J. Tinga's dissent re motorcycle ban in highways


I dissent from the opinion which has found favor with the majority holding that Department of Public Works and Highways (DPWH) Department Orders Nos. 74, 215 and 123 are void for want of authority on the part of the DPWH to promulgate them.

The fundamental question which seeks an answer from this Court is which between the DPWH and the Department of Transportation and Communications (DOTC) has the charge of implementing Republic Act No. 2000, otherwise known as the Limited Access Highway Act. These two departments have mutually exclusive functions in the general scheme of government. The DPWH oversees the construction, maintenance and operation of public works and infrastructure facilities, and administers the highway system. The DOTC, on the other hand, directs the nation's transportation and communication network systems. To resolve this case, it is crucial for us to determine within which sphere of functions the powers granted under the Limited Access Highway Act fall, i.e., whether the Limited Access Highway Act involves the administration of the highway system or the management of the transportation network.

After tracing the evolution of the Department of Public Works and Communications (DPWC) which was originally given the authority under the Limited Access Highway Act to regulate, restrict or prohibit access to limited access facilities, the ponencia concludes that this authority was eventually bestowed upon the DOTC.

With due respect, I cannot share this conclusion. I shall explain.

The Limited Access Highway Act authorized the DPWC "to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that traffic conditions present or future, will justify such special facilities..."[1] At the time of the enactment of the Limited Access Highway Act in 1957, the Bureau of Public Highways (BPH) had already been created as an office under the DPWC by RA 1192 in 1954.[2]

Under RA 1192, the Commissioner of Public Highways was directly responsible for administering the Philippine Highway Act of 1953;[3] preparing long-range programs of highway development, improvement and construction; formulating uniform practices for the physical design of highway facilities; directing research in matters of highway planning, location, design, construction and maintenance, including the testing of materials and the proper and efficient use of highway equipment; promoting sane economy in the expenditure of highway funds, utilization of supplies and materials, preservation of property and equipment, and management operations; preparing annual budgets of proposed expenditures for construction, reconstruction, and improvement work; and supervising the signing of vouchers, orders for supplies, materials, and any other expenditures.

The task of administering the nation's highways squarely fell on the shoulders of the Commissioner of Public Highways as specified in RA 1192. Upon the enactment of the Limited Access Highway Act in 1957, it was also the BPH, headed by the Commissioner of Public Highways, which carried out the functions of establishing and regulating the highways and streets to be used as limited access facilities.

It is significant to note that the establishment of limited access facilities requires engineering expertise, for which reason the Limited Access Highway Act specifically authorized the DPWC "to divide and separate any limited access facility into separate roadways by the construction of raised curbings, central dividing sections, or other physical separations, or by designating such separate roadways by signs, markers, stripes, and the proper land for such traffic by appropriate signs, markers, stripes, and other devices." The BPH, with its mandate to plan and administer the national highway program and the Chief Highway Engineer[4] at its disposal, was in the best position to establish and regulate limited access facilities.

It is worth mentioning that even under the Revised Philippine Highway Act[5] passed in 1972, the BPH was designated as the agency of the DPWC "that has the charge of the administration of highways." The Revised Philippine Highway Act primarily controls the disposition of the Highway Special Fund; the manner of its apportionment and release; the selection and designation of highways or highway projects to receive national aid; the expenditures for the administration, maintenance, improvement, betterment and rehabilitation of highway projects; and the classification of highways, widths, acquisition and use of rights of way. However, it also provides for the establishment of an integrated system of highways, and vests in the Secretary of the DPWC the power to make rules and regulations and make such recommendations as he may deem necessary to preserve and protect the highways and insure traffic safety.[6]I submit that the duty of highway administration and management vested upon the BPH and succeeded to by the DPWH includes the duty to regulate the use and enjoyment thereof.

In 1974, the BPH was separated from the Department of Public Works, Transportation and Communications (DPWTC). It was expanded and restructured into the Department of Public Highways (DPH) by virtue of Presidential Decree No. 458 (PD 458).[7]

With the shift in the form of government resulting from the amendment of the 1973 Constitution, national agencies were renamed from departments to ministries. Thus, the DPWTC became the Ministry of Public Works, Transportation and Communications (MPWTC) and the DPH became the Ministry of Public Highways (MPH).

