POLICE POWER

The individual, as a member of society, is hemmed in by the

police power, which affects him even before he is born and
follows him still after he is dead from the womb to beyond
the tomb in practically everything he does or owns. Its reach
is virtually limitless. It is a ubiquitous and often unwelcome
intrusion. Even so, as long as the activity or the property has
some relevance to the public welfare, its regulation under the
police power is not only proper but necessary.1
---There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few
notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a majority of
one even as against the rest of the nation who would deny him
that right.2

I. INTRODUCTION
Modern republics are founded on two seemingly conflicting
but complementary principles: the promotion of common good and
the sanctity of personal liberty and private property.
For centuries, political and economic thinkers have debated
on which of these competing values should occupy primacy.
Philosophers like Plato, Aristotle, Locke, Bentham, Hegel, Marx,

1
Ynot v. IAC, G.R. No. L-74457, 20 March 1987, 148 SCRA 659, 670.
2

Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian

Reform, G.R. No. 78742, 14 July 1989, 175 SCRA 343, 375-376; Lucena Grand Central
Terminal, Inc. v. JAC Liner, Inc., G.R. No. 148339, 23 February 2005, 452 SCRA 174.

Smith, Mill and many others have joined this great debate, and
their supporters and critiques alike have spent many a night
distilling the gems of their teachings.
By the twentieth century, the debate had escaped the realm of
ideas and propositions. In the field of economics, the schism split
the world between communism and capitalism.3 In human rights
discourse,

Western

and

Eastern

thoughts

competed

for

dominance.4
To be sure, the downfall of communism and the
internationalization of human rights norms have not withered the
relevance of this discourse. Ironically, democracies around the
world are increasingly veering away from laissez faire as axioms
of economics and political theory.5 Yet, in this age of far-reaching
governmental powers, personal liberties and individual rights are
also seeing new light and understanding.
Needless to state, the debate today is no longer about the
primacy or dominance of one over the other, for history had
validated the equal importance of these values. Deny the individual
his rights --- and tyranny and despotism will reign; unleash him --and chaos and anarchy will take over.

3
REYNATO S. PUNO, The Right to Property: Its Philosophical and Legal Bases, Manila
Bulletin, 22 November 2005.
4

See for instance, LARRY DIAMOND (ED.) AND MARC F. PLATTNER, Democracy in East
Asia (Baltimore: Johns Hopkins University Press, 1998); JOANNE R. BAUER (ED.) AND
DANIEL A. BELL, The East Asian Challenge for Human Rights (Cambridge University
Press, 1999); MICHAEL C. DAVIS (ED.), Human Rights and Chinese Values: Legal,
Philosophical, and Political Perspectives (Hong Kong and New York: Oxford University
Press, 1995).
5

Rubi v. Provincial Board of Mindoro, G.R. No. L-14078, 7 March 1919, 39 Phil. 660.
2

The task now lies in finding the delicate balance between

these competing values, not so much in general terms, as had been
the task of the philosophers --- but in light of the peculiarity of
each and every case brought before the courts involving the States
exercise of its police power.
As modern sages who have been conferred the gift and the
curse of weighing the scale to at least approximate that crucial
balance between upholding the common good through the exercise
of police power and protecting individual rights and liberties, our
courts are guided by the following principles so eloquently
expressed by our very own Supreme Court in the landmark case of
Ichong v. Hernandez,6 viz.:
The conflict, therefore, between police power and the
guarantees of due process and equal protection of the laws is
more apparent than real. Properly related, the power and the
guarantees are supposed to coexist. The balancing is the essence
or, shall it be said, the indispensable means for the attainment of
legitimate aspirations of any democratic society. There can be
no absolute power, whoever exercises it, for that would be
tyranny. Yet, there can neither be absolute liberty, for that
would mean license and anarchy.7

The task of calibrating the scales of justice is by no means

easy as the conflicting societal interests continuously shape and
reshape State policies in an endless tug-of-war.

II. CONCEPT AND RATIONALE OF POLICE POWER

6
Ichong v. Hernandez, G.R. No. L-7995 31 May 1957, 101 Phil. 1155.
7

Id., p. 1165.
3

Regarded as the most pervasive, the least limitable and the

most demanding8 among the governments arsenal of powers,
police powers long arms touch the inner sanctum of personal
liberty and most cherished right to property. Its scope is ever
expanding to meet the exigencies of the times;9 its reach is
extensive and all pervading, so much so that even the courts
refuse to lay down a general rule defining it, but decide each
specific case on its own merits.10 Indeed, legal scholars have
attempted to capture the essence of police power. But none so far
sufficiently and comprehensively circumscribe its breadth; not for
want of any attempt, for sure there are many. Among the various
definitions of police power, a few have gained prominence and
have been often quoted. Those definitions include the following:
o By this general police power of the State, persons and
property are subjected to all kinds of restraints and burdens,
in order to secure the general comfort, health, and prosperity
of the State; of the perfect right in the legislature to do
which no question ever was, or, upon acknowledge and
general principles, ever can be made, so far as natural
persons are concerned.11
o It is the power vested in the legislature to make such laws
as they shall judge to be for the good of the state and its
subjects.12

8
Ynot v. IAC, G.R. No. L-74457, 20 March 1987, 148 SCRA 659, 670.
9

Agustin v. Edu, G.R. No. L-49112, 2 February 1979, 88 SCRA 195, 206.

10

U.S. v. Ling Su Fan, G.R. No. 3962, 10 February 1908, 10 Phil. 104, 115-116 citing
Harding vs. People, 32 Lawyers Rep. Ann., 445.
11

Thorpe vs. Rutland & Burlington R. R. Co. (27 Vt., 140, at 149),

12

Commonwealth vs. Alger, 7 Cushing, Mass., 85, cited in U.S. v. Ling Su Fan, supra.,
p. 114.

o It is the power to govern men and things, extending to the

protection of the lives, limbs, health, comfort, and quiet of
all persons and the protection of all property within the
state.13
o It means the authority to establish such rules and
regulations for the conduct of all persons as may be
conducive to the public interests.14

o Police power refers to the defense, regulation, and domestic

order of the country whereby the inhabitants of a state, like
members of a well-governed family, are bound to conform
their general behaviour to the rules of propriety, good
neighborhood and good manners, and to be decent,
industrious, and inoffensive in their respective stations.15
o The police power of the state may be said to embrace the
whole system of internal regulation, by which the state seeks
not only to preserve the public order and to prevent offenses
against the state but also to establish for the intercourse of
citizens with citizens those rules of good manners and good
neighborhood which are calculated to prevent a conflict of
rights and to insure to each the uninterrupted enjoyment of
his own, so far as is reasonably consistent with a like
enjoyment of rights by others.16
o The police power of the state includes not only public
health and safety but also the public welfare, protection

13

Thorpe v. Rutland and B. R. Co. (27 Vt., 140, at 149), cited in U.S. v. Ling Su Fan,
supra., p. 114.
14

People vs. Budd, 117 New York, 14, cited in U.S. v. Ling Su Fan, supra., p. 114.

15

4 Blackstone's Commentaries, 162., cited in U.S. v. Ling Su Fan, supra., p. 115.

16

Harding vs. People, 32 Lawyers Rep. Ann., 445., cited in U.S. v. Ling Su Fan, supra.,
p. 115.

against impositions, and generally the publics best

interest.17
o It is the inherent and plenary power in the State which
enables it to prohibit all that is hurtful to the comfort, safety
and welfare of society.18
o It is the 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 subject of the same.19

Distilling from these definitions, police power may be

described as a system of internal regulation, governing liberty
and property, for the purpose of advancing the general welfare.
As a system of internal regulation, police power is
considered the the foundation of criminal law in all governments
of civilized countries and all other laws conducive to safety, and
consequently the happiness of the people,20 embracing all such
laws as it shall judge as for the good the State and its subject.21

17

Harding vs. People, 32 Lawyers Rep. Ann., 445., cited in U.S. v. Ling Su Fan, supra.,
p. 115.
18

Lake View v. Rose Hill Cemetery Co., [1873], 70 Ill., 191, cited in Rubi v. Provincial
Board, supra., p. 708; Ermita-Malate Hotel and Motel Operators Association, Inc. v.
Mayor, 20 SCRA 849 (1967); Philippine Association of Service Exporters, Inc., G.R. No.
81958, 30 June 1988.
19

Commonwealth v. Alger, 7 Cush., 53 (Mass. 1851) as cited in US v. Pompeya, 31 Phil.

