Monthly Archives: September 2005

A disgrace

I was shocked when I watched a certain Manny Salgado, assistant manager of the Green Archers, hack Arwind Santos at the back of the head with a closed fist. Talk about unsportsmanlike conduct.

Is that what you teach your kids (or grandkids)? Loose a game, hit the players? Did you loose a huge bet because of this game?

IMHO, that guy should not only be banned from the UAAP. We should see to it that characters such as these don’t even lead mosquito league teams. Or even mosquitos. Just get bitten by one.

I would have more words to say to that guy in Tagalog but, Tatang, nakakahiya ka! (Old man! You’re a disgrace!)

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Why switch back to a PC?

This video is slowly convincing me to come back to the PC…

This is by way of this post.

Anyway, the hearings are over (the Senate inquiry was postponed because they had to tackle “other” things) and so is this week’s pressure. Tomorrow, I’ll spend a “relatively relaxing” day in my consultancy job.

Some lawyers are thinking of challenging EO 464 in court, according to this news account. And they also think issuing this is an impeachable offense. Good.

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WTF? Part 2

What is this new baloney called Executive Order No. 464?

According to news reports, it bars key government officials, including those from the military and the police, from appearing in any Congressional inquiry without her consent.

This EO can be challenged on two grounds:

1. The Constitution (Section 22, Article VI) is quite clear that this prior consent only applies to heads of departments (Department Secretaries) only. It states:

The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

The above-quoted provision clearly mentions heads of departments only. This is because of inter-branch courtesy, as a department secretary is the alter ego of the President.

By no stretch of the imagination can this restriction be expanded to cover those lower than them. Take note that even the AFP chief of staff and the PNP director-general are not department secretaries (as they still are under the secretaries of defense and interior and local government, respectively), which leads me to the second ground.

2. Putting restrictions on who shall appear before congressional inquiries is an afront to congress’ plenary power to legislate. Part and parcel of this power is the likewise plenary power conduct investigations in aid of legislation. And part of this power to conduct investigations is the compulsory processes to subpoena anyone, except those with constitutional qualifications.

How can a mere executive order curtail such constitutional power?

If this goes on, the Senate may just ignore this order and subpoena (or even arrest) those they want to appear. Then the poor government official(s) will be caught between an irresistible force and an immovable object. This will be a constitutional crisis in the making (or of the administration’s undoing, if we are to be technical about it).

Of course, I have to see the actual executive order (it is not available online as of posting) to see how they have squirmed around the grounds I stated above.

So let’s just see. I will blog about it again when I see the order…

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Weird…

All sorts of weirdness today…

In today’s headlines, over 100 of the 200 ballot boxes in the House of Representative’s custody were “stolen.”

That’s weird. There’s no real value to those beat-up ballot boxes, the ones repainted every election time the way we repaint our crypts come November 1.

And who would benefit from the loss of those seemingly worthless things? Hmmmmmm.

On the personal front, my celfone rang while I was driving out of Greenhills after rewarding myself with an aluminum casing for my Nokia 9500. Had a couple of successful meetings before that and I was feeling good.

My casing was just about 10 minutes old and the caller ID said “Private Line.” I always get these calls from clients who used landlines to call me. Besides, my new casing was a mere 10 minutes old so I was eager to take the call… So I eagerly answered.

Guess who was on the other line? It was “that girl…”

She claimed there was a certain “Bea” who called her and she was asking for confirmation if it was her daughter. I said Bea would never call her, simply because we don’t even know her office number. Then she proceeded to ask token questions about the kids, to which I gave the standard answers, “They’re fine,” and “You don’t even have to ask that.”

She asked if I was having a party for Nico’s birthday. I said probably not because Bea’s tuition was due about the same time and I was still scrounging around for the money. It was a good opportunity to slam that right down her throat.

Irritated by the way the conversation was going, I finished the conversation quickly (and I was driving at the time also). I failed to see any sincerity in the way she asked about her kids so I was not about to patronize her any longer.

For the life of me, I did not even recognize her voice until she introduced herself. A human girl would have been hurt by that, but I know she’s not even qualified to claim that so I’m not expecting any reaction to that.