In 1979, President Marcos issued Executive Order No. 546 (EO 546)[8] creating a Ministry of Public Works (MPW) which assumed the public works functions of the MPWTC and was charged with the "construction, maintenance and repair of port-works, harbor facilities, lighthouses, navigational aids, shore protection works, airport buildings and associated facilities, public buildings and school buildings, monuments and other related structures, as well as undertaking harbor and river dredging works, reclamation of foreshore and swampland areas, water supply, and flood control and drainage works."[9]

EO 546 also created a Ministry of Transportation and Communications (MOTC) declared as the "primary policy, planning, programming, coordinating, implementing, regulating and administrative entity of the executive branch of the government in the promotion, development, and regulation of a dependable and coordinated network of transportation and communication systems..."[10]

The ponencia correctly noted that the MPW took over the public works functions of the MPWTC. However, it omitted mention of the fact that even as these new ministries were created, the MPH continued to exist and exercise the powers vested in it by RA 1192, including those under the Limited Access Highway Act. Because of the MPH's continued existence, at no time were these functions ever transferred to or exercised by the MPW or even the MOTC. I vigorously reiterate that the creation of these two ministries did not affect the existence of the MPH or result in the transfer of the functions of the MPH to the MPW and the MOTC. The MPH continued to exist as a distinct entity with clearly-delineated functions, including the duty of highway administration.

The MPW and the MPH were later abolished by EO 710[11] which, instead, created a Ministry of Public Works and Highways (MPWH) and transferred to the latter the functions of the abolished ministries. The MPWH is now known as the DPWH, the government's primary engineering and construction arm, responsible for the planning, design, construction and maintenance of infrastructures such as roads, bridges, flood control systems, water resource development projects and other public works.

The foregoing history of the DPWH, which has evolved from its predecessors, the BPH, DPH, MPH and MPWH, I submit, supports my view that it is the DPWH, and not the DOTC, which has inherited the functions previously exercised by the BPH, including those granted by the Limited Access Highway Act.

The Limited Access Highway Act confers the authority to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use under Sec. 3 thereof, and the powers to design, regulate, restrict, or prohibit access to these limited access facilities under Sec. 4. Although they appear in different sections of the law, the clear and unmistakable intent was for all of these powers to be integrated in and exercised by just one entity, the DPWC.

Instead of continuing with the integration of the mandate under the Limited Highway Act, the ponencia essentially dichotomizes these functions covered by the mandate. While it appears to concede that the functions of the DPWH includes the planning, design, construction, maintenance and operation of infrastructure facilities, which should also include limited access facilities, in the same breath it posits that the powers to regulate, restrict or prohibit access thereto have been devolved to the DOTC. This is obvious from the way the ponencia focuses on the regulatory power of the DOTC under the Administrative Code in furtherance of the view that the DPWH does not have the authority to regulate, restrict or prohibit access to limited access facilities, and sidesteps a discussion on the powers conferred under Section 3 of the Limited Access Highway Act which, by their very nature, can only be exercised by the DPWH. I submit that this approach is inconsistent with the intent of the law for the powers conferred therein to be exercised by only one entity.

Justice Carpio asserts that as the DOTC is empowered to administer and enforce all laws, rules and regulations in the field of transportation and communications, so is it granted authority over limited access facilities. I beg to differ.

The authority of the DOTC over land transportation is exercised by the Land Transportation Office (LTO) and covers the inspection and registration of motor vehicles, issuance of licenses and permits, enforcement of land transportation rules and regulations, and adjudication of traffic cases. These functions have remained the same despite the changes in the names of the LTO and the reorganizations it underwent.

The predecessor of the LTO is the Land Transportation Commission (LTC) created in 1964 by RA 4136.[12] RA 4136 was amended by RA Nos. 5715 and 6374, PD Nos. 382, 843, 896, 1057, 1934, 1950 and 1958, and BP Blg. 43, 74 and 398, and is now known as the Land Transportation and Traffic Code. Its provisions control the registration and operation of motor vehicles and the licensing of owners, dealers, conductors, drivers, and similar matters.

The powers and duties of the former LTC Commissioner, now exercised by the LTO, are as follows:
(1) With the approval of the Secretary of Public Works and Communications, to issue rules and regulations not in conflict with the provisions of this Act, prescribing the procedure for the examination, licensing and bonding of drivers; the registration and re-registration of motor vehicles, transfer of ownership, change of status; the replacement of lost certificates, licenses, badges, permits or number plates; and to prescribe the minimum standards and specifications including allowable gross weight, allowable length, width and height of motor vehicles, distribution of loads, allowable loads on tires, change of tire sizes, body design or carrying capacity subsequent to registration and all other special cases which may arise for which no specific provision is otherwise made in this Act.

(2) To compile and arrange all applications, certificates, permits, licenses, and to enter, note and record thereon transfers, notifications, suspensions, revocations, or judgments of conviction rendered by competent courts concerning violations of this Act, with the end in view of preserving and making easily available such documents and records to public officers and private persons properly and legitimately interested therein.

(3) To give public notice of the certificates, permits, licenses and badges issued, suspended or revoked and/or motor vehicles transferred and/or drivers bonded under the provisions of this Act.

