Blue Eagles win

This is the year of the blue eagle dribblers.
Victory is sweeter as triumph came at the expense of the green archers.
The excitement of the annual UAAP is always lifted several notches higher when the blue eagles are pitted agasint the green archers.
The excitement shoots up beyond the roof when the two teams slug it out in the finals.
This year, it was a 2-0 sweep for Ateneo.
Blue eagles relish this moment.
For the green archers, they live to fight another season.
Till next year....

The face of acquittal

There is a distinct expression that an accused evokes in her face upon recieving a verdict of acquittal in a criminal case.
This morning, my clients-spouses were acquitted of the crime of Batas Pambansa No. 22, the bouncing checks law.
This law punishes the issuance of bad, bum checks--checks that are unfunded.
They were naturallly estatic, afer being read the decision.
They issued checks that were dishonored for the reason: account closed.
But the court acquitted them because there was not enough proof that my clients were notified of the dishonor of their checks.
Notice of dishonor to the issuer of the check is indespensable under BP 22.
The issuer must be notified of the check dishonor.
If there is a doubt as to whether the issuer was notified, the issuer-accused will be acquitted.
I had told my clients beforehand conviction won't lie as they were not notified of the dishonor of the checks they issued.
The private complainant sent the notice of dishonor, contained in a demand letter, via registered mail.
The registry return card, however bore a signature other than that of my clients.
A registry return card is a hard paper attached to the mail which is signed by the addresseee (to confirm receipt) and returned to the sender via mail.
On brief cross examination, I had asked the private complainant whether the signature in the registry return card was the signature of any of the accused.
The complainant's answer was: "I'm not sure".
Doubt.
Reasonable doubt.
Acquitted.

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.

Conclusion

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.

The "Big Brother" syndrome

Another perspective about the controversial LTO regulation (AHS-2008-015) is the state's attempt to play "big brother" over the soveriegn people.
Commentator "noypito" advances a strong argument.
Wearing helmets protects motorcyclists.
But should the state force the wearing of helmets, under pain of punishment?
Would it not infringe on personal liberties?
How can imposiing helmets protect the "public"?
Imposing wearing of helmets on motorcyclists protects motorcycle driver or back-riders. But are the motorcyclists the "public"? Or are they merely a sector?
Isn't the "public" mainly bigger, non-motorcyling sector?
A converse analogy, I think, would be smoking cigarettes.
Smoking is harmful to one’s health. The surgeon general says so.
But why doesn’t the state totally ban smoking altogether?
Its because of respect for freedom of choice.
If you want to kill yourself go ahead, smoke.
But don't include the public with your killer instincts.
Yet, all the sate can do is ban smoking in public places, or places where the public can be affected, or ban cigarette advertising.
But the state can’t prohibit you from smoking in your own private bathroom.
If you survey the helmet laws in the US, most have helmet laws (Only four states don’t have helmet laws)
But the state helmet laws are not unreasonably sweeping.
In many US states, helmet is mandatory only on teenager-drivers.
(Age is made a factor)
Its a balancing act between the state's playing "big brother" on one hand, and respecting freedom on the other.
I can't help but remember Manoling Morato during his days as MTCRB chairman, telling people what movies to watch, and what not to watch.

Balancing police power and individual liberty

The reason why there are impassioned discussions regarding this controversial LTO regulation AHS-2008-015, is because it pricks the tension between the police power of the state, and respect for individual liberties.
A commentator, in the Negros Chronicle, "noypito" advanced the following argument, which I think, hits the core of the political discussion. He says:

"I don’t think the point here is the advantages of wearing a helmet over not wearing a helmets. It is a no brainer. Wearing a helmet is beneficial in minimizing the ods of riders getting brain injury in the event of a spill.
The question is should it be mandatory? Should the law dictate to us what we should be doing for our own good? Is the Philippines a fascist state? I should hope not. In the bill of rights of the Philippine Constitution, it is stated that we have the right to life liberty and property. they state should protect our freedom of choice. the only time the state should step in is if in our exercise of freedom, we infringe upon the freedom of others.
If I want to engage in the sports of motorcycling, I should have the right to do so. If I want to go sky diving, I should have the right to do so. The state shouldn’t dictate to me that I can’t do those things because they think it is too dangerous and that i might injure myself or die in doing those things. Same principle applies to use of helmets. I personally use a good helmet everytime I ride my bike. I don’t want the state to dictate to me that I have no choice but to wear a helmet.
If I decide not to wear a helmet, I don’t think I will be harming others in the process.
what the LTO should concentrate upon is how to keep the imcompetent drivers off the streets. It is common knowlege that anyone can easily get a driver’s license even if they don’t know how to drive. DUI is also another potential road hazzard. I believe there are exsisting laws on DUI but it is rarely being implemented.

the solution if the state would really like to promote the use of helmets in not through regulation. it should be done through education. Educate the people on the benefits of using a helmet and trust them to make the right choice".