245, 253-254 (1913); U.S. v. Toribio, 15 Phil. 85 (1910); Carlos Superdrug Corp. v.
DSWD, G.R. No. 166494, 29 June 2007, 526 SCRA 130.
20
Collin v. Wolfe, G.R. No. 2773, 14 November 1905, 5 Phil. 285.
21

US v. Ling Su Fan, supra., p. 114.

6

The ultimate objective in exercising the power is to benefit

the welfare and the interest of the public.22 Thus, while police
power may constitute as a restraint upon freedoms or property,
police powers equally valid purpose is to legislate so as to
increase the industries of the State, develop its resources and add to
is wealth and prosperity.23
A. Attributes of Police Power
Notwithstanding the difficulty in arriving at one acceptable
definition of police power, legal scholars agree on the basic
attributes of this power, as follows:
1. Police power is inherent. It is so because it is co-existent
with the establishment of the sovereign government. This is not,
and need not be conferred upon, by a written constitution.24
2. Police power owes its existence upon public necessity
and upon the right of the state and of the public to selfprotection.25 It would not be an exaggeration to say that no
government can hope to survive if it does not have this power at its
disposal as need arises. For police power is the sword that the State
uses to tarry and parry; it is the clarion call that commands its
citizens to submission when circumstances demanded, as well as,
the voice that liberates and protects the people from want and
harm.

22

Agan v. PIATCO, G.R. No. 155001, 5 May 2003, 402 SCRA 612, 684.

23

Rubi v. Provincial Board of Mindoro, supra., p. 708.

24

MMDA v. Garin, G.R. No. 130230, 15 April 2005, 456 SCRA 176, 185-186.

25

U.S. v. Toribio, G.R. No. 5060, 26 January 1910, 15 Phil. 85, 97; Iloilo Ice and Storage
Co. v. Municipal Council of Iloilo, 24 Phil. 471, 485 (1913); Chuoco Tiaco v. Forbes, 40
Phil. 1122, 1126 (1913); Cu-unjieng v. Patstone, 42 Phil. 818 (1922).

3. Police power, by nature, is dynamic. As needs changes

through time, there is a natural difficultly to encapsulate police
powers fluidity and complexity by means of rigid and formal
definition. As succinctly observe by Justice Cardozo: Needs that
were narrow or parochial in the past may be interwoven in the
present with the well-being of the nation. What is critical or urgent
changes with the time.26 Police power has, therefore, been often
simply described as the law of overruling necessity.27
Our jurisprudential history has shown us in clear fashion the
danger of encasing the concept of police power in lines and curves.
What has been upheld as a legitimate expression of the police
power might be considered a constitutional heresy in the future
and vice versa.
To recall, laws prescribing minimum wage for workers and
maternity leave benefits were once declared unconstitutional by
our Supreme Court as violating the liberty to contract.28 Today,
labor standards promoting the welfare of the workers are not only
encouraged; they are treated as constitutional imperatives.29
Meanwhile, as against the claim of violation of equal
protection, our Court upheld, as valid police power measure, a law
restricting the participation of aliens in retail trade.30 More than
five decades later, our legislature changed its mind opened up

26
Agustn v. Edu, supra., p. 206.
27

Collins v. Wolfe, supra.

28

People v. Pomar, G.R. No. L-22008, 3 November 1924, 46 Phil. 440.

29

Central Bank v. Bangko Sentral Employees, G.R. 148208, 15 December 2004, 446
SCRA 299.
30
Ichong v. Hernandez, supra.

retail trade to aliens --- a move our Court affirmed as within the
legislatures prerogative.31
The above examples only lend credence to the observation
that [t]he numerous attempts which have been made to limit by
definition the scope of the police power are only interesting as
illustrations of its rapid extension within comparatively recent
years to points heretofore deemed entirely within the field of
private liberty and property rights.32
4. Police power is essentially a legislative power. Primarily
lodged with the legislature, police power, however, may be validly
delegated to the President and administrative boards as well as law
the making bodies of municipal corporations or local government
units.33
5. Police power is discretionary. Given an identified
problem, it is entirely within the legislatures disposition whether
or not to act on such problem, and mandamus may not be availed
to force the exercise of the police power.34 On the other hand, if
the legislature does opt to act, the choice of measures or remedies
lies also within its exclusive discretion, provided only that these
measures comply with the requisites for validity, as will be
discussed in the succeeding sections. The exercise of this
discretion, embodied in a law, regulation or ordinance, is vested

31

Espina v. Zamora, G.R. No. 143855, 21 September 2010.

32

Churchill and Tait v. Rafferty, G.R. No. 19572, 21 December 1915, 32 Phil. 580, 602603; U.S. v. Salaveria, G.R. No. L-13678, 12 November 1918, 39 Phil. 102, 108; People
v. Pomar, supra., p. 445 (1924); Calalang v. Williams, G.R. No. 47800, 2 December
1940, 70 Phil. 726, 734.
33

MMDA v. Bel-Air Village Association, Inc., G.R. No. 135962, 27 March 2000, 328
SCRA 836, 843.
34
See for instance Aprueba & Modoc v. Ganzon, G.R. No. L-20867, 3 September 1966.

with a plenary character.35 Simply put, the legislature has wide

latitude of discretion to determine: firstly, what the interest of the
public requires; and secondly, what measures are necessary for the
protection of such interests. 36
6. Viewed in a different light, police power can also be
construed as a duty or responsibility. It is so because the
legislature cannot squint its eyes and divest itself of the duty to act
on matters of public concern, such as the regulation of
automobiles.37 All said, sanction may not be exacted from the
legislature for failing to act on its duty, except that the electorate,
as the final arbiter, may chose to seek judgment and accountability,
through the ballots.
7. Police power, although the far-reaching, is subject to
limitations. The Constitution can define and delimit the exercise
of the States inherent powers and allocate their exercise among
various government agencies. Considering that police power
impacts on the life, liberty and property of the citizens, the validity
of the exercise of police power is tested against the guarantees of
substantive due process, equal protection, and non-impairment
of property rights.38
Over the years, our Court has developed different levels of
scrutiny in assessing the validity of police power regulation, as
shall be discussed at length in the subsequent sections. Suffice it so
say at this point that our Court has subjected police power

35

MMDA v. Viron Transportation Co., Inc., G.R. No. 170656, 15 August 2007, 530
SCRA 341, 362.
36

Churchill and Tait v. Rafferty, supra., p. 602.

37

MMDA v. Garin, G.R. No. 130230, 15 April 2005, 456 SCRA 176.
Chavez v. Romulo, G.R. No. 157036, 9 June 2004, 431 SCRA 534.

