Finally, we’re at the last part of Section 4. Interestingly, the Supreme Court included Sections 7 and 8 in this part of the syllabus.
Anyway, let’s start with the last part of Section 4, the freedom of assembly.
Freedom of Assembly
“Assembly” means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required.
–David v. Macapagal-Arroyo, 2006
Much like and complementary to freedom of speech and expression, freedom of assembly is a consequence of a republican institution. It also follows that it shall not be subject to prior restraint or censorship, except if the restraint is necessary under the clear and present danger test. But, also like freedom of expression, freedom of assembly can be subject to content-neutral regulation (see discussion on freedom of expression here) as long as it passes intermediate scrutiny. As discussed before, a content-neutral regulation is one which merely regulates the time, place, or manner, under well-defined standards, of expression or assembly. Thus, it is allowed that a permit shall be required for the use of a public place as this merely regulates the place of assembly and does not prohibit the assembly itself. The prevailing law on public assembly is BP 880 or the Public Assembly Act of 1985.
[It is very clear, therefore, that 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. This was adverted to in Osmeña v. Comelec, where the Court referred to it as a “content-neutral” regulation of the time, place, and manner of holding public assemblies.
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. The reference to “lawful cause” does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be “peaceable” and entitled to protection. Neither are the words “opinion,” “protesting” and “influencing” in the definition of public assembly content based, since they can refer to any subject. The words “petitioning the government for redress of grievances” come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health.]
–Bayan v. Ermita, 2006
As said above, the prevailing law on public assembly is BP 880 or the Public Assembly Act of 1985. Weird how we have a 1987 Constitution but a Public Assembly Act that was enacted 2 years before it. Some concerned lawmakers tried to repeal it. I think one bill was introduced in 2004 and a new bill is now in Congress waiting (more like hoping) to be enacted.
Anyway, here are some important takeaways from BP 880 :
1. Permit not required when in a private place, in the campus of a government-owned and operated educational institution, or in a freedom park. If it is a private place, only the consent of the owner or of the one entitled to its legal possession is required, and if it is an educational institution, the assembly should be subject to the institution’s rules and regulations.
2. Clear and Present Danger test- 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.
3. 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.
4. Maximum tolerance should be observed by law enforcement
5. Isolated incidents of disorder does not warrant a group dispersal
6. No person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly without a permit. Only the leaders and organizers of such rally shall be considered in violation of BP 880
It’s better to read the law in its entirety to be familiar with its nuances.
I love the saying “tolerance is the rule and limitation is the exception”:
“The wholesale cancellation of all permits to rally is a blatant disregard of the principle that “freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the State has a right to prevent.” Tolerance is the rule and limitation is the exception. Only upon a showing that an assembly presents a clear and present danger that the State may deny the citizens’ right to exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated.“
–David v. Macapagal-Arroyo, 2006
The reason for number 5 in our list above (Isolated incidents of disorder does not warrant a group dispersal) goes back to as early as 1907:
“It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising.”
–U.S. v. Apurado, 1907
With regards to public officers, as discussed last time, they cannot exercise their freedom of expression or freedom of assembly if it interferes with their work or service:
[One of the regulations of the freedom of assembly of government workers is Civil Service Commission (CSC) Resolution No. 02-1316 entitled “Omnibus rules on prohibited concerted mass actions in the public sector” issued in 2002:
Section 5. Definition of Prohibited Concerted Mass Action. – As used in this Omnibus Rules, the phrase “prohibited concerted activity or mass action” shall be understood to refer to any collective activity undertaken by government employees, by themselves or through their employees organizations, with the intent of effecting work stoppage or service disruption in order to realize their demands of force concession, economic or otherwise, from their respective agencies or the government. It shall include mass leaves, walkouts, pickets and acts of similar nature.]
Thus, an essential element for a violation of prohibited concerted mass action is that it should be coupled with:
1. intent to effect work stoppage or service disruption
2. in order to realize their demands of force concession
Prior to this resolution are multiple cases where public teachers staged a strike and were held to be invalidly exercising freedom of assembly:
[As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public School Teachers Association v. Laguio Jr., and Alliance of Concerned Teachers v. Hon. Isidro Cariño that the mass actions of September/October 1990 staged by Metro Manila public school teachers “amounted to a strike in every sense of the term, constituting as they did, a concerted and unauthorized stoppage of or absence from work which it was said teachers’ sworn duty to perform, carried out for essentially economic reasons — to protest and pressure the Government to correct what, among other grievances, the strikers perceived to be the unjust or prejudicial implementation of the salary standardization law insofar as they were concerned, the non-payment or delay in payment of various fringe benefits and allowances to which they were entitled, and the imposition of additional teaching loads and longer teaching hours.”