LTO regulation: Absurd, illogical

I am inclined to seek a permanent injunction against this LTO regulation (AHS-2008-015) because, it seeks to ram through our throats certain provisions which are not only unclear, but absurd, illogical, impractical, and inapplicable to local conditions.
This LTO regulation was crafted without consulting a cross section of Philippine society, particularly the economically marginalized.
Take for example the requirement for helmets.
The LTO regulation states that: “Standard helmet” shall mean the protective helmet approved by the Department of Trade and Industry (DTI) with PNS-UNECE 22 marking.
Now what animal is this “PNS-UNECE 22″
Does any one know what this mean?
I myself didn’t know this, until I had to research its meaning in the internet.
PNS means “Philippine National Standard”
UNECE means “United Nations Economic Commission on Europe”
This regulation is rammed through our throats without a deliberative process so all stakeholders can participate.
This is undemocratic.
Look at the provision on “protective devices”:
“Protective devices” shall include helmet, goggles, leather boots and protective clothing such as heavy pants, heavy jackets, leather gloves and rain suit.
What is meant by “heavy pants”?
What is meant by “heavy jackets”?
So how many kilos would constitute "heavy"?
Do we have to weigh our outfits—pants and jackets—before we drive our motorcycles, so as to be compliant with the LTO regulation?
And there is an addition: “rain suit”
So try to imagine yourself, complying to-the-letter with this LTO regulation.
Try imagining yourself wearing a helmet, goggles, heavy pants (is the regulation endorsing Levi’s jeans?), a heavy jacket, leather gloves and leather boots, plus a rain suit.
How would you look?
Just try wearing them all, each time you ride your motorcycle.
Better practice it now.
There is another LTO provision that requires motorcycle drivers to turn on the headlight anytime of the day while in the highway (Section VIII).
Why will you turn on the headlight at high noon?
Can somebody explain that?
Next, there is a provision in the LTO that says:
“Any modification of the original standard design of a motorcycle or scooter shall first be subject to the approval of LTO and the DTI.”
But isn’t the motorcycle private property?
I have to ask permission from the government if I want to do something to my private property?
Suppose I want to place a basket on the front of my motorcycle below the headlight, where I can place books, grocery items, so I wouldn’t be holding them while driving. Do I have to ask permission from the government/LTO?
Suppose I want to install an anti-hand perspirant around the motorcycle's grip, because my hands easily sweat, and get slippery. Do I have to ask permission from government/LTO?
Suppose I want to install a muffler to lessen the noise of the motorcycle. Do I have to ask permission from the government/LTO?
There are some people who love to just follow
any government regulation hook-line-and-sinker, no matter how absurd and illogical.
Well, I respect them.
They probably are fans of the governments of China, and monarchies ruled by dictators and kings like Saudi Arabia.
But not in the Philippines, my friend.
The people here demand that they be allowed to join in the deliberative processes, in the formulation of laws and regulations.
People here are allowed to question, to reason, to discuss, to debate in the marketplace of ideas, so we can come up with better laws.
Why, we can even freely write our comments on websites, like the the Negros Chronicle.
Try doing that in Egypt or China and chances are, you’ll be jailed.
It has happened to bloggers there.
That is the reason why I question this LTO regulation because most of its provisions do not make sense to me.
Don’t make me follow a regulation that cannot be understood.
Don’t make me follow a regulation that is devoid of reason and logic.
Don’t make me follow a regulation that is vague.
It just doesn’t happen in the Philippines.

Leather boots to drive a motorcycle?

In the Philippines, you have to have a pair of leather boots before you can drive a motorcycle.
This is the implication of a new administrative regulation issued by the Land Transportation Office AHS-2008-015.
This LTO administrative issuance is titled RULES AND REGULATIONS FOR THE USE AND OPERATION OF MOTORCYCLES ON HIGHWAYS.
Under this regulation, drivers will be punished with fine "For wearing of flip flops, sandals or slippers or being bare footed while operating motorcycle or scooter on a road or highway"
The regulation does not, however, give any relevant explanation as to why flip-flops, sandals, or slippers or being barefooted is prohibited.
Neither does the regulation explain how wearing flip-flops, sandals, slippers or being bear footed would have any effect on safety on the road.
Meanwhile, the LTO regulation specifically lists down the outfit that are described as "protectived devices" to be worn by motorcycle drivers.
Section I No. 7 states: “Protective devices” shall include helmet, goggles, leather boots and protective clothing such as heavy pants, heavy jackets, leather gloves and rain suit.
There is a principle that what is not prohibited, is allowed.
So, if only flip-flops, slippers, sandals, or being barefooted are prohibited, are rubber shoes allowed?
What about leather shoes? what about step-ins, bakya, high-heels, crocs (to be a little fashionable)? Aren’t these more dangerous when worn driving a motorcycle?
Where is the rational distinction and valid classification?
Honestly, I find this LTO regulation vague.
Its not clear to me. Its clear as mud.
Any law--much less any regulation--that is vague is void (void-for-vagueness principle).
This is because it drives the people groping in the dark and confused as to how to comply with a law or regulation.

LTO Administrative Order AHS 2008-015 is anti-poor, discriminatory

With all due respect to our executive officials in the LTO and the national government, the Administrative Order regulating the operation of motorcycles in the country (AHS 2008-015) is patently unconstitutional, therefore invalid on its face.
It violates the due process, and equal protection clauses of our constitution.
More important, it is discriminatory.
There is a civil code provision which says that administrative regulations (like AHS-2008-015) are valid only when they are not contrary to the constitution.
I am very much alarmed at the formulation of this administrative order for it obviously did not hear many of our poor Filipinos, specially those in the rural country-sides.
It is appears to me that our poor rural folks have again been disregarded in the formulation of executive policies.
I am specifically referring, and taking the cudgels of the operators or drivers of habal-habal, and their passengers, patrons, customers, who rely on habal-habal as their only mode of transport to carry on their daily lives.
Priority should be for our brother Filipinos in the remote towns, who for the large part of this democratic system, have remained voiceless in the formulation of policies and laws.
The LTO administrative regulation totally forgets the words of the late President Magsaysay that “those who have less in life must have more in law”

What is the habal-habal?

For the information of our elitist policy makers in imperial Manila, there is a mode of transport in the vast rural and remote barrios in country called “Habal-habal”.
This mode of transport uses motorcycles, which is now the subject of regulation of AHS-2008-015.
Habal-habal is the principal, if not the only mode of transport availed of by our brother and sisters (yes, they are also Filipinos) in the hinterlands.
Where the buses, jeepneys , and tricycles no longer dare to tread due to the absence of any roads, owing largely to government non-feasance, it is the habal-habal which people rely on for transport.
The habal-habal comes to the rescue in places where government’s basic services of good roads and transport are absent.
The habal-habal is a principal component of the economic progress in the hinterlands.
The habal-habal, aside from transporting passengers, also transport, sacks of rice, basic food commodities like sugar, salt, flour, sari-sari store items, even pigs and poultry stuff.
That is reality out there.

