Examining the Constitutionality of Ordinance

550 or the ban on Riding in tandem in the

city of Mandaluyong.

Ganchero, Kevin Ken S.

Juguan, Loise Almay

Table of Contents

Introduction -------------------------------------------------------------------------- 1
A. Statement of the Problem
B. Significance of the Study
C. Scope and Limitations

Body ---------------------------------------------------------------------------------- 4
A. The Equal Protection Clause and Substantive Due Process (Article III, Section 1):
The Police Power of the State: US v. Toribio
Tests for a valid Ordinance: City of Manila v. Laguio
Equal treatment for similarly situated individuals: Biraogo v. Philippine Truth
Commission
B. Presumption of Innocence (Article III, Section 14 (2)):
Elements the prosecution must do before conviction: People v. Mingming
Prima facie evidence: People v. Mingoa
C. Republic Act No. 4136 or the Land Transportation and Traffic Code of the Philippines

Conclusion ---------------------------------------------------------------------------- 7
Recommendation --------------------------------------------------------------------- 9

1
Introduction
The stream cannot rise higher than its source. It is a well-established doctrine in the study of law that the
national constitution has authority over all other laws. Statutes, executive orders, customs, practices or
local ordinances that contravene the provisions of the constitution are rendered invalid and cannot be
enforced.1
On September 4, 2014, the city of Mandaluyong passed the controversial Ordinance No. 550
banning two males from riding a motorcycle at the same time unless they can show proof that they are
related to each other by the first degree of consanguinity.2 The city council passed the ordinance as a
reaction to crimes which have been facilitated through the riding in tandem of motorcycles by
criminals. Reported crimes committed through this modus operandi include theft and murder where the
perpetrators take advantage of the motorcycles speed and its ability to navigate narrow roads and heavy
traffic to avoid being caught or identified. The ordinances preambulatory clause reads:
WHEREAS, Republic Act No. 7160, as amended, otherwise known as the "Local
Government Code of 1991", authorizes the Sangguniang Panlungsod to enact Ordinances for the
general welfare of the City and its inhabitants pursuant to the general welfare clause, and, in
particular, to maintain peace and order by enacting measures to prevent and suppress
lawlessness, disorder and violence and imposing penalties for violation thereof;
WHEREAS, motorcycles are recognized as an efficient, costsaving and easy means of
transportation in the metropolitan areas, in fact, a good number of Mandalerios prefer this
particular mode of transportation;
WHEREAS, these remarkable features of motorcycles as a mode of transportation have
made motorcycles an effective and favorite means by criminals and scalawags in committing
offenses against persons and property, from petty to heinous crimes and even acts of terrorism;
WHEREAS, the rate of crimes perpetuated by motorcycle riding criminals in recent years
has been progressing in a very disturbing trend, where the statistical records of the Philippine
1 An Act to Ordain and Institute the Civil Code of The Philippines [CIVIL CODE], Act
No. 386, Article 7 (1949)
2 Riders to challenge Mandaluyongs no back-ride ordinance available at
http://www.interaksyon.com/article/94824/riders-to-challenge-mandaluyongs-noback-ride-ordinance (last accessed October 13, 2014)

National Police, in particular, the Eastern Police District, reveal that in Mandaluyong City along
with the nearby Cities of Marikina, Pasig and San Juan, the incidents often led to death or harm
upon countless victims while a huge number of the malefactors deplorably evaded arrest;
WHEREAS, the records further disclose the fact that most of these motorcycle riding
criminals are males and they ride in tandem using a single motorcycle, or in conspiracy with
another motorcycle riding malefactor/s;
WHEREAS, the prevalence or rise of incidents committed by means of motorcycle riding
criminals in all parts of the country, in the metropolitan cities including in Mandaluyong City has
set off a growing clamor from the public to find ways in apprehending these criminals, or at very
least preventing them from carrying out their atrocious activities;
WHEREAS, circumstances now dictate that there is an urgent and pressing necessity of
preventing, if not, minimizing these incidents committed by motorcycle riding criminals, by
regulating the use of single motorcycles within Mandaluyong City.3
Motorcycles are one of the most widely used land vehicles in the Philippines given their advantages
over other vehicles especially in the urban setting. The roads of Mandaluyong, are busy thoroughfares
which connect the southern cities of the National Capital Region to their northern counterparts. The
implementation of this ordinance limits the use of motorcycles in Mandaluyong to those who ride alone,
those who ride with family members and those who ride with female companions. The restrictive nature
of the ordinance leads us to question its consistency with the spirit of the Constitution and Local statutes.

