CONSTITUTIONAL LAW 2

(Bill of Rights)

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I just want to start by saying that of all the subjects that I have
been teaching in law schools, this is my favorite. I might have told
you in the beginning that I have handled about 17 or 18 subjects
since I’ve started teaching and the BOR is the closest to my heart.
The reason is that I became a lawyer during martial law. I started
my law school in 1982. Part of the reason why I entered into law
school because of what happened during the Marcos dictatorship.
That’s why I’m a little bit passionate about this subject. If you see
or hear what I’m talking about, you know where I’m coming from.
You may not agree with me because after all, knowledge is just an
interpretation of reality.
Parts of the Constitution:
1. Constitution of Government – Defines the powers of
government and distributes it among various organs  that is
what we’ve learned in Consti 1. For instance, we learned about the
legislative power, executive power and the judicial power.
2. Constitution of Sovereignty – Provides for the methods and
procedures for amending or revising the fundamental law  if
you look at the definition, it’s easy for you to tell what is it. Simply
put, that means actually the section; the last item which we
discussed in Consti 1 – that is the article in amendment and
revision. That is the one where it is reserved to the people the right
to amend or revise the Constitution.
3. Constitution of Liberty – Guarantees the fundamental rights
and liberties of citizens (Limitations on the Power of the State)
 essentially, the Constitution of Liberty pertains to the Bill of
Rights. That is the topic of Consti 2.
It is good to understand now (though I emphasize it again) if you
look at the term Constitution of Liberty, constitutes a limitation
of the power of the government. Meaning, it granted the
government the power to do almost everything but we reserve
certain portions of it which cannot be trampled upon by the
government – that will pertain to the provisions of the BOR.
Essentially the BOR/Constitution of Liberty constitutes a
limitation on government power.
Basic Concepts:
Definition - Bill of Rights – List of Rights
1. Why did the framers them in the Constitution put them
here? Why don’t they leave it to Congress? (because you know
that many of our rights are actually defined by statutes. They
are not listed in the Constitution)
Because the framers of the Constitution were thinking that these
rights were also important; that they want it to be beyond the
power of Congress, the executive and even the courts. These rights
actually are the core rights that an individual should have. In
effect, you look at the BOR from the naturalist perspective, we do
not consider the state or the government as the origin or the
source of these rights; the state simply guarantees them. It
guarantees to protect these rights but they are not the authors or the
origin of these rights.
I told you earlier that maybe this is a new conceptual matter that
we need to expand. If you look at the structure of government in
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relation to the rights of the people, there is always a struggle
between state authority and individual liberty.
Q: Why do I say that?
2. State Authority vs. Individual Liberty
When you have a large democratic space, in the end, state
authority is very limited. The state does not interfere with the
individual rights. But during periods of dictatorship or
authoritarian rule, the result is that, state power becomes larger
while individual liberty shrinks or it becomes smaller. In the end,
it’s a struggle between state authority and individual liberty; and
the SC should be the one to tell us the limits of where should state
authority end or where should individual liberty begin. That is
always a balancing act; and that in effect is the focus of the BOR.
This is a study between state authority and individual liberty.
We’ll try to do the balance; we’ll try to do the boundaries but we
must admit that that one is not always easy to draw.
If you look at the entire sections that we would be studying, we
would be dealing with 22 sections of one article. I outline this in
this manner:
Content/Arrangement of the 22 Sections:
1. Secs. 1-11 – civil and political rights
a. Civil rights are those which we enjoy as members of
a political society
b. Political right allow as to participate in the affairs
of government
2. Sec. 12-22 – rights of suspects, those on trial or
those convicted of offenses (crime-related rights]
The Bill of Rights do not guarantee Economic, Cultural
and Social Rights
This has already been asked in the bar, so I put the definition here.
Q: What are civil rights and what are political rights?
These are covered by Section 1-11. They are sort of just mingled.
a. Civil rights are those which we enjoy as members of a
political society
Q: What are these rights?
As members of a political society we have the:
 Right to associate;
 Right to information;
 Freedom of religion
These are the rights as members of a certain political society.
Q: What about political rights? How do we distinguish it from
civil rights?
b. Political right allow as to participate in the affairs of
government
 The classic right which allows us to participate is voting.
But the right to vote or suffrage is not found in the BOR; it
is in another section.
Q: What are the political rights which are covered by the
BOR?
The classic example would be the right to free expression.
Q: Why do I call that a political right?
Because if we try to exercise our right to free expression, for
instance we criticize the government, it tends to change policy. I
think we know that from experience that if the people complain
about this, usually the government acts, recently, the doctors
complained asking for a time off so the President decided to extend
the MECQ in Manila. In a sense, our freedom to express ourselves,
freedom of speech, freedom of the press, allows us to indirectly
participate in the affairs of government. That’s why we call it
political right.
Sec. 12-22 – rights of suspects, those on trial or those
convicted of offenses (crime-related rights]
This is what I told you earlier that these sections pertain to the
right of suspects:
 Who are on trial; or
 Those who have been convicted of criminal offenses
I will explain to you later on when I reach Section 14 of why the
Constitution seems to give so many rights to people or accused
who are convicted of crimes.
The Bill of Rights do not guarantee Economic, Cultural and
Social Rights – Q: What do you understand by economic,
cultural and social rights? For instance:
 Right to education;
 Right to insurance;
 Right to a reasonable standard of living
It’s not actually guaranteed by the BOR. But I noticed when
Justice Puno come up with a proposed draft Constitution, they
included in the BOR economic and cultural rights which I think
seems to be a little bit problematic because I don’t know if you
studied that, but the enforcement of economic and social rights
would be a little bit different compared to civil and political rights.
BASIC PRINCIPLES: Limitations on State Power
1. Provisions of the Bill of Rights are self-executing
(“ready for use”]
2. They can only be invoked against the State
-Bell Air. V. Dionesio [right to associate]
-People v. Bongcarawan [search by private
individuals]
3. Basic human rights are superior to property
rights PBLMO v. PBMCI [human rights v.
property]
4. Its provisions have no retroactive application.
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5. Provisions of the Bill of Rights are generally
applicable to aliens
6. Provisions of the Bill of Rights are generally
subject to restrictions or are not absolute
NOTE: Try to remember the basic principles which are applicable
to the BOR.
MAIN PRINCIPLE: The BOR serves as a limitation on the
power of the government.
1. Provisions of the Bill of Rights are self-executing
(“ready for use”] – the framers of the Constitution and
Justice Leonen in some of his decisions, would say the
provisions of the BOR are ready for use.
Q: What do we mean by that?
If there is a case involving somebody, he can immediately invoke
the BOR and the SC actually can apply it.
Q: What about other provisions of the Constitution?
The other provisions of the Constitution like the Declaration of
Principles, they are not self-executing because Congress will need
to pass laws in order to implement it. But insofar as the BOR, they
are ready for use. That’s one thing that you should understand.
2. They can only be invoked against the State –
meaning, they cannot be invoked against private
individuals. But there will be cases later on where the
SC allowed it. But the general principle is that, they
cannot be invoked against private individuals.
People vs. Bongcarawan, 384 SCRA 525, G.R. No. 143944
July 11, 2002
[search by private individuals]
This is an illustration of regarding the principle that the BOR
can only be invoked against the state.
Facts:
Bongcarawan here was a passenger of Super Ferry and he was
travelling from Manila to Iligan. While the ship was at sea,
somebody complained that she lost jewelry. The guards of the
ship decided to search all the belongings of the passengers and
they opened the attache case of Bongcarawan. When they
opened it, they found that it was filled with shabu. While they
were looking for jewelry, they found shabu. Bongcarawan was
charged with illegal possession of dangerous drugs and he
claimed that he was searched illegally. Hence, that evidence
would be inadmissible.
Held:
The SC simple stated that, “wait, who searched you?” The
guards of the vessel. They are not policemen; they are not
agents of the state; they are not soldiers. Therefore, you cannot
invoke the BOR. That is the meaning of the 2nd principle.
FT:
Constitutional Law; Searches and Seizures; The
constitutional proscription against unlawful searches and
seizures applies as a restraint directed only against the
government and its agencies tasked with the enforcement of
the law.—The right against unreasonable search and seizure is
a fundamental right protected by the Constitution. Evidence
acquired in violation of this right shall be inadmissible for any
purpose in any proceeding. Whenever this right is challenged,
an individual may choose between invoking the constitutional
protection or waiving his right by giving consent to the search
and seizure. It should be stressed, however, that protection is
against transgression committed by the government or its agent.
As held by this Court in the case of People v. Marti, “[i]n the
absence of governmental interference, liberties guaranteed by
the Constitution cannot be invoked against the State.” The
constitutional proscription against unlawful searches and
seizures applies as a restraint directed only against the
government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom
the restraint against arbitrary and unreasonable exercise of
power is imposed.
Same; Same; Same; The constitutional protection against
unreasonable search and seizure does not apply, case at
bar.—In the case before us, the baggage of the accused-
appellant was searched by the vessel security personnel. It was
only after they found “shabu” inside the suitcase that they
called the Philippine Coast Guard for assistance. The search
and seizure of the suitcase and the contraband items was
therefore carried out without government intervention, and
hence, the constitutional protection against unreasonable search
and seizure does not apply.
Same; Same; Same; The vessel security officer in the case at
bar is a private employee and does not discharge any
governmental function.—There is no merit in the contention
of the accused-appellant that the search and seizure performed
by the vessel security personnel should be considered as one
conducted by the police authorities for like the latter, the
former are armed and tasked to maintain peace and order. The
vessel security officer in the case at bar is a private employee
and does not discharge any governmental function. In contrast,
police officers are agents of the state tasked with the sovereign
function of enforcement of the law.
3. Basic human rights are superior to property rights
PBLMO v. PBMCI [human rights v. property] – this
was already asked in the bar. Not all rights are equal.
Some are superior to others. For the moment, let us just
say that basic human rights are superior to property
rights.
4. Its provisions have no retroactive application –
Q: What do we mean by that?
This pertained to the provisions of the BOR on
custodial investigation. You have learned in your 1st
year that the provisions of the BOR, insofar as custodial
investigation, have been strengthened in the 1987
Constitution. But the SC stated that it will have no
retroactive effect to have tender confession prior to
the effectivity of the 1987 Constitution.
5. Provisions of the Bill of Rights are generally
applicable to aliens – that was asked once in the bar. I
put there “generally” because there are a couple of
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rights there which are, by express command of the
Constitution, does not seem to be applicable to aliens.
For instance, aliens will also have the:
 Right to life;
 Right to property; and
 Freedom of religion
6. Provisions of the Bill of Rights are generally subject
to restrictions or are not absolute – there is only one
provision which has already been asked in the bar;
some actually are not that certain. But there is only 1
question which I am fairly certain which is really
absolute. But we will go to it when we reach the proper
bar question because it seems that almost all of them
can be subject to limitations so in our study of the
BOR, we are trying to find out whether this limitation is
valid or not, because as I told you in the beginning, the
job of the SC is to draw the line between state power
and individual liberty because almost all rights are not
absolute.
Since the Bill of Rights are not absolute, how do we know
whether the restrictions impose by the State are valid? Another
way of putting it is:
Q: What are the tests applied by the SC to find out whether a
restriction of a right – either done by Congress or by the
executive – would be valid?
I’m sure your all familiar with these terms. These are actually
taken from American Constitutional Law; but over the years,
especially now, the SC has embedded this in Philippine
jurisprudence. So you ought to be very familiar with these 3 tests.
Tests Applied by Supreme Court
a. Strict scrutiny test;
b. Intermediate scrutiny;
c. Rational basis test
A. STRICT SCRUTINY TEST
When do we apply the strict scrutiny test?
Answer: The test is applied in relation to statutes interfering
with (a) fundamental rights (freedom of speech, expression,
assembly, religion, privacy, right to travel) or (2) to classifications
based on race, alienage or national origin and religion. Southern
Hemisphere v. Anti-Terrorism Council, 632 SCRA 5 (2010)
Explanation:
(a) fundamental rights
Actually, as of the moment, I’m certain only, because we have
many decisions, that the following can be regarded only as
fundamental rights:
 Freedom of speech;
 Freedom of expression;
 Freedom of assembly;
  Freedom of religion;
 Freedom of privacy; and the
 Right to travel
*The SC has regarded them as fundamental rights.
Therefore, if there is any restriction to find out whether the
restriction is valid or not, you will have to apply the strict
scrutiny test.
The 2nd category when the SC will apply the strict scrutiny
test will be this – also taken from American jurisprudence;
but I got this from the decision of the Philippine SC1:
(2) to classifications based on race, alienage or national
origin and religion – this is exactly copied by the Philippine
SC.
a.) Race – In the Philippines actually, we have no problem
with race because rarely, if ever, any case will arise regarding
race. But we have this in the US because of the problem of
apartheid or racial discrimination.
b.) Alienage – In the Philippines, alienage or national origin
does not seem to be much of an issue. Because in the
Philippines, we all know for instance, that aliens are not
allowed to hold public office, aliens are not allowed to own
lands in the Philippines. In a sense, they are a little bit
discriminated so this is not common in the Philippines.
c.) Religion – But this can happen that classification based
religion will be subjected to strict scrutiny. That can happen
easily in the Philippines.
TAKE NOTE: When it involves a violation of the:
a.) Fundamental rights; or
b.) Equal protection issues but it pertains to
classifications involving race, national origin or
religion
What is the effect if the court applies the strict scrutiny test?
Answer:
In this instance, the court starts with the heavy presumption that
the law is unconstitutional 2. Thus, the government has the burden
of proving that the classification (i) is necessary to achieve a
compelling State interest, and (ii) is the least restrictive means to
protect such interest or the means chosen is narrowly tailored to
accomplish the interest.
Explanation:
1
We’re dealing now with the equal protection clause which we’ll discuss in
a few minutes.
2
You’ll learn in the other branches of the law that acts of Congress are
presumed to be Constitutional. However, the SC now is saying that in
situations when the acts of Congress affects fundamental rights and the equal
protection clause in some cases, that act will be regarded or presumed as
unconstitutional. TAKE NOTE: Heavy presumption
unconstitutionality.
Try to remember that for a moment because I’ll explain that when
we go to the freedom of speech because that will come up again
and again.
B. INTERMEDIATE SCRUTINY TEST
When is the intermediate scrutiny test applied?
When the challenge restriction does not involve fundamental
rights or suspect classes (classification based on gender,
legitimacy, financial need and age). Also if the restriction on
speech is content-neutral. Chavez v. Gonzales, 555 SCRA 441
(2008) (no heavy presumption of unconstitutionality/substantial
government interest)
Explanation:
Suspect classes will raise religion, national origin.
TAKE NOTE: It does not involve fundamental rights or there is a
classification but it does not involve suspect classes.
Q: What will be these classifications which does not involve
suspect classes?
It is based on:
 Gender;
 Legitimacy;
 Financial need; and
 Aids
*They are not suspect classes. The SC will only apply the
intermediate scrutiny.
Also if the restriction on speech is content-neutral. Chavez v.
Gonzales, 555 SCRA 441 (2008) (no heavy presumption of
unconstitutionality/substantial government interest) –
Remember there are 2 restrictions on speech. There is:
1.) Content-neutral – we apply the intermediate scrutiny
test;
2.) Content-based – we apply the strict scrutiny
Q: What is the result?
There is no heavy presumption of unconstitutionality/substantial
government interest – the government has only substantial
governmental interest.
It appears here that from the wording, the act of the government is
presumed to be unconstitutional. But the presumption is not heavy.
Secondly, the government must show a substantial not compelling
– meaning, an important governmental interest is sought to be
advanced; not compelling because the words there have specific
meanings.
C. RATIONAL BASIS TEST – this is the 3rd test which
is the very least; very easy to satisfy.
When is the rational basis test applied?
Rational basis test applies to all other subjects not covered by the
first two tests. Lawful subject and Lawful method3. (Applies to
exercise of police power that tend to restrict property right, or other
rights which are not regarded as fundamental)  Generally, we
apply this to property rights.
of 3
We do that when there is an exercise of police power.
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 20054, No. 11:(2.) Emilio had long suspected that Alvin, his
employee, had been passing trade secrets to his competitor,
Randy, but he had no proof. One day, Emilio broke open the
desk of Alvin and discovered a letter wherein Randy thanked
Alvin for having passed on to him vital trade secrets of Emilio.
Enclosed in the letter was a check for P50,000.00 drawn
against the account of Randy and payable to Alvin. Emilio then
dismissed Alvin from his employment. Emilio’s proof of
Alvin’s perfidy are the said letter and check which are objected
to as inadmissible for having been obtained through an illegal
search. Alvin filed a suit assailing his dismissal.
2012, No. 10. What do you understand by the term "heirarchy
of civil liberties"?
When we speak about hierarchy of civil liberties, we simply mean
that not all rights are equal to each other. There is what we call as
HEIRARCHY and that is what we call as basic human rights are
superior to property rights. That’s the meaning of hierarchy of
civil liberties.
1996, No. 1: Distinguish civil rights from political rights and
give an example of each right.