Prejudicial to the poorer Filipinos


Here comes AHS-2008-015 which virtually eliminates the habal-habal, and annihilate them from existence because of heavy fines and penalties in the government regulation.
Imagine the prohibitions:
The LTO administrative regulation punishes those who use slippers, sandals, or are barefooted.
The LTO wants the habal-habal drivers to use “leather boots”.
Many of these drivers are on a hand-to-mouth existence.
Now the government wants them to drive motorcycles using “leather boots”.
Isn't this crazy?

“Protective devices”

The LTO regulation mentions protective gears for motorcycle drivers, namely: helmet, goggles, leather boots and protective clothing such as heavy pants, heavy jackets, leather gloves and rain suit
Now, how does the government expect the country’s, motorcycle drivers, let alone the finanacially marginalized habal-habal operators and drivers to afford these requirements described as "protective devices"?
Did the government ever think of the economic welfare of the habal-habal operators when they crafted this regulation?


No cargo allowed

According to this LTO regulation “The motorcycle or scooter shall not carry cargo other than the saddle bags or luggage carriers specifically designed and approved by the DTI”.
This provision will virtually put the habal-habal industry into extinction.
Have our government policy makers even seen a habal-habal?
A habal-habal is always modified to allow it to carry cargo like sacks of rice, flour, corn, basic staple, etc.
Will the government now disallow habal-habal from carrying these cargo?
What alternative transporter is the government giving to our brothers and sisters in the hinterlands?

Only one passenger allowed

Another provision that will render the habal-habal as an endangered specie is the requirement of only a single passenger.
Again, did the government and the LTO ever consider the reality in the remote barrios where the habal-habal motors have to carry several passengers for a fee?
If only one passenger is allowed, how will the habal-habal industry survive?
How can the people in the hinterlands live in mobility if only one passenger is allowed for habal-habal?
Does the government have any alternative?

Prohibitive penalty for habal-habal

If this LTO regulation is implemented, the habal-habal driver will have to pay the following penalties on the initial apprehension:
(1) failure to wear helmet: P1,500
(2) for carrying more than one passenger P1,000
(3) For modifying their motors P2,000
(4) For wearing slippers (or being barefooted) while driving P500

Thus at the very least, each habal-habal drivers stand to pay P5,000 for the initial offense.

Conclusion

I maintain the position that LTO regulation AHS-2008-015 is unconstitutional and invalid for violating the due process, and equal protection clauses of our constitution.
A significant number of Filipinos, the habal-habal operators/drivers, and the poor customers in the remote barrios have been deprived of their opportunity to be heard of their concerns.
The LTO regulation is highly oppressive against our humble, lowly and poorer bothers and sisters living in the remote parts of our country who solely rely on the habal habal as their only mode of transport.
The LTO regulation does not address the concerns of the poor and the voiceless sectors who are affected.
The equal protection clause proceeds from a belief that all men are created equal.
But this LTO regulation treats a poorer sector --- the habal-habal operators and patrons--- differently.
Many of habal-habal drivers make a living barefooted. Many of them, out of poverty, wear rotten slippers in going to work.
But the government penalizes them, through this LTO regulation.
In other words, the habal-habal drivers are punished for being poor.
The LTO regulation terribly discriminates against the poor.

I think this LTO regulation must be scrapped.

I am contemplating initiating a class suit against this unconstitutional administrative issuance in behalf of not only the habal habal operators and drivers, but the poor, ordinary passengers, whose impoverished conditions in the far-flung barrios would be worsened if the government enforces the regulation against the habal habals, and eventually exterminate them out of existence.


Credits for the pictures:
www.bigjimsphilippinesexperience.com
www.mynewhorizon.net
www.gerelynsweetmemories.blogspot.com

The "Helmet" Administrative Order

The "Helmet" administrative issuance has become controversial among many sectors and in the country.
Let me just clarify that the helmet regualtions are just part of the administrative issuance, which tackles generally the operation of motorcycles.
I am posting the full text of Administrative Order No. AHS 2008-015 titiled "RULES AND REGULATIONS FOR THE USE AND OPERATION OF MOTORCYCLES ON HIGHWAYS".
I have to credit the website of XRM Bikers Club Philippines http://xrmbikersclub.forumakers.com from where I got the text.
(I had a hard time retrieving a copy of the said issuance from the LTO website itself).
Here is the text:

REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF TRANSPORTATION & COMMUNICATIONS
LAND TRANSPORTATION OFFICE
East Avenue, Quezon City

E-mail Address: Ilombox@lto.gov.ph – Website: www.lto.gov.ph
15 May 2008

ADMINISTRATIVE ORDER NO. AHS-2008-015
Subject: RULES AND REGULATIONS FOR THE USE AND OPERATION OF MOTORCYCLES ON HIGHWAYS

Pursuant to Executive Order No. 292 otherwise known as the Administrative Code of 1987 and the United Nations Vienna Convention for Road Traffic of 1968 to which the Philippines is a signatory, and in accordance with Department Order No. 93-693, series of 1992, the following rules and regulations shall govern the use and operation of motorcycles on roads and highways.

Section I. Definition of Terms. As used in these Rules:

1. “Driver” shall mean every and any licensed operator or rider of a motorcycle or scooter.

2. “Electrical accessories” shall mean the horn, brake, headlight and turn signals of a motorcycle or scooter.

3. “Highways” shall mean every public thoroughfare, public boulevard, driveway, avenue, park, alley, callejon, but shall not include roadway upon grounds owned by private persons, colleges, universities, or other similar institutions.

4. “Lane splitting” shall mean using or sharing a lane already occupied by one vehicle by another vehicle such as a motorcycle or scooter in a road or highway.

5. “Motorcycle” shall mean two-wheeled motor vehicle having one or two riding saddles.