A. Statement of the Problem

Our aim in writing this paper is to assess the validity of Ordinance No. 550. Specifically, the
questions we seek to address are (1) Is Ordinance No. 550 Constitutional?; (2) Is Ordinance No. 550
consistent with Statutes?
To answer these questions, we will refer to landmark jurisprudence which expound on the meaning of
the Constitution and Local statutes.

3 Ordinance Regulating Motorcycle Riding in Tandem in Mandaluyong City

[Motorcycle Riding-in-Tandem Ordinance] Ordinance No. 550 p. 1 (2014)

B. Significance of the Study

Ordinances affect everyone under the jurisdiction of the city council who passed them. Given the close
proximity of cities in the NCR, it is inevitable that citizens from other cities or municipalities may have to
pass through Mandaluyongs roads and unknowingly violate this ordinance.
Local Government Units pass ordinances in order to complement existing statutes in addressing
pressing problems that the community faces. One of these problems is the alarming increase in the
incidence of crimes. This study will be useful as a reference for assessing the validity of these ordinances
or future ordinances to be passed.

C. Scope and Limitation

The study is confined to the analysis of Ordinance 550 in the city of Mandaluyong. Thus, it will deal with
questions pertaining to the ordinances constitutionality and consistency with statutes. Specifically, the
concepts which will be discussed in relation to the ordinance will be the following: equal protection of the
laws4, substantive due process5, and the presumption of innocence 6 which are rights enshrined in the 1987
Philippine Constitution.
4 PHIL CONST. art III, Section 1:No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal protection of the laws

5 PHIL CONST. art III, Section 1

6 PHIL CONST. art III, Section 14 (2):In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the nature and cause of the accusation against him,
to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the production of evidence in
his behalf. However, after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is
unjustifiable.

4
Body
A. The Equal Protection clause and Substantive Due Process (Article III, Section1)
Marcelo H Del Pilar said7: The perfection of humanity is not possible without freedom for the individual.
Thus, the existence of social institutions and all political organizations and relationships are justifies
insofar as they have for their primary purpose the protection of freedom. The equal protection clause 8
grants us the right to due process to guarantee the protection of our rights to life, liberty or property. It
posits that individuals must be treated fairly in the eyes of the law.
Due process has two components, namely: substantive and procedural due process. The latter is
about procedural fairness while the former speaks of fairness and justice in essence; the very substance of
life, liberty and property. When the states Police power and the right of people to the free use of their
property conflict, the Supreme Court in US v. Toribio ruled9:
To justify the State in thus interposing its authority in behalf of the public, it must appear, first,
that the interests of the public generally, as distinguished from those of a particular class, require
such interference; and, second, that the means are reasonably necessary for the accomplishment
of the purpose, and not duly oppressive upon individuals. The legislature may not, under the guise
of protecting the public interest, arbitrarily interfere with private business, or impose unnecessary
restrictions upon lawful occupations. In other words, its determination as to what a proper
exercise of its police powers is not final or conclusive, but is subject to the supervision of the
courts.
7 Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
Commentary 100 (2009 ed.)
8 PHIL CONST. art III, Section 1:No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal protection of the laws

9 U.S v. Toribio, 15 Phil. 85 (1910)

Though the court ruled against the respondent who argued for his right to slaughter his cattle even without
the necessary permits, the court nonetheless made it clear that the states exercise of its police power is
not absolute. In order to justify a law or an ordinance, the state must be able to prove: (1) Its necessity for
the accomplishment of its purpose; (2) It is not oppressive; (3) It does not arbitrarily interfere with
business and (4) It does not impose unnecessary restrictions upon lawful occupations.
The court made it clear that the protection of life, liberty and property is a paramount interest and may on
certain instances; trump the states exercise of its police powers.
In a later case, the court defined the extent of the use of the states police power in relation to the rights
guaranteed by the equal protection clause. In City of Manila v. Laguio, the court provided the test for the
validity of ordinances10:
The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law. Such power
cannot be exercised whimsically, arbitrarily or despotically, as its exercise is subject to a
qualification, limitation or restriction demanded by the respect and regard due to the prescription
of the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it
bears emphasis, may be adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare.
In the mentioned case, the court struck down Ordinance 7783 of the city of Manila which prohibited
establishments such as bars, karaoke bars, motels and hotels from operating in the Malate District which
was notoriously viewed as a red light district harboring thrill seekers. Malate Tourist Development
Corporation avers that the ordinance is invalid as it includes hotels and motels in the enumeration of
places offering amusement or entertainment. The reason for such decision, according to the court is that
the ordinance violates the equal protection clause.

