Sunday, September 21, 2008

Due process v. police power

The constitutional and legal battlelines have been drawn in the controversy involving the Land Transportation Office (LTO) regulation (AHS-2008-015) issued last May 15, 2008.
The state, represented by the Department of Transportation and Communications and LTO maintain the LTO regulation is a legitimate exercise of the state's police power.
Certain quarters in the community, the motorcycle-riding sector, attack the constitutionality of the LTO regulation claiming it violates the due process clause of our constitution.
Hence, the a classic tug-of-war between the state's exercise of its inherent power---police power--- and invoking the due process protections in the bill of rights.
Let use discuss the two competing interests.

Police Power

Police power has been, commonly and loosely defined as the power of the state to interefere with private rights and liberties, to promote the welfare of society.
Police power is the inherent and plenary power of the state which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society.
In this case, the state through the Dep't of Transportation and the L.T.O. have issued a regulation governing the use and operation of motorcycles in the highways, basically to promote safety.
The state will have to interfere with private rights, by imposing certain (economic) requirements and inconveniences, in the use of motorcycles (like requiring use of helmets, prohibiting slippers, sandals, being barefooted, etc.), to promote the welfare of society.
Any violation of these requirements would result in fines and other penalties.

Tracing the authority

The Dep't of Transportation traces its authority in issuing the regulations from its rule-making powers.
This is provided in Executive Order 292, the revised administrative code of 1987 which specifically authorizes the Secretary of the Department of Transportation to issue regulations. Executive Order No. 292, is a law signed by then President Cory Aquino at a time when she exercised legislative powers under a revolutionary government.

Police power is essentially legislative in nature. It is exercised by the Congress, the lawmaking body.
But this power can be delegated to agencies, like the Dep't of Transportation.
Surprisingly though, while the AHS-2008-015 expressly provides that it is issued pursuant to Executive Order 292 and the Vienna Convention, it does not refer to the national law involved, Republic Act 4136 "The Land Transportation and Traffic Code" of 1964.

Doctrine of incorporation

The state also invokes the doctrine of incorporation under international law.
This doctrine provides that international treaties and conventions of which the Phililippines is a signatory, are incorporated as part of the law of the land.
The Philippines is a signatory to the Convention on Road Traffic done in Vienna on November 8, 1968.
Being a signatory to the Vienna convention, the code also becomes part of our laws.

Thus, the state presents a strong constitutional and legal basis to uphold the validity of the controversial LTO regulation.

Aside from this, the state anchors its position on the time-honored principle that laws are presumptively constitutional.

On the other end of the spectrum, is the competing interest enshrined in the bill of rights: The peoples right to due process of law.

Police power is not unlimited

Our democratic society recognizes the state's inherent police power.
Police power, however, may not be done arbitrarily or unreasonably and could be set aside if it is either capricious, discriminatory, whimsical, arbitrary, unjust or is tantamount to a denial of due process and equal protection clauses of our constitution.

The concept of due process

Due process of law has two aspects: substantive and procedural due process.
In order that a particular act may not be impugned as violative of the due process clause, there must be compliance with both substantive and the procedural requirements thereof.

Substantive due process refers to the intrinsic validity of a law that interferes with the rights of a person to his property.
Substantive due process "requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just."

On the other hand, procedural due process means compliance with the procedures or steps, even periods, prescribed by the statute, in conformity with the standard of fair play and without arbitrariness on the part of those who are called upon to administer it. Procedural due process "refers to the method or manner by which the law is enforced,"

I remember Fr. Joaquin G. Bernas shorten the entire discussion of the due process concept, in two simple questions: Is the law valid (fair, reasonable just)? Are the means reasonable?

The people against the LTO regulation attack the substantive parts of the issuance. Are the provisions of the regulation fair, reasonable and just so as to enable the law to pass the tests of constitutional validity?

Ultra vires
The LTO regulation is attacked for being "ultra vires".
Ultra vires means going beyond what the law which the LTO regulation seeks to enforce.

The helmet provision
Take for instance, the helmet provision.
The assailed LTO regulation requires the use of helmets, under pain of punishment.
If the LTO regulation merely enforces the law, what law requires the use of helmets?
I have read the lengthy vienna convention on traffic safety.
I have read Republic Act 4136 on traffic rules.
I have yet to see a provision in these laws that require the use of helmet.
Is there a law, passed by congress requiring the use of helmets?
If congress (as a matter of policy) refused to pass a law requiring the use of helmets, if the vienna convention did not require it, what legal authority has the secretary of transportation in imposing it, and providing penalties?

You can then see a series of provisions in the assailed LTO regulation that have been 'invented' by the secretary of transportation.
Among these are prohibiting slippers, sandals, or being barefooted, and providing penalties.
And yet, the LTO regulation does not prohibit step-ins, bakya, rubber shoes (which are more dangerous).
The regulation requires signal lights, while the vienna convention does not.
The penalties in the LTO regulation are way above R.A. 4136.
Where is the valid classification and reasonable distinction?
The regulation is attacked as not only being unfair, unreaonable, and unjust.
It is also attacked for being unfair to people who use slippers, or are barefooted (mostly the poor drivers)
The equal protection clause comes into play.

The questioned LTO regulation requires prior government permission for any modification made on the motorcycle, under pain of penalties.
And yet, the motorcycle is private property.
In requiring prior permission to modification, is the law fair, reasonable, and just?

One of the hallmarks in our democracy is the guarantee of due process of law.
Due process of law mandates due protection to the basic rights, inherent or accorded, of every person against harm or transgression without an intrinsically just and valid law.


The state's exercise of police power and the peoples right to due process, I believe are the competing interests, that is ripe for judicial determination.

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