Riding tandem as legal right

If a law sounds too silly to be enforced, it might actually be. Filipinos have no concept of rights, nor that some laws sound so silly that government cannot possibly have any power to enforce them.

When the “Martilyo Gang” struck at a mall jewelry store, short-lived proposals to ban baseball caps and hammers in malls were widely ridiculed. Pundits questioned why the thousands who lawfully use them should be inconvenienced. Indeed, a government must present a very compelling reason to regulate an item so innocuous as a baseball cap. Congress cannot just pass a law against wearing black shirts, long hair for men, or those abominations called Crocs shoes. It is so obvious that no one thinks about it, but we have a right to wear baseball caps because we have a broader right to use property.

This extends to proposals to make it illegal for two men to ride tandem on a motorcycle because of the rising number of crimes committed by such duos. Mandaluyong City passed Ordinance No. 550 prohibiting this, though it allows tandem riders who are women, children, or male relatives. As with the baseball-cap example, we are prodded to ask why a relative is much less likely to be a drive-by assassin or different from a friend, what age a male child should be before he is presumed to be a menace to society, and why Mandaluyong might criminalize wigs worn to evade the ban. Indeed, why should a motorcyclist be restricted in taking a passenger in a way car drivers are not? It must shock how other cities and even our national Congress are thinking to copy the riding-tandem ban, or to temporarily prohibit helmets or require “plaka-vests” (vests with license plate information in large letters) to facilitate identification.

The right to property must be viewed in the social-justice context that many motorcycle owners cannot afford cars and lack the organization to voice this obvious point. Jonathan Joven, a University of the Philippines painter, joked that he is content to eat Lucky Me instant noodles, so I took him to my favorite ramen house, Santouka.

Buying his motorcycle is one of his proudest milestones because he grew up as a Smokey Mountain scavenger, and he recounted how cardboard was just a peso per kilo then. I was walking to my next destination and realized I could be a criminal if I accepted his offer of a ride of two blocks.

Much as I rant about how there is always a slow-moving motorcycle blocking Edsa’s center lane at 2 a.m., a great many honest Filipinos take motorcycles from adjacent provinces to work in Manila’s center. I first met Antipolo painter Jerson Samson outside Greenbelt when he offered to help me carry some packages, and he had raced through Marcos Highway and C-5 on a motorcycle to meet a deadline at Ayala Museum. He may well have needed to take one of his three brothers, all awarded painters, on such a trip necessary to keep in touch with the Makati art gallery world. There are few alternatives, as there are few taxis in their part of Antipolo and it is a slow, cramped FX taxi ride down Marcos Highway to the edge of Metro Manila.

The right against silly laws (technically called “substantive due process”) is articulated in an amusing series of Supreme Court decisions featuring then Manila Mayor Alfredo Lim versus Ermita-Malate motel owners. Lim waged a running campaign against an “alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to existence of motels, which provide … the ideal haven for prostitutes and thrill-seekers.” However, Lim could not simply shut down legitimate businesses.

In 1993, Manila passed an ordinance prohibiting in Ermita-Malate businesses “where women are used as tools in entertainment [and] adversely affect the social and moral welfare of the community,” including massage parlors, karaoke bars, beerhouses, and motels. The high court struck this down as arbitrary because these businesses were all lawful and prohibiting them would not necessarily remove immorality from Manila, given that “an immoral sexual act transpires in a church cloister or a court chamber.” In 1992, Manila passed another ordinance prohibiting motels from renting rooms for less than 12 hours. The high court also struck this down as arbitrary for burdening travelers and even families who “wish to wash up and rest between trips … with purposes other than having sex or using illegal drugs.” Still another decision criticized Lim for citing unspecified business-license violations for closing down and refusing to renew the license of an alleged front for prostitution.

Drive-by shootings and thefts are certainly not silly. However, they must be addressed with more tailor-fit solutions than a blanket riding-tandem ban. For example, limited measures during peak hours in commercial centers with heavy pedestrian traffic might be more defensible. One might also consider training motorcycle cops, installing more CCTV cameras, mobilizing community watches, and more reasonable identification measures than “plaka-vests.” Or, one might simply confront the true issue of woefully inadequate and underequipped law enforcement, as seen in how Mandaluyong has 236 policemen guarding 1.2 million people during the day.

The bottom line remains that humble motorcycle owners have a constitutional right to use property that cannot be emasculated wholesale by a riding-tandem ban, and peace and order is not an excuse to slap this right in the face of those who cannot afford cars.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.