o Civil rights – are those which we enjoy simply because

Rule on the admissibility of the letter and check. (5%) [Are
they admissible?]
I go back to the general principle that the bill of rights cannot be
invoked against a private individual; they can only be invoked
against the state for the reason that they are actually limitations of
state power. Definitely, it doesn’t mean here that you cannot sue
another guy for damages or whatsoever or maybe any criminal
behavior, but you do not use the BOR. You use probably the RPC
or the CC but not the BOR.
2007, V. The Destilleria Felipe Segundo is famous for its 15-
year old rum, which it has produced and marketed successfully
for the past 70 years. Its latest commercial advertisement uses
the line: “Nakatikim ka na ba ng kinse anyos?” Very soon,
activist groups promoting women’s and children’s rights were
up in arms against the advertisement.
(a) All advertising companies in the Philippines have
formed an association, the Philippine Advertising
Council, and have agreed to abide by all the ethical
guidelines and decisions by the Council. In response
to the protests, the council orders the pull-out of the
“kinse anyos” advertising campaign. Can
Destilleria Felipe Segundo claim that its
constitutional rights are thus infringed?
Take note that this is a private entity – the Philippine Advertising
Council which decided to withdraw the ad. You cannot invoke the
BOR against a private entity.
we are members of a certain political society. For
instance, right to freedom of religion, right to associate.
o Political rights – are those which assures us
participation in the affairs of government either directly
or indirectly.
 Directly – the right to vote
 Indirectly – freedom of speech or
expression
What are the relations of civil and political to human rights?
Actually it’s not that difficult because if you look at human rights,
it merely pertains to the totality of all rights that human beings
enjoy, simply because they’re humans. That would include:
 Social;
 Cultural; and
 Economic rights
*The term human rights is a lot more broader compared to civil
and political rights.
Civil and political rights are the ones protected by the BOR; but
the other rights that we have re placed there in the other portions of
the Constitution like the:
 Right to education;
 Right to a reasonable standard of living

They ask it in another way, but if you’re familiar with the principle *They are actually somewhere buried in another parts of the
and you know how to apply it, you cannot get lost. Constitution.

(b) One of the militant groups, the Amazing Amazonas,
call on all the government-owned and controlled
corporations (GOCC) to boycott any newspaper,
radio or TV station that carries the “kinse anyos”
advertisements. They call on all government
nominees in sequestered corporations to block any
advertising funds allocated for any such newspaper,
radio or TV station. Can the GOCCs and
sequestered corporations validly comply?
This time the answer will be different.
Q: Why?
Because GOCCs now are now government entities. Therefore,
they are covered by the BOR. Their act would be in a sense a
restriction on the freedom of expression.
Sec. 1. No person shall be deprived of life, liberty or
property without due process of law, nor shall any person
be deprived the equal protection of laws.
Not covered as “property”:
1. permits and licenses [CM Timber]
2. private employment [Serrano]
3. public office [COMELEC v. Cruz, 605 SCRA 167
(2009)]
The one that I would always say is that, if you look at Section 1, it
has 2 major topics (all of which needs to be explained in
detail):

1.) Due process clause; and

4 2.) Equal protection clause
This has already been asked so many times in different words.

