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VALIDITY OF TOMMY OSMENA’S EXECUTIVE ORDER NO.

34
(AN EXECUTIVE ORDER DECLARING RECKLESS DRIVING
PURSUANT TO THE PROVISIONS OF R.A 4136 OR OTHERWISE
KNOWN AS TRAFFIC CODE OF THE PHILIPPINES, CITY
ORDINANCE NO. 801 AND OTHER EXISTING TRAFFIC RULES
AND REGULATIONS NUISANCE PER SE., PROVIDING THEREOF
AND FOR OTHER PURPOSES)

(AFFIRMATIVE TEAM)

Allain Jon Carlo Abella


Vanne Christine Angus
Aris Gabriel Gabuya
Kresia Lourdes Guiral
Khamiya Sison

February 10, 2018


MEMORANDUM

(VALIDITY OF E.O. NO. 034)

FOR THE AFFIRMATIVE

Statement of Facts

Mayor Tomas Osmeña signed Executive Order (EO) 034, which allows the city
traffic group to impound for 30 days the vehicles of drivers who will be caught counter-
flowing.

EO 034 prohibits reckless driving pursuant to existing laws and provides sanctions,
which took effect immediately after the mayor signed it. Under Section 1 of the EO, the
order will cover all forms of reckless driving, but particularly driving left or more commonly
known as counterflow, as defined under Republic Act 4136 or the Traffic Code of the
Philippines and City Ordinance 801 or the Traffic Code of Cebu City.

Only emergency vehicles that are legitimately using their sirens are exempted from
the implementation of the EO. The vehicle’s being impounded for a month (30 days) will be
at no cost to the owner. Aside from impounding, the City Legal Office, in coordination with
the traffic group, is directed to form a prosecution team to run after or file the necessary
administrative, civil and criminal charges against the violators.

Statement of the Issues

Defense proffers the following issues for the resolution of this Honorable Court

I. Whether or not Executive Order 034 is a valid exercise of Inherent


Police Power of the State;

II. Whether or not impounding of vehicle is prohibited by law;

III. Whether or not there is a need for the Executive Order 034 to be
implemented;

Arguments

I. E.O. 034 is a valid exercise of the Inherent Police Power of the State

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II. Impounding of vehicle is not prohibited by law. Everything which is
not forbidden is allowed.

III. There is a need for the Executive Order 034 to be implemented.

Discussion

1st argument: E.O. 034 is a valid exercise of the Inherent Police Power of the
State

Among the three powers of the State, the police power is considered the most
pervasive, the least limitable, and the most demanding.

Police power is the power of the State to place restraints on the personal freedom and
property rights of persons for the protection of the public safety, health, and morals or the
promotion of the public convenience and general prosperity. The police power is subject to
limitations of the State constitution, and especially to the requirement of the due process.1

Police power is the exercise of the sovereign right of a government to promote order,
safety, security, health, morals and general welfare within the constitutional limits and is an
essential attribute of a government.

The General Welfare Clause of the Local Government Code under Section 16,
expressly provides:

Every local government unit shall exercise the powers expressly


granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those
which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of culture,
promote health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and self-
reliant scientific and technological capabilities, improve public morals,
enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort
and convenience of their inhabitants.

Basically, local police power is a delegated power both in its general and specific
sense. The general welfare provision shall be liberally construed to give more powers to the
LGUs.

The justification of invoking police power is found in the Latin maxims, salus populi
est suprema lex and Sic utere tuo ut alienum non laedas, which calls for the submission of
individual privileges to the interests of the majority.

Salus populi est suprema lex means that the welfare of the people is the supreme
law. On the other hand, Sic utere tuo ut alienum non laedas means that one should use his

1
Black’s Law Dictionary

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own property in such a manner as not to injure that of another. The exercise of police
power should not be static – it must move with the dynamics of the society that it is supposed
to regulate. Once implemented, it may be done over and over again, as often as necessary for
the protection or the promotion of public welfare.

It is a public knowledge that common on the road of Cebu City are rampant violations
of the basic rules and regulations on traffic and road use. Most annoying of all these traffic
violations are reckless driving, most specifically what is known as driving left or counter-
flowing, which to the mind of the general public is not only a brazen disregard of basic road
courtesy or respect, but as cold display of indifference to the safety and well-being of the
road users.

Besides, there is a bottomline to all of this that should put everything to rest, quickly
and convincingly, without having to expend anything more than the time it takes to obey.

