Calibrated Preemptive Response: BAYAN, et al. vs. Ermita

The petitions filed directly with the Supreme Court challenged the constitutionality of both Batas Pambansa 880 and the policy of Calibrated Preemptive Response (CPR) issued by Executive Secretary Eduardo Ermita. The Supreme Court decided in this manner:

The CPR, insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID.

CPR serves no valid purpose if it means the same thing as maximum tolerance (Sec. 3 [c] of B.P. 880), and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance.

B.P. 880 not unconstitutional

B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. The law not vague or overbroad. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places.

Freedom Parks

B.P. 880 provides that every city and municipality must set aside a freedom park within six months from the law’s effectivity in 1985, or 20 years ago. Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time. According to the SolGen, however, he is aware of only ONE declared freedom park – Fuente Osmeña in Cebu City. Without such alternative forum, to deny the permit would in effect be to deny the right.

Hence, local governments are given “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.”

Permit Application

There is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and 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.


“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.”


It’s good that the Supreme Court tackled the effect in case the mayor fails to act on an application for a permit to rally. The usual practice, as noted in the decision, is for the police to disperse a rally if the rallyists cannot show any permit, even if the rallyists show an unacted application. This is really stupid because the law provides for an automatic grant of permit if the mayors refuse to act on permit applications. If it were otherwise, the authorities could effectively deny this right – as they have done in the past – by simply refusing to act on the application. In the meantime, the rallyists have been “cannonized” by firetrucks and beaten black and blue.

On the other hand, the State has the right to regulate the right to assemble. I must agree that B.P. 880 is NOT unconstitutional. Atty. Rene Saguisag (some time ago over at Debate with Mare and Pare) noted that a mass action is meant to cause inconvenience to the public. It is a fact that mass actions cause great inconvenience to the travelling public – hence, the need to regulate the time and place of the rally.

Wish list

: Matters that I wish should have been tackled –

1. The CPR is not contained in any presidential or executive issuance. It was merely contained in a press release dated 21 September 2005, which pertinently reads:

* The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community.

For a policy which affects the critical public and a basic constitutional right, the CPR should have been contained in an official document. It should not be contained in a press release or a speech because we are not under a monarchy, where the king’s (or queen’s) word is the law.

Moreover, Sec. Ermita said that the CPR is “in lieu” of maximum tolerance, which creates confusion and is subject to abuse. As in the case of the declaration of state of national emergency, it is a legal deadwood and merely creates confusion among the public.

2. A discussion on the source of the power of mayors to issue the permits would have been good. According to Mayor Lito Atienza (Maynila), Republic Act No. 7160 (the Local Government Code of 1991) gives the Mayor power to deny a permit independently of B.P. No. 880). Moreover, I recall that there was a blanket declaration that ALL permits issued are considered revoked (who made that declaration?). Is this valid?


One thought on “Calibrated Preemptive Response: BAYAN, et al. vs. Ermita

  1. Pingback: Calibrated Preemptive Response (CPR): The darkness that shrouds our freedom at Atty-at-Work

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