Did you get fined by an MMDA enforcer for smoking in a public place recently? Apparently they aren’t allowed to do that. Or maybe they are. It depends on who you ask. Confused? Let me try and explain.
The MMDA has been enforcing its anti-smoking campaign for quite some time now, with officers going after smokers lighting up in public places such as bus stops all around the metropolis. Enforcers doing so quoted Republic Act 9211, or the Tobacco Regulation Act of 2003, and attached MMDA Resolution No. 11-19 as basis for their actions, but a decision by the Court of Appeals Twelfth Division, dated July 31, just threw a legal spanner in the works for the boys in blue. In its decision, the CA denied an appeal by the agency against a Mandaluyong City Regional Trial Court ruling from 2013 that invalidated Resolution No. 11-19, also known as the Anti-Smoking Campaign.
Associate Justice Maria Elisa Sempio Diy worded it this way: “Respondent-appellant MMDA, in issuing its resolution, arrogated upon itself powers and functions which are not given to it by law. Accordingly, (the resolution) is invalid and ineffectual.”
The court basically said that the agency did not have the right powers to enforce the anti-smoking provisions of Republic Act No. 9211 or the Tobacco Regulation Act of 2003, as it was not amongst the members of the Inter-Agency Committee on Tobacco, composed of the secretaries of trade, health, agriculture, environment, justice, science and education, created by Section 29 of RA 9211, that would have the exclusive power and right to implement and enforce the provisions of the law.
Interestingly, the CA also cited a 1995 ruling by the Supreme Court that said the MMDA’s powers under its charter were purely administrative and that the agency does not have any police or legislative powers on its own. The case itself was initially brought on by two smokers who were each fined P500 by an MMDA environmental enforcement officer for smoking in front of Farmer’s Plaza in Cubao, Quezon City, in 2011.
So looking at the above, it seems like you can now freely light up anywhere again, right? Wrong, says a defiant MMDA.
Following the CA ruling, the agency’s General Manager Cora Jimenez stated that the decision would not stop the agency’s anti smoking campaign: “One of our mandates is health and sanitation including environmental protection based on Republic Act No. 7924 (An Act Creating the Metropolitan Manila Development Authority, Defining its Powers and Functions, Providing Funds Therefore and for Other Purposes),” she said, before adding that the MMDA has been deputized by the Department of Health and the LTFRB since 2011: “The 17 local government units in Metro Manila have completed their respective ordinances on anti smoking advocacy. Through a Metro Manila Council Resolution, the mayors have agreed we enforce RA 9211.”
So according to the MMDA, they still have the right to go after smokers by simply applying a legal switcharoo and stating they are deputized under RA 7924 instead of acting on their own under RA 9211, but that approach runs the risk of becoming unstuck when we return to the CA ruling, where the court very clearly said: “Respondents-appellants cannot find solace solely in its charter (RA 7924) to validate its implementation of RA 9211. To reiterate, respondent-appellant MMDA’s functions are purely administrative in nature. It has no police power and legislative power.” What powers the agency does or does not have by being deputized by other government departments, and how this would need to be applied in every day life when it comes to enforcing the smoking ban, appears to be a whole other can of legal worms waiting to be opened.
For the moment, it seems any MMDA officer trying to arrest or fine smokers might be standing on very thin legal ice, and there also seems to be some uncertainty as to what constitutes a public space and if MMDA officers have the legal right to decide on that. The agency maintains that being deputized by the DOH and LTFRB allows it to go after smokers and general manager Cora Jimenez said a position paper to prove their point would soon be published, although she did not say what legal steps – if any – they would take next.
As happens all too often in the almost impenetrable legal jungle of the Philippines, confusion reigns supreme on who can do what, where, when and how. The anti smoking drive is actually a very good idea, but it is lacking proper implementation. Until someone takes a big legal lawn mower to this legislative mess and creates a clear cut playing field of where you can and cannot smoke, and who can and cannot fine you for it, it’s best to simply not light up at all. It’s healthier anyway, and if you need some reasons to give up smoking, then I listed some here earlier.