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ANNOTATION THE CONSTITUTIONAL VALIDITY OF THE CALIBRATED PREEMPTIVE RESPONSE (CPR) OF THE POLICE IN PUBLIC ASSEMBLIES By JORGE R.

COQUIA
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_______________ 1. 1.Introductory, p. 271 2. 2.The Constitutionality of the Public Assembly Act of 1985, p. 273 3. 3.The Right to Peaceful Assembly for Redress of Grievance is not Absolute, p. 273 4. 4.Test of a Lawful Public Assembly, p. 274 5. 5.There is no Unlawful Delegation to the Mayor in Issuing Permits, p. 275 6. 6.The Constitutional Validity of the Calibrated Preemptive Response (CPR), p. 275 7. 7.The Mere Statement of the Executive Secretary May Not Amend the Provisions of a Legislative Enactment, p. 276 _______________ 1. Introductory CPR meaning the Calibrated Preemptive Response of the police in unruly public assemblies was the popular catch_______________
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Member, Board of Editorial Consultants, Supreme Court Reports Annotated (SCRA).

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phrase among law enforcing agencies to disperse the series of rallies and demonstrations against the administration of President Gloria MacapagalArroyo. The petitioners composing of political organizations, members of the academe, the clergy and religious civic leaders challenged, as illegal the forceful dispersal of public assemblies by the police and questioned the constitutionality of B.P. No. 880, the Public Assembly Act of 1985. The pertinent provisions of the law provide that no public assembly shall interfere with the rights of other persons; that the members of the police contingent assigned to the assembly must be in full uniform with their name tags; that they do not carry any firearm, but may be equipped with a baton, riot sticks and crash helmets; that tear gas, smoke grenades, water cannon shall not be used unless actual violence occurs; that at the first sign of an impending violence, the ranking police officer shall call the attention of the organizer or leader of the assembly and ask him to

prevent any disturbance; but if actual violence persists, where rocks and other harmful objects coming from the participants are thrown at the police, non-participants or property causing damage, the ranking police officer shall set a reasonable time for the participants to stop the violence, after which the assembly will be dispersed, that no arrest of any leader or participant of the assembly shall be made unless he violates the Public Assembly Law and other statutes or ordinance and the arrest shall be governed by Article 125 of the Revise Penal Code. Some of the prohibited acts under the law are the arbitrary or unjust refusal of the mayor to issue permit to hold a rally; the unjust refusal to accept an application for a permit to rally; obstructing or impeding the right of peaceful assembly; unnecessary firing of firearm to disperse a public assembly; and the carrying of a firearm during the assembly. In view of alleged disturbances and violence as well as utterances of seditious language by the speakers during the rallies, Executive Secretary Eduardo Ermita issued a state273

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ment published in the newspapers that henceforth, the policy of maximum tolerance shall no longer be followed. Instead, the police will follow the calibrated preemptive response in dispersing the public assemblies. The police shall not stand aside while those with evil intent are inciting to actions that are inimical to public order. 2. The Constitutionality of the Public Assembly Act of 1985 In Bayan, Karapatan, Kilusang Magbubukid, et al. vs. Eduardo Ermita, et al., G.R. No. 169838; Jess Del Prado, et al. vs. Eduardo Ermita, G.R. No. 169848; Kilusang Mayo Uno, et al. vs. Eduardo Ermita, et al., G.R. No. 169881, April 25, 2006, the Supreme Court upheld the constitutional validity of B.P. 880 but declared as null and void the CPR (Calibrated Preemptive Response). The Court gave a deadline for cities and municipalities to establish or designate at least one freedom park, where rallies, demonstrations and public assemblies can be held without the necessity of a permit as provided in B.P. No. 880. The petitioners contend that the Public Assembly Act of 1985 curtail the freedom of assembly and the rights of freedom of speech and the press. 3. The Right to Peaceful Assembly for Redress of Grievance is not Absolute Article III, Section 4 of the Philippine Constitution states: 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. Article 21 of the International Covenant on Civil and Political Rights, which the Philippines has ratified, states: The right of peaceful assembly

shall be recognized, no restrictions may be placed on the exercise of this right other than those
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imposed in conformity with the law and which are necessary in a democratic society in the interest of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others. The right of expression and of opinion can be effectively enjoyed in the freedom of assembly and of association. This right, however, is not absolute and may be restricted on grounds of national security, public order and the protection of public health or morals, the protection of the rights of others. In De la Cruz vs. Ela, 99 Phil. 346, the Supreme Court upheld the act of the mayor in refusing the grant of a permit to conduct a rally in a particular part of the plaza but designated another place for the rally on the ground that the place requested will disturb the rites in a nearby church. This ruling is similar in Section 7(e) that public assembly should not interfere with the rights of other persons. InNavarro vs. Villegas, 31 SCRA 731 (1970), the Court sustained the action of the mayor in denying the holding of a rally in Plaza Miranda and suggested the Sunken Gardens. Reasonable restrictions on the right of assembly are provided in the Revised Penal Code. Article 146 penalizes organizers or leaders of any meeting attended by armed persons for the purpose of committing a crime. Under Republic Act No. 12, the term meeting includes the gathering of a group whether fixed or moving. 4. Test of a Lawful Public Assembly The test whether a public assembly is lawful or not depends upon its purpose under which it is organized. De Jonge vs. Oregon, 299 U.S. 353 (1937), the leading American decision ruled that the purpose of organizing public assembly must be lawful. The rally is lawful even if there is some unlawful incidents that may occur during the rally or violence committed by some participants. Usually, speakers during the rally use strong language which might be seditious or libel275

