informed. Which of these interests should be advanced? I believe
it should be that of the people.

The right of the people to know matters pertaining to the integrity of the election process is of
paramount importance. It cannot be sideswiped by the mere speculation that a public disturbance
will ensue. Election is a sacred instrument of democracy. Through it, we choose the people who
will govern us. We entrust to them our businesses, our welfare, our children, our lives. Certainly,
each one of us is entitled to know how it was conducted. What could be more disheartening than
to learn that there exists a tape containing conversations that compromised the integrity of the
election process. The doubt will forever hang over our heads, doubting whether those who sit in
government are legitimate officials. In matters such as these, leaving the people in darkness is not
an alternative course. People ought to know the truth. Yes, the airing of the Garci Tapes may have
serious impact, but this is not a valid basis for suppressing it. As Justice Douglas explained in his
concurring opinion in the New York Times, "the dominant purpose of the First Amendment was to
prohibit the widespread practice of governmental suppression of embarrassing information. A
debate of large proportions goes in the nation over our posture in Vietnam. Open debate and
discussion of public issues are vital to our national health."

More than ever, now is the time to uphold the right of the Filipinos to information on matters of
public concern. As Chief Justice Hughes observed: "The administration of government has
become more complex, the opportunities for malfeasance and corruption have multiplied, crime
has grown to most serious proportions, and the danger of its protection by unfaithful officials and
of the impairment of the fundamental security of life and liberty by criminal alliances and official
neglect, emphasize the primary need of a vigilant and courageous press, especially in great cities.
The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not
make any less necessary the immunity of the press from previous restraint in dealing with official
misconduct."19 Open discussions of our political leaders, as well as their actions, are essential for
us to make informed judgments. Through these, we can influence our governments actions and
policies. Indeed, no government can be responsive to its citizens who have refrained from voicing
their discontent because of fear of retribution.

III

A free press is an indispensable component of

a democratic and free society.

Burke once called the Press the Fourth Estate in the Parliament. This is because its ability to
influence public opinion made it an important source in the governance of a nation. It is
considered one of the foundations of a democratic society. One sign of its importance is that when
a tyrant takes over a country, his first act is to muzzle the press. Courts should therefore be wary in
resolving cases that has implication on the freedom of the press -- to the end that the freedom will
never be curtailed absent a recognized and valid justification.

In fine let it be said that the struggle for freedom of expression is as ancient as the history of
censorship. From the ancient time when Socrates was poisoned for his unorthodox views to the
more recent Martial Law Regime in our country, the lesson learned is that censorship is the
biggest obstacle to human progress. Let us not repeat our sad history. Let us not be victims again
now and in the future.

WHEREFORE, I vote to CONCUR with the majority opinion.