FEW will dispute this precept of law: Streets, along with their sidewalks, are property for public use and hence “outside the commerce of man.”
Yet, in actual practice, sidewalk and ambulant vendors have made many major roads of cities and their sidewalks almost impassable by vehicles and pedestrians.
They have been tolerated by public officials who implement policy, mainly because they need the support of vendors during elections. Vendors, mostly grouped into associations, deliver votes in a bloc.
Pushed by Duterte
In fairness, some local officials genuinely believe that vendors deserve a livelihood and interpreting the law to favor the “informal sector” of the economy is being practical and sympathetic.
Local government officials are pushed harder this time though to rid public arteries of clogging caused by vendors and other obstructions. DILG, instructed by President Duterte in his July 22 Sona “to reclaim all public roads used for private end,” has given local officials 60 days, counted from July 29, to follow the order or face suspension.
The order is tough enough, given the element of politics in clearing roads and streets, the oft-cited “lack of political will,” and propensity of many Filipinos to disobey when the law enforcer isn’t looking or likely to arrest.
Manila’s Isko, Cebu’s Probe
It is also tricky when it comes to sidewalks. Can a mayor or governor bend the concept of streets and sidewalks being “outside the commerce of man?”
Manila Mayor Francisco “Isko” Moreno Domagoso’s much-publicized cleanup, per July 17 data, totally cleared only four streets; on 11 other streets vendors are allowed on the sidewalk.
Cebu City Hall, through its “Probe” team led by Raquel Arce, targeted downtown roads from Osmena Blvd. corner Colon St. to Sanciangko St. The clearing was total only for a few days, ending with partial use of the sidewalk by a reduced number of vendors. “Zero Vendors,” which the public expected, turned out to be just “Zero Growth.”
FVR’s executive order
Are local officials given discretion to contract parts of the road that it can lease or impose fees and thus take them out from the “outside-the-commerce of-man” ban?
LGUs may have relied on then President Fidel Ramos’s Executive Order 452 of Oct. 24, 1997, which declared that vendors “cannot be arbitrarily deprived of their livelihood from workplaces or stalls...” and provided for registration of and permit to the said vendors.
That EO was followed much later with an IRR (implementing rules and regulations) of June 25, 2011, aimed to protect vendors and at the same time reduce their harm on traffic and cleanliness.
Ermita, ‘Probe’
The Ermita, Cebu City barangay council, under then barangay captain Imok Rupina, passed Ordinance 044-16, which sought to protect vendors in their area, allowing them to occupy parts of the barangay streets. The City Council referred it to its committee on laws on Feb. 18, 2017 but news archives don’t show what else happened to the ordinance.
Rupinta (who was later murdered by still unidentified men) was inspired by FVR’s EO, which the ordinance cited as legal basis. In contrast, “Probe” chief Arce didn’t mention it as basis for the use of parts of city sidewalks for vendors. When asked by Jason Monteclar on dyCM radio Tuesday (Aug. 13) if there is an ordinance supporting her agency’s policy on vendors, she said, not yet.
Arce relies on the vendors’ promise in writing to comply with conditions for commercial use of the sidewalk. Voluntary undertaking, not compulsion of ordinance.
Adjusting the law
Yet, there’s the legal precept that needs to be adjusted to conform to what’s being done on the ground. As Manila Mayor Isko and Cebu City’s “Probe” actions demonstrate, some streets and parts of sidewalks are being used commercially. They’re being contracted by LGUs to vendors. Which contracts, basing on the Supreme Court ruling in Villanueva vs. Castaneda and Macalino [15SCRA142], are null and void.
FVR’s order cannot be made the legal basis by Mayor Isko and Arce. The EO of 1997 instructed local governments to look for and set aside for vendors these places as their “certified work places”: “markets, vacant areas near markets, public parks, and side streets...” Main streets and their sidewalks are not included.