Section 48, of Republic Act No. 4136 aptly described/defined reckless driving as
operating

“a motor vehicle on any highway recklessly or without reasonable


caution considering the width, traffic, grades, crossing, curvatures,
visibility and other conditions of the highway and conditions of the
atmosphere and weather, or so as to endanger the property or the safety
or rights of any persons or as to cause excessive or unreasonable damage
to the highway”. Clearly, first amongst the acts of reckless driving is
driving left or counter-flow;

Counterflowing or going against the flow of traffic is not an accidental offense. It is


a deliberate act born of a decision made by those who do not wish to stick to their lanes or
have no patience to wait for their turn. People counterflow because they think they can get
away with it. EO 34 is not an arbitrary measure. It gives people a choice. It is time people
are held responsible for their choices.

In a Facebook live video of GMA Cebu reporter Nikko Sereno, two of the motorcycle
drivers who were among those apprehended on the early hour of the implementation of EO
034 admitted that they are aware of the start of the implementation of the executive order.

Their admission shows that the city government has not failed in disseminating
information regarding the start of the enforcement of the executive order including the threat
to impound their vehicle for 30 days and being responsible for the payment of the storage
fee.

The requisites for a valid exercise of Police Power are lawful subject and lawful
means. Lawful subject means that the purpose of the exercise of Police Power must be the
promotion of public interest generally as distinguished from those of a particular class while
lawful means implies that the means employed must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.

Accidents resulting from a counterflowing vehicles are already countless and have
already claimed many lives, either for the erring motorist or innocent pedestrians.

Motorcycle drivers who oftentimes display arrogance when confronted while


recklessly driving their vehicles are as knowledgeable about the law but choose to defy the
regulation for reasons that they only know, the most common of which is that they are in a
hurry.

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Law enforcers of Cebu City are not plucking drivers and their vehicles whimsically
and capriciously off the streets and then fining them and impounding their vehicles.
Executive Order 34 is not for kicks. Its fines and penalties apply only to those who
counterflow or go against oncoming traffic. Call the fines excessive, even unjust, and the
penalty of impounding too long, too severe, even illegal. But the bottomline is: No
counterflow, you are free to go.

One of the most usual powers enjoyed by municipal corporations is that of


suppressing nuisances. The abatement of nuisances by municipal corporations is a
governmental function. The legislature may, and often does, confer such power upon them.
The power may arise by express grant or by necessary implication. It usually is enjoyed as
part of the police power, especially that part of the police power dealing with the protection
of the health of the inhabitants of the municipal corporation. And the exercise of the power
is generally considered as a proper municipal function which it is the duty of municipal
corporations to exercise. The power to abate nuisances may extend to abate nuisances created
by public utilities.2

"‘Police regulations are not a taking under the right of eminent domain or a
deprivation of property without due process of law. Thus, a prohibition on the use of
property, for purposes that are declared by valid legislation to be injurious to the health,
morals, or safety of the community cannot, in any sense, be deemed a taking or an
appropriation of property for the public benefit, as such legislation does not disturb the owner
in the control or use of his property for lawful purposes, nor restrict his right to dispose of it.
It is only a declaration by the state that its use by any one for certain forbidden purposes is
prejudicial to the public interests, the exercise of the police power by the destruction of the
property, which is itself a public nuisance, or the prohibition of its use in a particular way,
whereby its value becomes depreciated, is very different from taking property for public use,
or from depriving a person of his property without due process of law.’3

Article 694 of the Civil Code of the Philippines enumerates and/or defines what
constitute nuisance per se: as

“any act, omission, establishment, business, condition or property or


anything else which: (1) injures o endangers the health or safety of others; or
(2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency
and morality: (4) Obstructs or interferes with the free passage of any public
highway or streets, or any body of water;(5) Hinders or impairs the use of
property”

Nuisance per se “is recognized as a nuisance under any and all circumstances,
because it constitutes a direct menace to public health or safety, and, for that reason, may be
abated summarily under the undefined law of necessity.” 4
“Based on case law, however, the term “nuisance” is deemed to be so comprehensive
that it has been applied to almost all ways which have interfered with the rights of the
citizens, either in person, property, the enjoyment of his property, or his comfort.