That’s weird. Been married to the girl for 6 years and I thought I was talking to a stranger… or that’s probably the way it is now… I don’t know.

Brushed that aside and proceeded to my third meeting. Another successful one.

Tomorrow: some more loose ends for my “hell” Thursday. That day with two hearings and a senate inquiry…

Guess I’ll rest now.

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An eventful week ahead…

Sorry for the tardiness of this entry.

If this first day is any indication, this will be a very busy week for me.

First off, a friend got me into a meeting at 8:00 a.m. I thought it was concerning his business, but it was personal. But it’s been a long time since I got off to work that early.

Then off to my government consultancy for more work that lasted until after lunch.

Then, a client for which I wrote this entry will undergo a grueling senate inquiry this week, because of the flak it got from this incident. Up for discussion is Senate Bill No. 1714 or the proposed “Billboard Blight Act.” So we had to prepare for the rest of the day with a board and membership meeting, held consecutively in Makati. While the venue had free WiFi, I have difficulty in blogging from my phone. Jessica is still in the shop.

As a matter of fact, I just got home…

Tomorrow and the day after will be more of the same, with more preparation for that Senate inquiry, with tying up of loose ends.

You’ll probably get wind of what will happen in the Senate in the news. But before that, I have two hearings to attend to for that day.

Then another hearing on Friday and an excom meeting with the government consultancy that afternoon.

If I blog intermittently, my apologies.

Anyway, wish me luck for this week…

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Blog Lecture No. 44: Right To Peaceful Assembly

Ok class! Prepare for a long lecture this time.

What is the basis of the right to peaceful assembly in the Philippines?

Its foundation is found in Section 4, Article III of the 1987 Constitution that says:

SEC. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.

What is the law that implements/regulates it?

It is Batas Pambansa Bilang 880, otherwise known as the “Public Assembly Act of 1985.” I have qouted it in its entirety below:

BATAS PAMBANSA BLG. 880

AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES

Section 1. Title – This Act shall be known as “The Public Assembly Act of 1985.”

Section 2. Declaration of policy – The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law.

Section 3. Definition of terms – For purposes of this Act:

(a) “Public assembly” means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances: Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) “Public place” shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access.

(c) “Maximum tolerance” means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

(d) “Modification of permit” shall include the change of the place and time of the public assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system and similar changes.

Section 4. Permit when required and when not required – A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act.

Section 5. Application requirements – All applications for a permit shall comply with the following guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building.

Section 6. Action to be taken on the application –

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the application within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory.

(g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Section 7. Use of public thoroughfare – Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade.

Section 8. Responsibility of applicant – It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit;

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly.

Section 9. Non-interference by law enforcement authorities – Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meter away from the area of activity ready to maintain peace and order at all times.

Section 10. Police assistance when requested – It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of “maximum tolerance” as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property.

Section 11. Dispersal of public assembly with permit – No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbances prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended:

(e) Isolated acts or incidents of disorder or branch of the peace during the public assembly shall not constitute a group for dispersal.

Section 12. Dispersal of public assembly without permit – When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed.

Section 13. Prohibited acts – The following shall constitute violations of this Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf.

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof;

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like;

2. the carrying of a bladed weapon and the like;

3 the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems.

Section 14. Penalties – Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding Section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without prejudice to prosecution under Presidential Decree No. 1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days.

Section 15. Freedom parks – Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable “freedom park” or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity of this Act.

Section 16. Constitutionality – Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby.

Section 17. Repealing clause – All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly.

Section 18. Effectivity – This Act shall take effect upon its approval.

Approved, October 22, 1985.

Wait a minute! This was before the 1987 Constitution. How come it is still in force?

For as long as the law is consistent with the new constitution, it is not repealed. Following your logic would mean the Civil Code and the Revised Penal Code should have been repealed long ago, but still enforced now.

This law was based on the Supreme Court ruling in JBL Reyes vs. Bagatsing (125 SCRA 665 [1983]).

