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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

Location: San Juan, Metro Manila, Philippines

Sunday, October 16, 2005

Let's Test CPR

I was thinking of a way to judicially test CPR. Here is the scenario:

1. Apply for a rally permit to rally in Mendiola. Mayor Atienza will not issue the permit;

2. Rally nonetheless;

3. On that day, police will be there to block and disperse the rally;

4. But two hours or so before the rally, file a petition for Temporary Restraining Order/Preliminary Injunction before the Court of Appeals or the Supreme Court enjoining the police from blocking the rally and dispering the rallyists. At the same time, question the constitutionality of B. P. Blg. 880 or The Public Assembly Act of 1985;

5. If CA/SC grants TRO. If they obey, rally goes on. But most likely, police will disobey;

6. Cite Generals Bulaong, Querol and Lomibao for contempt;

7. CA/SC will hear the case.

The legal basis for B. P. Blg. 880 was the precedent setting case of “Reyes versus Bagatsing” (125 SCRA 552) dealing with freedom of expression vis-à-vis the clear and present danger test. This case was subsequently invoked in “Pita v. Court of Appeals, Bagatsing et al.” And in that case, the Supreme Court quoted Reyes and stated that:

“the burden to show the existence of grave and imminent danger that would justify adverse action ... lies on the. . . authorities."

"There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger."

"It is essential for the validity of ... previous restraint or censorship that the ... authority does not rely solely on his own appraisal of what the public welfare, peace or safety may require."

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test."

None of the rallies conducted so far in Mendiola even come close to posing a danger clear and present to this government. Unfortunately, the police, Mayor Atienza and the present administration have adopted a Gestapo attitude. The mayor even raised the specter of the Mendiola Massacre as fallacious basis to deny the rallies. But as pointed out by the Supreme Court, the fear of ghosts is no reason to deny freedom of expression.

It is only through filing a case can the judiciary and the Supreme Court, the last line of defense of our civil, political and constitutional rights, rightfully enter the fray and put a stop to this present lunacy. Other cases have been filed to thwart B. P. Blg. 880. That is good. For once, I can safely say that we lawyers are not such a bad bunch after all.

Let us hope that before he retires, Chief Justice Hilario G. Davide, Jr. will gift our country with his wisdom and broad strokes in defense of the people’s right for redress of grievances.

To paraphrase Princess Leia: “Help us Obi Wan Davide, you’re our only hope”.


Anonymous renmin said...

Thanks for the very helpful review of jurisprudence re freedom of assembly. Here's a link to Reyes versus Bagatsing:


12:15 AM  
Blogger Punzi said...

If you apply for the permit two days before the rally, the application is deemed granted if Atienza does not act on it...

1:12 AM  
Anonymous dawin said...


That's true. Unfortunately, Querol claims that there was a denial of permit by the City Hall contrary to the claim that Atienza did not act on it which he claims is a big difference. Argued like a lawyer. But to paraphrase Cherie Gil, he is nothing but a third rate copycat!

1:40 AM  
Blogger Punzi said...

Well he better not argue with the professionals because the denial must also be in writing and immediately served upon the rallyists...

So actually, he was arguing like a policeman and not like a lawyer. He's employing the old, "Sa presinto ka na lang magpaliwanag," argument.

(Place your favorite derrogatory adjective here.)

6:50 AM  
Blogger gari said...

Sir Edwin,

Wikipedia explains: The term is derived from the Japanese abbreviation for the English term "mechanical," although English speakers have repurposed the term to mean only the vehicles described above. The original Japanese term of mecha has the broader denotation of all mechanical objects, including cars, guns, computers, and other objects without pilots or limbs.

Mecha are generally war machines, sometimes mass-produced, and are seen as a component of a whole military body and do not act alone in their conflicts, although it is common that only mecha fight mecha, much in the same way tanks and fighter planes do, even in large scale battles.

Gari says: If you've watched Artificial Intelleligence, there's a lot of Mecha there...

5:45 PM  
Blogger gari said...

Sir Edwin,

Lagi na lang na go to the Supreme Court...hayy...lagi na lang rason ng Malacanan na pumunta sa Davide Court...

Utak-duda lang: Hindi kaya ginagawa ito ng Malakanyang para i-rationalize na "dead letter" na ang constitution and the more you question "constitutionality" the more you give chacha its ground...

Otherway is: di kaya nilalagay din nila ang SC sa badlight.

Hmmm...bilisan lang sana dahil by December 2005...wala nang Obi Wan Davide. :-)

5:48 PM  

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