Primer Regarding BP 880


1 - Background of BP 880 


Batas Pambansa 880, known as the Public Assembly Act of 1985, was passed by the rubber-stamp Batasang Pambansa (National Assembly) during the Marcos era in order to regulate the rising tide of protests against the US-Marcos regime. Although its legality has been challenged for being against the Constitutionally-guaranteed right of freedom of speech, the Supreme Court, in the case of Bayan et al. v. Ermita (2006), upheld BP 880’s validity. 


2 - Types of Rallies or Public Assemblies 


The law sets forth two types of rallies or assemblies: (1) those with permits or those which do not require permits, and (2) those without a permit where a permit is required. The former category is composed of (1) rallies with permits and (2) rallies in freedom parks, where no permit is needed. An enumeration can thus be constructed as follows: 

  1. Permitted: 

    1. With permit 

    2. No permit needed (Freedom park) 

  2. No permit where a permit is needed 


2.1 - Public Assemblies with no Permit or does not Require Permit 


As to the first type, no dispersal can be made, unless the protest turns violent, and even then the dispersal must strive to be as peaceful as possible, in keeping with the principle of “maximum tolerance” which the police and military are legally bound to uphold. To this end, the law outlines the “stages'' of lawful actions the police can take depending on the level of disturbance present at a rally. A table can be constructed as follows: 


Scenario 

Lawful Police Response 

First sign of impending violence 

Ask the the leaders of the public assembly to prevent any possible disturbance 

Actual violence starts to a point where rocks or other harmful objects from the participants are thrown at either: 

  1. Police 

  2. Non-participants 

  3. Any property causing damage to such property

1. Audibly warn the participants that if the disturbance persists, the public assembly will be dispersed  


2. Tear gas, smoke grenades, water cannons, or any similar anti-riot device may now be used 

Violence or disturbances should not stop or abate 

1. Same as above 


2. After allowing a reasonable period of time to lapse, shall immediately order the assembly to forthwith disperse 


“Violence” here refers to those committed by the members themselves of the rally or assembly, either instigated by the leaders of the assembly or spontaneously adopted by the majority of the rallyists. The law itself provides that “isolated acts or incidents of disorder or branch of the peace during the public assembly shall not constitute a group for dispersal,” doubtless to prevent agents of the police or military from committing violent acts which can then be used as a ground for dispersal. 


Of course, in all scenarios, no leader, organizer, or participant can be arrested if they have not committed a violation of another law or ordinance. Thus, for example, if a participant in an assembly murders another, he can be validly arrested by the police. 


In summary, the rules regarding assemblies those with permits or those which do not require permits are the following: 

  1. General rule - No dispersal can be made. 

  2. Exception - If violence or disturbances should not stop or abate after the participants are warned of possible dispersal, the assembly can be dispersed, following the sequence found in the table above. 


2.2 - Public Assemblies without Permit where Permit is Needed 


As regards the second type, please note that these rallies are not “illegal” just because no permit is obtained. However, the rally may be peacefully dispersed at any time, even if no violence erupts, due to the nature of the rally (no permit). Just as in the first type, no tear gas, smoke grenades, or water cannons can be used unless the rally becomes violent. It should be stressed that with all types of rallies, “maximum tolerance” on the part of the police and military is the rule. 


The law fixes the liability of rallies without a permit where a permit is required in this way: 


Party to the Assembly without Permit (where Permit is Needed) 

Consequence 

Leaders or organizers who hold a public assembly without a permit 

1. May be arrested with or without a permit 

 

2. If validly arrested and guilty, imprisonment of one month and one day to six months 

Participant, where the rally is peaceful 

None; may not be arrested in any way 


Thus, the elements of the crime as defined above are the following: 

  1. A public assembly is held by any: 

    1. Leader 

    2. Organizer 

  2. The assembly either: 

    1. Has no permit in the place where the assembly is held 

    2. Has a permit, but such is used in any place other than those set out in said permit 


2.2.1 - Warrantless Arrests in Public Assemblies without Permit where Permit is Needed 


To be arrested without a warrant in the second type of rally however, the requisites of either a (1) in flagrante delicto (caught in the act) or (2) hot pursuit must also be present. These can be applied in the following way. Please note that all the following elements must be present in order for there to be a valid warrantless arrest: 


Warrantless Arrest 

Application to BP 880 

In flagrante delicto 

1. The leader or organizer must execute an overt act indicating that he either: 

  1. Has just led or organized the rally 

  2. Is actually leading or organizing the rally 

  3. Is attempting to lead or organized the rally 


2. Such overt act is done (1) in the presence or (2) within the view of the arresting officer 

Hot pursuit 

1. The leader or organizer has just led or organized the rally 


2. The arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that the leader or organizer to be arrested has just led or organized the rally  


Concrete examples of the first type of warrantless arrest are: 

  1. Juan leads a rally without a warrant. He has a megaphone and instructs the rallyists to push against the police blocking his way. He can be validly arrested, since he is organizing the rally. 

  2. Juan makes a speech during the rally admitting to being the leader of the rally (“ako po ang nag-organisa ng pagkilos natin ngayon”). A policeman standing in front of him hears it.  He can be validly arrested, since he is leading the rally. 

Concrete examples of the second type can be as follows: Juan has just led a rally, which has dispersed. Pedro, a police officer, knows that Juan has led the rally because Juan has previously been convicted of that crime several times in the past. Juan can be validly arrested, since circumstances indicate that the latter has just led the rally. 


If arrested without a warrant, and the leader or organizer does not see that the following requisites are present, he or she may validly resist arrest, without being chargeable under direct assault (Art. 148, Revised Penal Code). The reason for this is “The scope of the respective powers of public officers and their agents is fixed. If they go beyond it and they violate any recognized rights of the citizens, then the latter may resist the invasion, especially when it is clear and manifest.” (3 Groizard, p. 456, cited in People vs. Chan Fook, 42 Phil. 230) When a person in authority or his agent is the one who provokes and attacks another person, the latter is entitled to defend himself and cannot be held liable for assault or resistance nor for physical injuries, because he acts in legitimate defense. (People vs. Carado, CA-G.R. No. 12778-R,

November 11, 1955) 


Of course, such resistance must be coextensive with the excess, and should not be greater than what is necessary to repel the aggression. (People vs. Chan Fook)  


Of course, he also cannot be searched during the rally. 

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