6. “Passenger” shall mean the back rider of a motorcycle or scooter.

7. “Protective devices” shall include helmet, goggles, leather boots and protective clothing such as heavy pants, heavy jackets, leather gloves and rain suit.

8. “Standard helmet” shall mean the protective helmet approved by the Department of Trade and Industry (DTI) with PNS-UNECE 22 marking.

9. “School for motorcycle riders” shall mean any and all motorcycle riding school accredited by the Land Transportation Office.

10. “Saddle bag” shall mean the Department of Trade and Industry approved built-in carrier of luggage in a motorcycle.

11. “Temporary Operator’s Permit” shall mean the citation ticket issued by LTO deputized agents to those who violates these Rules and Regulations.

Section II. Compulsory Registration of Motorcycles and Scooters. All motorcycles and scooters used or operated on any highway of the Philippines must be registered with the Land Transportation Office for the current year, in accordance with R.A. No. 4136, as amended.

Section III. Use of Number Plates. Every motorcycle or scooter shall, at all times, display in conspicuous places, the reflective number plates issued by the Land Transportation Office (LTO).

The number plates shall be kept clean and shall be firmly affixed to the motor vehicle in such a manner as will make it entirely visible and legible.

Section IV. Duty of Driver/Rider to have License. Except as otherwise specifically provided by law, it shall be unlawful for any person to operate any motor vehicle without a valid license to drive a motor vehicle.

The license with Restriction Code No. 1 shall be carried by the driver/rider at all times when operating a motorcycle or scooter, and shall be shown and/or surrendered for cause to and upon demand by any person authorized under R.A. No. 4136 as amended, to confiscate the same.

Section V. Speed Limit. The uniform speed limit for nationwide application as provided under Sec. 35, Article I, Chapter IV of R.A. No. 4136 is hereby incorporated as part of these Rules as follows:

“Section 35. Restriction as to speed. – (a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater not less than is reasonable and proper, having due regard for the traffic, the width of the highway, and or any other condition then and there existing, and no person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and properly of any person, not at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.

(b) subject to the provisions of the preceding paragraph, the rate of speed of any motor vehicle shall not exceed the following:

MAXIMUM ALLOWABLE SPEEDS


Passenger cars Motor trucks and
and motorcycles buses

1. On open country roads,
with no “blind corner” not 80 kms. per 50 kms. per
closely bordered by hour hour
habitations.

2. On “through streets” or 40 kms. per 30 kms. per
boulevards clear of traffic hour hour
with no “blind corners”
when so designated.

3. On city and municipal 30 kms. per 30 kms. per
streets, wit light traffic, hour hour
when not designated
“through streets.”

4. Through crowded streets, 20 kms. per 20 kms. per
approaching intersections hour hour
at “blind corners,” passing
school zones, passing
other vehicles which are
stationary, or for similar
dangerous circumstances.

Section VI. Passenger and Cargo Load. Only one (1) back rider shall be allowed on a motorcycle or scooter who must be provided with a seat and footrest.
The motorcycle or scooter shall not carry cargo other than the saddle bags or luggage carriers specifically designed and approved by the DTI.

Section VII. Wearing of Standard Helmet. It shall be the duty of the motorcycle or scooter driver/rider to ensure that he/she and the back rider wear standard helmets.

Section VIII. Motorcycle and Scooter Accessories. Motorcycles or scooters shall be equipped with required accessories such as headlight, tail light, signal light, brake light, side mirror and horn.

The driver/rider shall, anytime of the day, switch on the headlight of the motorcycle or scooter while it is being operated on the highway. He shall dim the headlight or lower the beam whenever the motorcycle or scooter is being operated on well-lighted streets within the limits of cities, municipalities, and thickly populated barrios or districts, or whenever it meets another vehicle along a highway.

Any modification of the original standard design of a motorcycle or scooter shall first be subject to the approval of LTO and the DTI.

Section IX. Miscellaneous Traffic Rules.

a) No driver/rider shall operate a motorcycle or scooter while under the influence of liquor or narcotic drug.

b) The driver/rider shall not use a cellular phone or other gadgets while operating a motorcycle or scooter.

c) A driver/rider shall observe the rule and on one lane per one vehicle only. Lane splitting is prohibited along a road or a highway. Motorcycles or scooters shall not be operated on sidewalks.

Section X. Accreditation of Motorcycle Riding School. Any person may establish a motorcycle riding school according to law, provided accreditation is secured from the LTO.

The LTO may waive the practical driving test for a student permit holder applying for driver’s license with Restriction Code No. 1 who has completed a rider’s course from a LTO accredited motorcycle riding school, provided the certificate of completion and graded results of the riding test of said applicant are submitted to the LTO.

Section XI. Penal and other Provisions. The following fines/penalties shall be imposed against those who violated these Rules and Regulations.

a) For failure of driver/rider and/or back rider to wear prescribed helmet, a fine of One Thousand Five Hundred Pesos (P1,500.00) with accessory penalty of driver/rider attending a seminar or traffic safety management to be conducted by the LTO.

b) For carrying more passengers other than the back rider or cargo other than the saddle bags and luggage carriers, fine of One Thousand Pesos (P1,000.00).

c) For defective accessories such as headlight, tail light, signal light, brake light, side mirror and horn, a fine of One Thousand Pesos (P1,000.00).

d) For modifying any part of the original designs of a motorcycle or scooter without approval of the LTO and the DTI, a fine of Two Thousand Pesos (P2,000.00).

e) For wearing of flip flops, sandals or slippers or being bare footed while operating motorcycle or scooter on a road or highway, a fine of Five Hundred Pesos (P500.00) for the first offense, Seven Hundred Pesos (P700.00) for the second offense and a fine of One Thousand Pesos (P1,000.00) and revocation of drivers license for the third offense.

Section XII. Repealing Clause. All previous orders and issuances inconsistent herewith are revoked and superseded.

