Probe body finds no abuse of POSD in controversial taho vendor melee despite barbs

By Aileen P. Refuerzo

BAGUIO CITY – Despite outcry from netizens, a fact-finding committee from the City Legal Office found no abuse of authority on the part of the Public Order and Safety Division enforcers in their scuffle with taho vendor Benedick Seno at the Botanical Garden last Feb. 2.

The melee turned viral which made netizens push for abolition of the POSD but Mayor Mauricio Domogan told the public to wait for results of the probe.

In a report to Domogan last week, the team composed of Attorneys IV Isagani Liporada and Rhenan Diwas and Attorney III Jordan Tumayan said that based on the investigation, there was no use of excessive force on the part of the POSD men when they accosted and tried to confiscate the taho wares of Seno as the taho vendor himself admitted not sustaining physical injury during the incident.

“It appears the POSD agents did not exceed their authority. What they probably failed to do is arrest the erring vendor and charge him for violation of the ordinance and national law (on illegal peddling), Seno serving as an example of what not to be followed.  After all.., the law may be harsh but it still law,” the team noted in the report.

In the report, the team cited a number of national and local laws that justified the existence of the POSD and spelled out its functions to implement laws and ordinances relevant to illegal structures and illegal peddling along the city’s right-of-ways and parks.

“The laws, ordinances and order of the mayor to implement and/or enforce the same are irrefragable.  More, it appears reasonable force had been in fact used by apprehending party, Seno admitting he suffered no physical harm,” the team said.

According to the investigators, some of the laws cited like Section 143 in relation to Section 178 or Ordinance No. 2000-001 (Tax Ordinance) which prohibits and penalizes selling of merchandise along passageways or alleys or in any place outside the market premises and Section 23 of Presidential Decree No. 17 (Revised Highway Act) which declares it unlawful for any person to usurp any portion of right-of-way, to convert any part of any public highway, bridge, wharf or trail to his own private use or to obstruct the same in any manner, are “penal laws” and thus it can be said that the POSD acted within their mandated duties.

In fact, “not only did the elements of the POSD operate under their mandated duties as can be gleaned in their service contracts and local ordinances, they likewise proceeded within the bounds of law in attempting to effect an apprehension,” the team noted.

“To disambiguate, insofar as penal laws are concerned, peace officers as well as private persons may effect arrests when, in their presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense,” the legal team said. 

The team said that during the inquiry, Seno admitted selling at the Botanical Garden despite knowing that the area is off limits to vendors.

He also admitted violating the prohibition more than five times before the recent incident.

Myra Pineda, president of the Roving Vendors Association operating at St. Joseph Village barangay where Seno is a member affirmed before the body that Seno was aware that they cannot sell at the Botanical Garden, being one of the conditions in the grant of their special permits to sell solely within their barangay. 

“Close scrutiny of the permit shows as a condition for its validity the permittee should comply with all existing laws, ordinance, rules and regulations which have been laid down in the foregoing.  Seno however admitted to breaking the law several times over,” the committee said.

“Considering Seno knew he was prohibited, it is clear that Seno’s permit became invalid, the moment he committed acts contrary to the conditions set therefor.”

Mayor Domogan on Wednesday reiterated that he will not defend POSD enforcers who are in the wrong and appealed to the public not to be hasty in making judgments based solely on what they see at the social media as what had transpired on the taho vendor issue.

He said people should think of the consequences before they ask for the abolition of the POSD merely on account of that incident which ironically was instigated by one law violator.

“Easy for us to say let’s abolish the POSD and so what comes next: let our sidewalks be filled with illegal peddlers?  I’m sure nobody wants to go back to the old state where there was no order,” he lamented.

He explained that the city also considered the plight of the illegal vendors evicted from the sidewalks like Seno which was the reason why they allowed the operation of the night marker and the issuance of special permits which allowed them to sell in specific areas.

He added that there was no question on the POSD’s mandate having been created through Ordinance No. 31 series of 1991 as Civil Security Division of the City Mayor and was later known as the POSD after Republic Act No. 7160 or the Local Government Code took effect in 1992.

The main task of the office is to ensure the implementation and monitoring of compliance to existing city ordinances and other rules in line with the code.