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*That is the standard way to discuss this.
Even the right to life and liberty are not absolute rights because
they can be subject to limitations. In fact, if there’s a death penalty,
you can be sentenced to death; and therefore, in a sense, the right
to life is not absolute. But you have to understand also that what
seems to be absolute, though I don’t want to make that statement
for the moment, is that the right not to be deprived of it will have
due process – that is the one that seems to be absolute. Because
of some decisions, I’m thinking that that decision will not be very
safe. I’ll go back to it when I go to Section 14.
Remember these items also:
Q: What are not covered by the term property?
1. permits and licenses [CM Timber] – SC told us that permits
and licenses (for instance permit to operate a cockpit or a lotto
outlet), they are not considered property rights because they’re
only privileges, hence they can be withdrawn anytime; you cannot
invoke the due process clause generally, because they are not
considered to fall under the term property.
2. private employment [Serrano] – I think you study this in
labor. When we go to the Serrano decision, if you’re illegally
dismissed without just cause but no due process was observed,
you’re entitled to reinstatement and backwages for all the time
when you were out of work. But after the Serrano decision, J.
Carpio stated that “Wait a minute. Private employment is not
covered by the due process clause.” While you’re entitled to due
process before you’re removed, that is because it is provided in
the Labor Code provided in statutes. You have due process, but
that does not spring from Section 1 of the BOR. That’s why in the
end, they only give you some kind of a compensation for violation
of the due process clause (P5k, P3k, I forgot the amount).
SUMMARY:
It’s not protected by the due process clause. While you’re
entitled to due process, the source there is statutory; not Section
1.
3. public office [COMELEC v. Cruz, 605 SCRA 167 (2009)] –
public office is not considered property also. But we have to
understand the context here. We know that if you’re removed from
office, you’re also entitled to due process because of the CSC law.
But the context of the decision is always on abolition. If an office
is abolished, maybe by an act of Congress or by the Executive who
has the power to do it, you cannot claim due process for the
reason that public office is a public trust. It is not covered actually
by Section 1.
SUMMARY:
In the context of abolition, you cannot claim due process.
2006,- VI -Does a Permit to Carry Firearm Outside Residence
(PTCFOR) constitute a property right protected by the
Constitution? 2.5%
Permits and licenses are mere privileges. They can be granted and
may be withdrawn by the state at any time; and you cannot claim
due process.
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Outline of Sec. 1:
A. Due Process
1. Procedural
2. Substantive
B. Equal Protection
WARNING: Sometimes in the bar they ask you, is there a
violation of due process? That is one question which are actually 2
questions. Sometimes when they ask you is there a violation of
due process? You will have to answer procedural and
substantive due process because they are really distinct and we
need to understand them separately. Sometimes the examiners can
be tricky.
Due Process and Equal Protection
Due Process: Procedural vs. Substantive
Procedural due process relates to the mode of procedure
which government agencies must follow in the enforcement
and application of laws.
Substantive due process pertains to the intrinsic validity of
the law interfering with life, liberty and property.
Exempted from procedural due process:
a. rule-making/quasi-legislative power Quezon City PTCA
v. Department, 784 SCRA 505 (2016) – Usually an
administrative body exercises both quasi-legislative and
quasi-judicial power. For instance, the CSC issues some
regulations but if you commit a violation, they can also
investigate you and dismiss you. In the exercise of its rule-
making power, we call that quasi-legislative; but when it
decides to dismiss you for infraction of some rules, that is
quasi-judicial.
It is well-settled in Constitutional law that when an entity exercises
its rule-making power, it need not observe due process.
Usually I ask it this way:
Q: If Congress passes a law, does it need to conduct notice and
hearing?
Actually, there is no such requirement. In fact, while we study in
Consti 1 that it conducts inquiry in aid of legislation, that is only
optional in fact it states there – Congress or any of its committees
can conduct inquiries in aid of legislation. That’s not a
requirement of due process because it’s exercising a legislative
function. The same thing is for all entities who are passing rules
and regulations.
For instance, the Dean’s office would issue many rules regarding
dress code and the like, he does not need to consult you what
would be the dress that you like. But once you violate something,
they discipline you for it, you are now entitled to due process. You
will have to have notice and hearing because that is now quasi-
judicial; that is not quasi-legislative in nature. The rule-making
there (the issuance of the rules) is quasi-legislative.
Maybe I need to emphasize this also because many entities are
required to conduct hearings. For instance, fare increases. When
the LTFRB increases taxi fares. They hold hearings.
Q: Why is that a requirement?
Not because of the Constitution but because of the rules and the
law creating them requires that body to call hearings. But It’s not a
requirement of the Constitution.
b. abatement of nuisance per se – Just remember, because
you have studied this in your civil law, the distinction
between nuisance per se and nuisance per accidens.
o Nuisance per se – when it is a nuisance at all
times and at all conditions. For instance, if you
build a house in the middle of Claveria Street,
the City Engineer’s Office can demolish it
outright; and you cannot say “I need notice and
hearing. We’ll hold a hearing. You’ll conduct
an investigation.” Because a house in the
middle of a street is a nuisance per se – it can be
subject to demolition without notice and
hearing.
I don’t want to deal with the details here, but sometimes they still
ask it in the bar in the form of problems. Take note of the elements
of due process in admin. proceedings. The SC still quotes this
every now and then. But this is actually about a 70-year old case
decided by J. Laurel. You have to be very familiar with the
elements of due process in admin. proceedings. Procedural due
process can take on many forms in different situations. But the
most common way that it can come out is in admin. proceedings.
But I will not go into the details here.
Section 1: Procedural Due Process
Due Process in Administrative Proceedings:
1. The right to a hearing which includes the right of a
party interested or affected to present his on case
and submit evidence in support thereof;
2. The tribunal must consider the evidence presented –
they should not prejudge the case. They should not
arrive at the conclusion before the hearing;
3. The decision must have something to support itself;
4. The evidence must be substantial – usually we call
this SUBSTANTIAL EVIDENCE. So the decision
must have something to support itself;
5. The decision must be based on the evidence
presented at the hearing or at least contained on the
records and disclosed to the party affected – there are
many cases on this, but they are very old;
6. The board or body should, in all controversial
questions, render its decision in such a manner that
the parties to the proceeding can know the various
issues involved and the reason for the decision – try
to relate this with Consti 1. In Consti 1 (in the provision
of the judiciary), the provision is saying that the decision
should contain the facts and the law. But we have a
decision of the SC saying that it does not apply to the
2
PFRB (?), COMELEC, military commission. The point
simply is that, while the requirement of facts and law
would not be necessary in their decision, they are bound
by this one.
Commentators and usually the SC would summarize it. There are 2
important requirements when it comes to due process in admin
proceedings. The twin requirements of due process are:
Two requirement:
1. Notice – to inform the party that proceedings are being
taken against him  to warn you that proceedings have been
taken against you.
2. Hearing – to give him the opportunity to defend himself
*With that, you will be given your due process.
Republic v. Dela Merced, G.R. No. 201501, Jan. 22, 2018
In an administrative proceeding, such as the imposition of
fines by the Department of Environment and Natural Resources
(DENR) for entities failing to comply with environmental
standards, is there a requirement of conducting a trial-type
procedure, in order to comply with the Due Process Clause?
That is partly answered by the Ang Tibay decision. This is an
admin body. Due process in admin bodies, as impliedly
mentioned in Ang Tibay, does not require court trial-type
proceedings. While you are entitled to notice and hearing, it
need not be in the form of direct and cross-examination.
Because you’re now 4th yr, you know, for instance, that in labor
cases (maybe some of you had worked with the legal aid), you
simply submit your affidavits and position papers. That serves
as due process in admin proceedings. No need of trial-type
proceedings.
FT:
Other situations:  Because it’s very difficult to define the entire
scope of procedural due process. But there are some other
situations which I put here which seems to be important to me.
1. Appeals - Rivera v. CSC – there are 2 cases now both
involving the civil service. I’ve only mentioned here
Rivera v. CSC because this is a rare situation. This is what
happened:
Facts:
Somebody was head of an entity and he decided the case
against A. Later on, he was promoted to the CSC. In the
Commission, there are 3 people now which decide cases. That
case which he decided while chair of the Marriage System and
Protection Board, was appealed to the CSC. He joined the 2
others and rendered a decision.
Held:
 The SC nullified the decision because the SC stated that you
cannot be objective. It will violate due process if your own
decision is on appeal before you. The proper thing to do is
inhibit yourself. Obviously the SC does not mind that it is a
collegiate body; because if it’s a collegiate body, there are 3
people who will decide. But the SC would have none of it.
FT:
I don’t know if it’s this class, but somebody asked me – Q: What
about the problem involving the HRET?
Because remember, there are 3 representatives sitting in the HRET
and in the SET. In the case raised, they will all go back to the SC
and they will sit there also and they will decide the case which is
being raised on certiorari before the SC.
Q: Can that be done?
The SC actually stated that, no problem. It is rather strange.
Q: Why?
Because how can you expect them to change their mind when in
the 1st place, they have already voted in a particular way when
they were still with the HRET. But that is an exception.
Q: What is the reason given by the SC?
The framers of the Constitution must have been aware that this
will happen – that the 3 justices will also go back to the SC and
probably, more likely than not, the decision will be appealed to
them. Therefore, they do not allowed inhibitions there. That’s the
only 1 exception that I know from jurisprudence.
2. Publication of Laws – I already told you that we cannot do
away with publication, as decided in Tanada, because that is a
requirement of PROCEDURAL DUE PROCESS. How can we
expect somebody to know the law? In fact, it makes no sense to
presume that people know the law if that law has not been
published.
3. Vague Laws – This is VERY IMPORTANT! I’ll go back to
this when we go to freedom of expression. That is the main
challenge involving the Ant-Terror Law now.
Q: What is a vague law?
"A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two (2) respects: (1) it violates due
process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle [SPARK
v. Quezon City, 835 SCRA 350 (2017).]
Discussion:
(1) It violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the
conduct to avoid – You don’t know what not to do if
the law is vague.
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(2) It leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary
flexing of the Government muscle
*That is the big challenge involving the Anti-Terror Law.
Last week, the Chief of the AFP was saying that he will regulate
the social media through the Anti-Terror Law. I think many
Senators protested saying that is not included. Then he made
another statement saying that, “I will only regulate not the media
users, but only the platform”.  that is a classic example of it
leaves law enforcers unbridled discretion in carrying out its
provisions and become an arbitrary flexing of government
muscle because they themselves do not know whether it’s covered
or not covered. in fact, even prosecutors will have unbridled
discretion to charge you or not. Judges also will have unbridled
discretion whether to convict you or not, because of the vagueness
of the law. So that is what we mean by these 2 statements given by
the Court on what is a vague statute.
2010, XIV
ABC operates an industrial waste processing plant within
Laoag City. Occasionally, whenever fluid substances are
released through a nearby creek, obnoxious odor is emitted
causing dizziness among residents in Barangay La Paz. On
complaint of the Punong Barangay, the City Mayor wrote ABC
demanding that it abate the nuisance. This was ignored. An
invitation to attend a hearing called by the Sangguniang
Panlungsod was also declined by the president of ABC. The
city government thereupon issued a cease and desist order to
stop the operations of the plant, prompting ABC to file a
petition for injunction before the Regional Trial Court,
arguing that the city government did not have any power to
abate the alleged nuisance. Decide with reasons. (3%)
The 1st thing that we need to understand here is that, is it a
nuisance per se or a nuisance per accidens? I’m thinking that it
might not really be per se because it’s not a nuisance at all times
and at all conditions. Upon further analysis, there might be a 2 nd
item here yet because you can answer it by ignoring that one by
simply saying that, this is actually not due process in judicial
proceedings; but this is admin in nature. If it is admin in nature,
there is no requirement of trial-type proceedings because take
note here, an invitation to attend a hearing called by the
Sangguniang Panglungsod, was also declined by the President.
The invitation of the mayor was also ignored. TAKE NOTE:
They were given an opportunity to explain their side but they did
not take advantage of it. In many decisions of the SC, they SC
would say that what is required is only an opportunity to defend
yourself. You’re notified; you’re given an opportunity, but they
never attended the hearing. Hence, they waived their right to
explain their side. If I’m the judge there, I will not grant an
injunction. There’s no need of a trial-type proceeding; this is only
an admin matter.
This is the one that I told you that from time to time they still ask
it:
2011 Bar Exam
77. Procedural due process in administrative proceedings
A. requires the tribunal to consider the evidence presented.
B. allows the losing party to file a motion for reconsideration.
C. requires hearing the parties on oral argument.
D. permits the parties to file memoranda.
Discussion:
If you know the Ang Tibay decision, you will know that A will be
the correct answer.
B. SUBSTANTIVE DUE PROCESS
Is the law reasonable or is it an undue interference on
life, liberty or property? – Sometimes the examiner will ask, Is
there a violation of due process? It is sometimes equivalent to
asking the question, Is it a valid exercise of police power? They
are actually interchangeable because once there is no valid
exercise of police power, more likely than not, there is also a
violation of substantive due process. TIP: The questions can be
one and the same; but they are all about substantive due process.
For that reason, we have to understand the meaning of police
power.
POLICE POWER:
if an act violates freedom of speech, we do not apply
this test; because most cases that we’ll deal with as we
move, will apply to restrictions on property rights.
That’s why we used the rational basis test which is
very easy to satisfy.
It has 2 components:
1.) That the interest of the public generally as
distinguished from those of a particular class
requires such interference;
2.) That the means are reasonably necessary for the
accomplishment of the purpose and not unduly
oppressive upon individuals. (US VS. TORIBIO)
Outline:
1. Lawful subject – in the old days, I simply ask my
students – Q: Does it fall under health, morals,
public safety, education, welfare? That is the meaning
of lawful subject.