Section XIII. Separability. If any provision of these Rules and Regulation of the application thereof to any person or circumstances is held invalid, the remainder of these Rules and the application of such provisions to other persons or circumstances not be affected thereby.

Section XIV. Effectivity. These Rules shall take effect after fifteen (15) days upon publication in a newspaper or national general circulation and a copy hereof furnished the UP Law Center.

Router repaired

I use a D-Link Wireless Router at home.
Its an old model, DI-624+, having bought it more than two years ago.
Two days ago, it conked out.
Let me tell you some information about D Link in the Phlippines, in case you don't know.
There are only two main distributors of D Link routers in the Philippines.
One of the distributors is a repair shop along E. Rodriguez Avenue, Quezon City.
The information I am sharing is that D Link offers liftime warranty, at least in the Philippines.
That is what people in that distrbution shop told me.
If your D Link malfunctions, the shop will find out first whether it was bought from one of their sub-distribution shops in Manila.
If it was, they will service it.
If warranted, they will replace it.
When my D Link wireless router refused to turn its power on two days ago, I asked the service shop to either repair it or replace it.
They replaced.
But only the adaptor since it was the only one destroyed.
They returned the unit since it was still ok.
My wireless router is back to work.
I think the series of brownouts had something to do with the damage sustained by the adaptor.
The brownouts came along with lightnings.
By the way, in case your D Link doesn't function even if there is already an internet connection, try disconnecting the adaptor of the PLDT DSL modem for a while. Then patch it back.
It should remedy the problem.

Furor over cellphones

Not a few are aghast over the recent idea to provide each city councilors of Dumaguete with expensive cellphones (costing P30,000.00 per phone according to reports).
Apparently the idea is to equip our local lawmakers with state of the art communications devices in order to help them in their very important duties of crafting laws, even if they meet only once a week.
Of course, they need cellphones to talk to each other and intelligently deliberate on very urgent, vital, earth-shaking legislative proposals before they attend sesions on Thursdays.
But why not use the landline which is free, and already existing?
We in the media have already discused this absurd, if not ludicrous proposal even before it was shelved, owing to a backlash from the people themselves.
I appeal to our city councilors, if you have a sense of good governance, to not only hold, postpone, archive such an idea but to permanently discard it.
Please don't use taxpayers' money for cellphones.
You see, the number one problem in Dumaguete right now is crystal clear.
Its crime.
It is a problem that the Perdices administration, has dismally failed to solve.
People are frightened, in case our dear city officials are not aware.
It was a hot topic of discussion among visting alumni who recently gathered in Dumaguete.
The common question was: What has happened to Dumaguete?
Killings here. Kilings there. Killings everywhere.
Is Dumaguete the new killing field?
May we ask mayor Perdices to update his constituents-taxpayers as to what has happened to the murder of his own city treasurer Erlinda Tumongha, and his good friend Angeling Lajato?
Before we ask about the others who were killied, specially those victims of extrajudicial kilings.
I hope mayor Perdices gives the people an update, before he even thinks of running for governor.
(Ah, the elections are not far away...)
Anyway, what puzzles me no end is this: If crime is the number one concern among Dumaguetenos, why on Earth did the city council ever think of equipping themselves with expensive cellphones?
How will equipping councilors with cellphones, help fight crime?
I was struggling to rationalize the problem, viz-a-viz the actions of the city council.
Is this good governance?
We, in the media have our own ways of getting the feelings and pulse of people who are concerned for this city.
Let me share some of the comments we got from our on-line comments:

One who identified himself as "concerned" posted:
"the government employees should not and will not be allowed usage of any luxury cellphones from government funds…there’s always cheaper means of communication but why those luxury ones? before they propose budgets or laws on use of thise techy machines they should consider the safety of the people of dumaguete first which is not thretened by the rampant killings…the killers are choosing no one as there VICTIMS so they should consider that FIRST!!!we are sick of hearing those purchase of non-important things"

One who calls himself "Dumaguitnon" posted:
"Chiquiting already announced his desire to run for mayor in 2010. He voted for (not against) the ‘cellphone provision’ and because it got so much public criticism, he is proposing to instead use the funds to purchase motorcycles for the police. As if motorcycles would solve our crime problems. Talk about political aggrandizing. But he is not scrapping the cellphone pork barrel because he is just proposing to ‘postpone’ it. If he really cares, he should propose REAL solutions to the increasing crime in our city and not propose band-aid solutions like motorcyles for the police force. Chiquiting is just like Tuting - reactionary instead of visionary. WE need more councilors like Cordova who voted against the wasteful cellphone provision and is proposing the police auxillary force to augment the understaffed police force."

"Mabuhay99" posted:
"The Police Force should have been given cellfones and walkie-talkies and NOT the members of the city council- but strictly for police work and NOT for PLEASURE. P30,000 luxury cellfone is too much to bear and that’s already an ABUSE. “WHAT A SHAME” !!!"

"Propinoy" commented:
"WHat!? cellular phones for Councilors? Are they Crazy? First, all of them already have their phones, I bet. 2nd, they are very very expensive and that’s people’s money. they should focus on some project instead of personal interests. 3rd, there are several problems in the city, wake up councilors! I am sorry but i will call it an Idiotic move to giv them cellfones."

"Watcher" commented:
"Who’s the author of the cellular phone thing? At 30,000 thousand each? My goodness! he should not have been elected to public office. You know, that needs a big budget also for the load specially prepaid. postpaid is also hard to monitor. for me that’s another tool for corruption, have a phone to justify the consumption of budget for its load. C’mon think people! and besides Councilors have no time to entertain messages of the ordinary masses. it’s just a waste of their time as they say. lugos man gani managad sa text pa kaha nga pwerting daghana. so, NO CELLULAR PHONES FOR COUNCILOR, ETC. whoever the author is, he should think again."

