Court issues TRO on MMDA smoking ban

MANILA, Philippines - A Mandaluyong court has issued a temporary restraining order (TRO) prohibiting the Metropolitan Manila Development Authority (MMDA) from apprehending smokers spotted puffing away in areas not covered by Republic Act 9211 or the Tobacco Regulation Act of 2003.

MMDA Chairman Francis Tolentino said yesterday they will file a motion for reconsideration to lift the TRO. Tolentino said the MMDA’s anti-smoking campaign has so far netted close to 6,000 violators.

Tolentino clarified the apprehensions will continue in areas not covered by the Mandaluyong TRO.

In a six-page order dated Aug. 15, Judge Carlos Valenzuela of the Mandaluyong City Regional Trial Court Branch 213 granted the petition for the issuance of the TRO filed by security guards Antony Clemente and Vrianne Lamsen.

In their petition, Clemente and Lamsen asked the Mandaluyong court to stop the MMDA from implementing a ban on smoking in public places in Metro Manila.

Clemente and Lamsen were apprehended on July 6 by an MMDA environment enforcer after they were caught smoking on the sidewalk on EDSA near the Farmers’ Market in Cubao, Quezon City. The two were made to pay a fine of P500 each.

In their petition, Clemente and Lamsen alleged that they were illegally apprehended by the MMDA, because they were smoking in an area not specifically covered by RA 9211. They questioned the authority of the MMDA to apprehend smokers, saying it lacks both police power and the authority to implement the smoking ban under RA 9211.

The petitioners added that the MMDA also lacks the legislative power and the authority to expand the definition of “public places” as defined by RA 9211 and its implementing rules and regulations.

In addition, the petitioners also said the local ordinances cited by the MMDA do not expand the definition of “public places” and do not deputize the MMDA to enforce the said ordinances.

Defining areas

The court, in its order, said the area where Clemente and Lamsen were apprehended by the MMDA’s environment enforcers is not “an enclosed or confined area” as defined under RA 9211 and as shown by photos presented by the MMDA’s environment enforcers.

Under RA 9211, smoking is prohibited in public places defined as “enclosed or confined areas of all hospitals, medical clinics, schools, public transportation terminals and offices, and buildings such as private and public offices, recreational places, shopping malls, movie houses, hotels, restaurants and the like.”

“In fact, the said pictures even showed that the said designated areas are not enclosed or confined areas but are open spaces that serve as sidewalk for the general public. Certainly, the literal meaning of ‘enclosed and confined areas’ does not include wide open spaces such as thoroughfares and sidewalks like where petitioners were apprehended,” the order read.

The court also said that Clemente and Lamsen have “shown clear and positive right to question the legality of their apprehension” and the “indiscriminate implantation of the said smoking ban” even in areas outside of those enumerated in RA 9211.

“This court therefore, finds that there is an extreme urgency and paramount necessity on the matter at issue which this court has to restrain to prevent grave injustice and irreparable injury as may be sustained not only by petitioners but also by the unwary public through respondent’s MMDA’s continuous act of implementing its smoking ban on open spaces such as sidewalks and thoroughfares,” the judge added.

Tolentino earlier said the MMDA will use RA 9211 and the various anti-smoking ordinances of the local government units of Metro Manila in apprehending smokers. Tolentino earlier said that local ordinances have included streets and sidewalks as among areas where smoking is prohibited.