General Review and Police Power I

Tuesday, 7 November 2017

11:09 AM

Consti 1 - Thrust was in Art 6, 7, and some provisions in Art. 2. We'll be talking about Bill of Rights.
It's only proper to revisit what a Constitution is.

A Constitution is considered as a fundamental law of the land. Body of rules and maxims from
which powers of sovereign are exercised.

Written instrument by direct action of the people where powers of State are restricted, and
these are exercised by many departments - judiciary, executive, and legislative.

One of the purposes of a Consti - prescribe a permanent framework. Explains why we have
sections or Articles 6, 7, and 8. It allocates to the different departments different powers to avoid
usurpation of powers. The Constitution also provides for principles which the state or government
operates.

Explains why Art. 2 why ours is not just democratic, but also a republic.

As mentioned to you in our intro to law, a constitution is of different kinds:

a. Written constitution vs. unwritten

b. Rigid v. Flexible
c. Enacted v. Evolved

What if any is the difference between a written and unwritten Constitution?

AS the terms suggest, the terms are written, and a written one is one where provisions are
integrated in a single instrument or set of documents.

Unwritten Constitution is one whose provisions are not embodied in a single document. It is
scattered in different documents such as customs and traditions, and etc. When we speak of an
unwritten constitution, please do not think that the provisions are not written. Some of its
provisions may be in writing, but these are not integrated in a single instrument or set of
documents. SO, IT IS A MISNOMER.

How do we distinguish an enacted constitution from evolved.

Enacted - one that is formally or consciously adopted by a constituent body or sovereign.

Evolved - one that is not formally integrated. It is a result of political revolution.

Our Constitution is an enacted Constitution since it was formally and consciously ratified by the
people. No doubt it is also an example of a written Constitution, but which states or countries
have unwritten Constitutions? Britain, Israel, New Zealand, etc. Unwritten Constitutions are usually
considered evolved Constitution. Written constitutions are formally enacted usually.

Rigid v. Flexible
A rigid constitution is one that is difficult to amend. A flexible constitution is one that can easily
be amended.

What is the advantage of a rigid constitution? It has the capacity to resist capricious changes or
those that are not dictated by legitimate means. In the words of Justice Cruz, a rigid constitution
has this character of permanency which is that like a mountain amidst the storm or an ocean in
the midst of a storming sea.

Disadvantage of a rigid constitution is stagnancy. There is a need to revise, but owing to the
different processes, the Constitution would impede progress. Atty Galeon: I'd rather have a rigid
Constitution with the leaders we have.

Essential qualities of a good written Constitution:

1. Broad that it should not provide only for framework of government, persons of state, but
also anticipate the future. It must be comprehensive to foresee the future. After all, we
have a rigid Constitution. It should not be an embodiment of the past. It should be able to
anticipate the future.

2. It should be brief that as much as possible, the Constitution should cover the basic policies
to be pursued by government, leaving the details to Congress. Laws can easily be
amended, whereas the Constitution is difficult to amend.

3. Definite in the sense that it must be clear so that the laymen may understand what the
provisions are.

Parts of a Good Written Constitution

1. Constitution of Liberty - sets forth the basic or fundamental civil and political rights and set
the limitations of governmental powers to ensure our enjoyment of rights. Illustrated by the
provisions under Art. 3, the Bill of Rights.

2. Constitution of Government - sets forth the organization of the government, enumerate, as

well as laying down set of principles, and defining the electorate. Art. 6 - Legislative, Art. 7 -
Executive, and Art 8 - Judiciary, Art 9 - Elections.

3. Constitution of Sovereignty - Misleading. When we speak of a Constitution of Sovereignty,

this refers to the part of the Constitution which outlines methods to amend or revise
Constitution. Art. 17.

How do we interpret the provisions of our Constitutions? What are the rules governing the
interpretation?

a. Verba legis - plain meaning. Enunciates that ordinary words in the Consti shall be given
meaning unless where technical terms are used.

b. Ratio legis et anima - where there is doubt in interpretation, resort must be had to the
intention of the framers of the Constitution. Applied in the case of Francisco v. HOR: what
was at issue was WON initiation of impeachment is similar to filing impeachment. The SC
said that there is no distinction between filing and initiation - made reference to
deliberation of framers, particularly the discourse that filing an impeachment and initiation
are similar.
 c. Ut magis valeat quam pereat - Where there are two or more related provisions in the
Constitution, they must be taken together to effectuate the meaning. Where there are
provisions dealing with the same set of matters, they should be pursued as a rule to give
effect to this.