In summary, it set down the basic principles by stating:

“xxx The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, — even more so than on the other departments — rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes “as the sovereign prerogative of judgment.” Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy.”

So what are the salient features of this law for holding a peaceful rally or assembly?

Take note of all of these, class:

1. The general rule is indeed, “No Permit, No Rally,” in a public place. The exemptions are if it is held in a freedom park established by law or ordinance, on private property (with the owner’s consent, of course), or on government campuses subject to school regulations.

2. THE LOCAL GOVERNMENT CANNOT DENY ISSUANCE OF A PERMIT, unless there is CLEAR and CONVINCING EVIDENCE that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.

No intelligence reports, please. These cannot be considered evidence. Besides, you know what the joke says: Military/Police intelligence is even lower that human and animal intelligence.

3. If the local government does not act on the application for permit within 2 working days from filing, it is deemed granted. So the rallyists can even present its application for permit and show it was filed two days before.

4. In case of denial of application, the applicant should be immediately informed, so it can resort to judicial remedies.

5. The applicant may contest this decision of the local government, and the decision should be rendered 24 hours after filing.

6. There is also the right to appeal such court decision within 48 hours. This is likewise exempt from the usual appeal bond and fees. Telegraphic appeals (arguably fax and email forms also) followed by the formal appeal shall be allowed.

7. Law enforcement is limited to 100 meters away.

8. Isolated acts or incidents of disorder or breach of peace shall not be grounds for dispersal.

9. The “calibrated response” should be governed by Sections 11 and 12 of this law, any police/military memorandum inconsistent with this is illegal and can be dealt with through its penal provisions.

10. Every city and municipality should have at least one freedom park.

Let’s eat!

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The Final Week

Blogging about the bar exams has already been a Saturday habit for me. Unfortunately, this should end today because, folks, this is the last week of the grueling “Hell Month” of September.

From experience, the test in Remedial Law has been the longest and the hardest. This exam counts more than any other single exam in the bar (it’s 20% compared to 15% for the other major exams). Also, expect a long exam. During my time, they even gave a one-hour extension, which I did not take, as usual, just because I really work fast.

For tips, I’d say focus on the provisional remedies. You know what I mean: Injunction, Attachment, etc. And also give time for the Special Civil Actions and know the definition of “grave abuse of discretion” by heart. Did I mention Criminal Procedure and how it differs from Civil? Finally, my blog lectures on some rules on evidence may come in handy.

Remember, your Bar Chairman is a known for procedure so I guess this test will have his signature written all over it.

But please, don’t neglect the final exam (Legal Ethics and Practical Exercises). I know you’re tired and this test does not count much (5% compared to 10% for the other “minor” subjects. I know you’re already tired and the drums are blaring outside with people jeering you to come out already. I know you’re already salivating about that French or German beverage (or cuisine, tobacco, or whatever your vice is) you have so deprived yourself just to take this exam.

But fight all temptations to breeze through this exam and to give it scant consideration. Get below 50% in this exam and you’re still disqualified from becoming a lawyer. I know some honor students who did not pass because of this exam.

For this exam focus on verification and jurat. Given recent events, this may be asked. Also, concentrate on the new notarial law and requirements and how it compares to the old one. Despite this, I guess the test will be long simply because the document drafting portion takes a considerable amount of time and notebook space.

I think I already mentioned that I took these final exams with a sprained right wrist (I write right-handed). So you can imagine the extra handicap I had going into this final day. From what I remember I did not do well here. I guess the pain was too much or the tests were that hard.

If you’re taking the Bar exams for the first time, you can look forward to the feeling of extreme relief because it’s all over. Personally, when a friend and I were walking away from DLSU that final Sunday, we were surprised how everything (those great and tough times in law school and bar exams) were by so fast.

You have spent about five years of your life (make that 8 to 9 if you decided to become a lawyer since college) preparing for this Bar month.

Now it’s all over. Pray you do not do it again.

Spend the day after unconscious. That’s what I did.

Then look for work to pass the time waiting for the results. This way, you get a head start on your legal career. Also, you earn some money for Christmas…

Again, good luck to all this final Sunday…

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