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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.

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Location: San Juan, Metro Manila, Philippines

Tuesday, March 21, 2006

The BnW Baywalk Stroll and BP 880

Q: Was the PNP right in arresting Dinky Soliman and Enteng Romano for crossing Roxas Boulevard on the ground of violation of B. P. Blg. 880 solely because they were wearing black and white t-shirts calling for the blanket removal of GMA and other government officials?

A: No.

Q: Does the absence of a mayor’s permit automatically prevent people from freely exercising their right to peaceably assembly?

A: No.
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First of all, it is settled under the Bill of Rights provisions of the 1987 Constitution that every citizen has the right to peaceful assembly. Section 4 of the Bill of Rights is very clear in this regard:

“No law shall be passed abridging the freedom of speech, of expression, or of the pres, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

What is the role of B. P. Blg. 880 (“880” for brevity) or The Public Assembly Act?

880 is not an absolute prohibition against peaceful assembly. It does not mean when one fails to obtain a permit, the rallyists cannot hold a rally. This has been conveniently called the “no-permit, no rally” policy. That is wrong.

880 is a mere Time, Manner and Place Regulation or what we call a TMP Regulation. 880 kicks in only if the rally will inconvenience the rights of other people who do not choose to participate in the public assembly. Thus, what are taken into consideration under 880 are the following:

a. Will the time they propose to rally inconvenience the public?
b. Will the manner of the rally inconvenience the public? and
c. Will the place they hold the rally inconvenience the public?

When the Black Friday Protest held their Baywalk stroll, Col. Pedrozo should have asked himself the 3 questions. The time of the stroll was 5:30 p.m., the manner of the protest was peaceful, silent, and a single-file walk to and in Baywalk with the thumbs-down sign.

Whatever faulty intelligence they claimed to have gathered, the simplest thing for the PNP to do was to consult the Black Friday blog and they would have easily seen the mechanics of the protest. What was so menacing about giving the thumbs-down sign? Had he singularly applied his own discretion, the Baywalk stroll would have been just that – a walk in the park.

Incidentally, we often hear General Querol or Supt. Pagdilao say that it was a judgment call of the police on the ground. That is utterly false! Up to until Enteng was arrested, Col. Pedrozo was talking with someone and taking orders from his cell phone and the moment he held Enteng’s clothing, Pedrozo was still on his cell phone being barked with orders to arrest. That was caught on videotape. So, any notion that the order of arrest was Pedrozo’s own doing or judgment call was as illusory as concluding that Lee Harvey Oswald’s shooting of JFK was purely his own judgment call.

Since the Baywalk stroll did not inconvenience the public like causing traffic or spreading mayhem and chaos, there was therefore no need to apply for a mayor’s permit. Strictly speaking, what rally were they talking about? No speeches, no placards, no banners, only the t-shirts which proclaimed: “PATALSIKIN NA, NOW NA”

Ah, but that is political speech found on the t-shirt and therefore, they must be banned. Moreover, since Dinky is known foe of GMA, her wearing a t-shirt critical of the government and walking to Baywalk constitutes a rally.

Wrong!

Apart from the fact that 880 is a TMP regulation, 880 is also a Content Neutral regulation. 880 cannot regulate the holding of a rally on the basis of the political content of their statements, i.e., you will be barred from holding a rally if it is critical of government. That is a content-based regulation which is almost always unconstitutional.

Criticism of government is considered a “high value” speech in the hierarchy of free expression. Thus, in the eyes of the Constitution, government criticisms are protected speech and cannot be banned by content based regulation.

This is exactly what happened to Dinky. Col. Pedrozo claimed that the message of the T-shirt was highly critical of Mrs. Arroyo that in his understanding of BP 880 or the lack of it, Dinky and Enteng should be arrested for failing to obtain a mayor’s permit. To repeat, 880 cannot be invoked to arrest someone whose beliefs are different from the government. 880 is a mere TMP regulation which is color blind when it comes to statements for or against the government.

In addition, Col. Pedrozo claimed that he arrested Dinky and Enteng because he knew what they were going to do. In other words, he had foreknowledge of the planned actions of the two. I am reminded of the pre-cognitives or pre-cogs in Steven Spielberg’s Minority Report. The pre-cogs can identify the criminals before the crime can occur and the policemen would always arrest the criminal a second or two ahead of the planned crime.

In Dinky and Enteng’s case, they just started crossing Roxas Blvd. on the way to Baywalk when Col Pedrozo got a cell call from his pre-cog that Dinky et al. were going to commit a crime. In short, since there was a tendency that the Black Friday Protes was going to sow danger, he immediately ordered their arrest even before they set foot on the Baywalk.

At the joy of sounding redundant, Pedrozo is wrong!

880’s regulatory coverage comes into play only there is a clear and present danger to the public. That is stipulated in Section 6(a) of 880. As described earlier, the only thing the Black Friday Protesters will do once they set foot on Baywalk was to set do the thumbs-down sign. No clear and present danger will occur if 22 people do the thumbs-down. Not being in Rome, there are no gladiators to be murdered.

But instead, Pedrozo applied the dangerous tendency rule which is so passé already. It has been struck down by the Supreme Court as a very subjective standard of enforcing public order or safety.

Nowithstanding what 880 should be, that law should be repealed on the basis that it is so broad and so generic that it practically covers all forms speech and leaves the discretion whether to grant a permit not on some objective legal standard but solely on whether the mayor of the particular city or municipality is friend or foe.

After all said and done, the existence of 880 was providential to anti-GMA forces. It finally showed that this government does not brook any dissent, continues to curtail our freedoms, and in the process, gained for us more adherents and steeled our resolve to fight for the long haul.

And I say: Bring it on!

The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate." - Justice Oliver Wendell Holmes

3 Comments:

Blogger marvin said...

Bravo Lacierda! Bravo! This should be read by all policemen, and most especially by the Secretary of Justice.

5:44 PM  
Blogger NJbabe said...

I can smell Martial Law days although I could not remember when it started....The governemt etter start building more jail when they are trying to suppress any uprising...may it be a quiet one or just a small gathering.
I just hope that the power given by the public may not be overused...the way I see it kill the fire while it is small before it gets out of hand....
Thanks for explaining in laymen's term all these high sounding terminology and hopefully we are all protected supposedly by LAWS of our government....

12:49 AM  
Blogger Dante said...

wow, thanks a lot for that, sir. i really learned a lot from that post.

9:03 PM  

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