Equal Protection and the Freedom Parks Injunction

Just in time for Labor Day, the Supreme Court issued this week its second unanimous decision (13-0) Bayan v. Ermita -- striking down the Calibrated Preemptive Response policy but upholding The Public Assembly Law, BP No. 880, thus apparently gladdening the hard hearts at the Palace and the Police. But PROF. RAUL PANGALANGAN formerly Dean of the University of the Philippines College of Law has an interesting take on the decision. He notes the use of a complex injunction in the decision penned by Justice Adolfo Azcuna, to enforce a mandate in BP 880 for cities and municipalities to establish Freedom Parks -- rallying in which would require no permits...

The clincher in the Court’s decision is not that the “calibrated preemptive response” to rallies is wrong or that Batas Pambansa 880, the Public Assembly Act, is valid. Rather it is Justice Adolf Azcuna’s coup de grâce that unless local governments soon designate freedom parks where people can protest without permit, all public parks and plazas shall be deemed freedom parks where “no prior permit of whatever kind shall be required.” In American law, they call that the “complex injunction.” ... In 1985, BP 880 told the mayors to carve out public spaces where people can protest freely. Because the liberty of assembly is guaranteed, a permit requirement is valid only if a permit-free, alternative venue is available. Yet, Azcuna noted, after 21 years, only one freedom park reportedly exists in the archipelago: Fuente Osmeña in Cebu. Local governments twisted the law by simply sitting on it (which was, in his words, “pathetic and regrettable”). Thus, the Court took “one step further in safeguarding liberty.” It gave the local governments 30 days to designate their freedom parks, otherwise, all their parks and plazas become off-limits to anti-riot squads. Just to rub it in, he added that the only requirement would be prior notice to the mayor. Dinky Soliman can walk up to Manila Mayor Lito Atienza and say, “I will promenade on the boardwalk, and I’m not asking, I’m telling you!”

It'll be interesting to see what happens 30 days after the decision becomes final. Moreover, consider this gem of an argument propounded also by Dean Pangalangan:

Yet by the magic of the complex injunction, the Court effectively fixed a D-Day without usurping a congressional power. The Court chose to do the smart thing. And what if the Court had struck down BP 880 altogether because the delicate balance in BP 880 had been tilted against the Bill of Rights? Unthinkable? But the Court did exactly that, when the great Jose P. Laurel found a way to strike down an old probation law, saying it depended on budget allocations by local governments and therefore, if one province allocated money and another didn’t, probation will be available to some and not to others, a violation of the equal protection of the law. In this case, Cebuanos can rally at Fuente Osmeña but Manilans can’t sashay at the boardwalk.

This most excellent line of reasoning using the principle of equal protection seems to me a rhetorical threat also for such a complex thing as that complex injunction. Suppose that Freedom Parks are established by HALF of all the cities and municipalities in the Archipelago within 30 days of the decision becoming final. Can the same argument not be made that this would not really afford equal protection either for exactly the same reasons? In other words, if the existence of only one Freedom Park in Cebu represents a situation of unequal protection, it seems to me that if only 25% or 50% or 75% have such freedom parks, it would be a similar situation as the present. In other words, I think the complex injunction must be universally obeyed or universally ignored, to satisfy the equal protection guarantees of the Constitution.

(MP3) National Capitol Region Police Chief VIDAL QUEROL -- whom the President has referred to as one of the "ground commanders" for the upcoming May Day demonstrations and rallies this coming Monday -- was a good sport taking some well-crafted hardball questions from ABSCBN News anchors Ricky Carandang and Pinky Webb on the noon day hot seat today. The conversation on Dinky Soliman is hilarious -- as it exposes a deep-seated inconsistency in Chief Querol's conception of these matters. On a more ominous note for this coming Monday, Chief Querol suggested police may disperse marches of rally-goers en route to venues covered by permits because those routes are not covered by those permits!

BLAWGER ED LACIERDA castigates Chief Justice Artemio V. Panganiban for the latter's Unwarranted Candor on the matter of the death penalty and its constitutionality. I agree. Panganiban ought to recuse if and when the issue reaches the Supreme Court. (I mention this item also to call attention to the passionate writing that often incandesces at the San Juan Gossip Mills).

The next case to be decided may be Proclamation 1017. But I'm really waiting for the resolution of Garci's Second Petition before the Supreme Court.