38

10

measures in more exacting scrutiny when they involve the liberty

of mind and persons given special protection by the
Constitution.
B. Difference with Other State Powers
The exercise of police power is not entirely divorced from
the two other great powers of the State, i.e., the power of eminent
domain and the power of taxation. In some instances, the exercise
of police power involves also the power of taxation or the power of
eminent domain. Confusion may therefore arise as to which power
is operative in those cases and consequently, as to which test
should be applied for its validity.
1. Police Power v. Taxation
Without going into great detail, it should be sufficient for our
purposes here to emphasize that in distinguishing tax and
regulation as a form of police power, the determining factor is the
purpose of the implemented measure. If the purpose is primarily
to raise revenue, then the power of taxation is involved even
though the measure results in some form of regulation. On the
other hand, if the purpose is primarily to regulate, then it is
deemed an exercise of the police power, even though incidentally,
revenue is generated.39
Taxation, however, may be used as implement of police
power. Some examples tax measures that were used to further
police power objectives include: (a) the imposition of supervision
fee based on the gross receipts of stall rentals on privately owned

39
Gerochi, et al. v. Dept. of Energy, et al., G.R. No. 159769, 17 July 2007, 527 SCRA
696,715.

11

and operated public market;40 (b) the special assessment on sugar

producers and the creation of Sugar Adjustment and Stabilization
Fund for the rehabilitation and stabilization of the threatened
sugar industry;41 (c) the levy of thirty percent (30%) tax on sale of
videos to regulate the video industry due to rampant film piracy,
the flagrant violation of intellectual property rights, and the
proliferation of pornographic videotapes;42 (d) and the imposition
of license fees for non-useful occupations;43 (e) the exactions for
the Oil Price Stabilization Fund (OPSF) to serve as a buffer fund
to protect local consumers from the adverse consequences that
such frequent oil price adjustments may have upon the
economy.44
More recently, the Supreme Court held as valid exercise of
police power the imposition of royalty fee charged on per liter
basis on the movement of petroleum fuel to and from the Clark
Special Economic Zone (CSEZ).45 The Court said that considering
that a highly combustible product such as fuel poses a serious threat
to life and liberty, if left unchecked. The presence of a vital
infrastructure such an airport within its vicinity, further justifies the
imposition of royalty fee, as greater security measures and degree of
supervision must then be observed in the CSEZ.

40

Progressive Dev. Corp. v. Quezon City, G.R. No. 36081, 24 April 1989, 172 SCRA
629, 635.
41

Lutz v. Araneta, G.R. No. L-7859, 22 December 1955, 98 Phil. 148; Gaston v.
Republic Planters Bank, G.R. No. L-77194, 15 March 1988, 158 SCRA 621 (1988).
42

Tio v. Videogram Regulatory Board, G.R. No. L-75697, 18 June 1987, 151 SCRA 208.

43

Cu Unjieng v. Patstone, G.R. No. 16254, 21 February 1922, 42 Phil. 818.

44

Valmonte v. Energy Regulatory Board, G.R. Nos. L-79501-03, 23 June 1988, 162
SCRA 521.
45
Chevron Philippines, Inc. v. BCDA, G.R. No. 173863, 15 September 2010, 630 SCRA
519.

12

2. Police Power v. Eminent Domain

Police power is often distinguished from eminent domain as
to the nature of the property taken, the acquisition of property
interest, and consequently, the requirement for the payment of just
compensation. Property taken in the exercise of police power is, as
a general rule, destroyed, as it is noxious or intended for noxious
purposes such as a building in a verge of collapse or obscene
materials.46 Property taken under the power of eminent domain, on
the other hand, is wholesome and intended for a public use.47 Thus,
while the taking of property in exercise of eminent domain requires
the payment of just compensation, no such compensation is
required in the exercise of police power.48
Furthermore, in exercise of its police power, the restriction
on the use of private property does not result to the acquisition by
anyone of the property interest in the bundle of rights that constitute
ownership.49 For this reason, while the deprivation of the use can be
total, the property owner will not be compensated if nobody else
acquires use of the property or any interest therein.50 In contrast, in
eminent domain, somebody else acquires the use or interest in the
property taken.51

46

Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian

Reform, G.R. Nos. 78742, 79310, 79744, 79777, 14 July 1989, 175 SCRA 343, 370.
47

Ibid.

48

Ibid.

49

Didipio Earth-Savers Multi-Purpose Association, Inc. v. Gozun, G.R. No. 157882, 30

March 2006, 485 SCRA 586, 605.
50

Ibid.

51

Ibid.

13

As with taxation, eminent domain may also be used to

implement police power objectives such as the expropriation of
agricultural lands under the agrarian reform program of the
government to enable farmers who are landless to own directly or
collectively the lands they till. In Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,52 the Court said that in as much as the Comprehensive
Agrarian Reform Law (CARL) merely prescribe retention limits for
land owners, there is an exercise of police power for the regulation
of the private property in accordance with the Constitution. But
where to carry out such regulation, it becomes necessary to
deprive such owners of whatever lands they may own in excess of
the maximum area allowed, there is definitely a taking under the
power of eminent domain for which payment of just compensation is
imperative.53

III. HISTORY OF POLICE POWER AS A LEGAL CONCEPT

Police power as a legal concept is generally acknowledged
to be of Greek origin. The French word police was originally
derived from the Greek word polis which means state or its

52

175 SCRA 343 (1989).

53

Id., p. 373.

14

derivative, politeia signifying policy, politics or the regulation

of a government in general.54
The concept of police as eventually spread across
continental Europe, especially in France, Spain and Scotland,
albeit its usage further evolved, through time.55 In his Lectures on
Jurisprudence delivered at the University of Glaslow between
1762 and 174, Adam Smith claims that the term no longer holds its
original Greek meaning, as now it only means regulation of the
inferiour parts of the government, viz.: cleanliness, security, and
cheapness or plenty.56
There are materials crediting the spread of the legal concept
of police power to the Romans, especially on publication of The
Institutes, an elementary textbook for students commissioned by
the Roman emperor Justinian, along with other legal works to
memorialize the Roman legal system.57 A treatise containing a
civil code and a summary of contemporary legal scholarship, The
Institutes introduced the concept of jus regium, which in Roman
law was the sovereign right to manage resources for public safety
and welfare, which is argued to be the root of todays police
power.58

54
MARKUS DIRK DUBBER, The Power to Govern Men and Things: Patriarchal Origins
of the Police Power in American Law, 52 BUFF. L. REV. 1277 (Fall 2004); SANTIAGO
LAGARRE, The Historical Background of the Police Power, 93 JOURNAL OF
CONSTITUTIONAL LAW 745, 748-749 (Feb. 2007); DAVID A. THOMAS, Finding More
Pieces for the Takings Puzzle: How Correcting History Can Clarify Doctrine, 75 U.
COLO. L. REV. 497 (Spring 2004).
55

LAGARRE, supra., pp. 749-751.

56

LAGAREE, supra, p. 752 citing ADAM SMITH, Lectures on Jurisprudence 5 (R.L. Meek
et al, eds., Clarendon Press 1978) (1986), p. 486.
57

DONNA JALBERT PALATANO, Police Power and the Public Trust: Prescriptive Zoning
Through the Conflation of Two Ancient Doctrines, 28 B.C. ENVTL. AFF. L. REV. 683
(2001) http://lawdigitalcommons.bc.edu/ealr/vol.28/iss4/12.
58
Id., p.703.

15

Other scholars who have greatly contributed to the

development of police power concept include Lord Kames,59 John
Erskine,60 Christian Wolff,61 and Samuel Pufendorf.62 But it was
Swiss jurist Emmerich de Vattel who is generally acknowledged to
have articulated the function of the police (or polity) vis a vis the
role of the sovereign as paterfamilias or the tender and wise
father, and as faithful administrator of the nation.63 In his Le Droit
des Gens, Vattel described polity or police, as follows:
Polity consists in the attention of the prince and the magistrates
to preserve everything in order. Wise regulations ought to
prescribe whatever will best contribute to the public safety,
utility and convenience, and those who have the authority in
their hands, cannot be too attentive to their being observed. By a
wise polity, the sovereign accustoms the people to order and
obedience, and preserve peace, tranquility and concord among
the citizens.64

Vattel also elaborated on term police by giving various

examples of regulations affecting the conduct of the citizens and of
private property.65
A. English Development

59

LAGARRE, supra., p. 750. Lord Kames work, Statute Laws of Scotland, was published
in 1757.
60

Id., pp. 750-752. Erskines An Institute of the Law of Scotland was published
posthumously in 1773.
61

Id., p. 753. It is argued that Vattels work was a popularization of Wolffs

philosophical Jus Gentium.
62

Id., pp. 755-756. Pufendorfs work, The Law of Nature and Nations, published in
1672 was cited by Blackstone in several occasions.
63

Id., pp. 753-755.

64

Id. p. 754, citing I VATTEL, bk. I, ch. XIII, 174, at 76-77.

65

Ibid.