"pickled_newt" commented:
"It is sounds ridiculous purchasing 15 phones of P30,000 each when there isn’t much on the budget
for the police force.Why can’t they use the cheap ones .I don’t know much about Mr Sagarbarria but the choice he made of diverting them into buying few motor vehicles isn’t that bad.It doesn’t solve the all out crime problem of Dumaguete,but it is a little step forward ."

Jake Macasaet Malaya publisher arrested for libel

I got news that the fighting publisher of Malaya, a national daily was unexpectedly served a warrant of arrest stemming from libel complaint filed by former Rizal Governor Casimiro Ynares.
I learned this from a news dispatch by the Center for Media Freedom and Responsibility which I am posting below.
I am amused at how the CMFR crafted their news release.
It cited the fact that one of the complainants in the libel case was Ynares.
It also noted that he is the brother of Supreme Corut Justice Ynares-Santiago.
Earlier, Jake Macasaet had written about an attempted bribery involving a Justice of the Surpeme Court.
Subsequently, Justice Ynares-Santiago asked the Supreme Court to investigate Macasaet's articles as the article was alluding to her.
Macasaet was cigted in contempt by the Supreme Court for his publications.
In short, the CMFR news release was telling a story within a story.
Anyway, complainants for libel probably gloat or relish over having successfully serving a warrant of arrest upon a journalist.
They cherish this brief moment---a Pyrrhic victory---even if they are aware that libel is bailable.
Here is that news release from CMFR:
CMFR/Philippines—The publisher of a daily newspaper in Manila was arrested on 4 September 2008 for libel, while another newspaper publisher's libel conviction was affirmed after a judge denied her motion for reconsideration.

Amado Macasaet, publisher of the daily newspaper Malaya (Free) as well as the tabloid Abante (Forward), was arrested for a nine-year old libel case by operatives of the Criminal Investigation and Detection Group (CIDG) of the Philippine National Police at his office in Port Area, Manila.

Macasaet is also the president of the Philippine Press Institute as well as director of Samahang Plaridel (Plaridel group), an organization of veteran journalists and communicators.

Makati Regional Trial Court Branch 59 Judge Winlove Dumayas meanwhile denied the motion for reconsideration filed by Ninez Cacho-Olivares asking the former to overturn his earlier decision convicting Olivares of libel.

Olivares said she and her lawyers will bring the case to the Court of Appeals.

Dumayas had sentenced Olivares to a minimum of six months to a maximum of two years in prison and to pay P5 million (approx. US$113,480) in moral damages and P33,732.25 (approx. US$765) in civil damages for a story she wrote about a prominent law firm's alleged unethical and corrupt practices.

The Supreme Court earlier this year issued a circular urging courts to choose the imposition of fines rather than imprisonment on journalists convicted of libel.

The case against Macasaet was filed in 1999 by former Rizal Governor Casimiro Ynares and Narciso Santiago Jr. for articles Macasaet wrote in 1999 in Malaya and Abante about a conflict between two cockfighting groups, one of which was headed by Ynares.

Santiago Jr. is the husband of administration Senator Miriam Defensor Santiago whjle Ynares is the brother of Supreme Court Justice Consuelo Ynares-Santiago.

Also included in the charge sheet are Malaya editors Enrique P. Romualdez and Joy P. De Los Reyes. According to Malaya news editor Minnie Advincula, the CIDG agents did not look for Romualdez or De Los Reyes when they came to their office to arrest Macasaet.

Macasaet, 72, said he was surprised by the arrest as he was not informed of the libel case's being filed against him.

"Normally, after the information has been filed, I would be informed. I should have been informed so I could have prepared to post bail just like (what I did) in other libel cases so the efforts of the police in arresting me and my time will not be wasted," Macasaet told Malaya.

"This is actually the first time that I have been arrested," Macasaet said.

Macasaet was released later in the afternoon after posting P10,000 (approx. $216.87) for his provisional liberty.

According to Malaya, seven other counts of libel arising from the same articles had also been filed by Santiago Jr., all of which have been dismissed for lack of merit.

Macasaet was earlier cited for indirect contempt by the Supreme Court in a decision dated 8 August 2007 and ordered to pay a fine of P20,000 (approx. $433.74) for his columns in September 2007 alleging a P10-million bribery incident involving Ynares-Santiago.

Who had Prem Bernadez murdered?

Last Saturday September 6, 2008, an anonymous poster posted a message in my blog, www.jaydejaresco.blogspot.com.
The message was posted in my article about illegal possession of firearms.
I sensed the anonymous poster had a message for me
The message said: “Please view this video link and see for yourselves the culprit of the murder of Prem Bernadez: http://www.youtube.com/watch?v=1qi7PtGICHQ”
Out of curiosity, I followed the Youtube address.
It turns out that the video freshly posted (only two days earlier September 4, 2008) in Youtube was the burial of Prem Bernadez.
I did not know Prem Bernadez personally.
I made some checks on my own in the internet, about Prem’s life and what happened to him.
I learned he was shot by assassins as he was going to his house last June 21, 2008.
He died a few days later.
Prem Jesswani Bernadez, 45 years old, I learned, was a magna cum laude accounting graduate from Silliman.
He was 18th placer in the CPA exam.
I gathered Prem was proprietor of an internet café, BizHub.com.

The mystery of the white towel

The anonymous poster in my blog obviously wanted me not just to share the grief by view his gloomy video, but for me to do something as a writer.
The way I see it, the anonymous Youtube video poster is insinuating possible characters who could shed light into the unsolved killing of Prem Bernadez.
Mr. Anonymous poster tells viewers about a Filipino superstition, a belief that if a white towel is placed in the coffin of the body of one who had been killed, the guilty persons will be forever tormented.
It is on the basis of this superstition, that the anonymous poster leads to a theory that there were people seen in the video trying to remove the white towel that was placed in the coffin bearing the remains of the late Prem.
The anonymous video poster contends this is abnormal behavior.
In my case, I haven’t heard of this superstition before.