Provisions therein must be construed as self-executing provisions, especially Art. 3. Majority, if not
all the provisions, under Art. 2 are not self-executing provisions. They only set fundamental
principles and state policies.

In The Constitution are the powers belonging to several departments. The function is to allocate
to several departments their respective powers and duties. I'd like to mention the fact that there
are powers that the state can exercise, even if they are not expressly provided for. While the
Constitution sets forth the powers of government, there are powers which the State can exercise
even if they are not expressly stated in Constitution. These are the three inherent powers.

a. Police power - Refers to authority of state to regulate property and liberty to promote
public good.
b. Eminent Domain - forcibly acquire properties for public purpose upon just compensation.
c. Taxation - demand from us our proportionate contribution for the purpose of the state.

Similar in the sense that they are inherent in the state. These powers need not expressly be
conferred to the State from Constitution. Moment that state exists, it is already vested with power
of these three.

We have provisions in our constitution regarding these. In fact, we have Sec. 1 Art. 3. Does that
confer authority upon the state or impose limitations on exercise?

 Limitation. While it is true that Sec 1 makes reference to police power, it is not the source of
police power. It imposes a limitation in that the state cannot deprive us of our property
without the observance of due process.

Sec. 9 Art. 3 - just compensation. References eminent domain. It makes a limitation. There is a
requirement of payment of just compensation.

Sec. 28 Art 6 - Churches, etc. actually, directly, and exclusively used for purposes (x), shall be
exempt from taxes. It imposes a limitation on taxation.

These powers are not only necessary but indispensable for the continuance of a state. Imagine
where a state cannot enact laws regulating the exercise of our rights. There would be anarchy
because we are free to do what we want to do. These three powers are means or methods by
which state can validly intervene our rights.

 Similarity: Powers presuppose equivalent compensation. Although form of compensation

varies. The compensation attendant to exercise of eminent domain and taxation - tangible
things. Police power - intangible; consists of altruistic feeling that we have promoted public
good. PRIMARILY VESTED IN CONGRESS, ALTHOUGH THE POWERS MAY BE
VESTED/DELEGATED. Proper delegation.

How can we possibly distinguish the three powers?

  Distinction: Police power affects not just property but also liberty of individuals. Eminent
domain and taxation affect property rights only.

 Distinction: Police power and taxation may only be exercised by government. Eminent
domain upon proper delegation of authority gives quasi-public corporations authority.

Property may be taken by the state in police power must be noxious or hazardous. Eminent
domain - beneficial property is taken to convert for a public purpose. GENERAL RULE. Are there
instances where beneficial properties can be taken through police power?

Yes, when police power utilizes the power of taxation or eminent domain as a tool in the
exercise or implementation thereof.

Carlos Superdrug case: SC justified or upheld validity of law under police power, but it utilized in
the implementation the other power - taxation in giving discounts to senior citizens. Opinion of
Sec. of Finance, somehow merchants would stand to subsidize as much as 6% of the discounts.
There was taking of a beneficial property, but it was justified by police power. There was taking
in concept of eminent domain, but it was a tool in the enforcement of police power.

WHILE AS A RULE, property taken by police power is noxious, but when it is utilizing other powers,
then the beneficial property can be taken in the name of police power.

 Distinction: Tangible compensation in taxation (public service) and eminent domain (just
compensation). Police power - intangible compensation.

Police power refers to power of the state to regulate liberty and property of persons. But, you
have to remember, of the three powers, it is the most pervasive, least limitable, and most
demanding of the three powers. NO BRAINER - Taxation and eminent domain affect property
rights only. Police power affects liberty, too. That is why there is the RPC. (CHARACTERISTICS)

Pervasive in the sense that it is in everything we do. We have laws on transactions, property
relations, and etc. It is definitely pervasive. Practically, it covers every human activity that is
vested with public interest.

Police power may be exercised by state, even without Constitution. Is there no legal basis for
this? If this is not rooted from the Constitution, is there any principle of law which may serve as
basis?

 Salus populi est suprema lex - serves as basis for exercise of police power.
 You cannot exercise your rights to the prejudice of the rights of others.

Police power cannot be bargained away with through a medium of a treaty or a contract.

Ichong v. Hernandez: Ichong, a Chinese, was convicted for violating the naturalization law,
prohibiting foreigners from engaging in retail trade businesses. He said that the law in question
referred to the treaty of amity between Philippines and China. The law in question was not
contrary to treaty, and even if it were, it would prevail. It was enacted through the police power
of the state. Local law supreme over treaty. But now, the view is that treaty obligations should be
complied with. PACTA SUNT SERVANDA.

