Tuesday, November 17, 2020
Thursday, July 30, 2020
Denying Asylum Without a Hearing Violates Due Process
See - https://www.jurist.org/commentary/2020/07/fatma-marouf-denying-asylum-violates-due-process/#
"x x x.
Denying Asylum Without a Hearing Violates Due Process
"x x x.
Denying Asylum Without a Hearing Violates Due Process
JULY 17, 2020 09:30:01 AM
By Fatma Marouf
Professor of Law and Director
of the Immigrant Rights Clinic at Texas A&M School of Law
www.jurist.org
www.jurist.org
One of the most devastating parts of the proposed regulations overhauling asylum law issued on June 15 is a new rule allowing immigration judges to deny asylum applications without an evidentiary hearing. The regulation states that the judge can “pretermit” legally insufficient applications, meaning deny them without even giving the asylum seeker a chance to testify. This rule defies the most basic notions of fairness.
Most asylum seekers do not have legal counsel and must navigate complex immigration laws alone. If an asylum seeker does not know how to frame his or her claim in exactly the right way, a judge could reject it as legally inadequate under the new rule.
This concern is especially relevant for asylum claims based on “membership in a particular social group,” which is the most complicated ground for asylum. It is extremely difficult for attorneys, and nearly impossible for a layperson, to understand the convoluted requirements for establishing a “particular social group.” For example, if a group is defined too broadly, it is rejected as not being “particular,” but if it is defined too narrowly, it is rejected for not being “socially distinct.”
Some asylum seekers are lucky enough to have an attorney who can submit a detailed legal brief addressing such complex issues, and fewer still will be able to hire an expert who can opine on a social group. But most will be left to their own devices. It is unreasonable to expect an unrepresented individual, especially one who may not speak English, or may not be literate in any language, or may be a child, to navigate the complexities of the “particular social group” definition alone.
Additionally, whether an asylum application is legally adequate is often inextricably intertwined with an evaluation of the facts. For example, whether a proposed social group is cognizable is a legal question, but underlying it are factual questions about the group. An immigration judge has a statutory duty to help develop the record by asking the applicant questions, which can help draw out the facts needed to establish eligibility for asylum. But if the asylum application is denied without a hearing, important facts may be overlooked.
The new regulation has clearly been in the works for some time, as Attorney General Sessions helped cleared the way for it in 2018 by vacating a 2014 decision by the Board of Immigration Appeals called Matter of E-F-H-L-, which confirmed that immigration judges must provide asylum seekers with “an opportunity to provide oral testimony.”
In an extraordinary move, the Attorney General directed the Board to refer the case to himself several years later, after the respondent had withdrawn his asylum application to proceed with a family-based petition. Even more bizarre was the Attorney General’s decision to do this after the Department of Homeland Security had already agreed to administratively close the case, taking it off the judge’s docket. The Attorney General then asserted that because the asylum application had been withdrawn, the Board’s decision was “effectively mooted.” These legal gymnastics were clearly a pretext to vacate a decision protecting an asylum seeker’s right to testify.
Not only does the new regulation defy common-sense notions of fairness, but it tramples roughshod over another decision by the Board of Immigration Appeals called Matter of Fefe that has existed for over 30 years. That decision recognizes an asylum’s seekers right, “at a minimum,” to “take the stand.” There, the Board found that a full oral examination of the applicant is “an essential aspect of the asylum adjudication process for reasons related to fairness to the parties and to the integrity of the asylum process itself.” The immigration judge had rejected a proposed social group and then denied asylum without a hearing. The Board held that was impermissible.
In justifying the new regulation, the U.S. Department of Homeland Security and Department of Justice note that Matter of Fefe relied on regulations that no longer exist. What they neglect to mention, however, is that the current regulations contain language that is materially the same, requiring a decision to be made “after an evidentiary hearing,” as the Board pointed out in Matter of E-F-H-L-.
No doubt, the proposed regulation will be challenged in federal court as violating not only the Immigration and Nationality Act, which guarantees a reasonable opportunity to present evidence, but also constitutional due process, which requires fundamental fairness. Summary judgment must be kept out of immigration court, where life-or-death decisions are already made with minimal protections.
Fatma Marouf is a Professor of Law and Director of the Immigrant Rights Clinic at Texas A&M School of Law.
Suggested citation: Fatma Marouf, Denying Asylum Without a Hearing Violates Due Process, JURIST – Academic Commentary, July 17, 2020, https://www.jurist.org/commentary/2020/07/fatma-marouf-denying-asylum-violates-due-process/.
This article was prepared for publication by Matthew Fischer, JURIST’s Associate Editor. Please direct any questions or comments to him at commentary@jurist.org
Most asylum seekers do not have legal counsel and must navigate complex immigration laws alone. If an asylum seeker does not know how to frame his or her claim in exactly the right way, a judge could reject it as legally inadequate under the new rule.