No basis

As a lawyer, reliance on superstition to point at possible suspects or characters has no basis in law.
Its quite a long shot from downtown.
In other words, superstition does not equal evidence.
But having said that, this does not mean that the police should not pursue this possible “lead”.
The anonymous video poster suggests there were unusual behavior of persons seen in his video.
If crime investigators want to leave no stone unturned, then it won’t hurt if they give adequate treatment of the video.
It may lead to something, like the accumulation of evidence that is acceptable in law.

Technology helps solve, fight crime

From my standpoint, I realize the technological advances can do something in possibly helping solve crime.
The anonymous video poster had a message to convey.
I think he deliberately wanted to use me as a medium to convey his message.
That is why he posted the Youtube address to my blog.
That is why one is called a “mediaman”---he is a medium, a bridge.
Although I have reservations about the theory of the anonymous poster, I take his position at face value.
My role here is merely to provide an avenue with which he can further scatter his message, as unadulterated as it can possibly be.
So if you are interested, I suggest you go to the Youtube video yourself
(http://www.youtube.com/watch?v=1qi7PtGICHQ), and read the posts there.
For graphic’s sake, let me post the Youtube video below.

Hawaiian Night SUHS 1988

The Silliman High School batch 1988 organized a Hawaiian night during their weeklong 20th year reunion: From left seated: Oliver Devero, Alex Abregana, Carlo Teves, Simon Diago, Cenon Repollo. 2nd row from left: Sophia Espiritu, Marife Ligon, Jean Cimafranca, Palmer Solon, Liza Magallano, Desiree De Jesus, Sandy Villagante, Jean Waleson, GElani Lagrito, Omar Rodriguez, Lisa Catipay. 3rd row from left: John Lee Lim, Gamaliel Garcia, Ylesis Alquisola, John Wesley Gayo, Jey Glen Dizon, Allan Orillan, Rito Neil Yee, Aries Alvarez, Jay Dejaresco.

Ladies of batch 1988

Having gained a few pounds over the years, but still looking gorgeous, some of the pretty ladies of Silliman high school batch 1988 during their formal dinner at Honeycomb: Seated from left Diresiree De Jesus, Liza Magallano, Rowena Buling, Marife Alaban, Sandy Villagante, Glycel De Gamo, Jennifer Tumapon. Standing from left: Sheila tiu, Melani Loo, Gelani Lagrito, Geraldine Jucom, Raquil Orosca, Pinky Dy, Jean Cimafranca, and Edna Marino (all their maiden names)

P100M "catastrophic" libel case junked

The Court of Appeals has dismissed a libel case that had imposed P100-million in damages against a national daily, its executives and editorial staff, believed to be the biggest monetary judgment ever awarded in a defamation suit in the country’s history.
In junking the P100-million libel suit filed against the Manila Chronicle Publishing Corporation and its executives, the appellate court said imposing one hundred million pesos in damages in a libel suit “would have devastating and catastrophic effect on the freedom of speech and of the press.”
The case stemmed from criminal and civil complaints for libel filed by Ambassador Alfonso Yuchengco against the defunct Manila Chronicle, its owners and staff members.
The defendants relieved of the P100-million monetary award were the Manila Chronicle Corporation, Raul Valino, Neal Cruz, Ernesto Tolentino, Noel Cabrera, Thelma San Juan, Gerry Zaragoza, Donna Gatdula, Rodney Diola, and Robert G. Coyiuto Jr.
Yuchengco, aside from being ambassador, has business interests in insurance, the Malayan Insurance.
Yuchengco complained about a series of defamatory articles agasint him published in the Manila Chronicle in 1994.
Yuchengco complained about being labeled a “Marcos crony” in one of the articles.
Yuchengco also complained that the published articles branded him as a front or dummy for Marcos and Romualdez in Benguet
Corporation.
Yuchengco also complained that the articles published had accused him of engaging in unsound and immoral business practices.
Yuchengco also complained that one of the published articles portrayed him as an unfair and uncaring employer when employees of Grepalife, of which he was chairman, staged a strike.
Yuchengco complained that the articles had accused him of inducing RCBC to violate the banking laws, and orders of the Securities and Exchange Commission.
Yuchengco also complained the articles imputed to him the derogatory tag of “corporate raider,” implying that he was seeking to profit for something he did not work for.
The criminal libel filed by Yuchengco was dismissed.
On the other hand, the civil case was decided in Yuchengco’s favor where the trial court awarded P100-million in damages.
On appeal (CA G.R. CV No. 76995), the court of appeals initially upheld the trial court decision.
However on August 28, 2008, the court of appeals set aside its ruling when, upon review, it re-examined the prevailing jurisprudence on defamation, particularly the Supreme Court doctrine in Arturo Borjal a.k.a. Art Borjal and Maximo Soliven versus Court of Appeals (G.R. 126466, January 14, 1999).
The amended decision was penned by Justice Amelita G. Tolentino, and Justices Isaias P. Dicdican and Japar B. Dimaampao
Based on the Borjal ruling, the court of appeals determined that Alfonso Yuchengco is clearly a public official or public figure.
The court noted that Yuchengco is recognized as “Ambassador,” which title is always indicated before his name.
The court also noted that Yuchengco has been appointed Presidential Adviser on Foreign Affairs with cabinet rank.
Among the prominent positions occupied by Yuchengco were as Philippine permanent representative to the United Nations; special envoy to China, Japan, Korea; Presidential assistant on APEC matters; ambassador extraordinary and plenipotentiary to the Peoples Republic of China, among others.
The court of appeals also noted that Yuchengco heads the Yuchengco group of companies which include companies such as Rizal Banking and Commercial Corporation(RCBC), Malayan Insurance, Great Pacific Life, Mapua Institute of Technology.
Yuchengco also served as Chair of the board of DOLE Philippines, PLDT, and Philippine Fuji Xerox Corporation.
The subject articles dealt with the operations of publicly-listed corporations, imbued with public interest, which Yuchengco heads.
Being a public official or public figure, the court said that Ambassador Alfonso Yuchengco’s case falls under the established “actual malice doctrine”
Under this doctrine, the public official or public figure, in order to recover damages for defamatory imputation, must prove actual malice.
Proof of actual malice means that the newspaper, in making the publication, knew the article to be false, or was in reckless disregard of whether or not the article was false.
In the case filed by Yuchengco, the court of appeals took note of his testimony where Yuchengco’s attribution of malice were based on his mere “suspicion”
The court of appeals said: the testimony consisting of mere suspicion is not proof of malice on the part of the newspaper.
In the absence of proof of actual malice, damages cannot be awarded.
The court of appeals ruled: To hold the defendants-appellants liable to pay jointly and severally the plaintiff one hundred million pesos in damages would have devastating and catastrophic effect on freedom of speech and of the press.