MODERN VIEW: BANK AG Manila Branch v. Commissioner of Internal Revenue (?) - State is
expected to perform its contractual relations. SC said that as much as possible, the state must
modify its rules to comply with its contractual obligations. Where there is a conflict between
treaty and local law, courts will not hesitate to declare local laws to be supreme as they are
enacted through police power. If our local law is contrary to the treaty, then the SC will reiterate
its ruling in Ichong.

Ortigas v. CA - deed of sale where circulation and properties sold was to be for residential
purposes. Ordinance reclassified where land was situated into commercial. Argued that
ordinance should not be given retroactive application as it is not fair/ impairs obligations and
contracts. SC said ordinance may be given retroactive application because zoning ordinance
was enacted through police power.

MMDA v. Garin - Garin was a holder of a driver's license. That's why when it was confiscated, he
said that it was violative of a property right. SC said driver's license is only a privilege to be
revoked in the name of police power.

Chavez v. Romulo 421/431(?) SCRA 524 - Government revoked the issuance of the permit to
carry firearms outside residence. Chavez a former Solicitor General said that it was violative of
property rights. SC disagreed, stating that a permit to carry firearms may be revoked through
police power because it was a privilege.

POLICE POWER SUPERIOR OVER NON-IMPAIRMENT OF OBLIGATIONS CLAUSE [I.E. Art. 3 Sec. 10].

Oposa v. Factoran - SC said that it is valid on the part of state to revoke timber recession permits
that were issued. Sanctioned revocation of permits and licenses that were already given.

Lim v. Pakin 240 SCRA 649 - There was a city ordinance of Manila 7065, allowing mayor for
operation of Hay-alay (?). PD 771 revoked authority to issue permits for Hay-alay. Mayor Lim
revoked permit. It was not a violation since it was enacted through police power.

 Characteristic: It is not static. It is dynamic. It changes with time. No such thing as

cybercrime law, but because of technology, we now have this.

 Characteristic: Sometimes, it may utilize the power of taxation as a tool in the exercise
thereof.

Carlos Superdrug v. DSWD: Law in question was upheld as valid as it was enacted through police
power utilizing as a tool thereof the power of taxation.

Lutz v. Araneta - Law imposed special tax for sale of box of sugar, purpose to rehabilitate the
sugar industry. Questioned, but it was valid because it was enacted through police power
through taxation.

EX: SIN TAX LAW - Police power utilizing power of taxation.

 Characteristic: Eminent domain with police power - Agrarian reform law for the
rehabilitation of farmers. CARP implemented pursuant to police power through eminent
domain.

Ortigas v. CA - an ordinance or zoning ordinance reclassifying an area from residential to

commercial - it was enacted through police power, not eminent domain. Reclassification does
not take away property, it simply reclassifies. The fact that police power may use eminent
domain is illustrated in… below.
______________________________

CONFLICT OF EMINENT DOMAIN VS. POLICE POWER IMPLEMENTING EMINENT DOMAIN:

(?) Telecomunications and Broadcast Attorneys of the Philippines v. COMELEC - BP 881,

COMELEC may make use of air time in radio for free during election period. It was questioned
because there it was argued that there was taking of private property without just
compensation. SC disagreed - it was a valid use of police power implementing eminent domain.

Philippine Press Institute v. COMELEC - SC stated that the directive Comelec Resolution for print
space was invalid. SC ruled that it was invalid because It was amounting to taking of private
property without just compensation.

RECONCILIATION: PPI, what was sought to be expropriated was tangible property - print space.
In NTC (or Telecommunications something), it was air time, intangible thing. Before a person or
entity can operate a network, one has to secure a legislative franchise. Under Sec. 11 Art 12.,
1987 Consti - Expressly provided that franchise given by State is done or issued with a condition
that it can be revoked, modified, or altered by State.

Police power may utilize eminent domain or taxation where in such case the person affected
cannot demand full compensation. Police power makes use or utilizes the others then the
property affected may even be beneficial properties.

Police Power II
Friday, 8 December 2017
2:55 PM
I mentioned earlier that police power is primarily vested in Congress. Where there is proper
delegation of authority where there is a law enacted by Congress, power can be delegated to
President, various LGUs, and administrative bodies like NTC and LTFRB. CAN HAPPEN ONLY UPON
PROPER DELEGATION OF AUTHORITY.

