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Dumaguete City, PhilippinesSaturday, May 16, 2009
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Legal opinion sought
 on helmet ordinance


Dumaguete City Councilor Antonio Remollo said Thursday he is seeking legal opinion on the helmet ordinance he had authored that was killed on the third and final reading.

Remollo said he is invoking section 79 of the internal rules of procedure of the Sangguniang Panlungsod stating that any member who voted with the majority can move for a reconsideration.

The measure was considered killed even with only four affirmative votes, two against, and three abstentions.

The proposed ordinance sought to regulate the wearing of bonnets, ski masks or full-face shield crash helmets or items of similar nature that cover the face or otherwise hide the identity of a person within Dumaguete City.

It was not passed, not because the negative votes had the number but the affirmative votes did not reach the majority requirement, which is 50 percent plus one of all the members present.

City legal officer Neil Ray Lagahit hinted on the possibility that an abstaining vote may be considered a vote for the affirmative or for the negative, citing a Supreme Court decision in the case of Lopez vs Ericta.

In that ruling, the high court said that “an abstention is counted as an affirmative vote insofar as it may be construed as acquiescence in the action of those who vote affirmatively.”           

This manner of counting is obviously based on what is deemed to be a presumption as to the intent of the one abstaining, namely, to acquiesce in the action of those who vote affirmatively, but which presumption, being merely prima facie, would not hold in the face of clear evidence to the contrary, the decision added.

Lagahit said there is a need to look into the intention of those who abstained in the votation. Under the situation, abstaining without any reason at all can be counted as an affirmative vote while abstaining because of doubts as to its legality can be counted as a negative vote, he added.

The helmet ordinance was deemed urgent and necessary because of a number of unsolved crimes in Dumaguete, where the culprits are hiding their identities with the use of masks or bonnets including full face helmets.

The City Legal Office also begged to decline a request to file a declaratory relief on the subject matter on two grounds.  First, it is part of the city government which is not a real party in interest, and second, the CLO cannot file a case against the city council which created it, Lagahit said.

Lagahit said his opinion may be right or wrong, and the last arbiter would still be the Supreme Court.*JG



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