2
Benito Tan Chat et al. vs. The Municipality of Iloilo, G.R. No. 39810. August 31, 1934
3
Mugler v. Kansas, 123 U. S., 623; 8 sup. Ct., 273; 31 L. ed., 205. cited in the case of Benito Tan
Chat et al. vs. The Municipality of Iloilo, supra
4
Rufina Salao, et al., vs Teofilo C. Santos, et al., G.R. No. L-45519, April 26, 1939

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Accordingly the “tenet applies to a nuisance per se, or one which affects the immediate safety
of persons and property and may be summarily abated under the undefined law of
necessity”.5

In consonance with the provisions of existing laws, Cebu City Government through
E.O. No. 034 declares all forms of reckless driving more importantly driving left or counter-
flow as nuisance per se.

Furthermore, laws enjoy presumption of constitutionality except laws restricting


freedom of expression , so too are ordinance. Hence, there must be a clear and unequivocal
breach of the constitution, not merely doubtful or argumentative contradiction. The
unconstitutionality must be shown beyond reasonable doubt. Moreover, any doubt should be
resolved in favour of the power of the Local Government Unit.6

2nd argument: Impounding of vehicle is not prohibited by law. Everything


which is not forbidden is allowed.

It is a constitutional principle of English law an essential freedom of the ordinary


citizen or subject. The converse principle —"everything which is not allowed is
forbidden"—used to apply to public authorities, whose actions were limited to the powers
explicitly granted to them by law.

It is a basic rule of statutory construction that what is not expressly or impliedly


prohibited by law may be done, except when the act is contrary to morals, customs and public
order. It is a principle that is usually taken for granted in everyday life. For example, there is
no law explicitly permitting me to wear a top hat, but there is no law against it either, so
wearing a top hat is permitted "by default".

THE DOCTRINE EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

The express mention of one person, thing, or consequence implies the exclusion of
all others. Variation: Expressium facit cessare tacitum. What is expressed puts an end to what
is implied. Where a statute is expressly limited to certain matters, it may not, by interpretation
or construction, be extended to other matters.

Canon of restrictive interpretation.

Where a statute, by its terms, is expressly limited to certain matters, it may not, by
interpretation or construction, be extended to others. The rule proceeds from the premise that
the legislature would not have made specified enumerations in a statute had the intention
been not to restrict its meaning and to confine its terms to those expressly mentioned.

Malinias v Comelec: An attempt to use an administrative charge for a criminal


complaint against police officers accused of violating the election code. The court ruled that
not all violations of the election code provided for criminal penalties and in this case, the
violated provisions only warrant the imposition of administrative, not criminal, penalties.

5
Linda Rana vs. Teresita Lee Wong, et al., G.R. no. 192861, June 30, 2014
6
Tano vs Socrates G.R. No. 110249 August 10, 1997

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Centeno v Villalon-Pornillos: A group of old men charged with violating the
solicitation permit law was acquitted because the term religious purpose was not expressly
included in the provisions of the statute, and what the law does not include, it excludes. The
law referred only to charitable purposes, which phrase cannot be construed so as to include
a religious purpose.

In the present situation, there was no provision in the Philippine Laws


prohibiting the impounding of vehicles is unconstitutional. Therefore, the
implementation of the executive order no. 034 is valid and constitutional.

3rd Argument: There is a need for the Executive Order 034 to be implemented.

“If the drivers will just follow traffic rules, it would greatly improve the traffic
situation here in the city,” - Mayor Tommy Osmena

Counter flow - it gets even more challenging when you have to put up with the
multitude of people committing traffic violations left and right. The mayor’s pronouncement
came amid a rising public concern over the worsening traffic condition in Cebu City and its
neighboring areas in Metro Cebu. The traffic congestion, which has been occurring in Cebu
City even during the so-called non-peak hours, has been exacerbated by drivers, commuters
and pedestrians who do not follow traffic rules. Counterflowing, or cutting on the queue of
vehicles by driving into the traffic that flows in the opposite direction, has been considered
as one of the problems that have added to the traffic woes in the city.

The City of Cebu started to experience the severe strain in its transport capacity
resulting in the threatening of the city's continued viability and livability. There were several
government agencies responsible for transportation and traffic matters in the city but there
was an urgent need for improvement in the coordination of these agencies in the planning,
design and implementation of policies, programs and projects. Thus, it was necessary to
establish a body that could coordinate national and local efforts aimed at solving traffic
congestion and the inefficient use of limited road space.7

Furthermore, Section 48, of Republic Act no. 4136, aptly described/defined reckless
driving as operating

“a motor vehicle on any highway recklessly or without reasonable


caution considering the width, traffic, grades, crossing, curvatures,
visibility and other conditions of the highway and conditions of the
atmosphere and weather, or so as to endanger the property or the safety
or rights of any persons or as to cause excessive or unreasonable damage
to the highway”. Clearly, first amongst the acts of reckless driving is
driving left or counter-flow;

This is very evident that because of the rampant road accidents in Cebu City there is
a need to implement this ordinance to eradicate the road accidents because the cause of this
implementation is for the welfare of the public, public interest and public safety.