Where there is no law, the President cannot by himself exercise this power for being ultra vires.
Underscore the fact that considering that police power is primarily vested in Congress, it is given
a wide latitude in exercising this power.

Where there is a problem calling for police power, it is up to Congress whether or not to exercise
police power. Ex. We have a problem on prostitution. Congress may choose to act or not to act
thereon. It may choose to enact a law or merely regulate prostitution. Where Congress acts on a
given problem or exercises police power, then there is no issue. What if Congress does not
exercise police power where there is a situation calling for such situation? Can we file a case for
mandamus for Congress to act on the problem?

NO. This power is primarily vested in Congress, and Congress is given a wide latitude on whether
or not exercise this power. When there is a situation that Congress does not act on it, then we
can only result to the bar on public opinion.

If Congress decides to act on a problem by exercising police power, the methods or remedies
that Congress chooses to adopt is generally not open to judicial scrutiny (where there is lack or
absence of abuse of discretion). Where Congress enacts a law regulating prostitution, then it
cannot be questioned by the judiciary. What is legal may not necessarily be moral. Congress is
given a wide latitude in the exercise of police power. Determination of the facts upon where the
power of police power is to be exercised is left to the sound discretion of Congress. It is enough
that there is a semblance of proof to support the act of Congress.

Jacobson v. Massachusetts - Where petitioner was convicted for refusing to be vaccinated

against the law mandating it. Questioning conviction, he wanted to prove that the smallpox
vaccine could cause other disease. But US SC did not allow it stating that it is enough that there
is a semblance of proof that the vaccine will not cause complications.

It is different when Congress has no basis at all. For example, only those that have receding
hairline can take up law. There is no rational basis to conclude that only those who have
receding hairline can pass the bar exams. It is different WHEN THERE IS NO BASIS AT ALL for the
action taken by Congress. While it is given a wide latitude to exercise police power, but it may
be reviewed by the courts of law where it was done in abuse of discretion amounting to lack or
excess of jurisdiction in the name of judicial review. It must have a lawful subject matter, and it
was pursued through lawful means and methods.

Police power may only be validly exercised by Congress or delegate if:

1. Lawful Subject - act or thing sought to be regulated by the State in exercise of police
power is something imbued with public interest. Otherwise, when the act or thing does not
and will not affect the general public or public interest, then that cannot be regulated by
the state.

Opre v. Torres: SC shot down as void as being violative of our privacy on the National Computer
Authorization thing. Privacy is still protected under our jurisdiction.

Can state regulate pursuit of profession?

Yes. PRC v. De Guzman - Cheaters from Fatima College were not allowed to take oath. It was
valid pursuant to police power of State. We cannot just entrust our health to incompetent
doctors or physicians.

Secretary of Education v. San Diego - SC upheld validity of regulation where people who failed
NMAT thrice may no longer be able to take up exam or medicine.

JMM Promotions v. CA - Deployment of workers abroad. It was sustained as a valid regulation in

the name of police power considering that in the past, our domestic helpers (especially women)
were not only mentally but also physically abused.

How about a career in singing? Can that be regulated by the state bisag yabag ka?

The state has no business regulating that activity. If you don't like the voice, you have to choice
not to listen to the songs, unless if you like yabag voices. It's your choice to listen to them. Like
Gravador and Torregosa, they like listening to Matt Monroe, Frank Sinatra. In my case, I like Ed
Sheeran and all. It's a matter of choice who you listen to, so you cannot regulate it.

2. Pursued with the employment of lawful methods or means. (Twin Requisites /w Lawful
Subject)
City of Manila v. Laguio - There was that ordinance 7783 prohibiting the motels from operating in
Manila. It was enacted to solve problem on prostitution. SC said there is nothing wrong with that.
Objective of law is noble, but there is something amiss with method employed to accomplish
purpose. It amounts to deprivation of property without due process. Transfer or closure of motels
will entail gargantuan expenses.

Ynot v. IAC - There was a law EO 626-A. Prohibits the transfer of carabaos in places. The methods
employed were contrary to Constitution. Authorized imposition of penalty even without the
benefit of a trial.

Villavisencio v. XXX 39 PHIL 738 - Mayor of Manila rounded up women and reported them to
Davao. It was to get rid of prostitution, but the method employed was invalid. SC said there may
be women of ill repute, but they still have their own rights.