(4) The Commissioner of Land Transportation, with the approval of the Secretary of Public Works and Communications, may designate as his deputy and agent any employee of the Land Transportation Commission, or such other government employees as he may deem expedient to assist in the carrying out the provisions of this Act.

(5) The Commissioner of Land Transportation and his deputies are hereby authorized to make arrests for violations of the provisions of this Act in so far as motor vehicles are concerned; to issue subpoena and subpoena duces tecum to compel the appearance of motor vehicle operators and drivers and/or other persons or conductors; and to use all reasonable means within their powers to secure enforcement of the provisions of this Act.

(6) The Commissioner of Land Transportation or his deputies may at any time examine and inspect any motor vehicle to determine whether such motor vehicle is registered, or is unsightly, unsafe, overloaded, improperly marked or equipped, or otherwise unfit to be operated because of possible excessive damage to highways, bridges and/or culverts;

(7) The Philippine Constabulary and the city and municipal police forces are hereby given the authority and the primary responsibility and duty to prevent violations of this Act, and to carry out the police provisions hereof within their respective jurisdictions: Provided, That all apprehensions made shall be submitted for final disposition to the Commissioner and his deputies within twenty-four hours from the date of apprehension.

(8) All cases involving violations of this Act shall be endorsed immediately by the apprehending officer to the Land Transportation Commission. Where such violations necessitate immediate action, the same shall be endorsed in the traffic court, city or municipal court for summary investigation, hearing and disposition, but in all such cases, appropriate notices of the apprehensions and dispositions thereof shall be given to the Commissioner of Land Transportation by the law-enforcement agency and the court concerned.

Notation of such dispositions shall be entered in the records, and a copy shall be mailed to the owner and to the driver concerned.
Nowhere in this list of functions is there any indication that the LTO has the authority to establish and regulate limited access facilities. The traffic rules and regulations which the LTO is tasked to enforce pertains to traffic rules enumerated in the Land Transportation and Traffic Code, including speed limit and keeping to the right, overtaking and passing a vehicle and turning at intersections, right of way and signals, turning and parking, reckless driving, right of way for police and other emergency vehicles, tampering with vehicles, hitching to a vehicle, driving or parking on sidewalk, driving while under the influence of liquor or narcotic drug, obstruction of traffic and duty of driver in case of accident.[13]

Significantly, even as it codified all laws relative to land transportation and traffic, the Land Transportation and Traffic Code, as amended, makes no mention of or reference to the establishment and regulation of limited access facilities, a tacit recognition of the DOTC's lack of authority on the matter.

Justice Carpio's pronouncement that the Administrative Code of 1987 (Administrative Code) confers upon the DOTC the authority to establish and regulate limited access facilities is an inference based on an erroneous reading of the law. The Administrative Code does provide, among others, that the DOTC shall administer and enforce all laws, rules and regulations in the field of transportation and communications, and establish and prescribe the corresponding rules and regulations for enforcement of laws governing land transportation. I submit, however, that if we were to interpret these provisions correctly and apply them to the instant case, it is imperative that a distinction be drawn between the power to regulate transportation and the power to regulate highways, the former being a DOTC prerogative, and the latter an authority unquestionably belonging to the DPWH.

Transportation is defined as the movement of goods or persons from one place to another by a carrier.[14] And so it is that the powers vested in the DOTC refer to its authority over transportation carriers and utilities and makes no mention at all of highways as clearly demonstrated by the Reply's enumeration of the DOTC's powers under the Administrative Code.

In contrast, the Administrative Code makes several references to the DPWH's authority over highways, defined as roadways laid out or constructed to accommodate modes of travel and other related purposes.[15] It provides:
Sec. 3. Powers and Functions.-The Department, in order to carry out its mandate, shall:

(1) Provide technical services for the planning, design, construction, maintenance, or operation of infrastructure facilities;

(2) Develop and implement effective codes, standards, and reasonable guidelines to ensure the safety of all public and private structures in the country and assure efficiency and proper quality in the construction of public works;

(3) Ascertain that all public works plans and project implementation designs are consistent with current standards and guidelines;

(4) Identify, plan, secure funding for, program, design, construct or undertake prequalification, bedding, and award of contracts of public works projects with the exception only of specialized projects undertaken by Government corporate entities with established technical capability and as directed by the President of the Philippines or as provided by law;

(5) Provide the works supervision function for all public works construction and ensure that actual construction is done in accordance with approved government plans and specifications;

(6) Assist other agencies, including the local governments, in determining the most suitable entity to undertake the actual construction of public works projects;

(7) Maintain or cause to be maintained all highways, flood control, and other public works throughout the country except those that are the responsibility of other agencies as directed by the President of the Philippines or as provided by law;

(8) Provide an integrated planning for highways, flood control and water resources development systems, and other public works;

(9) Classify roads and highways into national, regional, provincial, city, municipal, and barangay roads and highways, based on objective criteria it shall adopt; provide or authorize the conversion of roads and highways from one category to another;

(10) Delegate, to any agency it determines to have adequate technical capability, any of the foregoing powers and functions; and

(11) Perform such other functions as may be provided by law.
The foregoing references to the DPWH's power over highways, and the concurrent absence of any such reference in the DOTC, to my mind, are unmistakable indications of the Administrative Code's intention to recognize and acknowledge the DPWH's exclusive competence and jurisdiction in matters of highway administration and management.

