The Supreme Court in a 13-0 decision declared as null and void the “Calibrated Preemptive Response” (CPR) policy of the Government regarding rallies even as it upheld regulations on the right to rally, including the permit requirement, under the Public Assembly Act of 1985 (BP 880).

However, noting the “pathetic and regrettable” compliance by local governments with the requirement under BP 880 for the establishment of freedom parks in every city and municipality where rallies can be held without a permit, the Court also gave local governments a deadline of 30 days from finality of its decision within which to establish or designate such freedom parks.

“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 mayor’s office to allow proper coordination and orderly activities,” the Court held in the 36-page decision penned by Associate Justice Adolfo S. Azcuna. Senior Associate Justice Reynato S. Puno and Associate Justice Minita V. Chico-Nazario are on leave.

The Supreme Court unanimously granted in part the petitions filed by various groups enjoining the respondent officials from using the CPR in lieu of the policy of maximum tolerance enunciated in BP 880, even as it sustained the constitutionality of the law.

The decision cited the philosophy of Chief Justice Artemio V. Panganiban with regard to cases involving liberty as articulated in his speech “Liberty and Prosperity,” wherein he said that “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.”

“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,” the Court held.

Regarding situations where applications for rally permits are left unacted upon by the mayor’s office, the Court said that “as a necessary consequence and as 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.”

The Supreme Court referred to its rulings in Primicias v. Fugoso and Reyes v. Bagatsing stating that the constitutional right to peacefully assemble and petition the government for redress of grievances was not absolute and was subject to limitations.

The Supreme Court also ruled that the denial of permits to rally without providing for an alternative forum, in the form of freedom parks, would be a denial of the constitutional right of the freedom of assembly. Section 15 of BP 880 provides that every city and municipality in the country should have established or designated a freedom park or mall within their respective jurisdictions within six months of its effectivity. The Court however observed that “the matter appears to have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986.”

Three petitions by various groups had been filed in the Court as a response to the dispersal of the petitioners’ rallies by government officials under the “no permit, no rally” policy under BP 880 and the CPR policy as set forth in a press release by Malacañang dated September 21, 2005. Petitioners claimed that the CPR policy was void for being an ultra vires act that altered the standard of maximum tolerance set forth in BP 880, and assailed the law’s constitutionality for being a curtailment of the right to peacefully assemble and petition the government for redress of grievances. (GR No. 169838, Bayan, et al. v. Eduardo Ermita, et al.; GR No. 169848, Jess Del Prado, et al. v. Eduardo Ermita, et al.; and GR No. 169881, KMU, et al. v. The Honorable Executive Secretary, et al., April 25, 2006.