Wednesday, April 26, 2006

A Win?

It’s not exactly a win; in fact the dispositive portion of the Decision says all the Petitions are granted only in part and dismissed as to all other respects.  But at least something came out of it.

I’m referring to the Supreme Court’s Decision in the  CPR case, which I argued before the Supreme Court En Banc on April 4, promulgated yesterday.

The Court upheld the law, Batas Pambansa Blg. 880, which is Marcos vintage, but struck down the press release, i.e., CPR.  For me, it was a foregone conclusion that CPR would be struck down but I was more interested in striking down Batas Pambansa Blg. 880.  Unfortunately the Court did not see it my way.

What is interesting about the CPR Decision is this part:

“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.”

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 mayor’s 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.”

What the Court essentially ordered is that all local governments all over the country must designate freedom parks within 30 days, otherwise the “no permit, no rally” provision in the law, sec. 4, becomes inoperative.  Essentially, the right to freedom of assembly has become subject to a “resolutory” condition of sorts.

That’s why it’s a weird decision, from where I sit.  

Also, the Court said the law was not vague nor overbroad and that it was not a content-based restriction to freedom of assembly and expression.  Of course, I disagreed with this in my Memorandum to the Court but, hey, you lose some and then you lose some more.

It’s the latest thing nowadays—a “win-win” formula for cases of transcendental public importance; for example the recent EO 464 case.  I’m not sure I like this trend of decision-making of the Court right now—I’d rather lose and know why I lost rather than  lose and not be able to figure out why I lost, which is what these “win-win” cases actually are not able to tell me.

In the meantime, the CPR Decision, particularly that part on Freedom Parks, is going to raise more questions than answers, particularly for May 1—where rallies are traditional and expected.  I would not be exaggerating if I say that this won’t be the last we will hear of BP 880 being challenged in the Court;  hopefully,  the next time the Court sees the light.


Tuesday, April 04, 2006


The Resolution reads, in part:

“For PETITIONERS, Atty. Theodore Te will argue for a maximum of twenty five (25) minutes and he will decide on how to share his time with the other counsel/s for petitioners.”

Its not my first oral argument before the Supreme Court En Banc—its my fifth (previously on the Death Penalty [People v. Malabago], Oil Deregulation [Edcel Lagman, Joker Arroyo et al. v. Executive Secretary], Visiting Forces Agreement [Jovito Salonga, Wigberto R. Tanada, et al. v. Executive Secretary, Electricity rates [Freedom from Debt Coalition et al. v. ERC and MERALCO]) but the thrill—and the anxiety—is still there.  

Today, the Court set orals for the Calibrated Pre-emptive Response (CPR) issue (Del Prado et al. v. Ermita et al.) and at 1 pm, I will stand before the 15-member Court and once again start with that over-used opening, “May it please this Court. . .

I’ve been preparing for this for what seems like ages and to speak only for 25 minutes.  In an oral argument, however, 25 minutes is like the last two minutes of a basketball game—it can last for hours.  In the  Meralco orals, I started at 10 in the morning with my presentation and ended my presentation at  4 in the afternoon straight (without lunchbreak, coffeebreak or bathroom break);  the orals for that case ended eventually at 9 in the evening.

I pray not only for wisdom, guidance, inspiration but also that I won’t need a bathroom break for hours.