Parenthetically, I should like to point out that the ponencia leaned heavily on the premise that EO 546 devolved the authority to regulate limited access highways to the DOTC. Justice Carpio merely took off from my reference to the Administrative Code to support his view that the DPWH does not have the power to regulate access to limited access facilities since this is not a function specified by the Administrative Code.

Apart from emphasizing yet again that the creation by EO 546 of the MPW and MOTC did not affect the existence of and functions exercised by the MPH, I also accentuate the fact that the Administrative Code did not repeal the Philippine Highway Act of 1953, as amended. Even as the Administrative Code codified the powers and functions of the departments of the executive branch including the DPWH and the DOTC, the authority to administer the nation's highway system, which, I submit, includes the power to establish and regulate limited access facilities, remained to be a function of the DPWH. To reiterate, there is nothing in the Administrative Code which vests in the DOTC the administration of the Limited Access Highway Act or the regulation of the use of highways.

Finally, since the DPWH has traditionally exercised the power and authority to establish and regulate limited access facilities to the exclusion of and without objection from other government agencies including the DOTC, I submit that we grant judicial imprimatur to its jurisdiction absent any unequivocal conferment of authority on the DOTC.

A parallelism can be drawn between this case and another in which an administrative agency has maintained its own interpretation of a particular statute. In Saxbe v. Bustos,[16] for example, an administrative construction of the Immigration and Naturalization Act classified a worker who lives in Canada or Mexico and commutes to work in the United States either daily or seasonally as a variety of "special immigrant" or an immigrant lawfully admitted for permanent residence who is returning from a visit abroad. The United Farm Workers objected to the benefits given to alien workers of this classification, such as those that allow them to leave the country temporarily, re-enter without regard to quotas, and dispense with visas or other formal documentation. The Court upheld the agency interpretation saying that the Court's conclusion reflects the administrative practice, dating back at least to 1927 when the Bureau of Immigration was part of the Department of Labor, which is entitled to great weight.

Similarly, in this case, the questioned department orders were issued between 1993-2001. Through all these years, and even earlier in the case of Administrative Order No. 1 issued in 1968, the DPWH has been exercising the functions under the Limited Access Highway Act. Judicial deference should be accorded this long-standing practice consistently acquiesced to and recognized by the other executive departments, including the DOTC.

FOR THE FOREGOING REASONS, I cannot concur with my colleagues in their judgment. I vote for the dismissal of the petitions.

[1] Incidentally, in 1951, the DPWC was already reconstituted as the Department of Public Works, Transportation and Communication (DPWTC).

[2] An Act to Create the Bureau of Public Highways, Abolishing the Division of Highways of the Bureau of Public Works approved on August 25, 1954.

[3] RA 917.

[4] Under Sec. 4 of RA 1192, the Chief Highway Engineer was directly responsible for: (1) coordinating the various phases of planning, location, design, construction and maintenance of public highways; (2) coordinating matters of line and grade with the services on design of bridges and railroad crossings; (3) coordinating matters of research and specifications with other highway services; (4) checking and passing on final awards of contracts; and (5) reviewing and passing on highway budgets prepared by the corresponding division or service.

[5] See PD 17, October 5, 1972, with the attached Revised Philippine Highway Act.

[6] Sec. 19, Art. VIII and Sec. 20, Art. IX.

[7] Amending Presidential Decree no. 1 Dated September 24, 1972 Relative to Part X of the Integrated Reorganization Plan promulgated on May 16, 1974.

[8] Creating a Ministry of Public Works and a Ministry of Transportation and Communications dated July 23, 1979.

[9] Sec. 3.

[10] Sec. 6.

[11] Creating a Ministry of Public Works and Highways dated July 27, 1981.

[12] An Act To Compile The Laws Relative To Land Transportation And Traffic Rules, To Create A Land Transportation Commission And For Other Purposes.

[13] Articles I-V, RA 4136.


[15] Id.

[16] 419 U.S. 65, 95 S.Ct. 272, 42 L.Ed. 231 (1974) cited by Alfred C. Aman, Jr. and William T. Mayton in Administrative Law, 2nd Ed, 2001, p. 499.