Illegal possession of firearms

The law on illegal possession for firearms comes to light in the wake of the brief arrest-and-release of Noreco II General Manager Ephraim Taclob when the vehicle he was was driving was flagged down by Philippine Army personnel.
The Army purportedly acting on reports that rebels were in the area held checkpoint and uncovered heavy firearms in the vehicle driven by Engr. Taclob.
According to the local Philippine National Police, charges of illegal possession of firearms are going to be filed.
Not very long ago, the law on illegal possession of firearms was very harsh.
This was a product of those Marcos decrees designed to fight the so-called enemies of the state.
For Marcos to ensure that those who ever try to mount an insurrection, or rebellion against the state received the full force of the law, he enacted Presidential Decree No. 1866.
Those found guilty under this decree were meted a penalty of up to forty years in prison.
That was the law then.

Robin Padilla episode

Then came Robin Padilla.
If you recall, Robin Padilla was then the poster boy of the Ramos administration, and was once even regarded as a “role model” for the youth.
But Robin had brushes with the law.
Once, he figured in a hit-and-run while driving his Pajero.
He was pursued by police, and eventually flagged down. He was found to have in his possession various firearms.
To cut a long story short, he was convicted of illegal possession of firearms under the harsh P.D. 1866.
If you want to read this colorful episode of Robin Padilla, I refer you to the Supreme Court decision in Robin Carino Padilla versus Court of Appeals, G.R. No. 121917 March 12,1997.
Robin was sentenced and spent jail in the national penitentiary in Muntinlupa.

Ramon Revilla rescue

Then enter Senator Ramon Revilla, a fellow actor like Robin, who perhaps took pity on the sad state of a young promising colleague.
Thinking that the law is just too harsh, Senator Ramon Revilla authored what is now Republic Act 8294, the current law against illegal possession of firearms. This law took effect July 6, 1997.
I always regard R.A. 8294 as the “Robin Padilla law” because I cannot help but think---rightly or wrongly---that this law was for Robin Padilla. Or at least he was the law’s principal beneficiary.
Because of this law, Robin Padilla is now a free man.
And I think Robin has redeemed himself (so far) , as he has since shown himself to be a “responsible member of society.”

The penalty

The penalty for illegal possession of firearms had been drastically reduced. It is bailable.
The penalty for simple possession of a .38 caliber, 9 millimeter, or similarly (low) powered gun is from four to six years, with a fine of P15,000.
For possessing a higher powered firearms like a .45 caliber, .357 magnum, .22 center-fire magnum, and firearms with automatic firing capability, the penalty under the new law ranges between six to eight years, with a fine of P30,000.

Supreme Court rules

According to the Supreme Court there are mainly two elements needed to convict one of illegal possession of firearms.
First, the prosecution needs to establish the existence of the subject firearm.
Second the prosecution should prove the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same.
To prove the second element, a certification by the PNP firearms and explosives division is needed.
But if the firearm involved is one that cannot be issued to civilians, like an M-16, this certification may be dispensed with.
Another rule laid down by the Supreme Court is that ownership is not an essential element of illegal possession of firearms and ammunition.
What the law requires is merely possession.
“Possession” includes, not only actual physical possession, but also constructive possession.
“Constructive possession” means the subjection of the thing to one's control and management.

Defenses

Essentially, it is not that difficult to prove the elements of illegal possession of firearms.
If one is in possession of a firearms, and he does not have the license to possess, then there is a strong case against him ahead.
But the new law on illegal possession of firearms, R.A. 8294 strikingly provides the accused a wide latitude of “creative” ways to raise a defense.
That is what makes this law controversial, some say non-sensical.

The controversial proviso

Under the law on illegal possession of firearms, one caught unlawfully possessing firearms can be charged with the law, “PROVIDED NO OTHER CRIME WAS COMMITTED.”
I do not know the rationale of this last phrase in the law.
This is the “escape clause” of the law on illegal possession of firearms.
One can be charged with illegal possession of firearms. But if, at the time he was caught, another crime was committed, then he cannot be charged with illegal possession of firearms?
This provision challenges the creative minds of defense lawyers.

Example

Let me give an example.
Suppose, a person is caught by a policeman possessing a .38 caliber gun.
While being arrested, the suspect gives another identity to conceal his true name.
The‘minor’ crime of concealment carries a lighter penalty.
Can the state lawfully charge the suspect of illegal possession of firearms?
Or can he be charged with concealment of name?
Remember, under the law on illegal possession of firearms, there is a proviso which states: “Provided no other crime was committed.”

Outrage in Cebu

I am reminded of that outrageous story I read that happened in Cebu not long ago.
A group of people suspected to be high profile, notorious kidnappers were caught with firearms.
At the time of the arrest they used faked military id's
The notorious gang were charged, not with illegal possession of firearms but usurpation of authoriyt
The latter carried a lighter penalty.
This sparked outrage among member of the legal community in Cebu, who called for an amendment of the law.

Conclusion

So the law on illegal possession of firearms in its present form sparks the imaginative, creative adrenalin of defense lawyers.
This is one of those laws that makes lawyering much more interesting.