The power of the government to prescribe regulations to
promote health, morals, education, good order or safety and the
general welfare of the people.
I usually emphasize to my students the items that promote:
(HMEGS)
 Health;
 Morals;
 Education;
 Good order;
 Safety and general welfare
In old cases, that used to be the standard because the exercise of
the power of the government does not fall under any, that will no
longer be a valid exercise of police power. But over the years,
some cases actually come up where the SC would day that it’s a
valid exercise of police power even if they don’t really fall under
the category. But anyway just take note on those on what are the
valid purposes of the exercise of police power.
2. Lawful method – if you try to analyze it carefully,
appears to be made up of 2 parts:
a. Rational relation between method and purpose
[Ynot], Laguio]  the method chosen by the law
and the purpose of the law.
This is a matter of logic which is very easy to satisfy.
Very few cases in the last 100 years have violated this
test. I usually cite to you Ynot because that is classic.
That is an example when the law failed the test.
Ynot vs. Intermediate Appellate Court, 148 SCRA 659, No.
L-74457 March 20, 1987
Facts:
This was the PD issued by Marcos prohibiting the inter-
provincial transfer of carabaos. According to him, to preserve
the carabaos, do not move it from one province to another
without a permit.

Take note of this: Held:

Tests for Valid Exercise of Police Power: Is the law Unconstitutional because it failed the test. We have no problem
reasonable? (Rational Basis Test] because it has a lawful subject – to protect the carabao because
it’s very important to the economy, being an agricultural
1. That the interest of the public generally as country. But the SC stated that, wait a minute, if you want to
distinguished from those of a particular class preserve the carabao and your method is to prohibit the
requires such interference. movement from one province to another, there seems to be no
logic because carabaos can be killed without moving it from
2. That the means are reasonably necessary for the one province to another. That’s why it nullified the PD.
accomplishment of the purpose and not unduly
oppressive upon individuals. (US VS. I used to tell my students, because Marcos was a very rational
TORIBIO) man. We cannot doubt his brilliance, but he made that error;
because I’m thinking, if I examine it, I was thinking that
Marcos passed that decree, but it was removed in the whereas
Remember the 3 tests I’ve mentioned: clauses or the final copy of the whereas clauses, to prevent the
spread of foot-and-mouth disease, which is very logical. Right
1.) The strict scrutiny; now, I think, swine fever, will prohibit the transfer of one swine
2.) The intermediate scrutiny; and from one place to another. That will actually prevent the
3.) The rational basis test – normally we apply this only spread of the disease; but the SC saw that aspect only.
when it involves a violation of property rights. Because