This concern is especially relevant for asylum claims based on “membership in a particular social group,” which is the most complicated ground for asylum. It is extremely difficult for attorneys, and nearly impossible for a layperson, to understand the convoluted requirements for establishing a “particular social group.” For example, if a group is defined too broadly, it is rejected as not being “particular,” but if it is defined too narrowly, it is rejected for not being “socially distinct.”
Some asylum seekers are lucky enough to have an attorney who can submit a detailed legal brief addressing such complex issues, and fewer still will be able to hire an expert who can opine on a social group. But most will be left to their own devices. It is unreasonable to expect an unrepresented individual, especially one who may not speak English, or may not be literate in any language, or may be a child, to navigate the complexities of the “particular social group” definition alone.
Additionally, whether an asylum application is legally adequate is often inextricably intertwined with an evaluation of the facts. For example, whether a proposed social group is cognizable is a legal question, but underlying it are factual questions about the group. An immigration judge has a statutory duty to help develop the record by asking the applicant questions, which can help draw out the facts needed to establish eligibility for asylum. But if the asylum application is denied without a hearing, important facts may be overlooked.
The new regulation has clearly been in the works for some time, as Attorney General Sessions helped cleared the way for it in 2018 by vacating a 2014 decision by the Board of Immigration Appeals called Matter of E-F-H-L-, which confirmed that immigration judges must provide asylum seekers with “an opportunity to provide oral testimony.”
In an extraordinary move, the Attorney General directed the Board to refer the case to himself several years later, after the respondent had withdrawn his asylum application to proceed with a family-based petition. Even more bizarre was the Attorney General’s decision to do this after the Department of Homeland Security had already agreed to administratively close the case, taking it off the judge’s docket. The Attorney General then asserted that because the asylum application had been withdrawn, the Board’s decision was “effectively mooted.” These legal gymnastics were clearly a pretext to vacate a decision protecting an asylum seeker’s right to testify.
Not only does the new regulation defy common-sense notions of fairness, but it tramples roughshod over another decision by the Board of Immigration Appeals called Matter of Fefe that has existed for over 30 years. That decision recognizes an asylum’s seekers right, “at a minimum,” to “take the stand.” There, the Board found that a full oral examination of the applicant is “an essential aspect of the asylum adjudication process for reasons related to fairness to the parties and to the integrity of the asylum process itself.” The immigration judge had rejected a proposed social group and then denied asylum without a hearing. The Board held that was impermissible.
In justifying the new regulation, the U.S. Department of Homeland Security and Department of Justice note that Matter of Fefe relied on regulations that no longer exist. What they neglect to mention, however, is that the current regulations contain language that is materially the same, requiring a decision to be made “after an evidentiary hearing,” as the Board pointed out in Matter of E-F-H-L-.
No doubt, the proposed regulation will be challenged in federal court as violating not only the Immigration and Nationality Act, which guarantees a reasonable opportunity to present evidence, but also constitutional due process, which requires fundamental fairness. Summary judgment must be kept out of immigration court, where life-or-death decisions are already made with minimal protections.
Fatma Marouf is a Professor of Law and Director of the Immigrant Rights Clinic at Texas A&M School of Law.
Suggested citation: Fatma Marouf, Denying Asylum Without a Hearing Violates Due Process, JURIST – Academic Commentary, July 17, 2020, https://www.jurist.org/commentary/2020/07/fatma-marouf-denying-asylum-violates-due-process/.
This article was prepared for publication by Matthew Fischer, JURIST’s Associate Editor. Please direct any questions or comments to him at commentary@jurist.org
x x x."
WHEN PERMIT TO RALLY NOT REQUIRED.
"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 CAMPUSES 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."
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.
THE PUBLIC ASSEMBLY ACT OF 1985 - BP Blg. 880
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 RIGHTS 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 CAMPUSES 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 applicant 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 PERMITS 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) METERS 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 RIGHTS 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 UNIFORMS 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 LEADERSHIP, 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 bresch 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 PERMITS: 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 TOWARD 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 UNNECCESSARY 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 MOTORCYCLE VEHICLE, ITS HORNS AND LOUDSPEAKERS 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 REFLECTIVITY of this Act ESTABLISHED OR DESIGNATED 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 REFLECTIVITY 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.
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 RIGHTS 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 CAMPUSES 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 applicant 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 PERMITS 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) METERS 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 RIGHTS 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 UNIFORMS 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 LEADERSHIP, 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 bresch 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 PERMITS: 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 TOWARD 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 UNNECCESSARY 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 MOTORCYCLE VEHICLE, ITS HORNS AND LOUDSPEAKERS 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 REFLECTIVITY of this Act ESTABLISHED OR DESIGNATED 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 REFLECTIVITY 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.
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