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".