In Rolando Gan v. Civil Service Commission, we denied the claim that the teachers were thereby denied their rights to peaceably assemble and petition the government for redress of grievances reasoning that this constitutional liberty to be upheld, like any other liberty, must be exercised within reasonable limits so as not to prejudice the public welfare. But the public school teachers in the case of the 1990 mass actions did not exercise their constitutional rights within reasonable limits. On the contrary, they committed acts prejudicial to the best interest of the service by staging the mass protests on regular school days, abandoning their classes and refusing to go back even after they had been ordered to do so. Had the teachers availed of their free time – recess, after classes, weekends or holidays – to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one – not the DECS, the CSC or even the Supreme Court – could have held them liable for their participation in the mass actions.]
–De la Cruz v. CA, 1999
The key phrase here is “prejudicial to the best interest of the service.”
“In this light, the Court has definitively ruled that employees of the Social Security System and public school teachers do not have a constitutional right to strike. But the current ban on them against strikes is statutory and may be lifted by statute.”
-Fr. Bernas, 2009, pp 390
It should also be already clear that the right to strike is not included in the right to peacably assemble:
“It may be, as the appellate court urged, that the freedom of expression and assembly and the right to petition the government for a redress of grievances stand on a level higher than economic and other liberties. Any suggestion, however, about these rights as including the right on the part of government personnel to strike ought to be, as it has been, trashed. We have made this abundantly clear in our past determinations. For instance, in Alliance of Government Workers v. Minister of Labor and Employment, a case decided under the aegis of the 1973 Constitution, an en banc Court declared that it would be unfair to allow employees of government corporations to resort to concerted activity with the ever present threat of a strike to wring benefits from Government. Then came the 1987 Constitution expressly guaranteeing, for the first time, the right of government personnel to self-organization to complement the provision according workers the right to engage in “peaceful concerted activities, including the right to strike in accordance with law.“
–GSIS v. Kapisanan ng mga Manggagawa sa GSIS, 2006
Freedom of Association
Because people are naturally sociable, the right of association was guaranteed by the Constitution to give great value to this liberty:
“It has been held that Article III, Section 8 not only guarantees the freedom to associate; it also protects the freedom not to associate. The provision is not basis to compel others to form or join an association.”
–Acosta v. Ochoa, 2019
This also follows that the right to disaffiliate from a labor organization is included in the right to association:
“The right of a local union to disaffiliate from its mother union is well-settled. In previous cases, it has been repeatedly held that a local union, being a separate and voluntary association, is free to serve the interest of all its members including the freedom to disaffiliate when circumstances warrant. This right is consistent with the Constitutional guarantee of freedom of association.”
–Volkschel Labor Union v. Bureau of Labor Relation, 1985
Like most other freedoms guaranteed by the Constitution, the freedom of association (or dissociation) is not absolute. Here are some examples:
1. People v. Ferrer (1972) which validated the Anti-Subversion Act
“As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence or other illegal means. Whatever interest in freedom of speech and freedom of association is infringed by the prohibition against knowing membership in the Communist Party of the Philippines, is so indirect and so insubstantial as to be clearly and heavily outweighed by the overriding considerations of national security and the preservation of democratic institutions in this country.”
2. Occena v. COMELEC (1984) ruling on the ban on political parties in barangay elections
“Examining Section 4 of the Barangay Election Act of 1982, be it noted that thereunder, the right to organize is intact. Political parties may freely be formed although there is a restriction on their activities, i.e., their intervention in the election of barangay officials on May 17, 1982 is prescribed. But the ban is narrow, not total. It operates only on concerted or group action of political parties.
x x x x
There are other reasons for insulating the barangay from the divisive and debilitating effects of a partisan political campaign. The Barangay Captain and the Barangay Council, apart from their legislative and consultative powers, also act as an agency for neutral community action such as the distribution of basic foodstuff and as an instrument in conducting plebiscites and referenda. The Barangay Captain, together with the members of the Lupon Tagapayapa appointed by him, exercises administrative supervision over the barangay conciliation panels in the latter’s work of settling local disputes. The Barangay Captain himself settles or helps settle local controversies within the barangay either through mediation or arbitration. It would definitely enhance the objective and impartial discharge of their duties for barangay officials to be shielded form political party loyalty. In fine, the ban against the participation of political parties in the barangay election is an appropriate legislative response to the unwholesome effects of partisan bias in the impartial discharge of the duties imposed on the barangay and its officials as the basic unit of our political and social structure.”