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ous. The public assembly may not be declared as unlawful but appropriate action may be made against the speaker who utters seditious or libelous remarks. The provisions of B.P. No. 880 are reasonable restrictions and do not contain any constitutional infirmity. The provisions of the Public

Assembly Act or B.P. 880 even protect the right of citizens to conduct peaceful assembly. The standards on the reasonable restrictions as provided in Article 21 of the International Covenant on Civil and Political Rights. The restrictions that may be imposed should be in conformity with the law and which are necessary in a democratic society in the interest of national security or public safety, public order, the protection of public health or morals, the protection of the rights and freedom of others. 5. There is no Unlawful Delegation to the Mayor in Issuing Permits There is no unlawful delegation given to the mayor in issuing a permit to hold a rally. The valid standard set by B.P. 880 in not granting the permit on the ground of clear and present danger test which has been recognized in Philippine jurisprudence in cases of freedom of speech, freedom of the press. The clear and present danger rule as the standard test is found in Section 6(c) of B.P. 880. Thus, the Court in the refusal of the mayor to issue a permit is only on the choice of venue, not on arbitrary refusal to conduct a rally or public assembly. 6. The Constitutional Validity of the Calibrated Preemptive Response (CPR) The policy set by the Executive Secretary Eduardo Ermitaof authorizing the CPR in public assemblies for the police to follow is contrary to the intention and spirit expressed inBatas Pambansa No. 880 on maximum tolerance. The maximum tolerance in Section 11(a), (b) and (c) states: that the
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public contingency assigned to maintain peace and order in the public assembly are precisely admonishes to exercise maximum tolerance. At the first sign of an impending violence, the ranking officer of the police contingent shall call the attention of the leaders of the assembly and ask them to prevent possible disturbance. If actual violence occurs at that point that rocks or other harmful objects are thrown by the participants at the police or non-participants or at any property causing damage, the ranking police officer shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed. If the violence or disturbance does not stop, the ranking police officer shall give a warning allowing a reasonable period of time to lapse, after which the assembly will be immediately dispersed. There will be no arrest of any leader or participants of the assembly except those who violates the assembly law and ordinance to be governed by Article 125 of the Revised Penal Code. Isolated Acts or incidents of disturbance of public order will be peacefully dispersed. The CPR is a radical shift from the maximum tolerance provided in B.P. 880 and is offensive to the cherished freedoms of the speech and the right to peaceful assembly.

7. The Mere Statement of the Executive Secretary May Not Amend the Provisions of a Legislative Enactment The statement of the Executive Secretary directing the police to observe the calibrated preemptive response in rallies may not amend the policy of maximum tolerance set in B.P. No. 880. Generally, militant young people in their enthusiasm in voicing their protests and grievances against the government administration become emotional and utter strong and even seditious words. Usually, in student rallies and demonstrations, as the Supreme Court ruled inMalabanan vs. Ramento, 129 SCRA 359 (1984), the students did not shed their constitutional rights of free speech. In Villar vs. TIP,
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135 SCRA 706 (1983), although the Court upheld the academic freedom of a school to determine the grades of students, this right cannot be utilized to prevent the rights of free speech and the redress of grievances (Non vs. Dames,185 SCRA 523 [1990], Sophia Alcuaz vs. PSBA, 165 SCRA 7 [1982]). As early as 1907, the Supreme Court said that the citizens must be given the widest tolerance in them in criticism of official conduct (US vs. Apurado, 7 Phil. 422[1907]). The Court said in the Malabanan vs. Ramento, that students are likely to be assertive and dogmatic. They would be ineffective if during a rally they speak in the guarded and judicious language of the academe. At any rate, even a sympathetic audience is not disposed to accord full credence to their fiery exhortations. They take into account the excitement of the occasion and the propensity of speakers to exaggerate, the exuberance of youth. They may give the speakers the benefit of their applause, but with the activity taking place in the school premises and during the daytime, no clear and present danger of public disorder is discernible. This is without prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker, materially disrupts classwork or involves substantial disorder or invasion of the right of others. CONCLUSION Intolerance to Freedom of Expression The right to peaceful assembly for the redress of grievance is necessary for the exercise of the freedom of speech and expression. These freedoms, however, are not absolute. Reasonable restrictions may be imposed as stated in Article 21 of the International Covenant on Civil and Political Rights. Reasonable restriction may be legislated in the interest of national security of public order, the protection of public health or morals or the protection of the rights and freedoms of others. These restrictions are in conformity with law as necessary in a democratic society. The Public Assembly Act of

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1985 provides reasonable restrictions as they balance the right to the freedom of assembly and freedom of speech and expression of the citizens with the power of the state to preserve public order. The CPR, a mere statement of the Executive Secretary is an attempt to amend the policy set in the Public Assembly Act of 1985 directing the police to radically act in unruly rallies. What is more, the calibrated preemptive response authorizes the police to act in anticipation of a danger that has not yet occurred contrary to the clear and present danger rule. The mere statement of the Executive Secretary is contrary to the established policy in B.P. No. 880 which is a legislative enactment. Purportedly authorized by the President ordering the police agencies to follow the calibrated preemptive response obviously shows that the administration has become intolerant to the exercise of the basic freedoms of speech, expression and the right of the citizens to peacefully assemble for the redress of their grievances. o0o
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