11

The establishments which the ordinance prohibits are

legitimate businesses which cannot be closed down just because there is a possibility for immoral sex acts
to happen within their premises. The court ruled that the said Ordinance is null and void. The SC noted
that for an ordinance to be valid, it must not only be within the corporate powers of the local government
unit to enact and must be passed according to the procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not
10 City of Manila v. Laguio , 455 SCRA 308 (2005)
11 City of Manila, 455 SCRA 308

be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate
trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable. 12
In Biraogo v. Philippine Truth Commission the court expounded the definition of equal protection and
clarified that it also meant equal treatment of similarly situated individuals 13:
Equal protection requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. It requires public bodies and institutions
to treat similarly situated individuals in a similar manner. The purpose of the equal protection
clause is to secure every person within a states jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper execution
through the states duly constituted authorities.
There must be equality among equals as determined according to a valid classification. Equal
protection clause permits classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies
equally to all members of the same class. The classification will be regarded as invalid if all the members
of the class are not similarly treated, both as to rights conferred and obligations imposed.

B. Presumption of Innocence (Article III, Section 14 (2)):

An accused person shall be presumed innocent until the contrary is proven beyond reasonable doubt. The
burden of overcoming this presumption rests upon the prosecution who had the duty to present evidence
to prove guilt. The prosecution must not rely on the weakness of the defense but instead rely on the merits
of its own case.
The presumption is only overcome only by proof beyond reasonable doubt. Reasonable doubt is that
doubt engendered by an investigation of the whole proof. For as long as the defense is able to present
evidence enough to create reasonable doubt, the presumption remains. 14
12 Id
13 Biraogo v. Philippine Truth Commission, 637 SCRA 78 (2010)
14 Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines:
A Commentary 512 (2009 ed.)

In People v. Mingming15, the court enumerated the elements that the prosecution must do before
there can be a conviction:
First, the accused enjoys the constitutional presumption of innocence until final conviction;
conviction requires no less than evidence sufficient to arrive at a moral certainty of guilt, not only with
respect to the existence of a crime, but, more importantly, of the identity of the accused as the author of
the crime.
Second, the prosecutions case must rise and fall on its own merits and cannot draw its strength
from the weakness of the defense.
7
Conviction cannot be passed until the presumption is overcome. Doing so by imposing
punishments in the form of imprisonment or fines violates this constitutional guarantee.
In fact, evidence that does not overcome the presumption of innocence is only considered prima facie. In
People v. Mingoa16 the court stated:
Clearly, the fact presumed is but a natural inference from the fact proved [failure to
produce], so that it cannot be said that there is no rational connection between the two.
Furthermore, the statute establishes only a prima facie presumption, thus the giving the accused
an opportunity to present evidence to rebut it..
Prima facie evidence, that would, if uncontested, establish a fact or raise a presumption of a fact,17 is rebuttable. It
cannot overcome the presumption of innocence.

C. Republic Act No. 4136 or the Land Transportation and Traffic Code of the Philippines

15 People v. Mingming, G.R No. 174195 , December 10, 2008

16 People v. Mingoa, G.R. No. L-5371, March 26, 1953
17 Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines:
A Commentary 513 (2009 ed.)

The Land Transportation and Traffic Code of the Philippines outlines the rules governing the use of land
vehicles on the roads, creation of the Land Transportation Commission and prohibited acts. 18 The law
stands above other laws such as ordinances that apply to the use of land vehicles on roads. As a rule,
ordinances shall be compliant with national statutes.

8
Conclusion
Ordinance 550 violates the Constitution
The ordinance was not able to establish that there is absolute necessity in banning only males from riding
in tandem; to do so; the makers of the ordinance must prove that it is needed in order to reduce the
incidence of crime. Assuming that the ordinance has some positive effect, it must still conform to the
constitution. Applying the test for the validity of ordinance in City of Manila v. Laguio we found that the
ordinance is:
(1) Unfair and Oppressive
While it is unfortunate that riding-in-tandem is used to carry out notorious acts of criminality, the
fact remains that majority of the people who use this mode of transportation are the hardworking,
ordinary Filipino citizens who wish to cut on their travel expenses such as those who commute to
work or students. In fact, even members of the law enforcement and other government agencies
use this mode of transportation. The ordinance forces these people to take other forms of
18 An Act to Compile the Laws Relative to Land Transportation and Traffic Rules, to
create a Land Transportation Commission and for other purposes [LAND
TRANSPORTATION AND TRAFFIC CODE] Republic Act. No. 4136 (1964)