16

The patriarchal concept of police power permeated the

English legal tradition through Sir William Blackstone. Initially
regarded with disfavor, the French term police become a staple
in English jurisprudence when Blackstone addressed the topic in
his Commentaries on the Laws of England.66 Blackstone followed
Vattels analogy of the king as the father of the family, which
is thus reflected in his oft-quoted definition of police power:
By the public police and oeconomy I mean the due regulation
and domestic order of the kingdom: whereby the individuals of
the state, like members of a well-governed family, are bound to
conform their general behaviour to the rules of propriety, good
neighbourhood, and good manners; and to be decent,
industrious, and inoffensive in their respective stations.67

Blackstones Commentaries discussed police in several

contexts. In Book I, he related police to the royal prerogatives of
the king. In Book IV, he discussed it in the context of public
wrongs, wherein he classified the crimes and misdemeanors into
five species: offences against public justice, against the public
peace, against public trade, against the public health, and against
the public police or oeconomy.68
D. Police Power in the United States
The concept of police power had seen the light in American
political and legal discourse in the late eighteenth century.69
Largely influenced by Blackstones Commentaries and Vattels

66
Id., p. 755-756.
67

Id., p. 759 citing 4 BLACKSTONE at 162.

68

Id., pp. 757-758.

DUBBER, supra., p. 1277.

69

17

Le Droit de Gens many of the early state constitutions contained

references to the internal police of a state.70
Though there is no reference to police power may be found
in the U.S. Constitution, it has been suggested that this has surely
been discussed and debated in drafting of the document.71
It was Chief Justice Marshall who first used the phrase
police power in his opinion in Brown v. Maryland,72 decided
in 1827.

But prior to that case, there were several decisions

already referring to police power. In the 1824 case of Gibbons v.

Ogden,73 Chief Justice Marshall referred to regulations of police
and law of police. It is to be noted, though, that he original
conception of police power in the U.S. refers to the residuary
sovereignty of the states as opposed to the powers given to the
Federal Government.74
Furthermore, the concept of police power in the United
States was originally limited in scope. It was predicated in the
limitations that the courts had imposed upon individual rights as
embodied in the common law maxim, sic utere tuo ut alienum
non laedas, which means: use your own property in such a
manner as not to injure that of another.75 This concept implies that

70
LAGARRE, supra., p. 753; DUBBER, supra, p.
71
LAGARRE, supra., pp. 776-777.
72

25 U.S. 419 (1827). See LAGARRE, supra., p. 745; DUBBER, supra.;

73

22 U.S. 1 (1824).

74

LAGARRE, supra., p. 785.

75

GLENN H. REYNOLDS, The Evolving Police Power: Some Observations for a New
Century, HASTINGS CONSTITUTIONAL LAW QUARTERLY (Spring 2000), p. 511.

18

legitimate regulation existed only to prevent concrete harm to

specified interest.76
Over the years, however, the expanse of police power was
no longer confined to the preservation of public health, safety and
morals, which used to be the primary social interests in earlier
times.77 Faced with the excesses and injustices that are
concomitants of an unrestrained economy, police power, thus,
assumed heightened significance that forced the State to take a
more affirmative and proactive stance. The basis and rationale for
the exercise of police power evolved from the very limited sic
utere principle to very expansive salus populi est suprema lex (the
good of the public is the supreme law).78 This change of
perspective allowed the exercise of police power to further the
public welfare a concept as vast as the good of society itself.79
It, is, thus no surprise that police power is now regarded as but
another name for the governmental authority to further the welfare
of society that is the basic end of all government.80

E. Police Power in the Philippines

The expanded concept of police power under the U.S. legal
tradition was transplanted into the Philippines during the American
occupation.

76
Ibid.
77

Gerochi v. Department of Energy, supra., p. 724, citing the Concurring and Dissenting
Opinion of Chief Justice Reynato S. Puno in Freedom from Debt Coalition v. ERC, G.R.
No. 161113, 15 June 2004, 432 SCRA 157, 219-220.
78

REYNOLDS, supra., p. 511.

79

Gerochi v. Department of Energy, supra. p. 724; Id.

80

Ibid.

19

In Collins v. Wolfe81 decided in 1905 at the infancy of the

Commonwealth regime, the Court expounded on the foundations
of police power in trying to measure the metes and bounds of
police power conferred in the City of Manila by the United
States Philippine Commission. The Court quoted heavily the works
of Blackstone and Judge Colley, as well as, the decisions by the
various U.S. courts.
Three years later, in U.S. v. Ling Su Fan,82 the Court
introduced the concept of the expanding scope of police power.
Ruling on the validity of an Act of the Philippine Commission
prohibiting the exportation of Philippine silver coins, the Supreme
Court, citing various American jurisprudence stated that police
power of the state includes not only public health and safety but
also the public welfare, protection against impositions, and
generally the publics best interest,83 thus:
The state not only has authority under its police power to
make such needful rules and regulations for the protection of
the health of its citizens as it may deem necessary; it may also
regulate private business in a way so that the business of one
man shall in no way become a nuisance to the people of the
state. It may regulate the sale and use of intoxicating liquors,
the sale of poisons, the sale of foods, etc., and it would seem
that nothing is of greater importance to the safety of the state,
in addition to the regulation of the morals health of its people,
than to regulate and control its own money.84

81
G.R. No. 2773, 14 November 1905, 4 Phil. 534.
82

G.R. No. 3962, 10 February 1908, 10 Phil. 104.

83

Id., p. 115.
Id., p. 116.

84

20

In the 1910 case of U.S. v. Toribio,85 involving a law

regulating the slaughtering of carabao for human consumption, the
Court laid down the yardstick in evaluating the validity of the
exercise of police power. Borrowing from Mr. Justice Browns
decision in Lawton v. Steele,86 the Court pronounced, as follows:
To justify the State in thus interposing its authority in behalf of
the public, it must appear, first, that the interests of the public
generally, as distinguished from those of a particular class,
require such interference; and, second, that the means are
reasonably necessary for the accomplishment of the purpose, and
not unduly oppressive upon individuals. The legislature may not,
under the guise of protecting the public interests, arbitrarily
interfere with private business, or impose unusual and
unnecessary restrictions upon lawful occupations. In other
words, its determination as to what is a proper exercise of its
police powers is not final or conclusive, but is subject to the
supervision of the court.87

This two-fold test enunciated on U.S. v. Toribio remains, up

to this day, the basic gauge our Court uses in determining the
validity of police power regulations.
Therefore, although there is no explicit mention of police
power anywhere in the Philippine constitution, it is not be amiss to
state that the nuances of this concept had already been explored in
our Courts, and its basic tenets have taken roots in our legal
tradition. Furthermore, unmistakable expression of police power to
promote general welfare can be found in the Preamble of all the

85

G.R. No. 5060, 26 January 1910, 15 Phil. 85.

86

152 U.S. 133, 136 (1894).

87

U.S. v. Toribio, supra., p. 98.

21

constitutions of the country starting from the Malolos Constitution

promulgated by the revolutionary government in 1899;88 the 1935
Constitution89 under the Commonwealth Government; the 1973
Constitution90 under the Martial Law Rule; and the Post-Edsa
Revolution Constitution ratified in 1987.91
The

1935

Constitution

introduced

social

justice

as

constitutional philosophy when it declared, as a policy of the state,

the promotion of social justice to insure the well-being and
economic security of all the people92 Specifically, it commanded
the State to afford protection to labor, especially to working
women and minors and to regulate the relations between the
landowner and the tenant, between labor and capital in industry
and in agriculture.93

88
MALOLOS CONST., PREAMBLE: We, the Representatives of the Filipino, lawfully
convened, in order to establish justice, provide for the common defense, promote general
welfare, and to secure for ourselves the blessings of liberty, imploring the aid of the
Supreme Legislator of the Universe to help is attain these objectives, have voted, decreed,
and the sanctioned the following.
89

1935 PHIL. CONST., PREAMBLE: The Filipino people, imploring the aid of Divine
Providence, in order to establish a government that shall embody their ideals, conserve
and develop the patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a regime of justice,
liberty, and democracy, do ordain and promulgate this Constitution.
90

1973 PHIL. CONST., PREAMBLE: We, the sovereign Filipino people, imploring the aid
of Divine Providence, in order to establish a government that shall embody our ideals,
promote the general welfare, conserve and develop the patrimony of our Nation, and
secure to ourselves and our posterity the blessings of democracy under a regime of
justice, peace, liberty, and equality, do ordain and promulgate this Constitution.
91

1987 PHIL. CONST., PREAMBLE: We, the sovereign Filipino people, imploring the aid
of Almighty God, in order to build a just and humane society, and establish a
Government that shall embody our ideals and aspirations, promote the common good,
conserve and develop our patrimony, and secure to ourselves and our posterity, the
blessings of independence and democracy under the rule of law and a regime of truth,
justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
92

1935 PHIL. CONST., ART. II, SEC. 5. The promotion of social justice to insure the wellbeing and economic security of all the people should be the concern of the State.
93

1935 PHIL. CONST., Art. XV, sec. 6. The State shall afford protection to labor,
especially to working women, and minors, and shall regulate the relations between the
landowner and tenant, and between labor and capital in industry and in agriculture. The
State may provide for compulsory arbitration.