Social Justice Society v. DSWD GR 157870 Nov. 3, 2008 - What was at issue was the validity of a
section in the Dangerous Drugs Act. That provision provides that before one runs for a public
position, one has to undergo a mandatory drug test. Subject was lawful, but they cannot
amend qualifications as provided for under Art. 6 of the 1987 Constitution. There was a lawful
subject, but the method that was employed was questionable.

Office of the SOLGEN v. Ayala Land Inc. - The office of the SOLGEN argued that the Ayala malls
should provide parking spaces to customers for free. Under National Building Code, malls are to
allocate part of space for parking. The SOLGEN argued that this is a mandatory requirement,
then parking spaces should be provided for free. Purpose = valid for comfort and convenience.
SC said that the method was unjust. It amounts to taking of private property without just
compensation. It was already unfair for the owner to be deprived of right to construct building
on parking space. It would be more unfair to deprive owner from earning profits from that
property.

City Government of Quezon v. Rita - Local government of Quezon enacted ordinance for
Manila memorial parks to allocate 60% of memorial parks for free for the poorer residents of the
locality. It was not valid because it takes property without just compensation.

Valid exercise of police power requires due process - right to be heard.

EXCEPTION:

Cabrera v. Lapit - the fishpond of Cabrera was demolished without giving her prior opportunity
to be heard. It was questioned as invalid, but SC said it was legal. Her property was a nuisance
per se. When what is to be addressed or abated is a nuisance per se, then that can be abated
summarily. It can be confiscated without prior opportunity to be heard.

Pollution Adjudication Board case - Issued cease and desist order without prior hearings. SC said
that was allowed because it was authorized under PD 984.

While normally, the requirement requires observance of due process, it can be validly dispensed
with is when what is to be destroyed through police power is a property that is classified as a
nuisance per se.

Knights of Rizal v. DMCI - Nuisance per se (DEFINITION) is an act or thing that is injurious to health
or safety, offends sense, obstructs flow of traffic or body of water, or impairs the use of private
property.
Where it is a nuisance per accidens, it requires a notice and hearing. Example, factory in
residential area. Is that a nuisance per se?

You cannot abate that without prior notice or hearing. It is a nuisance per accidens. It is a right
thing at the wrong place and time.

Exercise of police power may be reviewed pursuant to judicial review. In inquiring to validity of
police power, our courts of law in the past decisions have employed various or varying
standards in scrutinizing exercise of this. One standard used is:

1. Strict scrutiny standard - This standard is employed only in situations is where it is a directive
or legislation on the freedom of our mind and political processes.

2. Rational basis standard - Relaxed, liberal standard for economic legislation.

3. Heightened/immediate scrutiny standard - Classification of gender. Shown in VAWC.

Garcia v. Drilon GR 179267 2013 - SC said applying heightened standard that the law was valid.
SC was of the view that women are generally weaker compared to men.

4. Overbreadth Scrutiny Standard - Test validity of law or directive which hinges on the
exercise on the freedom of the press. It was the standard used to test the directive sent by
Gonzales who ordered radio stations not to air the Hello Garci tape.

Chavez v. Gonzales Feb 15, 2008 - Chavez questioned Gonzales's directive. It was directed at
media stations and TV stations. Gonzales argued that Chavez has no legal standing. Chavez
questioned it using facial challenge using the overbreadth standard. It applied to media outlets.
Chavez sustained. What was employed was this standard because the issue was a directive
dealing with the exercise of the freedom of the press.

Where police power is exercised by a mere delegate, our courts of law other than looking into
the existence of the two requirements, will also inquire if there is a law delegating this power,
and if the exercise is done well within the territory of that body or entity.

 ADDITIONAL REQUIREMENT IF DONE BY MERE DELEGATE: Existence of a law to allow

delegate to exercise police power. No law, no proper authority.

 REQUIREMENT: It may only be validly exercised within the territory of that body. LGUs can
enact local ordinances because they are authorize by Congress to enact these. Can the
City Ordinance of CEBU be made effective in Mandaue?

No. If police power is exercised by mere delegate of Congress, it must only be made within
territory of delegate of Congress. Where what is at issue is a local ordinance issued by an LGU,
you take note that before an ordinance is considered valid, following requirements should be
met as in City of Manila v. Laguio:

1. Must not be contrary to Constitution or law.

2. It must not be oppressive.
3. It must not be discriminatory.
4. Not unreasonable.
5. Regulate, but not prohibit business.
 6. General in nature and consistent with public policy.

Must be met before local ordinance may be considered as a valid exercise of police power
delegated to them. If Congress, lawful subject and lawful method ra. If ordinance, then apply
the requirements from the City of Manila case.