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 FT:
Same; Same; The ban on slaughter of carabaos is directly
related to public welfare.—In the light of the tests mentioned
above, we hold with the Toribio Case that the carabao, as the
poor man's tractor, so to speak, has a direct relevance to the
public welfare and so is a lawful subject of Executive Order
No. 626. The method chosen in the basic measure is also
reasonably necessary for the purpose sought to be achieved and
not unduly oppressive upon individuals, again following the
above-cited doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at least seven
years old if male and eleven years old if female upon issuance
of the necessary permit, the executive order will be conserving
those still fit for farm work or breeding and preventing their
improvident depletion.
Same; Same; The ban on the transportation of carabaos from
one province to another (E.O. 626-A), their confiscation and
disposal without a prior court hearing is violative of due
process for lack of reasonable connection between the means
employed and the purpose to be achieved and for being
confiscatory.—But while conceding that the amendatory
measure has the same lawful subject as the original executive
order, we cannot say with equal certainty that it complies with
the second requirement, viz., that there be a lawful method. We
note that to strengthen the original measure, Executive Order
No. 626-A imposes an absolute ban not on the slaughter of the
carabaos but on their movement, providing that "no carabao
regardless of age, sex, physical condition or purpose (sic) and
no carabeef shall be transported from one province to another."
The object of the prohibition escapes us. The reasonable
connection between the means employed and the purpose
sought to be achieved by the questioned measure is missing.
It happened in Laguio, but I will not emphasize that anymore. But
you have to remember that requirement there.
b. Means chosen not unduly oppressive of another
right  I want to emphasize this. When Congress
passes a law or if an LGU passes an ordinance, in
almost all cases, it always affects another right; but
that does not mean that the law will be
unconstitutional, because the requirement is that, it will
only be unconstitutional if the effect on the other right
is unduly oppressive. TAKE NOTE OF THE
WORD: Unduly. We all know that. If Congress
passes the Family Code, you cannot marry 5 times
because you can only marry once. When it passes the
RPC, you cannot do a lot of things anymore. In the
end, it restricts our ability to act. The point only is that,
it should not be unduly oppressive. That is the one that
the Court will declare unconstitutional.
Cases:
1. Old Cases: Toribio, Inot
2. [Ermita-Malate] White Light
 Renting for less than 12 hours
[‘undue restrain to on business and
rights of patrons ”, no rational
relation between purpose and method
2
because motels can be used for
innocent pruposes]
3. Fernando v. St. Scholastica’s College, 693 SCRA
141 (2013) [Beautification?] –if it permanently
divests owner of use of his property
4. Carlos Superdrug v. DSWD, Southern Luzon
Drug v. DSWD, (2017); Manila Memorial v.
Secretary, (2013) – 20% discount
5. Planters v. Fertiphil (fertilizer tax to make a
pricate corporation viable)
6. Mosqueda v. Pilipino Banana Growers, 800
SCRA 313 (2016) (aerial to truck-mounted
spraying in 3 months/too broad for not making
distinctions between pesticide and fertilizers]
(under-inclusive)
Ermita-Malate Hotel and Motel Operators Association, Inc.
vs. City Mayor of Manila, 21 SCRA 449, No. L-24693
October 23, 1967
Held:
In the old days, during our time, the classic case was Ermita v.
Malate, where the SC declared as unconstitutional an
ordinance prohibiting short-time in motels. Prohibiting the use
of motel rooms in a short-time basis will be constitutional
because that is intended to protect morals.
FT:
Constitutional law; Absence of injury to rights by operation
of statute or ordinance,—Unless a person is injuriously
affected in any of his constitutional rights by the operation of
statute or ordinance, he has no standing.
Same; Freedom of contract not a bar to police power
measures.—In this jurisdiction, the liberty to contract has
never stood in the way of the enactment of police power
measures when called for by circumstances (except in the
Pomar case, 46 Phil. 440). The same is true in the United
States, where such concept has definitely fallen from its
previously high state under the impact of the Nebbia (291 US
502), West Coast Hotel Co. (300 US 379), and Olsen (313 US
1305) decisions. Same; Deprivation of property allowed
provided due process is observed.—One could, consistently
with the fundamental law, be deprived of his property as long
as due process is observed.
Same; Challenged ordinance does not deny equal protection
clause.—Since the challenged ordinance applies to all the
motels in Manila, an assertion that there is denial of equal
protection would be extremely far-fetched.
Same; Laissez faire concept, as bar to enactment of
regulatory measures, may not be invoked.—The invocation
of the laissez faire concept as bar against the enactment of
regulatory measures, which undoubtedly would result in the
diminution of income and the loss of business, does not
occasion any misgiving as to the conformity of the decision
 arrived at by the Court with controlling constitutional law
principles. The policy of laissez faire has to some extent given
way to the assumption by the government of the right of
intervention even in contractual relations affected with public
interest. The state in order to promote the general welfare may
interfere with personal liberty, with property, and with business
and occupations. Persons and property may be subjected to all
kinds of restraints and burdens, in order to secure the general
comfort, health, and prosperity of the state. To this fundamental
aim of our Government, the rights of the individual are
subordinated. The mere fact that some individuals in the
community may be deprived of their present business or a
particular mode of earning a living cannot prevent the exercise
of police power. Person licensed to pursue occupations which
may in the public need and interest be affected by the exercise
of the police power embark in those occupations subject to the
disadvantages which may result from the legal exercise of that
power.
However, after that, we have the case of: (NOTE: In these cases,
the SC changed its mind)
City of Manila vs. Laguio, Jr., 455 SCRA 308, G.R. No.
118127 April 12, 2005
Held:
It is an undue restraint on a business and the right of patrons
 this is 3rd party standing. The patrons who will never bother
to file a case in court because the owners were the ones who
filed a case.
FT:
Constitutional Law; Ordinances; For an ordinance to be
valid, it must not only be within the corporate powers of the
local government unit to enact and must be passed
according to the procedure prescribed by law, it must also
conform to substantive requirements.—The tests of a valid
ordinance are well established. A long line of decisions has
held that for an ordinance to be valid, it must not only be within
the corporate powers of the local government unit to enact and
must be passed according to the procedure prescribed by law, it
must also conform to the following substantive requirements:
(1) must not contravene the Constitution or any statute; (2)
must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must
not be unreasonable.
Same; Same; Local Governments; Police Power; Local
government units exercise police power through their
respective legislative bodies, in this case, the sangguniang
panlungsod or the city coun-cil.—Local government units
exercise police power through their respective legislative
bodies; in this case, the sangguniang panlung-sod or the city
council. The Code empowers the legislative bodies to “enact
ordinances, approve resolutions and appropriate funds for the
general welfare of the province/city/municipality and its
inhabitants pursuant to Section 16 of the Code and in the proper
exercise of the corporate powers of the province/city/
municipality provided under the Code. The inquiry in this
Petition is concerned with the validity of the exercise of such
delegated power.
Same; Same; Same; Same; The police power of the City
Council, however broad and far-reaching, is subordinate to
2
the constitutional limitations thereon; and is subject to the
limitation that its exercise must be reasonable and for the
public good.—The police power of the City Council, however
broad and far-reaching, is subordinate to the constitutional
limitations thereon; and is subject to the limitation that its
exercise must be reasonable and for the public good. In the case
at bar, the enactment of the Ordinance was an invalid exercise
of delegated power as it is unconstitutional and repugnant to
general laws.
Same; Same; Same; Same; Due Process; Procedural Due
Process and Substantive Due Process Distinguished.—
Procedural due process, as the phrase implies, refers to the
procedures that the government must follow before it deprives
a person of life, liberty, or property. Classic procedural due
process issues are concerned with what kind of notice and what
form of hearing the government must provide when it takes a
particular action. Substantive due process, as that phrase
connotes, asks whether the government has an adequate reason
for taking away a person’s life, liberty, or property. In other
words, substantive due process looks to whether there is a
sufficient justification for the government’s action.
Same; Same; Same; Same; Same; The police power granted
to local government units must always be exercised with
utmost observance of the rights of the people to due process
and equal protection of the law; Due process requires the
intrinsic validity of the law in interfering with the rights of
the person to his life, liberty and property.— The police
power granted to local government units must always be
exercised with utmost observance of the rights of the people to
due process and equal protection of the law. Such power cannot
be exercised whimsically, arbitrarily or despotically as its
exercise is subject to a qualification, limitation or restriction
demanded by the respect and regard due to the prescription of
the fundamental law, particularly those forming part of the Bill
of Rights. Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly be required
by the legitimate demands of public interest or public welfare.
Due process requires the intrinsic validity of the law in
interfering with the rights of the person to his life, liberty and
property.
Same; Same; Same; Same; Same; A reasonable relation
must exist between the purposes of the police measure and
the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights
and those pertaining to private property will not be
permitted to be arbitrarily invaded.—To successfully invoke
the exercise of police power as the rationale for the enactment
of the Ordinance, and to free it from the imputation of
constitutional infirmity, not only must it appear that the
interests of the public generally, as distinguished from those of
a particular class, require an interference with private rights,
but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals. It must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights
can work. A reasonable relation must exist between the
purposes of the police measure and the means employed for its
accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.
Lacking a concurrence of these two requisites, the police
measure shall be struck down as an arbitrary intrusion into
private rights—a violation of the due process clause.
Same; Same; Same; Same; Same; An ordinance which
permanently restricts the use of property that it can not be
used for any reasonable purpose goes beyond regulation
and must be recognized as a taking of the property without
just compensation.—The Ordinance is unreasonable and
oppressive as it substantially divests the respondent of the
beneficial use of its property. The Ordinance in Section 1
thereof forbids the running of the enumerated businesses in the
Ermita-Malate area and in Section 3 instructs its
own-ers/operators to wind up business operations or to transfer
outside the area or convert said businesses into allowed
businesses. An ordinance which permanently restricts the use
of property that it can not be used for any reasonable purpose
goes beyond regulation and must be recognized as a taking of
the property without just compensation. It is intrusive and
violative of the private property rights of individuals.
Same; Same; Same; Same; Same; The directive to “wind up
business operations” amounts to a closure of the
establishment, a permanent deprivation of property, and is
practically confiscatory.— The Ordinance gives the owners
and operators of the “prohibited” establishments three (3)
months from its approval within which to “wind up business
operations or to transfer to any place outside of the Ermita-
Malate area or convert said businesses to other kinds of
business allowable within the area.” The directive to “wind up
business operations” amounts to a closure of the establishment,
a permanent deprivation of property, and is practically
confiscatory. Unless the owner converts his establishment to
accommodate an “allowed” business, the structure which
housed the previous business will be left empty and gathering
dust.
Same; Same; Same; Same; Same; Private property which is
not noxious nor intended for noxious purposes may not, by
zoning, be destroyed without compensation.—Petitioners
cannot take refuge in classifying the measure as a zoning
ordinance. A zoning ordinance, although a valid exercise of
police power, which limits a “wholesome” property to a use
which can not reasonably be made of it constitutes the taking of
such property without just compensation. Private property
which is not noxious nor intended for noxious purposes may
not, by zoning, be destroyed without compensation. Such
principle finds no support in the principles of justice as we
know them. The police powers of local government units which
have always received broad and liberal interpretation cannot be
stretched to cover this particular taking.
Same; Same; Same; Same; Same; Petitioners cannot
therefore order the closure of the enumerated
establishments without infringing the due process clause.—
The Ordinance does not specify the standards to ascertain
which establishments “tend to disturb the community,” “annoy
the inhabitants,” and “adversely affect the social and moral
welfare of the community.” The cited case supports the
nullification of the Ordinance for lack of comprehensible
standards to guide the law enforcers in carrying out its
provisions. Petitioners cannot therefore order the closure of the
enumerated establishments without infringing the due process
clause. These lawful establishments may be regulated, but not
prevented from carrying on their business. This is a sweeping
exercise of police power that is a result of a lack of imagination
on the part of the City Council and which amounts to an
interference into personal and private rights which the Court
will not countenance. In this regard, we take a resolute stand to
uphold the constitutional guarantee of the right to liberty and
property.
White Light Corporation vs City of Manila, 576 SCRA 416,
2
G.R. No. 122846 January 20, 2009
Held:
TAKE NOTE BECAUSE IT’S REALLY VERY RARE:
There is no rational relation between the purpose of the law (to
promote morals) and the method chosen (to prohibit short-
times). Because according to the Court, motels can be used also
for innocent purposes. That is the reasoning that it used
FT:
Same; Same; Judicial Review; Words and Phrases; “Strict
Scrutiny,” “Rational Basis,” and, “Intermediate Review,”
Explained.—The general test of the validity of an ordinance on
substantive due process grounds is best tested when assessed
with the evolved footnote 4 test laid down by the U.S. Supreme
Court in U.S. v. Carolene Products, 304 U.S. 144 (1938).
Footnote 4 of the Carolene Products case acknowledged that
the judiciary would defer to the legislature unless there is a
discrimination against a “discrete and insular” minority or
infringement of a “fundamental right.” Consequently, two
standards of judicial review were established: strict scrutiny for
laws dealing with freedom of the mind or restricting the
political process, and the rational basis standard of review for
economic legislation. A third standard, denominated as
heightened or immediate scrutiny, was later adopted by the
U.S. Supreme Court for evaluating classifications based on
gender and legitimacy. Immediate scrutiny was adopted by the
U.S. Supreme Court in Craig v. Boren, 429 U.S. 190 (1976),
after the Court declined to do so in Reed v. Reed, 404 U.S. 71
(1971). While the test may have first been articulated in equal
protection analysis, it has in the United States since been
applied in all substantive due process cases as well. We
ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges. Using the rational basis
examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest. Under intermediate
review, governmental interest is extensively examined and the
availability of less restrictive measures is considered. Applying
strict scrutiny, the focus is on the presence of compelling,
rather than substantial, governmental interest and on the
absence of less restrictive means for achieving that interest. In
terms of judicial review of statutes or ordinances, strict scrutiny
refers to the standard for determining the quality and the
amount of governmental interest brought to justify the
regulation of fundamental freedoms. Strict scrutiny is used
today to test the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights as
expansion from its earlier applications to equal protection. The
United States Supreme Court has expanded the scope of strict
scrutiny to protect fundamental rights such as suffrage, judicial
access and interstate travel.
Same; Same; Liberty; Liberty, as integrally incorporated as
a fundamental right in the Constitution, is not a Ten
Commandments-style enumeration of what may or what
may not be done, but rather an atmosphere of freedom
where the people do not feel labored under a Big Brother
presence as they interact with each other, their society and
nature, in a manner innately understood by them as
inherent, without doing harm or injury to others.—One
might say that the infringed rights of these customers were are
trivial since they seem shorn of political consequence.
Concededly, these are not the sort of cherished rights that,
when proscribed, would impel the people to tear up their
cedulas. Still, the Bill of Rights does not shelter gravitas alone.
Indeed, it is those “trivial” yet fundamental freedoms—which
the people reflexively exercise any day without the impairing
awareness of their constitutional consequence—that accurately
reflect the degree of liberty enjoyed by the people. Liberty, as
integrally incorporated as a fundamental right in the
Constitution, is not a Ten Commandments-style enumeration of
what may or what may not be done; but rather an atmosphere
of freedom where the people do not feel labored under a Big
Brother presence as they interact with each other, their society
and nature, in a manner innately understood by them as
inherent, without doing harm or injury to others.
Same; Same; Police Power; A reasonable relation must
exist between the purposes of the police power measure and
the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights
and those pertaining to private property will not be
permitted to be arbitrarily invaded.—That the Ordinance
prevents the lawful uses of a wash rate depriving patrons of a
product and the petitioners of lucrative business ties in with
another constitutional requisite for the legitimacy of the
Ordinance as a police power measure. It must appear that the
interests of the public generally, as distinguished from those of
a particular class, require an interference with private rights and
the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of
private rights. It must also be evident that no other alternative
for the accomplishment of the purpose less intrusive of private
rights can work. More importantly, a reasonable relation must
exist between the purposes of the measure and the means
employed for its accomplishment, for even under the guise of
protecting the public interest, personal rights and those
pertaining to private property will not be permitted to be
arbitrarily invaded. Lacking a concurrence of these requisites,
the police measure shall be struck down as an arbitrary
intrusion into private rights. As held in Morfe v. Mutuc, 22
SCRA 424 (1968), the exercise of police power is subject to
judicial review when life, liberty or property is affected.
However, this is not in any way meant to take it away from the
vastness of State police power whose exercise enjoys the
presumption of validity.
Municipal Corporations; Police Power; Urban decay is a
fact of mega cities such as Manila, and vice is a common
problem confronted by the modern metropolis wherever in
the world—the solution to such perceived decay is not to
prevent legitimate businesses from offering a legitimate
product, rather, cities revive themselves by offering
incentives for new businesses to sprout up thus attracting
the dynamism of individuals that would bring a new
grandeur to Manila.—The Court has professed its deep
sentiment and tenderness of the Ermita-Malate area, its
longtime home, and it is skeptical of those who wish to depict