22

The 1973 Constitution took another step farther. In

furtherance of social justice, and to ensure the dignity, welfare and
security of all people, it declared as a policy of the State to
regulate the acquisition, ownership, use, enjoyment, and
disposition of private property, and equitably diffuse property
ownership and profits.94 In addition to the protection of labor, it
likewise commands the State to promote full employment and
equality in employment, ensure equal work opportunities
regardless of sex, race, creed; to regulate the relation between
workers and employers; assure the rights of workers to selforganization, collective bargaining, security of tenure, and just and
humane conditions of work;95 and to establish, maintain, and
ensure adequate social services in the field of education, health,
housing, employment, welfare, and social security to guarantee the
enjoyment of the people of a decent standard of living.96
The 1987 Constitution took these exhortations a notch higher.
It spelled out several policy statements on promotion of general
welfare,97 a just and dynamic social order;98 social justice in all

94
1973 PHIL. CONST., ART. II, SEC. 6. The State shall promote social justice to ensure
the dignity, welfare, and security of all the people. Towards this end, the State shall
regulate the acquisition, ownership, use, enjoyment, and disposition of private property,
and equitably diffuse property ownership and profits.
95

1973 PHIL. CONST., ART. II, SEC. 9. The State shall afford protection to labor,
promote full employment and equality in employment, ensure equal work opportunities
regardless of sex, race, or creed, and regulate the relation between workers and
employers. The State shall assure the rights of workers to self-organization, collective
bargaining, security of tenure, and just and humane conditions of work. The State may
provide for compulsory arbitration.
96

1973 PHIL. CONST., ART. II, SEC. 7. The State shall establish, maintain, and ensure
adequate social services in the field of education, health, housing, employment, welfare,
and social security to guarantee the enjoyment of the people of a decent standard of
living.
97

1987 PHIL. CONST., ART. II, SEC. 5. The maintenance of peace and order, the
protection of life, liberty, and property, and promotion of the general welfare are essential
for the enjoyment by all the people of the blessings of democracy.

23

phases of national development;99 to balanced and healthful

ecology;100 the health of the people;101 and the protection of
women,102 workers,103 indigenous peoples,104 among others.
In the article on National Economy and Patrimony, the
1987 Constitution laid down the philosophy on the nature of
property rights. It states that the use of property bears a social
function that while individuals and private groups, including
corporations, cooperatives, and similar collective organizations,
shall have the right to own, establish, and operate economic
enterprises, this is subject to the duty of the State to promote
distributive justice and to intervene when the common good so
demands.105 It also reiterates a provision in the 1973 Constitution

98
1987 PHIL. CONST., ART. II, SEC. 9. The State shall promote a just and dynamic social
order that will ensure the prosperity and independence of the nation and free the people
from poverty through policies that provide adequate social services, promote full
employment, a rising standard of living, and an improved quality of life for all.
99

1987 PHIL. CONST., ART. II, SEC. 10. The State shall promote social justice in all
phases of national development.
100

1987 PHIL. CONST., ART. II, SEC. 16. The State shall protect and advance the right of
the people to a balanced and healthful ecology in accord with the rhythm and harmony of
nature.
101

1987 CONST., ART. II, SEC. 15. The State shall protect and promote the right to health
of the people and instill health consciousness among them.
102

1987 CONST., ART. II, SEC. 14. The State recognizes the role of women in nationbuilding, and shall ensure the fundamental equality before the law of women and men.
103

1987 CONST., ART. II, SEC. 18. The State affirms labor as a primary social economic
force. It shall protect the rights of workers and promote their welfare.
104

1987 CONST., ART. II, SEC. 22. The State recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity and
development.
105
1987 CONST., ART. XII, SEC. 1. The goals of the national economy are a more
equitable distribution of opportunities, income, and wealth; a sustained increase in the
amount of goods and services produced by the nation for the benefit of the people; and an
expanding productivity as the key to raising the quality of life for all, especially the
under-privileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both domestic
and foreign markets. However, the State shall protect Filipino enterprises against unfair
foreign competition and trade practices.

24

granting the State, in times of national emergency, the right to

temporarily take over the operation of any business affected with
public interest.106
This philosophy is echoed in Article XIII devoted to Social
Justice and Human Rights. It urges Congress to give highest
priority to the enactment of measures that protect and enhance the
right of all people to human dignity, reduce social, economic and
political inequalities, and remove cultural inequities by diffusing
wealth and police power for the common good, and to this end,
regulate the acquisition, ownership, use and disposition of
property and its increments.107
More concretely, the Constitution mandates Congress to
afford full protection to labor and regulate the relations between
workers and employers,108 to undertake an agrarian reform,109

In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. Private enterprises, including
corporations, cooperatives, and similar collective organizations, shall be encouraged to
broaden the base of their ownership.
106

1987 CONST., ART. XII, SEC. 17. In times of national emergency, when the public
interest so requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately-owned
public utility or business affected with public interest.
107

1987 CONST., ART. XIII, SEC. 1. The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities, and remove cultural inequities
by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of
property and its increments.
108

1987 CONST., ART. XIII, SEC. 3. The State shall afford full protection to labor, local
and overseas, organized and unorganized, and promote full employment and equality of
employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance
with law. They shall be entitled to security of tenure, humane conditions of work, and a
living wage. They shall also participate in policy and decision-making processes affecting
their rights and benefits as may be provided by law.

25

protect the rights of subsistence fishermen;110 undertake continuing

program of urban land reform and housing;111 to make essential
goods, health and other social services available to all the people at
affordable cost;112 to maintain an effective food and drug
regulatory system;113 protect working women;114among others.

The State shall promote the principle of shared responsibility between workers and
employers and the preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster industrial
peace.
The State shall regulate the relations between workers and employers, recognizing the
right of labor to its just share in the fruits of production and the right of enterprises to
reasonable returns to investments, and to expansion and growth.
109

1987 CONST., ART. XIII, SEC. 4. The State shall, by law, undertake an agrarian
reform program founded on the right of farmers and regular farmworkers who are
landless, to own directly or collectively the lands they till or, in the case of other
farmworkers, to receive a just share of the fruits thereof. To this end, the State shall
encourage and undertake the just distribution of all agricultural lands, subject to such
priorities and reasonable retention limits as the Congress may prescribe, taking into
account ecological, developmental, or equity considerations, and subject to the payment
of just compensation. In determining retention limits, the State shall respect the right of
small landowners. The State shall further provide incentives for voluntary land-sharing.
110

1987 CONST., ART. XIII, SEC. 7. The State shall protect the rights of subsistence
fishermen, especially of local communities, to the preferential use of the communal
marine and fishing resources, both inland and offshore. It shall provide support to such
fishermen through appropriate technology and research, adequate financial, production,
and marketing assistance, and other services. The State shall also protect, develop, and
conserve such resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share
from their labor in the utilization of marine and fishing resources.
111

1987 CONST., ART. XIII, SEC. 9. The State shall, by law, and for the common good,
undertake, in cooperation with the private sector, a continuing program of urban land
reform and housing which will make available at affordable cost, decent housing and
basic services to under-privileged and homeless citizens in urban centers and resettlement
areas. It shall also promote adequate employment opportunities to such citizens. In the
implementation of such program the State shall respect the rights of small property
owners.
112

1987 CONST., ART. XIII, SEC. 11. The State shall adopt an integrated and
comprehensive approach to health development which shall endeavor to make essential
goods, health and other social services available to all the people at affordable cost. There
shall be priority for the needs of the under-privileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical care to paupers.
113

1987 CONST., ART. XIII, SEC. 12. The State shall establish and maintain an effective
food and drug regulatory system and undertake appropriate health, manpower
development, and research, responsive to the country's health needs and problems.
114

1987 CONST., ART. XIII, SEC. 14. The State shall protect working women by
providing safe and healthful working conditions, taking into account their maternal
functions, and such facilities and opportunities that will enhance their welfare and enable
them to realize their full potential in the service of the nation.