3. Victoriano v. Elizalde Rope Workers Union (1974) which allowed workers to dissociate from or not to join a labor union, despite a closed shop agreement, if they are members of any religious sect which prohibits affiliation of their members in any such labor organization
“To that all embracing coverage of the closed shop arrangement, Republic Act No. 3350 introduced an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the following proviso: “but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization”. Republic Act No. 3350 merely excludes ipso jure from the application and coverage of the closed shop agreement the employees belonging to any religious sects which prohibit affiliation of their members with any labor organization. What the exception provides, therefore, is that members of said religious sects cannot be compelled or coerced to join labor unions even when said unions have closed shop agreements with the employers; that in spite of any closed shop agreement, members of said religious sects cannot be refused employment or dismissed from their jobs on the sole ground that they are not members of the collective bargaining union. It is clear, therefore, that the assailed Act, far from infringing the constitutional provision on freedom of association, upholds and reinforces it. It does not prohibit the members of said religious sects from affiliating with labor unions. It still leaves to said members the liberty and the power to affiliate, or not to affiliate, with labor unions. If, notwithstanding their religious beliefs, the members of said religious sects prefer to sign up with the labor union, they can do so. If in deference and fealty to their religious faith, they refuse to sign up, they can do so; the law does not coerce them to join; neither does the law prohibit them from joining; and neither may the employer or labor union compel them to join.”
4. United Pepsi-Cola Supervisory Union v. Laguesma (1998) on managerial employees not having the right to form unions
“The right guaranteed in Art. III, §8 is subject to the condition that its exercise should be for purposes “not contrary to law.” In the case of Art. 245, there is a rational basis for prohibiting managerial employees from forming or joining labor organizations.
x x x
. . . The rationale for this inhibition has been stated to be, because if these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become company-dominated with the presence of managerial employees in Union membership.”
5. In Re: Edilion (1978) which held that mandatory membership to the IBP is constitutional
“The core of the respondent’s arguments is that the above provisions constitute an invasion of his constitutional rights in the sense that he is being compelled, as a pre-condition to maintaining his status as a lawyer in good standing, to be a member of the IBP and to pay the corresponding dues, and that as a consequence of this compelled financial support of the said organization to which he is admittedly personally antagonistic, he is being deprived of the rights to liberty and property guaranteed to him by the Constitution
x x x x
The State, in order to promote the general welfare, may interfere with and regulate personal liberty, property and occupations. Persons and property may be subjected to restraints and burdens in order to secure the general prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for, as the Latin maxim goes, “Salus populi est supreme lex.” The public welfare is the supreme law. To this fundamental principle of government the rights of individuals are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is an undoubted power of the State to restrain some individuals from all freedom, and all individuals from some freedom.”
FREEDOM OF INFORMATION
The People’s right to information on matters of public concern is enshrined in Article III, Section 7 of the Constitution:
The reason why this provision exists is because a democracy like ours requires that its people be well-informed and for them to be protected from abuse by the government:
“Undeniably, the essence of democracy lies in the free flow of thought; but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people.”
–Chavez v. PCGG, 1998
“An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The postulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be mere empty words if access to such information of public concern is denied, except under limitations prescribed by implementing legislation adopted pursuant to the Constitution.”
–Valmonte v. Belmonte, 1989
And because this is a fundamental right, it necessarily follows that there is a corresponding duty on the part of government to recognize and protect it:
“The right to information goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well in checking abuse in government.”
–Valmonte v. Belmonte, 1989
This policy of full public disclosure is found in Article II, Section 28:
There are also other provisions in the Constitution that reflect the State policy on transparency in matters of public interest (this enumeration was in a previous bar exam wherein it required 3 provisions):
ARTICLE VI Sec. 20, Article XI Sec. 17, Article XII Sec. 21
ANYWAY, back to Sec. 7
The right to information covers three categories of information which are matters of public concern:
(1) official records
(2) documents and papers pertaining to official acts, transactions and decisions; and (3) government research data used in formulating policies.
