Freedom to assemble for protests

In the leading case of Reyes vs Bagatsing, decided in 1983, the Supreme Court observed that the  Constitution is explicit about our great freedoms: “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.” According to the Court, “Freedom of assembly connotes the right 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.”

Chief Justice Enrique Fernando, paraphrased Justice Rutledge’s opinion  in Thomas v. Collins,  a US Supreme Court decision, that it was not by accident or coincidence that the right to freedom of speech and of the press were coupled in a single guarantee with the right of the people peaceably to assemble and to petition the government for redress of grievances. The Court said, “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.”

Fernando cites Felix Frankfurter who said: “It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment . . ..  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.”

Our Supreme Court, even in the height of martial law,  made it clear that the Philippines is committed to the view expressed 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.”

In 2006, Justice Adolf Azcuna reiterated the Bagatsing ruling in Bayan vs Ermita and declared the calibrated preemptive response policy of the police unconstitutional while upholding maximum tolerance as the right approach in dealing with protests. Justice Azcuna, a champion of human rights and currently Chancellor of the Philippine Judicial Academy, quoted then Chief Justice Artemio Panganiban  that “laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity” and must “subjected to heightened scrutiny”.

This is why the Concerned Lawyers for Civil Liberties [CLCL] , of which I am a convenor, condemns the spate of arrests done by members of the Philippine National Police, of people exercising their constitutional right to freedom of expression, such as the recent arrest of student protesters in the University of the Philippines Cebu.

According to the CLCL: “There is no law prohibiting rallies during the COVID-19 period, and arresting people on the mistaken belief that rallies are no longer allowed is without basis in law.  These arrests have no legal basis in RA 11469, the Bayanihan Act, nor RA 11332, the law on Mandatory Reporting of Notifiable Diseases, which do not prohibit rallies nor contain provisions allowing the police to arrest people on alleged violation of “mass gathering rules”.   

These illegal arrests are worsened when implemented in a discriminatory manner. For example, General Debold Sinas and supporters of President Rodrigo Duterte commit the same acts as quarantine violators but are given the benefit of the doubt.

Today, with thousands in the streets to protest our loss of independence because of China’s influence on our leaders and the imminent loss of our freedoms if the Anti-Terror Law  is signed by the President, the CLCL position remind the police that  peaceful protest is not a criminal act. What is illegal under Section 9 of BP 880 is police interference in peaceful assemblies.  In addition, arresting people in these assemblies also violates Section 13 of the same law which states that “no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly.”

Makibaka, huwag matakot! Resistance is not terrorism!

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