26

No doubt, while the concept of police power was initially

borrowed from the United States, it has taken a life of its own and
has had peculiar development in our legal tradition. Several
provisions in our Constitution favoring certain sectors and urging
our legislature to provide measures to alleviate their conditions are
not found anywhere in the U.S. Constitution. These features further
add to dynamism of the concept of police power in our jurisdiction.
IV. WHO EXERCISES POLICE POWER
Police power is primarily lodged with the National
Legislature, albeit this power may be delegated. It bears stressing,
however, that even while in the hands of its delegates, police
power is essentially legislative in nature. Thus, only those bodies,
which have been granted the power to issue rules and regulations
may validly exercise police power.115 As all other delegated
authorities, these agents can exercise only such legislative powers
as are conferred on them by the national lawmaking body.116
As the delegation of police power is essentially a delegation
of legislative power, issue relating to the validity of such
delegation is generally measured against completeness test and the
sufficient standard test. Under the completeness test, the law
delegating police power must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches
the delegate, the only thing he will have to do is to enforce it.117

115

MMDA v. Bel-Air Village Association, Inc., G.R. No. 135962, 27 March 2000, 328
SCRA 836, 843.
116

Id., p. 184.

27

On the other hand, the sufficient standard test requires adequate

guidelines or limitations in the law to determine the boundaries
of the delegates authority and prevent the delegation from
running riot.118 Culling from various jurisprudence, the following
had been accepted as sufficient standards: interest of law and
order;119

adequate

and

efficient

instruction;120

public

interest;121 justice and equity;122 public convenience and

welfare;123

simplicity,

efficiency;124 standardization

economy
and

regulation

and
of

medical

education;125 and fair and equitable employment practices;126

to ensure the total electrification of the country and the quality,
reliability, security and affordability of the supply of electric
power; and watershed rehabilitation and management.127
A. Delegation to the President
The President can be a recipient of the delegated authority to
exercise police power. Our Constitution, for instance, expressly
authorizes Congress to grant to the President, in times of war and

117
Gerochi v. Department of Energy, G.R. No. 159796, 17 July 2007, 527 SCRA 696,
720.
118

Id., citing Equi-Asia Placement, Inc. v. Department of Foreign Affairs, G.R. No.
152214, 19 September 2006, 502 SCRA 295.
119

Id., p. 722, citing Rubi v. Provincial Board of Mindoro, supra., p. 706.

Id., citing Philippine Association of Colleges and Universities v. Secretary of
Education, 97 Phil. 806,814 (1955).
120

121

Id., citing People v. Rosenthal, 68 Phil. 328, 342 (1939).

122

Id., citing Antamok Gold Fields v. CIR, 70 Phil. 340 (1940).

123

Id., citing Calalang v. Williams, 70 Phil. 726, 733 (1940).

124

Id., citing Cervantes v. Auditor General, 91 Phil. 359, 364 (1952).

125

Id., citing Tablarin v. Gutierrez, No. L-78164, 31 July 1987, 152 SCRA 731.

126

Id., citing The Conference of Maritime Manning Agencies, Inc. v. Philippine Overseas
Employment Administration, 243 SCRA 666 (1995).
127
Id., pp. 722-723.

28

other national emergency, powers necessary and proper to carry

out a declared national policy.128 In many other instances, the
delegation of police power is made in specific laws.
It must be emphasized that exercise by the President of the
delegated police power is distinct from the exercise of his own
executive powers with respect to the execution and administration
of laws for the practical implementation and enforcement of their
observance.129 When the President exercises delegated police
power, it entails the issuance of subordinate legislation and the
President is performing such function as a delegate of Congress.
On the other hand, when the President enforces the law as part of
its power of administration to ensure that laws are obeyed and
those who break the law are apprehended and brought to justice, he
does so in pursuit of his functions as Chief Executive.130
In Ople v. Torres,131 the Court clarified that the
Administrative Code of 1987 (E.O. 292) does not grant the
President a general delegation of police power. An administrative
order issued by the President pursuant to the Administrative Code
only relates to specific aspects in the administrative operation of
government.132The Code, therefore, does not grant the President
the power to promulgate ordinances which are beyond the scope of
internal administration of government and the effects of the

128

1987 CONSTITUTION, ART. VI, SEC. 23(2). In times of war or other national
emergency, the Congress may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers necessary and proper
to carry out a declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof.
129

Ople v. Torres, supra., p. 150.

130

Ibid.

131

Supra.

132

Id., p. 151.

29

functions of the performed by administrative officials on private

individuals or parties outside government, thus:
The Code is a general law and incorporates in a unified
document the major structural, functional and procedural
principles

of

governance and

embodies

changes

in

administrative structures and procedures designed to serve the

people. The Code is divided into seven (7) Books: Book I
deals with Sovereignty and General Administration, Book II
with the Distribution of Powers of the three branches of
Government, Book III on the Office of the President, Book
IV on the Executive Branch, Book V on the Constitutional
Commissions, Book VI on National Government Budgeting,
and Book VII on Administrative Procedure. These Books
contain provisions on the organization, powers and general
administration of the executive, legislative and judicial
branches of government, the organization and administration of
departments, bureaus and offices under the executive branch,
the

organization

and

functions

of

the

Constitutional

Commissions and other constitutional bodies, the rules on the

national government budget, as well as guidelines for the
exercise by administrative agencies of quasi-legislative and
quasi-judicial powers. The Code covers both the internal
administration of government, i.e, internal organization,
personnel and recruitment, supervision and discipline, and the
effects of the functions performed by administrative officials on
private individuals or parties outside government.133 (citations
omitted)

Prescinding from this premise, the Court invalidated

Administrative Order No. 308 adopting a National Computerized
Identification Reference System, as it clearly an exercise of
legislative power and there was no prior legislative act delegating

133
Id., pp. 151-152.

30

to the President the power to promulgate an ordinance of such

character, thus:

It cannot be simplistically argued that A.O. No. 308 merely

implements the Administrative Code of 1987. It establishes for

the first time a National Computerized Identification Reference
System. Such a System requires a delicate adjustment of
various contending state policies-- the primacy of national
security, the extent of privacy interest against dossier-gathering
by government, the choice of policies, etc. Indeed, the dissent
of Mr. Justice Mendoza states that the A.O. No. 308 involves
the all-important freedom of thought. As said administrative
order redefines the parameters of some basic rights of our
citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the
legislative power of Congress, it ought to be evident that it
deals with a subject that should be covered by law.

Nor is it correct to argue as the dissenters do that A.O. No. 308

is not a law because it confers no right, imposes no duty,
affords no protection, and creates no office. Under A.O. No.
308, a citizen cannot transact business with government
agencies delivering basic services to the people without the
contemplated identification card. No citizen will refuse to get
this identification card for no one can avoid dealing with
government. It is thus clear as daylight that without the ID, a
citizen will have difficulty exercising his rights and enjoying
his privileges. Given this reality, the contention that A.O. No.
308 gives no right and imposes no duty cannot stand.134

134
Id., pp. 152-153.

31

In Review Center Association of the Philippines v.