7
Cebu, dailynews.inquirernet

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Executive Ordinance No. 34 is one way of addressing traffic congestion, as there are
vehicles, mostly motorcycles that have made it habit to counterflow, delaying cars and other
vehicles that comply with traffic regulations by staying on their right lanes. Reducing traffic
congestion is a major goal of the city government, he said, particularly since a smooth traffic
flow is important, especially during emergency situations when ambulances or fire trucks
have to reach to their destinations as quickly as possible. It would be a great advantage as it
will prevent accidents. Many vehicles that counterflow also speed. That is one of the reasons
for vehicular accidents.8

Leniency as to the Penalty Imposed would cause neglect of the Law

The 30-day(s) impounding of Vehicle is justifiable because it will give an impression


to the minds of the drivers not to violate traffic rules by counter flowing because of the strict
implementation and penalty provided. The traffic congestion will not be lessened nor
eradicated if the imposed penalty could be afforded right away. The Executive Ordinance
will be useless because it’s purpose will not be achieved nor followed by the drivers
themselves.

As provided in Section 3. Sanctions/Penalties of the Executive Ordinance No.


034 –
Reckless drivers or violators shall be prosecuted in accordance with
the existing traffic laws, ordinances, circulars and rules and regulations.
Moreover, prosecution of the driver notwithstanding, the motor-vehicles used
or involved in the commission of the offense/infraction shall immediately be
abated or removed off the road as necessary corrective measure and shall be
impounded for a period of not more than thirty (30) days without cost on
the part of the violator.

This section depicts that the Government of Cebu is not interested to the fines that
will be collected to the violators after being apprehended, there will be no cost /storage fees
on the part of the violator but the vehicle will be impounded for a period of not more than 30
days which clearly shows that the city government is after to the cleaner roads with less to
no blood stains on it caused by the accidents. In imposing such impoundment, it will be an
effective ordinance because the vehicles is their means of transportation going to their
designated places, workplaces and etc. It will be a great loss to them knowing after violating
the traffic rules, their vehicles will be taken from them for 30 days. This sanction will give a
lesson to not counter flow for the safety of everyone on the road to prevent accidents that can
cause death. The law favors the general welfare of the public. 9

If imposition of fines and storage fees are important, it will also be unfair for those
who cannot afford to pay to get their vehicles impounded.

“To avoid any untoward incidents, we just need to follow the law”

8
http://cebudailynews.inquirer.net/161597/no-fines-no-storage-fees-just-impound-vehicles-30-
days#ixzz56cXcGuUB
9
http://cebudailynews.inquirer.net/161481/osmena-city-traffic-officers-impound-counter-flowing-
vehicles#ixzz56cC8oDNU

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Prayer

Foregoing considered and as exhaustively explained with legal basis and authorities
based on the facts presented and borne out from the records of the issue, the defense humbly
believes that it has successfully proven its case against the assailed validity of Executive
Order 034. Thus, the full implementation of the law should thereby be enacted.

Wherefore, premises considered, the defense prays that this Honorable Court will
render its decision finding the Executive Order 034 to be constitutional and must be
promulgated as to that of a valid law.

MOST RESPECTFULLY SUBMITTED

Date: February 10, 2018

Copy furnished to : ______

Allain Jon Carlo Abella

Vanne Christine Angus

Aris Gabriel Gabuya

Kresia Lourdes Guiral

Khamiya Sison

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Executive Order no. 034

AN EXECUTIVE ORDER DECLARING RECKLESS DRIVING PURSUANT TO


THE PROVISIONS OF R.A 4136 OR OTHERWISE KNOWN AS TRAFFIC CODE
OF THE PHILIPPINES, CITY ORDINANCE NO. 801 AND OTHER EXISTING
TRAFFIC RULES AND REGULATIONS NUISANCE PER SE., PROVIDING
THEREOF AND FOR OTHER PURPOSES.

