Nepomuceno A. Malaluan is a trustee of the Action for Economic Reforms. He is also partner at the Lat Lumba Malaluan Quevedo & Lat Law Offices. This article was published in the Opinion Section, Yellow Pad Column of BusinessWorld, October 24, 2005 edition, page S1/5.

In the past three weeks we have seen the violent dispersal by police of rallies attempting to go to Mendiola. The demonstrators’ insistence on staging their protest in Mendiola is understandable. After all it has been the site of countless exercises of the right to peaceably assemble and petition the government for redress of grievances during the Martial Law years. The present days are being likened to that period, at least in the curtailment of such right by the implementation of the so-called “calibrated preemptive response” to public demonstrations. Also, Mendiola is at the threshold of Malacañang, and getting there gives the demonstrators a symbolic representation that they have come within the closest hearing distance of the president.

Precisely for these reasons, Mendiola is now a no-go zone for demonstrators as far as the Arroyo administration is concerned. The police appear prepared to enforce this policy even by violent means, as shown by video footage and other accounts of the dispersals.

Not content with violent dispersals, the police also resort to arrests of some of the demonstrators. The police very well know that arrests without warrant such as these may be made only when: 1) in their presence the person to be arrested has committed, is actually committing, or is attempting to commit an offense; 2) an offense has just been committed and the police making the arrest have probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it; or 3) the person to be arrested is an escaped prisoner.

Not being escaped prisoners, what offense or offenses may the demonstrators have committed? As early as 1907, the Supreme Court in one case observed that it is rather to be expected that, more or less, disorder will mark a public assembly to protest against grievances, and counseled authorities to exercise utmost discretion in drawing the line between an essentially peaceable assembly and committing an offense so that the right to assemble and to petition for redress of grievances does not become just a delusion.

More likely, it is the members of the police dispersal unit that have committed offenses. It is arbitrary detention for any public officer or employee to detain a person without legal ground. It is in violation of BP 880 for members of the law enforcement contingent who with demonstrators: 1) not to be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform; 2) not to observe the policy of “maximum tolerance,” which means the highest degree of restraint to be observed during a public assembly or in its dispersal; 3) to carry firearms within 100 meters from the area of the public assembly; or 4) to obstruct, impede, disrupt or otherwise deny the exercise of the right to peaceful assembly. There could also be violation of Republic Act 7438, which defines certain rights of persons arrested, detained or under custodial investigation and providing penalties for their violation.

If the police insist on arresting demonstrators, we hope the country’s prosecution service will put its foot down and not hold them in detention or for trial without the requisite probable cause determined only after giving both complainants and respondents the opportunity to present their respective evidence. A fair handling in such instances will be, in the absence of very clear evidence of a crime having been committed by the demonstrators, to order their immediate release from custody, and to treat the charges and counter-charges of the police and of demonstrators as a matter for regular preliminary investigation, and therefore without need to waive the requirement to be delivered to the proper judicial authorities within specified periods nor for bail in the meantime.

As we see democratic institutions, such as free, fair and honest elections eroded, and as people’s aspirations for social and economic justice remain a pipedream, at the very least our freedoms of assembly and petition and to be secure against unreasonable searches and seizures—along with our freedoms of speech and of expression—must endure. Now under attack from the state, and rendered vulnerable by public apathy, these freedoms must be defended.