Ermita,135 the Court further clarified the residual powers of the
President under the Administrative Code is not an independent
source of delegated police power as its invocation requires prior
legislation, thus:
Section 20, Title I of Book III of EO 292 speaks of other
powers vested in the President under the law. The exercise of
the Presidents residual powers under this provision requires
legislation, as the provision clearly states that the exercise of
the Presidents other powers and functions has to be provided
by for under the law.136

Having no specific statutory grant to regulate the operations

of non-degree granting review centers, the Court struck down
Executive Order No. 556 issued by the President for such purpose.
The Court said that the issuance of said Executive Order unduly
expanded the authority of the Commission on Higher Education
(CHED) under Rep. Act No. 7722 which is limited to the
regulation of public and private institutions of higher education
and degree-granting programs in all public and private postsecondary educational institutions.137
Furthermore, the questioned Executive Order cannot seek
shelter under Rep. Act No. 8981 as the law merely mandates the
establishment and maintenance of a high standard of admission to
the practice of all profession, and to this end ensure and safeguard

135

G.R No. 180046, 2 April 2009, 583 SCRA 428.

136

Id., p. 449. Section 20, Title I of Book II of EO 292 reads: Section 20. Residual
Powers.- Unless Congress provides otherwise, the President shall exercise such other
powers and functions vested in the President which are provided for under the laws and
which are not specifically enumerated above, or which are not delegated by the President
in accordance with Law.
137
Id., p. 448.

32

the integrity of licensure examinations. The Court said that this

authority does not extend to the regulation of review centers.138
B. Delegation

to

Administrative

Agencies

with

Regulatory Functions
Police power may likewise be delegated to administrative
agencies with regulatory functions. As a general rule, the
principle of separation of powers forbids the co-mingling of the
three great powers (executive, legislative and judicial) in one
branch of government. Nevertheless, in light of the growing
complexity of modern life, the volume and variety of
interactions in todays society, the multiplication of the subject
of governmental regulation, and the doubtful ability of the
legislature to promulgate laws that will deal adequately with and
respond promptly to the minutiae of everyday life, delegation of
legislative power to various specialized administrative agencies
has become an established exception to the separation of power
principle.139
The exercise of delegated police power by administrative
bodies with regulatory functions is given wide latitude by our
Court, as police power takes on an even broader dimension in
developing countries such as ours, where the State must take a
more active role in balancing many conflicting interests in

138

Id., p. 453.

139

Pangasinan Transportation Co., Inc. v. The Public Service Commision, 70 Phil. 221,
229 (1940); Edu v. Ericta, G.R. No. L-32096, October 24, 1970; Gerochi v. Department
of Energy, supra., p. 720

33

society.140 These regulatory agencies should have sufficient

power to respond in real time to changes wrought by multifarious
factors affecting public utilities.141
But while the Court has liberally construed the exercise of
the delegated police power by regulatory agencies, the Court
cautioned that the undue expansion of the limits of administrative
legislation erodes the plenary power of Congress to make laws,
thus:
Many regulations however, bear directly on the public. It
is here that administrative legislation must be restricted in its
scope and application. Regulations are not supposed to be a
substitute for the general policy-making that Congress
enacts in the form of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe
rules and regulations is not an independent source of power
to make laws.142

Needless to state, an agency like the Metro Manila

Development Authority (MMDA), which has not been given
legislative authority to exercise police power under its charter,
cannot exercise police power. Its authority being limited to the
formulation, coordination, regulation, implementation, preparation,
management, monitoring, setting of policies, installing a system,
and administration, MMDA had no power to order the opening for

140
Gerochi v. Department of Energy, supra., p. 724, citing the Dissenting and Concurring
Opinion of Chief Justice Reynato S. Puno in Freedom from Debt Coalition v. Energy
Regulatory Commission, G.R. No. 161113, 15 June 2004, 432 SCRA 157, 219-220.
141

Id., citing National Association of Electricity Consumer for Reforms v. Energy

Regulatory Commission, G.R. No. 163935, 2 February 2006, 481 SCRA 480, 515-516.
142

Ople v. Torres, supra., p. 153, citing Fisher, Constitutional Conflicts Between

Congress and the President, 4th ed., pp. 106-107.

34

public use of a road of private subdivision,143 or to order the

closure of provincial terminals along the Epifanio Delos Santos
Avenue (EDSA) and other major thoroughfares of Metro
Manila,144 or to confiscate and suspend or revoke drivers
licenses without prior law or regulation authorizing it,145 or cause
the dismantling of

billboards, signages and other advertising

media owned by private persons.146

C. Delegation to Local Government Units
Police power may also be delegated to all local government
units (LGUs), including the province, city, municipality and the
barangay.147 LGUs are agencies of the State for the promotion and
maintenance of local self-government. As such, they are endowed
with broad police powers commensurate with, but not to exceed,
the duty to provide for the real needs of the people in their health,
safety, comfort, and convenience as consistently as may be with
private rights,148 in order to effectively accomplish and carry out
the declared objects of their creation.
Delegation of police power to LGUs may be done two ways:
it may be delegated explicitly in statutory form or it may be
through inferred delegation. The explicit delegation of police
power may be done in a general law, such as through the general

143
MMDA v. Bel-Air Village Association, Inc., G.R. No. 135962, 27 March 2000, 328
SCRA 836.
144

MMDA v. Viron Transportation Co., Inc., supra.

145

MMDA v. Garin, supra.

146

MMDA v. Trackwoods Rail Transit Advertising; Vending & Promotions, Inc., G.R.
No. 179554, 16 December 2009.
147
148

MMDA v. Bel-Air Village Association, Inc., supra., p. 844.

Binay v. Domingo, G.R. No. 92389, 11 September 1991, 201 SCRA 508, 515.
35

welfare clauses of the Administrative Code of 1916 and 1917149 or

the Local Government Code.150

The charter of a municipal

corporation may also provide basis for delegation of police power.

One example is the charter of the City of Manila, which is
expressly authorized by its charter, Rep. Act No. 409, to enact all
ordinances it may deem necessary and proper for the sanitation
and safety, the furtherance of the property and the promotion of
the morality, peace, good, order, comfort, convenience, and
general welfare of the city and its inhabitants.151
On the other hand, the so-called inferred police powers of
LGUs are those arising from the fact of their creation, which
necessarily has to exercise certain powers to fully accomplish the
objects of its creation, thus:
The so-called inferred police powers of such corporations are
as much delegated powers as are those conferred in express
terms, the inference of their delegation growing out of the fact
of the creation of the municipal corporation and the additional
fact that the corporation can only fully accomplish the objects
of its creation by exercising such powers. Furthermore,
municipal corporations, as governmental agencies, must have
such measures of the power as are necessary to enable them to
perform their governmental functions. The power is a
continuing one, founded on public necessity. 152

149

Section 2184 of the Administrative Code of 1916 (sec. 2238, Adm. Code of 1917)
reads: The municipal council shall enact such ordinances and make such regulations, not
repugnant to law, as may be necessary to carry into effect and discharge the powers an
duties conferred upon it by law an such as shall seem necessary and proper to provide for
the health and safety, promote the prosperity, improve the morals, peace, good order,
comfort, and convenience of the municipality and the inhabitants thereof, and for the
protection of property therein.
150

Section 16, Local Government Code.

151

Section 18, paragraph (kk).

152

Binay v. Domingo, supra., pp. 513-514.

