MANILA — Bagong Alyansang Makabayan (BAYAN) President Renato Reyes, Jr. and BAYAN resident artist Maximo Santiago on Friday urged Quezon City prosecutors to junk a criminal complaint filed against them over the burning of an effigy of President Ferdinand “Bongbong” Marcos, Jr. during his State of the Nation Address in July.

The complaint, filed by 2 police officers from the Quezon City Police District in August, claimed that the burning of the effigy “greatly contributed to air pollution which grossly contradicts the government program in ensuring the protection of public health and the environment.”

“The utter lack of merit in the case filed by the Complainants demonstrates their desire to harass us and to misuse the time and resources of this Honorable Office in stark defiance of the purposes of preliminary investigation,” Reyes and Santiago said in their joint counter-affidavit filed before the Quezon City Prosecutor’s Office.

“We, therefore, ask this Honorable Office to spare us the anxiety and expense of a public trial for contrived violations of B.P. 880,” they added.

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Reyes and Santiago were assisted by lawyers from the Movement Against Disinformation (MAD) led by former Ateneo School of Government Dean Tony La Viña, who said the complaint was baseless.

“Hindi naman ito pollution. And sa Public Assembly Act, which provision was violated?,” he said.

The complaint cited section 13, 3(g) and section 13, 3(j) of the Batas Pambansa 880 or the Public Assembly Act of 1985, which respondents said were non-existent provisions.

The provision under BP 880 on “malicious burning of any object in the streets or thoroughfares” is under section 13 (g)(3).

But respondents said that even under this provision, the complaint failed to allege important details such as when the burning took place and the place where it happened — which is important for jurisdictional purposes, to determine where the case should be filed.

The respondents, according to the joint counter-affidavit, were also not identified as being present during the act of burning. Reyes submitted proof he was in Belgium at that time.

In addition, respondents pointed out there was no photo presented of the actual burning of the effigy. In fact, some of the photos were taken the previous year.

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‘BURNING AN EFFIGY IS PART OF FREE SPEECH’

Beyond the technical defenses, Reyes and Santiago raised the issue of free speech.

“Assuming—without conceding—that the Respondents burned the Doble Cara Effigy, such burning, in the context of a protest, should be considered as an expressive conduct tantamount to political speech protected by the freedom of speech and expression under the Constitution, which needless to say, is the highest law of the land,” the counter-affidavit said.

“[T]he right to freedom of expression must prevail over the right of the government to trample upon such right in the guise of maintaining peace and order through the exercise of its police power,” it added.

Respondents said they were lawfully exercising a right, which is a justifying circumstance under the Revised Penal Code which prevents criminal liability from attaching.

“Nababahala kami dito sa lumalalang trend na ang pamamahayag ay naki-criminalize, pinapatawan ng kung anu-anong gawa-gawang kaso yung simpleng pagpapahayag ng damdamin,” Reyes told the media just before filing the counter-affidavit.

"At naniniwala kami, kahit yung pagsusunog ng effigy, hindi yan dapat ituring na krimen. Yan ay bahagi ng ating freedom of speech and yan ay protektado sa ilalim ng ating Konstitusyon at hindi dapat kinakasuhan yung mga nais magpahayag ng damdamin," he said.

He added this is the first time in Metro Manila that criminal raps were filed for burning an effigy.

“Pero lalabahan po natin yan. Hindi po dapat magpasindak dito sa ginagawa nilang pagpapatahimik sa mga boses ng tao,” he said.

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Santiago, for his part, said this is a clear case of harassment and warned against its effect on other protesters.

“It has a chilling effect on other forms of protests…Mag-aalangan na silang gumawa ng sining na kritikal dun sa administrasyon,” he said.

Two other criminal complaints have been filed against Santiago over the same act of allegedly burning an effigy under the Clean Air Act and the Ecological Solid Waste Management Act, which are now awaiting resolution by the QC prosecutors.

La Viña said the raps filed were a waste of time for everyone involved.

“Nakakabahala ito kasi, wala namang ka-basis-basis. Parang feeling mo, nagsho-shopping sila din ng charges, baka maka-tsamba ng charge na magstick. Waste of time ito ng prosecutor time. Of course, waste of time sa mga aktibista ito, waste of time sa aming mga abugado,” he said.

"But the prosecutors, they have lots of cases. Ba’t nila i-tatake-on ang mga cases na ganito na, sa totoo lang, basura siya," he continued.