WHEREAS, it is a public knowledge that common on the road of Cebu City are
rampant violations of the basic rules and regulations on traffic and road use. Most annoying
of all this traffic are reckless driving, most specifically what is known as driving left or
counter-flowing, which to the mind of the general public is not only a brazen disregard of
basic road courtesy or respect, but a cold display of indifference to the safety and well being
of the other road users;

WHEREAS, our existing laws, rules, regulations, circulars, guidelines and legal
principles on public good and welfare are neither oblivious of the said violations nor the
same are rendered inutile. Statutes and jurisprudence are replete of legal authorities to
address these road menaces. The laws are not lacking. What is missing though is political
will to strictly enforce them;

WHEREAS, Section 48, of Republic Act no. 4136, supra, aptly described/defined
reckless driving as operating “a motor vehicle on any highway recklessly or without
reasonable caution considering the width, traffic, grades, crossing, curvatures, visibility
and other conditions of the highway and conditions of the atmosphere and weather, or
so as to endanger the property or the safety or rights of any persons or as to cause
excessive or unreasonable damage to the highway”. Clearly, first amongst the acts of
reckless driving is driving left or counter-flow;

WHEREAS, Article 694 of the Civil Code of the Philippines enumerates and/or
defines what constitute nuisance per se: as “any act, omission, establishment, business,
condition or property or anything else which: (1) injures o endangers the health or safety of
others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency and
morality: (4) Obstructs or interferes with the free passage of any public highway or streets,
or any body of water;(5) Hinders or impairs the use of property”;

WHEREAS, in the case of Rufina Salao, et al., vs Teofilo C. Santos, et al., G.R.
No. L-45519, April 26, 1939, The Honorable Supreme Court, had aptly ruled: nuisance per
se “is recognized as a nuisance under any and all circumstances, because it constitutes
a direct menace to public health or safety, and, for that reason, may be abated
summarily under the undefined law of necessity.” The same jurisprudential
pronouncement is reinforced in the recent case of Linda Rana vs. Teresita Lee Wong, et
al., G.R. no. 192861, June 30, 2014, when the Honorable Highest Tribunal, ruled: “Based
on case law, however, the term “nuisance” is deemed to be so comprehensive that it has
been applied to almost all ways which have interfered with the rights of the citizens,
either in person, property, the enjoyment of his property, or his comfort. Accordingly
the “tenet applies to a nuisance per se, or one which affects the immediate safety of

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persons and property and may be summarily abated under the undefined law of
necessity”.

NOW THEREFORE, premises considered and pursuant to the powers and authority
vested in me by the constitution and section 455 of R.A 7160, to enforce all laws and
ordinances, among others, I, TOMAS R. OSMENA, City Mayor of Cebu City, do hereby
order:

Section 1. Coverage. - This Order covers all forms of reckless driving, more
specifically driving left or commonly knowns as driving counter-flow as defined in
Republic Act No. 4136, City Ordinance No. 801 and other traffic circulars, rules and
regulations.

Section 2. Declaration of Policy. - In consonance with the provisions of


existing laws, Cebu City Government hereby declares all forms of reckless driving
more importantly driving left or counter-flow as nuisance per se. The same shall be
deal with accordance with the applicable laws, legal principles and under this order.

Section 3. Sanctions/Penalties. - Reckless drivers or violators shall be


prosecuted in accordance with the existing traffic laws, ordinances, circulars and
rules and regulations. moreover, prosecution of the driver notwithstanding, the
motor-vehicles used or involved in the commission of the offense/infraction shall
immediately be abated or removed off the road as necessary corrective measure and
shall be impounded for a period of not more than thirty (30) days without cost on the
part of the violator.

Section 4. Enforcement. - The City Traffic Operations Management


(CITOM), Cebu City, is hereby directed to strictly enforce this Order in relation to or
accordance with its existing apprehension procedures.

Section 5. Prosecution.- The City Legal Office, in coordination with


CITOM, is hereby directed to form a pool/team of prosecutors to run after or file the
necessary administrative, civil and criminal charges againstt reckless drivers or
violators of this Order.

Section 6. Registration. - The Office of the City Administrator, Cebu City,


is directed to register this Order with the Office of the National Administrative
Registrar, University of the Philippines Law Center, Diliman, Quezon City,
Philippines.

Section 7. Repealing Clause. - All prior Cebu City Government issuances,


rules and regulations and orders which are inconsistent with the provisions of his
Order are hereby repealed, amended and/or modified accordingly.

Section 8. Effectively.- This Order shall take effect immediately.

Done in the City of Cebu, this 2nd day of February, 2018

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