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Sunday, December 16, 2018

Seares: Clamping, impounding vehicles

News Sense

IN Cebu City, a vehicle may be clamped for violation of no-parking and other specific bans under the city’s Traffic Code (Ordinance #801). Starting in 1997, Ordinance #1644 has authorized the sanction infamously known as clamping.

A vehicle whose driver violates any of the forms of reckless driving, specifically “counter-flowing,” may be seized and impounded for 30 days. An executive order was signed by Mayor Tomas Osmeña last Feb. 2 imposing the penalty.

Spot the difference: One is provided by a City Council ordinance that the Supreme Court has ruled as valid; the other is contained in an executive order of the mayor and is assailed by critics but not in court.

Clamping or impounding a vehicle is an exercise of police power, which the Supreme Court said may be delegated by Congress to the local government through its legislature. The Local Government Code, in Sec. 458 and in its general welfare clause, delegates the authority.

Horror stories

Two Cebu City residents had woeful tales about clamping in 1997. Bienvenido Jaban Sr. parked his car at a pay parking area, left it to get documents from his office, and in less than 10 minutes returned to a clamped vehicle. Valentino L. Legaspi’s car briefly occupied part of the sidewalk because he allowed the van of a termite exterminator to unload materials at his house. He went inside briefly to answer the phone and came back to find his car clamped.

Counter-flow case

For now though, let’s focus on whether police power was exercised by the proper authority. Not about the clamping or towing for violations under the Traffic Code but the one-month detention of vehicles that violate the “counter-flow” rule.

I refer to a current side issue in the verbal war between Mayor Osmeña and LTO chief Victor Caindec over the traffic mess created by the underpass construction in Mambaling. Caindec said the mayor’s order to impound the vehicles of reckless drivers for 30 days is illegal because only the LTO is authorized to impose that.

Extent of penalty

Two things: (1) Whether the city mayor can issue the order when police power is delegated to the City Council, not the mayor. (2) Whether the mayor’s penalty does not exceed what existing law or regulation provides.

The first may still be argued: is the LTO sole enforcer as Caindec contends? The second may be quickly verified. Check out the existing penalty on reckless driving under national or local law. The highest penalty provided under joint administrative order 214-1 of DOTC (Dept. of Transportation & Communication): a P10,000 fine and revocation of driver’s license.

The mayor’s E.O. says the violator may be prosecuted “under existing laws” but is the 30-day detention the prescribed legal penalty or just cooked up by the mayor?

Cost of litigating

“Clamping victims” Jaban and Legaspi separately went to court, suing the city through the mayor, the City Council and Citom. They won in Regional Trial Court but the Court of Appeals reversed the ruling. And appealing to the Supreme Court, which fused the two cases, they lost again. Ordinance #1644 was held valid under the city’s police power and provisions of the Local Government Code.

No victim of the penalty on “counter-flow” has sued. Apparently no one yet has found the courage or motive to complain in court. Same thing with victims of abuse in enforcing the clamping ordinance: the fines are stiff; litigation would exact a heavier price.


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