“The first category refers to any document that is part of the public records in the custody of government agencies or officials. The second category refers to documents and papers recording, evidencing, establishing, confirming, supporting, justifying or explaining official acts, transactions or decisions of government agencies or officials. The third category refers to research data, whether raw, collated or processed, owned by the government and used in formulating government policies.”
–Chavez v. PEA, 2002
But then again, the right to information also has its limitations:
“Like other constitutional guarantees, the right to information and the policy of full public disclosure are not absolute. The People’s right to information is limited by the nature and classification of the information sought. The information should involve “matters of public concern” and should not be excluded by law from the operation of the guarantee. In the same manner, the policy of full public disclosure is limited to transactions involving public interest and is subject to reasonable conditions prescribed by law.”
-Justice Leonen Separate Opinion, Vitangcol III v. COMELEC, 2016
There are MANY restrictions on the right to information. We’ll soon realize that the right to information really has little power. Here are some of them:
[The “information” and the “transactions” referred to in the subject provisions of the Constitution have as yet no defined scope and extent. There are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged. However, the following are some of the recognized restrictions:
(1) national security matters and intelligence information,
(2) trade secrets and banking transactions,
(3) criminal matters, and
(4) other confidential information.]
–Chavez v. PCGG, 1998
“The right to information, however, does not extend to matters recognized as privileged information under the separation of powers. The right does not also apply to information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused, which courts have long recognized as confidential. The right may also be subject to other limitations that Congress may impose by law.”
–Chavez v. PEA, 2002
We will not list here all the other laws because they will just be too many. In short, there are A LOT of confidential information not covered by the right to information.
Oh, and I forgot, even the manner of getting the information is also limited:
“However, the right to information does not compel PEA [or insert any government agency here] to prepare lists, abstracts, summaries and the like relating to the renegotiation of the JVA [or insert any natural or juridical entity here]. The right only affords access to records, documents and papers, which means the opportunity to inspect and copy them. One who exercises the right must copy the records, documents and papers at his expense. The exercise of the right is also subject to reasonable regulations to protect the integrity of the public records and to minimize disruption to government operations, like rules specifying when and how to conduct the inspection and copying.”
–Chavez v. PEA, 2002
ANYWAY, let’s go back to the information not subject to disclosure under the right to information because the bar question about this right, if there ill be any, will most likely be about that.
So let’s try to list and define them:
1. national security matters and intelligence information– this includes state secrets regarding military, diplomatic, and other national security matters.
2. trade secrets and banking transactions– these are confidential matters pursuant to the Intellectual Property Code, the Secrecy of Bank Deposits Act, and other related laws.
3. criminal matters– this refers to classified law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution. Efforts at effective law enforcement would be seriously jeopardized by free public access to, for example, police information regarding rescue operations, the whereabouts of fugitives, or leads on covert criminal activities.
4. privileged information rooted in separation of powers– this includes:
Executive– Presidential conversations, diplomatic correspondences, or discussions during closed-door Cabinet meetings
Judiciary– internal deliberations of the Supreme Court and other collegiate courts
Legislative– executive sessions of either house of Congress
This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power.
As I’m writing, I discovered a document. It’s a list of exceptions to the right to information compiled by Malacanang based on existing laws and jurisprudence. So just check this link out if you want the exhaustive list. It’s really helpful.
So, then, what areas can be covered by the right to information?
1. Definite proposals of on-going negotiations before a final contract
“Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the “exploratory” stage. There is a need, of course, to observe the same restrictions on disclosure of information in general, as discussed earlier — such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information.”
–Chavez v. PCGG, 1998
2. The source code for the AES technology used in the elections
The “source code remained important and relevant “not only for compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions of errors and claims of fraud.”
x x x x
The pertinent portion of Section 12 of R.A. 9369 is clear in that “once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof.” The COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse for not disclosing the source code was that it was not yet available when CenPEG asked for it and, subsequently, that the review had to be done, apparently for security reason, “under a controlled environment.” The elections had passed and that reason is already stale.
–CenPEG v COMELEC, 2010
I’m contemplating if a discussion of Executive Privilege would be fitting here or only when we reach the Legislative Department’s Sections 21 and 22. I choose the latter because I don’t have my notes with me now.
Okay. This is all for now. Next post, we’ll get to freedom of religion.
The Bartender 