our capital city—the Pearl of the Orient—as a modern-day
Sodom or Gomorrah for the Third World set. Those still
steeped in Nick Joaquin-dreams of the grandeur of Old Manila
will have to accept that Manila like all evolving big cities, will
have its problems. Urban decay is a fact of mega cities such as
Manila, and vice is a common problem confronted by the
modern metropolis wherever in the world. The solution to such
perceived decay is not to prevent legitimate businesses from
offering a legitimate product. Rather, cities revive themselves
by offering incentives for new businesses to sprout up thus
attracting the dynamism of individuals that would bring a new
grandeur to Manila. The behavior which the Ordinance seeks to
curtail is in fact already prohibited and could in fact be
diminished simply by applying existing laws. Less intrusive
measures such as curbing the proliferation of prostitutes and
drug dealers through active police work would be more
effective in easing the situation. So would the strict
2
enforcement of existing laws and regulations penalizing
prostitution and drug use. These measures would have minimal
intrusion on the businesses of the petitioners and other
legitimate merchants. Further, it is apparent that the Ordinance
can easily be circumvented by merely paying the whole day
rate without any hindrance to those engaged in illicit activities.
Moreover, drug dealers and prostitutes can in fact collect “wash
rates” from their clientele by charging their customers a portion
of the rent for motel rooms and even apartments.
Same; Same; Individual rights may be adversely affected
only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare—
the State is a leviathan that must be restrained from
needlessly intruding into the lives of its citizens.—We
reiterate that individual rights may be adversely affected only
to the extent that may fairly be required by the legitimate
demands of public interest or public welfare. The State is a
leviathan that must be restrained from needlessly intruding into
the lives of its citizens. However well-intentioned the
Ordinance may be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments as well as their
patrons. The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of
their patrons without sufficient justification. The Ordinance
rashly equates wash rates and renting out a room more than
twice a day with immorality without accommodating innocuous
intentions. The promotion of public welfare and a sense of
morality among citizens deserves the full endorsement of the
judiciary provided that such measures do not trample rights this
Court is sworn to protect. The notion that the promotion of
public morality is a function of the State is as old as Aristotle.
The advancement of moral relativism as a school of philosophy
does not de-legitimize the role of morality in law, even if it
may foster wider debate on which particular behavior to
penalize. It is conceivable that a society with relatively little
shared morality among its citizens could be functional so long
as the pursuit of sharply variant moral perspectives yields an
adequate accommodation of different interests.
Same; Same; Our democracy is distinguished from non-free
societies not with any more extensive elaboration on our
part of what is moral and immoral, but from our
recognition that the individual liberty to make the choices
in our lives is innate, and protected by the State.—The oft-
quoted American maxim that “you cannot legislate morality” is
ultimately illegitimate as a matter of law, since as explained by
Calabresi, that phrase is more accurately interpreted as meaning
that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong. Our penal
laws, for one, are founded on age-old moral traditions, and as
long as there are widely accepted distinctions between right and
wrong, they will remain so oriented. Yet the continuing
progression of the human story has seen not only the
acceptance of the right-wrong distinction, but also the advent of
fundamental liberties as the key to the enjoyment of life to the
fullest. Our democracy is distinguished from non-free societies
not with any more extensive elaboration on our part of what is
moral and immoral, but from our recognition that the individual
liberty to make the choices in our lives is innate, and protected
by the State. Independent and fair-minded judges themselves
are under a moral duty to uphold the Constitution as the
embodiment of the rule of law, by reason of their expression of
consent to do so when they take the oath of office, and because
they are entrusted by the people to uphold the law.
Fernando vs. St. Scholastica's College, 693 SCRA 141, G.R.
No. 161107 March 12, 2013
Facts:
The ordinance here required that if you put up a fence, you
should give a margin to the streets. Meaning, you do not put it
in the boundary on a private property and the state. Give it
several meters away from the boundary. Here, you build your
fence, for instance, 10m or 5m away from your boundary. That
means that you can never use anymore that portion as it will be
used as parking lots. It will look beautiful definitely.
Issue: Can beautification be a valid purpose for the exercise
of police power?
Held:
The SC annulled it because the owner will be deprived of the
use of his property. That’s one aspect of the case, although it
has many aspects.
That is rarely addressed by the SC. Because take note, you
have morals, education; no aesthetics there. But recently the
SC stated that, apparently beautification is a valid exercise of
police power, but it will not be permitted if it will permanently
divest the owner of the use of his property. Because I think
some municipalities require that your fences will be painted
green, all that. Your tricycles will be painted yellow. Before I
really doubted if that can be valid. Before, beautification has
never been recognized by the SC as a valid exercise of police
power. But the SC seems to imply now that it’s ok for as long
as the owner is not permanently divested of the use of his
property.
FT:
Constitutional Law; Ordinances; Right to Property; Right
to Privacy; Compelling the respondents to construct their
fence in accordance with the assailed ordinance is, thus, a
clear encroachment on their right to property, which
necessarily includes their right to decide how best to protect
their property; It also appears that requiring the exposure
of their property via a see-thru fence is violative of their
right to privacy.—Compelling the respondents to construct
their fence in accordance with the assailed ordinance is, thus, a
clear encroachment on their right to property, which necessarily
includes their right to decide how best to protect their property.
It also appears that requiring the exposure of their property via
a see-thru fence is violative of their right to privacy,
considering that the residence of the Benedictine nuns is also
located within the property. The right to privacy has long been
considered a fundamental right guaranteed by the Constitution
that must be protected from intrusion or constraint. The right to
privacy is essentially the right to be let alone, as governmental
powers should stop short of certain intrusions into the personal
life of its citizens. It is inherent in the concept of liberty,
enshrined in the Bill of Rights (Article III) in Sections 1, 2,
3(1), 6, 8, and 17, Article III of the 1987 Constitution. The
enforcement of Section 3.1 would, therefore, result in an undue
interference with the respondents’ rights to property and
privacy. Section 3.1 of Ordinance No. 192 is, thus, also invalid
and cannot be enforced against the respondents.
Carlos Superdrug v. DSWD, Southern Luzon Drug v.
DSWD, (2017); Manila Memorial v. Secretary, (2013) –
20% discount
2
This is another angle/aspect in the exercise of the PP. in fact,
there are already 3 cases now.
Facts:
We now have many laws. For instance, giving 20% discounts
to senior citizens; giving 20% discount to people with
disability. I was thinking when the law was still new and I was
still teaching in Ateneo, I discuss this with my students. I was
thinking that that should be regarded as unconstitutional. Some
justices had agreed (very few justices). But the majority agreed
that it’s constitutional. Because it seems to me that the gov’t
now is simply passing the burden to the private sector – “You
own a drug store, give 20% discount.” “You own a restaurant,
give 20% discount.” While they’re entitled to a tax credit, the
tax credit is very minimal. It will not allow you a full recovery
of what you lost as a result of the discount.
Held:
This is a valid exercise of police power. In fact, if you try to
look at it, it is in a sense a different kind of police power
because it’s not really restricting the use of your property.
There are so many ordinances that limits the use of property.
But the 20% discount is passing the buck to the private sector.
But the Court considered it (at least some justices or majority
of the justices) that this is some kind of limitation on prices.
For instance, there are certain goods where the gov’t puts a
price limit. Like certain drugs – they are the subject of certain
price limitations. The SC would still consider that as a valid
exercise of police power.
FT:
Planters v. Fertiphil (fertilizer tax to make a pricate
corporation viable)
Facts:
This one is a decree issued by Marcos but only a couple of
years ago declared by the SC as unconstitutional because it
imposes a 10 centavo tax for every bag of fertilizer to make a
private corporation viable.
Held:
That is not a valid exercise of police power because that is in
favor of a private corporation. The money collected will be
given to a private corporation (a crony of Marcos) to ensure the
existence of the corporation. That’s why the SC nullified it.
FT:
Same; Same; Same; Police Power; The State, in promoting
the health and welfare of a special group of citizens, can
impose upon private establishments the burden of partly
subsidizing a government program.—This raises the question
of whether the State, in promoting the health and welfare of a
special group of citizens, can impose upon private
establishments the burden of partly subsidizing a government
program. The Court believes so. The Senior Citizens Act was
enacted primarily to maximize the contribution of senior
citizens to nation-building, and to grant benefits and privileges
to them for their improvement and well-being as the State
considers them an integral part of our society.
Same; Same; Same; Same; R.A. No. 9257 is a legitimate
exercise of police power which, similar to the power of
eminent domain, has general welfare for its object; When
the conditions so demand as determined by the legislature,
property rights must bow to the primacy of police power
because property rights, though sheltered by due process,
must yield to general welfare; Police power as an attribute
to promote the common good would be diluted considerably
if on the mere plea of property owners that they will suffer
loss of earnings and capital, a questioned provision is
invalidated.—The law is a legitimate exercise of police power
which, similar to the power of eminent domain, has general
welfare for its object. Police power is not capable of an exact
definition, but has been purposely veiled in general terms to
underscore its comprehensiveness to meet all exigencies and
provide enough room for an efficient and flexible response to
conditions and circumstances, thus assuring the greatest
benefits. Accordingly, it has been described as “the most
essential, insistent and the least limitable of powers, extending
as it does to all the great public needs.” It is “[t]he power
vested in the legislature by the constitution to make, ordain,
and establish all manner of wholesome and reasonable laws,
statutes, and ordinances, either with penalties or without, not
repugnant to the constitution, as they shall judge to be for the
good and welfare of the commonwealth, and of the subjects of
the same.” For this reason, when the conditions so demand as
determined by the legislature, property rights must bow to the
primacy of police power because property rights, though
sheltered by due process, must yield to general welfare. Police
power as an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners that they
will suffer loss of earnings and capital, the questioned
provision is invalidated. Moreover, in the absence of evidence
demonstrating the alleged confiscatory effect of the provision
in question, there is no basis for its nullification in view of the
presumption of validity which every law has in its favor.
Same; Same; Same; Same; It is unfair for drugstore owners
to criticize the law because they cannot raise the prices of
their medicines given the cutthroat nature of the players in
the industry.—It is unfair for petitioners to criticize the law
because they cannot raise the prices of their medicines given
the cutthroat nature of the players in the industry. It is a
business decision on the part of petitioners to peg the mark-up
at 5%. Selling the medicines below acquisition cost, as alleged
by petitioners, is merely a result of this decision. Inasmuch as
pricing is a property right, petitioners cannot reproach the law
for being oppressive, simply because they cannot afford to raise
their prices for fear of losing their customers to competition.
Same; Same; Same; Same; While the Constitution protects
property rights, petitioners must accept the realities of
business and the State, in the exercise of police power, can
intervene in the operations of a business which may result
in an impairment of property rights in the process.—The
Court is not oblivious of the retail side of the pharmaceutical
industry and the competitive pricing component of the
business. While the Constitution protects property rights,
petitioners must accept the realities of business and the State, in
the exercise of police power, can intervene in the operations of
a business which may result in an impairment of property rights
in the process. Moreover, the right to property has a social
2
dimension. While Article XIII of the Constitution provides the
precept for the protection of property, various laws and
jurisprudence, particularly on agrarian reform and the
regulation of contracts and public utilities, continuously serve
as a reminder that the right to property can be relinquished
upon the command of the State for the promotion of public
good.
Same; Same; Same; Same; Without sufficient proof that
Section 4(a) of R.A. No. 9257 is arbitrary, and that the
continued implementation of the same would be
unconscionably detrimental to petitioners, the Court will
refrain from quashing a legislative act.—The success of the
senior citizens program rests largely on the support imparted by
petitioners and the other private establishments concerned. This
being the case, the means employed in invoking the active
participation of the private sector, in order to achieve the
purpose or objective of the law, is reasonably and directly
related. Without sufficient proof that Section 4(a) of R.A. No.
9257 is arbitrary, and that the continued implementation of the
same would be unconscionably detrimental to petitioners, the
Court will refrain from quashing a legislative act.
Mosqueda v. Pilipino Banana Growers, 800 SCRA 313
(2016) (aerial to truck-mounted spraying in 3 months/too
broad for not making distinctions between pesticide and
fertilizers] (under-inclusive)
This is a Davao case which I was a little bit disappointed by
the decision because I was hoping that it will be sustained by
the SC.
Facts:
Because of the problem now brought about by the spraying of
chemicals by banana companies, the city of Davao passed an
ordinance which prohibited aerial spraying and it required the
banana growers to transfer or to truck mountain (?) spraying in
3 mos.
Held:
The SC declared it unconstitutional. Justice Leonen came out
with a good explanation. The point simply, according to the SC
is that, the period of 3 months given to the banana planters is
too short to move from aerial spraying to truck-mountain
spraying. It’s too short that in the end, it’s almost confiscatory.
That cannot easily shirt to that. Si it’s possible that on that
argument alone that is an ordinance is re-enacted and made it
one year, it may be able to satisfy the complains of the justices.
The 2nd reason given by the SC is this. According to the SC, the
ordinance is overbroad because it did not make any distinction
between the use of pesticide and the use of fertilizer for
spraying.
Q: Why?
The use of pesticide actually, can be very dangerous. It will fall
on people because sometimes of the direction of the air on your
gardens and your vegetables will be harmed. But the SC said
that, why do you include the aerial spraying with the use of
fertilizers? So that is also one reason why it declared it as
 unconstitutional. But in the end, the one that is insurmountable
is suppose we come up with an ordinance saying that, “Ok we
will allow fertilizer; only pesticide will be prohibited.” That
might satisfy the Court. But the other reason given, I think by
Justice Bersamin was this: The city has no authority to regulate
the spraying of the use of pesticide and fertilizer because it is
within the authority of the Philippine Fertilizer Authority. That
is the one that is insurmountable; and Justice Leonen disagreed
with that. Because J. Leonen seems to be thinking that it is
possible to re-enact another ordinance because it’s so bad now
– everything is polluted.
FT:
The analysis here is still classic…
KMU v. Aquino III, G.R. No. 210500, April 02, 2019
Facts:
On April 19, 2013, the Social Security Commission issued
Resolution No. 262-.2013, which provided an increase in: (1)
the Social Security System members' contribution rate from
10.4% to 11%; and (2) the maximum monthly salary credit
from P15,000.00 to P16,000.00. The increase was subject to
the approval of the President, as provided in the Social Security
Act. Is this a valid exercise of police power?
Held:
Yes. To be a valid exercise of police power, there must be a
lawful subject and the power is exercised through lawful
means. The second requisite requires a reasonable relation
between the purpose and the means. Using the parameters
above, we hold that the increases reflected in the issuances of
the SSS are reasonably necessary to observe the constitutional
mandate of promoting social justice under the Social Security
Act. The public interest involved here refers to the State's goal
of establishing, developing, promoting, and perfecting a sound
and viable tax-exempt social security system. To achieve this,
the Social Security System and the Social Security Commission
are empowered to adjust from time to time the contribution rate
and the monthly salary credits. Given the past increases since
the inception of the law, the contribution rate increase of 0.6%
applied to the corresponding monthly salary credit does not
scream of unreasonableness or injustice.
Discussion:
Meaning, it is not unduly oppressive of your property, right and
money.
This one is also a Davao City case which I included. This is
another ordinance of Davao City wherein the SC used the same
analysis…
Evasco, Jr. v. Montanez, G.R. No. 199172, Feb. 21, 20185
Facts:
The City of Davao passed an ordinance regulating the
installation and maintenance of outdoor advertising materials.
5 7
This time, the SC allowed it.
2
Among others, it prohibited advertising signs in residential
zones, set minimum distances from property lines abutting the
road-right of way and designated certain areas of the city as
“regulated areas” to preserve the natural view of Davao River,
Mt. Apo and Samal Island. Is the Ordinance a valid exercise of
police power?
Held:
Yes. An ordinance constitutes a valid exercise of police power
if: (a) it has a lawful subject such as the interest of the public,
as distinguished from those of a particular class, requires its
exercise; and (b) it uses a lawful method such that its
implementing measures must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals. The purpose of the Ordinance is to: (a) safeguard
the life and property of Davao City’s inhabitants 6; (b) keep the
surrounding clean and orderly; (c) ensure public decency and
good taste; and (d) preserve the aesthetic relationship of these
structures as against the general surroundings 7. To achieve its
purposes, it employs the following: (a) Minimum distances
must be observed in installing and in constructing outdoor
billboards (b) Additional requirements shall be observed in
locations designated as “regulated areas” to preserve the natural
view (c) Sign permits must be secured from and proper fees
paid to the city government; and (d)Violators are given 60 days
from receipt of notice to correct and address its violation. The
Court will not be quick at invalidating an ordinance as
unreasonable unless the rules imposed are so excessive as to be
prohibitive, arbitrary, unreasonable, oppressive or confiscatory.
Discussion:
The city of Davao passed an ordinance; and this time, it allowed it.
Q: Why do I try to repeat this?
TIP: Actually in the bar, sometimes they ask you certain problems
which have nothing to do with actual cases. In the end, you try to
apply your ability to reason out by applying the 2 standards.
That’s the only way to arrive at an answer. That’s what I also do
in my examinations also. I sometimes get one old case which I did
not discuss and try to ask it; or sometimes a very new one which I
have not yet come across as of the moment. That’s the way how to
do it. you have to apply your ability to reason out.
