At the time this petition for mandamus with alternative prayer for writ of preliminary mandatory injunction was filed on October 20, 1983 by retired Justice J. B. L. Reyes in behalf of the Anti-Bases Coalition [ABC], no action had been taken as yet by respondent Mayor Ramon Bagatsing of the City of Manila on the request of such organization to hold a rally. The permit sought was "for the use of the empty field in front of the Luneta Grandstand and Roxas Boulevard in front of the United States Embassy on October 26, 1983, from 2:00-5:00 in the afternoon. [It] is sponsoring an International Conference for General Disarmament, World Peace and the Removal of All Foreign Military Bases. [It proposes] a March for Philippine Sovereignty and Independence, participated in by foreign and Philippine delegates. The march is to start at the open field, Luneta, and will proceed to the gate of the US Embassy, where a short program will be held."^[1] It closes with the assurance that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps will be taken by it "to ensure a peaceful march and rally."^[2]

In the answer of respondent Mayor, filed on his behalf this morning by Assistant Solicitor General Eduardo G. Montenegro,^[3] it was stated that such permit was denied because his office was "in receipt of police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for."^[4] It was suggested, however, in accordance with the recommendation of the police authorities that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured."^[5]

What is here involved is the right to freedom of assembly. It guarantees that the people may meet peaceably for consultation and discussion of matters of public concern.^[6] It is entitled to be accorded the utmost deference and respect. It 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.^[7] Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institution and complements the right of a free speech.^[8] To paraphrase the opinion of Justice Rutledge, speaking for the majority in Thomas v. Collins,^[9] it was not by accident or co­incidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights while not identical are inseparable. They are cognate rights and the assurance afforded by the Bill of Rights applies to all. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. No justification for a diminution of the exercise of this right so fundamental to the maintenance of democratic institution is allowable in the absence of circumstances substantial in character resulting in an evil both serious and imminent.^[10]

The hearing was held this morning. Petitioner was represented by Professor Haydee Yorac of the College of Law, University of the Philippines, assisted by former Senator Jose W. Diokno. Respondent was represented by Assistant Solicitor-General Montenegro. It became evident in the light of the argument submitted by both parties, that reliance on the decisions of this Court in Navarro v. Villegas^[11] and Pagkakaisa ng Manggagawang Pilipino (PMP), et al v. Hon. Ramon D. Bagatsing and Brig. Gen. Narciso Cabrera, Jr.^[12] is misplaced. There is no showing here, unlike in those cases of a clear and present danger of a substantive evil. It is essential for the validity of a denial of a permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely on his own appraisal what public welfare, peace or safety may require. To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test. The possibility that subversives may infiltrate the ranks of the demonstrators is not enough. Not that it is to be overlooked. There is, however, the assurance of General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such emergency should it arise. That is to comply with its duty to extend protection to the participants of such peaceable assembly. There was the commendable admission that there were at least five previous demonstrations at the Bayview Hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. To the observation of Assistant Solicitor General Montenegro that the presence of policemen may in itself be a pro­vocation, it is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to perform their duty.

There is this issue posed by respondent Mayor. He invokes Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstration within a radius of five hundred (500) feet from any foreign mission or chancery; and for other purposes. Such an ordinance finds justification in Art. 22 of the Vienna Convention on Diplomatic Relations adopted in Vienna in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification signed by the President on October 11, 1965 and thereafter deposited with the Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of Article 22 is relevant: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impair­ment of its dignity." It may be admitted that the ordinance has relevance. There is no showing, however, considering the distance between the chancery and the embassy gate is less than 500 feet. At any rate, there is assurance from petitioner that after a short program with remarks to be delivered by two of the participants, all that is left for the demonstrators is to submit a copy of their petition to whoever may receive it at the gate of the Embassy. Under such circumstances, the suggestion of the respondent Mayor that the permit may be issued for the rally if it were held at the Rizal Coliseum for any other enclosed area need not be pursued further.

To the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, such a case is pro tanto modified. The mandatory injunction prayed for is granted. Aquino, J., dissenting, voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates Ordinance No. 7295 of the City of Manila. Concepcion Jr., J. is on leave. De Castro, J. is on sick leave.

This resolution is without prejudice to a more extended opinion.

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^[1] Petition, 2.

^[2] Ibid.

^[3] He was assisted by Solicitor Roberto A. Abad.

^[4] Answer of Respondent, 2.

^[5] Ibid.

^[6] Cf. Gonzales v. Commission on Elections, L-27833, April 18, 1969, 27 SCRA 835, 861.

^[7] Ibid.

^[8] Cf. United States v. Bustos, 37 Phil. 731 (1918)

^[9] 323 US 516 (1945).

^[10] Cf. Schneider v. Irvington, 308 US 147 (1939).

^[11] G.R. L-31687, February 26, 1970, 31 SCRA 731. The then Justice Castro and the present Chief Justice dissented.

^[12] G.R. 60294, April 30, 1982.