transportation despite the availability of motorcycles which are faster and more convenient for
them.
Because Mandaluyongs roads are busy thoroughfares, the ordinance would not just
affect citizens of the city but also everyone who passes through Mandaluyong. This new
ordinance puts restrictions on more than 7 million motorcycle drivers, stifles resources-sharing
for people who use this mode of transportation to save on travel expense. 19
(2) Discriminatory
The ordinance also prohibits riding in tandem only if both riders are male and not brothers or
father and son. The ordinance was not able to justify its arbitrary ban on male riders and did not
even bother to explain why male riders should be the only target of the ordinance. Female riders,
on the other hand, are free to ride together. The requirement on having to be related in the first
degree of consanguinity was also not justified. Why should male cousins, uncles and nephews,
grandfathers and grandsons be banned while brothers and father-son tandems are allowed?
Apparently, the ordinance is also silent on the possibility of female riders committing the said
crimes or males who are brothers or father and son doing the same. If male riders are students
who go to school using motorcycles to save time and money, co-workers, relatives or lovers they
will be fined for violating the ordinance for no reason other than they violated its provisions. 20
(3) Unreasonable
Riding-in-tandem-related crimes could be eliminated, as criminals have to rule out this mode of
transportation in carrying out their illegal acts but this will not lead to a drop in crime rate, which is
the original intent of the policy because they will shift to other modes. While it would discourage
male criminals from riding together, the ordinance would just push them to circumvent its weak
provisions. For instance, they would recruit females who are willing to aid them. In fact, it would not
hurt the operations of female criminals or family members who engage in criminal activity using this
19 Ban on riding in tandems; poor and ineffective in curbing crime solon available
at https://akbayan.org.ph/news/12-press-releases/394-ban-of-riding-in-tandems-antipoor-and-ineffective-in-curbing-crime-rate-solon, (last accessed October 13, 2014)
20 Motorcycle Riding-in-Tandem Ordinance, Section 6 (d)Should the backrider fail[s]
to show that he is a spouse or a relative within the first degree of consanguinity of
the motorcycle driver, both of them will be brought to the Philippine National Police
Criminal Investigation Unit (PNP CIU) at Maysilo Circle, Plainview, Mandaluyong City
for further investigation and verification.

modus operandi. What it does is to unduly presume male riders who ride together to be criminals and
make them pay if a fine if they do not wish to contest their liability.
Apart from failing the test for validity, the ordinance also violates the presumption of innocence by
presuming all males who ride in tandem who do not fall under the exceptions to be guilty of a crime. For
the presumption of innocence to be overcome, there must be evidence of guilt beyond reasonable doubt
and as long as reasonable doubt exists, the presumption remains. In this case however, the ordinance fines
male riders who have not been proven to be guilty of having committed any crime. The fine ranges from
1,000-3,000 pesos 21, a relatively big amount especially if the riders belong to low income sector. The
presumption of innocence is completely ignored by this ordinance as it allows no room for the accused to
avoid penalty apart from proof that they fall under one of its exceptions.
The ordinance also contravenes the Local Transportation and Traffic Code of the Philippines. Under the
said code, motorcycles are allowed one passenger or back ride. 22 The said code does not distinguish the
back rider by his or her gender or relationship with the other rider. The statute is clearly above the
ordinance and ordinances must be compliant with national statutes
Recommendation
From the conclusions drawn, we recommend that ordinance no. 550 in the city of Mandaluyong should be
declared unconstitutional for violating the constitution and contravening national statute. We recommend
that instead of banning male riders from riding in tandem which results to injustice, that the city should
improve its law enforcement. This could be done by increasing police visibility and presence in order to
deter criminals from committing their acts as well as to allow the police to respond to incidences of crime
faster.
The LGUs need to explore other alternative initiatives that will effectively combat the increasing crime
without leaving the innocent, ordinary Filipinos to carry the costs. Public safety should be of great
priority but we have to be prudent on the supporting measures that will be adopted. We have to make sure
that it effectively addresses the issue that is being resolved and it does not harm the people.

21 Motorcycle Riding-in-Tandem Ordinance , Article V Rule 8

22 Land Transportation and Traffic Code, section 32: Exceeding registered
capacity. - No person operating any vehicle shall allow more passenger or more
freight or cargo in his vehicle than its registered carrying capacity.

10