Bar Questions:
5. 1987, V: Is an ordinance prohibiting barbershop
operators from rendering massage service to their customers in
a separate room valid?
You’ll analyze it by applying the 2 tests.
Q: What is the purpose of the ordinance?
To protect definitely morals. I think it’s easy to reason out. If you
do barbering in a separate room, you don’t know what’s happening
there. That’s why, to require them not to render massage in a
separate room will in effect promote morals. PURPOSE: To
protect morals.
Q: Is the means not unduly oppressive of another right? Is
there a logical connection?
6
Because some of them can fall in your heads during strong winds.
Again it allowed aesthetics.
I see no problem. To ensure that morals are protected, you do not
render massage in a separate room.
Q: Is that unduly oppressive of the right of the people who are
involved in this business?
I don’t think so.
Q: Why?
Because it did not say that “from now on, massages are totally
prohibited.” That will be unduly oppressive of the occupation of
some people. That’s no longer regulation; that’s prohibiting it.
This is just a reasonable way to promote morals.
(Asked 2 times) 2001, No. 138: The PPA issued an
adminstrative order to the effect that all existing regular
appointment to harbor pilot positions shall remain valid only
up to Dec. 31 of the current ever and that henceforth all
appointments to harbor pilot positions shall be only for a term
of one year. Pilotage as a profession may be practiced only by
duly licensed individuals, who have to pass five government
professional examinations.
The harbor pilots association challenged the validity of said
admin order on the argument that it violated their right to
exercise their profession and their right to due process of law
and that the said order was without prior notice and hearing.
Are they correct?
If you look at the question, this is one classic that I’ve told you – it
raises 2 questions. It’s saying:
o Is there a violation of procedural due process?
As to procedural due process, take note here that it is rule-making.
Since it’s rule-making, the PPA need not conduct a notice and
hearing – need not observe N&H.
o Is there a violation of substantive due process?
Yes, this ordinance violates substantive due process.
Q: How did the SC reasoned it out?
Pilotage is a profession. Once you passed the exam, you have a
right to practice it. the gov’t cannot simply remove that right and
say that you’re subjected to another examination. That would be
unduly oppressive of the exercise of a profession.
*It passed the procedural due process test, but it failed the
substantive due process test for the reason that, it’s unduly
oppressive to the right to practice your profession.
2000, No. 4: Undaunted by his 3 failures in the NMAT, Cruz
applied to take it again but he was refused because of an order
of the DECS disallowing flunkers from taking the test for the
4th time. Cruz filed suit assailing this rule raising the
constitutional grounds of accessible quality education,
academic freedom and equal protection. The government
opposes this, upholding the constitutionality of the rule on the
ground of exercise of police power. Decide the case discussing
the grounds raised.
Q: Is this a valid exercise of police power?
8
This is based on an actual case.
2
The NMAT is the admission to the medical school. In the other
bar question, it was admission to the college of dentistry.
Q: What is the valid subject here?
To protect health.
Q: Why?
Because dentists and doctors are in the health profession. You
cannot have doctors who do not know how to cure. It is a valid
exercise of police power insofar as the purpose.
Q: What about the method chosen? Is there a logical
connection?
To ensure that the right to health is protected, we try to screen
people who want to get admitted to the medschool.
Q: How do we do it?
Those who did not pass for 3 times in the examination will not be
allowed to take it again.
Q: Is that unduly oppressive?
I don’t think so.
Q: Suppose the SC will come up with a rule that from now on,
if you flunk the bar once, goodbye forever; no more chance to
take it. Can you challenge it? (Some of you are frowning, I can
see your faces.)
I believe that you can challenge it. I believe that by saying that
“you can take only once” will be unduly oppressive.
Q: What is the reason?
Sometimes, some people who are smart can fail the bar because
sometimes they’re too afraid or they got sick. So those are the
reasons. It has nothing to do with his/her ability to pass. But if the
SC puts it at 3 times, I think that would be difficult to challenge.
That would be very reasonable. Because if you fail for the 3rd time,
I believe that something is not really that right with you. But once,
I believe it’s not too bad. Two, I will still challenge it. 3, I will say
that it’s ok. That’s what we mean by it should not be unduly
oppressive of another right – the right to choose a profession.
This one is not that easy to answer. I’m just showing it to you how
they ask it in the bar by using those principles, because you’re on
your own once you’re taking the exam.
2008, - VI -
The Philippine National Police (PNP) issued a circular to all its
members directed at the style and length of male police
officers' hair, sideburns and moustaches, as well as the size of
their waistlines. It prohibits beards, goatees and waistlines
over 38 inches, except for medical reason. Some police officers
questioned the validity of the circular, claiming that it violated
their right to liberty under the Constitution. Resolve the
controversy. (6%)
Not that easy actually. The 1st thing that we need to consider here
is that, I’m thinking that if you belong to the police force, you can
be subjected to stricter standards than ordinary individuals.
Q: Why?
Because you’re joining an organization.
For instance, if you’re prohibited from wearing beards and goatees,
I’m thinking that it has a valid purpose – that is to distinguish you
from the criminals. At least the people will know which is the
police and which is the criminal. Having a waistline not over 38
inches is very logical. It’s not unduly oppressive also because if
you have a big2x tummy, how can chase the criminals who can
run faster than you? I’m thinking that there is really some kind of
a logic in addition to the fact that you belong to a particular
organization because a certain organization can have its own
standards.
Suppose they should tell us: From now on, all citizens of the
Philippines should have a waistline of less than 35.
I don’t think that they have any business of doing that. That seems
to be a violation of my privacy of what I want to do with my body.
That seems to burden another right. That’s part of the liberties that
citizens enjoy of how do we look. We have long hair, short hair.
etc. The gov’t has no business of regulating that. But it’s not that
straightforward. I’m only telling you that the standard of analysis
will always go back to the 2.
2010, XXI
The Sangguniang Panlungsod of Pasay City passed an
ordinance requiring all disco pub owners to have all their
hospitality girls tested for the AIDS virus. Both disco pub
owners and the hospitality girls assailed the validity of the
ordinance for being violative of their constitutional rights to
privacy and to freely choose a calling or business. Is the
ordinance valid? Explain. (5%)
I think we have no problem with the purpose – to protect health
because hospitality girls can easily spread AIDS to their customers.
Q: Is that unduly oppressive?
They’re not really prohibited from exercising their calling or
business. It’s only that they will have to undergo test. So that’s ok.
Q: What about privacy?
It will be an issue of privacy if the results will be announced
publicly. But if the results will just be for the use of the employee,
as well as people in the health center so that you can be treated, I
do not see an issue of privacy. I believe that the ordinance is a
valid exercise of police power to promote health; and it does not
really prohibit you or unduly oppress another right. Not even the
right to privacy, depending on what would be the result.
This one they ask in 2009. Take note, they ask things which you
never see in cases.
V, 2009
To address the pervasive problem of gambling, Congress is
considering the following options: (1) prohibit all forms of
gambling; (2) allow gambling only on Sundays; (3) allow
gambling only in government-owned casinos; and (4) remove
all prohibitions against gambling but impose a tax equivalent
to 30% on all winnings.
[a] If Congress chooses the first option and passes the
corresponding law absolutely prohibiting all forms of
gambling, can the law be validly attacked on the ground that it
2
is an invalid exercise of police power? Explain your answer.  
(2%)
I’m thinking that it’s valid.
Q: What is the purpose there?
To promote morals. I think that’s always the argument against
gambling – MORALS.
We go to the 2nd analysis. To protect morals, we prohibit gambling.
The only quarrel would be, Q: Is it unduly oppressive of another
right?
What right is there? Do you have a right to gamble under the
Constitution? I don’t think that there seems to be such right.
Maybe the right to enjoy yourselves; but you can enjoy yourselves.
It’s only one form which is prohibited – gambling. You can do
other things.
There is another way to illustrate. For instance, suppose Congress
chooses number 2 – allow gambling only on Sundays. How will
you challenge it?
The main challenge is, there is no logical connection between the
method and the purpose of the law. It makes no sense to me. For
instance, you’ll say that, to promote morals, we will prohibit
gambling on Sundays. Q: What do you mean by that? You’re
saying that it’s moral to gamble on Monday; immoral on Tuesday;
moral on Wednesday; immoral on Saturday – that would be the net
effect of the law if you allow it on Sunday and your purpose is to
protect morals. That is the meaning of the lack of logical relation
between the method and the purpose.
TIP: Try to remember the 2-fold test. If you meet questions in
the bar which have nothing to do with actual situations, go
back to it. Sometimes we quarrel about the results but if you
know the principles to apply, the one checking it will like it. I
think you know what I’m talking about because in many
cases, some justices are not unanimous. Sometimes using the
same analysis, some justices arrive at a different conclusion.
It’s good that you know all the standards when it comes to
substantive due process.
EQUAL PROTECTION LAWS
Section 1: Due Process and Equal Protection
Equal protection pertains to the requirement that laws
must treat all persons or things similarly situated alike,
both as to privileges conferred and liabilities imposed.
In simple terms, Congress cannot pass a law which will give favors
to a certain group; and conversely, it also cannot pass a law which
will prejudice a certain group or a certain class that it creates.
PRINCIPLE: There should be no classification. Treat people
equally.
Some comments:
 1. The provision intends to promote equality, not identify of
rights – because we’ll learn later on that in different situations
involving different groups, sometimes there will be no identity of
rights. In essence, for as long as the intention is to promote
equality, no problem. For instance, you have situations where we
give more benefits to people who have disabilities (e.g. senior
citizens). There will be no identity of rights between us and them;
but the purpose is in a sense, to promote equality. That’s the
meaning.
2. All laws tend to classify – but classification by itself does
not violate the provision – early on, I told you that when
Congress opens its mouth, it tends to affect our right; it tends to
burden our rights. But the law will be valid for as long as the
burden is not unreasonable. The 2 nd statement that I’m proposing is
this: When Congress opens its mouth, it tends to classify. But that
does not mean that the law will be unconstitutional.
Q: What do I mean by that?
When Congress passes the FC, it favors people to plans to set-up
families. In a sense, it has nothing to do with people who does not
plan to put up families. When Congress passes the LC, it favors
laborers. When Congress passes the Agrarian Reform Law, it
favors actually landless people or tenants. When Congress passes
the RPC, it prejudices criminals.
Q: Can the criminals say that “Why are you trying to prejudice
us? That law is unconstitutional. You violate the equal protection
clause”?
Meaning, the fact that Congress classifies (in fact, it tends to
classify every time it opens its mouth), that does not mean that the
law will be unconstitutional.
Q: How then do I now whether the law is unconstitutional or
not?
We’ll go to that.
Two ways of violating the equal protection clause:
1. Classifying without basis (eye color/color blind] –
For instance, classifying people based on eye color.
Sometimes it can be a bit problematic.
Q: What about classifying people based on gender?
Sometimes it will be allowable depending on the
situation but will explain that later on.
Years ago (that was the batch of Gamboa, the PNP
Chief now), why do you prohibit short people from
joining the PMA? His answer was because the PMA
trains officers. So when they are on parade, they should
look beautiful – they are all tall. But I said, “That
makes no sense! What is the purpose of the army? So
that they will look beautiful?” Anyway, we’ll try to deal
with that issue as we move on. The point simply is that,
height can be sometimes a valid basis for
classification.
It used to be that skin color was the basis of apartheid.
Only recently in South Africa, black people were not
allowed until Mandela came into power. In the US
before, black people were not allowed to marry white
people until the 1960s, early 70s when Martin Luther
came. That’s classification based on skin color. That
2
seems to be no longer allowed by international law
now in the UN Charter.
Hence, classifying without basis will be a violation of
the EPC.
2. Failure to classify when distinction exist – When the
law fails to classify when it should have classified. that
was asked only in the bar once in 1989. The question
was based on Villegas v. City of Manila – when the
ordinance failed to classify when it should have
classified.
[Bar Q, 1989, No. 18: Villegas case]
An ordinance of the City fo Manila requires every alien
desiring to obtain employment of whatever kind, including
casual and part-time employment, in the city to secure an
employment permit from the City and to pay a work permit
fee of P500. Is the ordinance valid?
The Villegas case was in the 70s. P500 was a big2x amount. The
SC nullified it on the ground of a violation of the EPC.
Q: Why?
The SC said that “wait a minute. Aliens are not all similarly
situated – some have very low income and some are very rich. If
you do not classify them and require them a uniform payment of
P500, that would be unconstitutional.” That is one classic case
where failure to classify when there is a valid distinction will
result to a violation of the EPC.
TAKE NOTE – There is a violation of the EPC if:
1.) Classifying when there is no basis to classify; and
2.) Not classifying when you should have classified
When is classification permissble?
Two ways of justifying:
1. When the Constitution allows it; or [Nunez and
Almonte] Cruz v. COMELEC]
2. When it passes the 4 tests for a valid
classification
Q: What are the 2 ways by which you can justify a violation of
the EPC?
1. When the Constitution allows it; or [Nunez and Almonte]
Cruz v. COMELEC] – For instance, the OMB has the jurisdiction
to entertain complaints that were written anonymously. Anybody
can complain by saying that “bla blab la is doing this, etc. Pls
investigate.” The OMB may investigate. This was challenged in
the case of…
Almonte vs. Vasquez, 244 SCRA 286, G.R. No. 95367 May
23, 1995
Facts:
He stated that, “wait a minute. That is a violation of the EPC
 because other people in other tribunals can only be charged
and we know who is filing a case against us – they disclose
their identity and they execute sworn statements. Why is it that
we government officials are being prejudiced? Because even
anonymous complaints are entertained. “
Held:
If you look at the Constitution, the Constitution is saying that
the OMB can entertain complaints in any manner or form.
Meaning, the Constitution allows it. so you cannot complain of
the violation of the EPC.
FT:
Same; The Ombudsman and his Deputies are designated by
the Constitution “protectors of the people” and as such they
are required by it “to act promptly on complaints in any
form or manner against public officials or employees of the
Government, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled
corporation.”—On the other hand, the Ombudsman is
investigating a complaint that several items in the EIIB were
filled by fictitious persons and that the allotments for these
items in 1988 were used for illegal purposes. The plantilla and
other personnel records are relevant to his investigation. He and
his Deputies are designated by the Constitution “protectors of
the people” and as such they are required by it “to act promptly
on complaints in any form or manner against public officials or
employees of the Government, or any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporation.”
Same; The Constitution expressly enjoins the Ombudsman
to act on any complaint filed “in any form or manner”
concerning official acts or omissions.—Petitioners contend
that under Art. XI, § 13(4) the Ombudsman can act only “in
any appropriate case, and subject to such limitations as may be
provided by law” and that because the complaint in this case is
unsigned and unverified, the case is not an appropriate one.
This contention lacks merit. As already stated, the Constitution
expressly enjoins the Ombudsman to act on any complaint filed
“in any form or manner” concerning official acts or omissions.
I will carry the argument further. I told you, for instance, that we
passed the Agrarian Reform Law; we have the Labor Code.
Actually, these classes are favored by the Constitution. Sometimes
Congress would lean actually and try to protect them. You cannot
go to court and challenge it because the Constitution expressly
mandates that they will be protected.
2. When it passes the 4 tests for a valid classification – this is
the subject of the bar question. You have to know the test again
the same way that you have to know the 2 requisites for a valid
exercise of police power to substantive due process, you also have
to know the 4 test for a valid classification. This is also the
rational basis test when it comes to the EPC.
Q: What are they?
Tests for Valid Classification: (Rational Basis Test]
1. It must rest on a substantial distinction;
2. It must be germane to the purpose of the law;
2
3. It must not be limited to existing conditions only;
4. It must apply equally to members of the same class.
When I asked General Gamboa, his answer was that he wants the
officer to be tall so that he will look beautiful on parade. But I
think that would not anymore be germane to the purpose of the
law. 1st, it’s possible that there might be a distinction between tall
and short people; but when it comes to having an army…
Q: What is the purpose of an army?
To defend the republic/country.
Q: Is height be germane to the purpose of the law?
I don’t really believe that it seems to be germane to the purpose of
the law. In fact, in the old days, they don’t really allow women to
join the PMA. But later on (I don’t know what year), they started
accepting women to join the PMA because it does not seem to be
germane to the purpose of the law having an army which excludes
women.
But: Strict Scrutiny test: Applied in relation to statures
interfering with (a) fundamental rights (freedom of speech,
expression, assembly, religion, privacy, right to travel) or
(2) to classifications based on race, alienage or national
origin and religion. Southern Hemisphere v. Anti-
Terrorism Council, 632 SCRA 5 (2010)
We apply the strict scrutiny test only. We don’t apply this because
it would be very rare. Generally, we apply this to all questions of
EPC. However, as I reminded you in the beginning, we apply the
strict scrutiny test to:
 Questions of EP in number 2;
 Classifications based on race, alienage, national origin
and religion
I’m thinking that for us, the only thing that will be banned (?)
when it comes to strict scrutiny in the EPC might be religion. But
so far, I have not seen of an actual case yet. Remember that for the
moment.
Intermediate Scrutiny: When the challenge restriction does
not involve fundamental rights or suspect classes
(classification based on gender, legitimacy, financial need
and age). Chavez v. Gonzales, 555 SCRA 441 (2008) (no
heavy presumption of unconstitutionality/substantial
government interest)
TAKE NOTE: Laws which tend to classify people based on
gender will be subjected to the intermediate scrutiny if that
classification is based on:
 Gender – will be subjected to the intermediate
scrutiny and not the strict scrutiny test. I used to tell
my students that when it comes to gender, some
classifications might be useful; might be permissible.
Some might not be allowable.
For instance, prohibiting women to join the army or the
police is no longer permissible now. That does not seem
germane to the purpose of creating an army or the
 police force. But for instance, passing a law prohibiting
women from engaging in the sport of boxing might be
sustainable. Because women give birth. That might be
more important for their health.

I think we classify also based on gender when we give a

longer maternity leave to women. Paternity leave to
men would only be 5 days. To women, it would be 1
month or 2 months. But nobody goes to court saying
“that why is it that the maternity leave for women is
longer? It violates the EPC!” But that is germane to
the purpose of the law because they are the ones who
are giving birth – to protect their health. That’s what
we mean by some classifications will be permissible
depending on whether they passed the 4 test or not.

 Legitimacy – there’s a case pending in the SC

handled by your teacher now, Atty. Tiu and Atty.
Yangyang-Espejo. When she was in the SC, she called
me that she had an oral argument. We talked about it
before she had that oral argument;

 Financial need; and

 Age

2015 Bar Question:

XVII. The Gay, Bisexual and Transgender Youth Association

(GBTYA), an organization of gay, bisexual, and transgender
persons, filed for accreditation with the COMELEC to join the
forthcoming party-list elections. The COMELEC denied the
application for accreditation on the ground that GBTY A
espouses immorality which offends religious dogmas. GBTY A
challenges the denial of its application based on moral grounds
because it violates its right to equal protection of the law.

(I) What are the three (3) levels of test that are applied in equal
protection cases? Explain. (3%)

That’s the one that I’ve told you. You can apply the:

1.) Strict scrutiny, depending on the classification;

2.) The intermediate scrutiny; or
3.) The 4-test which is the rational basis test.

* It’s not that easy.

(2) Which of the three (3) levels of test should be applied to the
present case? Explain. (3%)

Classifying people as gays, bisexual, transgender, youth. Actually,

this is really not classifying them based on gender. It seems to me
to be classifying people based on sexual orientation. Because of
their sexual orientation, they are branded as immoral. That is not
mentioned under the strict scrutiny. That is not also mentioned
under the intermediate scrutiny. That’s why in the end, I believe
that the test that should be applied will be the RATIONAL BASIS
TEST.

I think some of you might be familiar with the American SC

decision