36

In Binay v. Domingo,153 the Court sustained, as part of its

city governments inferred power, the validity of a resolution
enacted by the City Council of Makati extending burial assistance
to bereaved families of Makati whose gross family income does
not exceed two thousand pesos (P2,000.00) a month.
Since the 1918 case of U.S. v. Salaveria,154 had been most
liberal in sustaining ordinances based on the general welfare clause
because like the State, the police power of a municipal
corporation extends to all matters affecting the peace, order, health,
morals, convenience, comfort, and safety of the citizens the
security of social order the best and highest interests of
municipality.155

V. HOW POLICE POWER IS EXERCISED

Police power is exercised in a variety of ways and it would
be quite impossible to enumerate all the instances in which it is or
may be exercised, as the various cases in which the exercise by
one individual of his rights may conflict with a similar exercise by
others, or may be detrimental to the public order or safety, are
infinite in number and in variety.156 Explicating on the far reaches
of this power, our Court noted:

153
Id.
154
G.R. No. 13678, 12 November 1918, 39 Phil. 102.
155
156

Id., p. 108.
US v. Toribio, supra., p. 99.
37

It has been said the police power is so far - reaching in scope,

that it has become almost impossible to limit its sweep. As it
derives its existence from the very existence of the State itself,
it does not need to be expressed or defined in its scope; it is
said to be co-extensive with self-protection and survival, and
as such it is the most positive and active of all governmental
processes, the most essential, insistent and illimitable.
Especially is it so under a modern democratic framework
where the demands of society and of nations have multiplied to
almost unimaginable proportions; the field and scope of police
power has become almost boundless, just as the fields of
public interest and public welfare have become almost allembracing and have transcended human foresight. Otherwise
stated, as we cannot foresee the needs and demands of public
interest and welfare in this constantly changing and
progressive world, so we cannot delimit beforehand the extent
or scope of police power by which and through which the State
157

seeks to attain or achieve interest or welfare.

The most common way by which the legislature exercises

police power is through the enactment of statutes defining crimes
in order to maintain social order. Implicit in this power is the
authority to prescribe the corresponding penalties for violation
thereof.158 The legislature may even forbid and penalize acts
formerly considered innocent and lawful provided that no
constitutional rights is violated.159
But there are a number of other ways by which the legislature
or its delegates utilize this power --- with or without sanctions,
commanding or prohibiting certain conduct, or resulting to total or

157

Ichong v. Hernandez, supra. p 1163-1164.

People of the Philippines v. Siton, G.R. No. 169364, 18 September 2009, 600 SCRA
476, 485.
158

159

Ibid.
38

partial deprivation of the use of property. Below are just some of

the illustrative ways by this great power has been invoked.
A. Measures furthering public safety, public health and
public morals
Police power has also been the means for justifying such
public safety measures such as building regulations;160 the
regulation of the carrying of deadly weapons;161 the requirement of
rotational participation in patrol duty;162 and the use of city
roads;163 prohibition of billboards which are offensive to sight or
distract the attention of motorists;164 and the compulsion to use
early warning devise.165
It has been used as basis for such public health measures as
requirements to make house repairs;166 the compulsory connection
to a city sewerage system;167 the regulation of the importation of
cattle from foreign countries;168 and regulation on the sale of
meat.169

160

Fabie v. City of Manila, 21 Phil. 486 (1912); Bastida v. City Council of Baguio, 53
Phil. 553 (1929).
161

U.S. v. Villareal, 28 Phil. 390 (1914).

162

U.S. v. Pompeya, supra.

163

Calalang v. Williams, 70 Phil. 726 (1940); Luque v. Villegas, L-22545, November 28,
1969.
164

Churchill & Tait v. Rafferty, supra.

165

Agustin v. Edu, supra.

166

U.S. v. Abendan, 24 Phil. 165 (1913).

167

Case v. Board of Health, 24 Phil. 250 (1913).

168

Cruz v. Youngberg, 56 Phil. 234 (1931).

169

People v. Sabarre, 65 Phil. 684 (1938); Co Kiam v. City of Manila, 96 Phil. 649
(1955).

39

Citing the States all-encompassing police power, the judiciary

approved measures in the field of public morals that penalized
vagrancy and classified a pimp as a vagrant;170 prohibiting
gambling;171 regulating the days when panguingui may be
played;172 licensing cockpits173; penalizing various activities
connected with the use of opium;174and prohibiting the operation
of pinball machines.175
B. Regulation of Businesses and Public Utilities
The State also exercises police power in the regulation of
businesses affecting the public interest, such as the operation of
public utilities;176 banks;177 those involving the exploitation of
natural resources;178 gasoline stations;179 and movie theaters.180
Regulation of business and enterprises can be in the form of
requiring prior licenses and imposing regulatory fees for nonuseful occupations.

In the past, the Supreme Court has held

170

U.S. v. Giner Cruz, 38 Phil.677 (1918)

171

U.S. v. Pacis, 31 Phil. 524 (1915); U.S. v. Espiritu-Santo, 23 Phil 610 (1912); U.S. v.
Joson, 26 Phil.1 (1913); People v. Chan Hong, 65 Phil. 625 (1938).
172

U.S. v. Salaveria, supra.

173

Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931).

U.S. v. Ten Yu, 24 Phil. 1 (1912).

174
175

Uy Ha v. City Mayor, G.R. No L-14149, 30 May 1960; Miranda v. City of Manila,

G.R. No. L-17252, 31 May 1961.
176
Surigao del Norte Electric Cooperative v. Energy Regulatory Commission, G.R. No.
183626, 4 October 2010.
177

Koruga v. Arenas, G.R. Nos. 168332 & 169053, 19 June 2009; Vda. de Ballesteros v.
Rural Bank of Canaman, Inc. G.R No. 176260, 24 November 2010.
178

Alvarez v. Picop Resources, G.R. Nos. 162243, 164516 & 171875, 3 December 2009.

179

Javier v. Earnshaw, 64 Phil. 626 (1937).

180

People v. Chan, 65 Phil. 611 (1938).

40

ordinances regulating the operation of motels and hotels;181 the

establishment of massage parlors;182 and the operation of public
dance halls.183 The Court has also upheld restrictions against
foreign nationals from engaging in retail trade.184
Police power is also manifested in regulating the rates
charged by public utilities,185 and other aspects of their operation,
including

the

imposition

of

strict

requirements

before

disconnection of electric service due to non-payment of electric

bill may be done.186

C. Regulation of Professions
Unlike ordinary businesses, practice of profession is
considered imbued with public interest and as such, has been
subject of strict regulation from the State. The practice of a
profession is not considered a property right but a mere privilege
that it is subject to the inherent regulatory power of the State.
Regulation on professionals includes limiting admission to those
who will take up professional courses, the curricular offerings of
schools offering professional courses, admission to the practice of

181

Ermita-Malate Hotel and Motel Operators Association v. City Mayor, supra.

182

Velasco v. Mayor Villegas, supra.

183

U.S. v. Rodriguez, 38 Phil 759 (1918); Sarmiento v. Belderal, G.R. No. L-15719, 13
May 1961; Lopera v. Vicente, G.R. No. L-18102, 30 June 1962.
184

Ichong v. Hernandez, supra.

185

Surigao del Norte Electric Cooperative, Inc. v. Energy Regulation Commission, supra.

186

MERALCO v. Sps. Edito and Felicidad Chua,et al., G.R. No. 160422, July 5, 2010

41

the profession, and even the conduct of those who were already
admitted to the profession.187
D. Measures Promoting Labor and Social Justice
Police power is also utilized to advance the welfare of the
marginalized sectors in society, reduce inequity and to promote
social justice.
Thus, in Del Rosario v. De los Santos,188 upheld the validity
of a provision of the Agricultural Tenancy Act of 1955, which
empowers a tenant to change the tenancy contract from one of
share tenancy to the leasehold tenancy and vice versa and from one
crop-sharing arrangement to another of the share tenancy. The
Court said that public interest would be served by the
governmental measure intended to aid the economically underprivilege, viz.:
It thus appears indisputable that reinforced by the
protection to labor and social justice provisions of the
Constitution, the attribute of police power justifies the
enactment of statutory provisions of this character. That
public interest would be served by governmental measures
intended to aid the economically under-privileged is
apparent to all.189

187
Tablarin v. Gutierrez, G.R. No. 78164, July 31, 1987, 154 SCRA 730 (1987).U.S. v.
Gomez Jesus, 31 Phil. 218 (1915); People v. Ventura, G.R. No. L-15079, January 31,
1962; DECS v. Sandiego, 180 SCRA 534 (1989).
188

G.R. Nos. L-20589-90, 21 March 1968.

189 Id.

42

Social justice has also been the raison de tre of the

comprehensive agrarian reform law;190 the regulations on generic
labeling and prescription of medicines;191 the rent control law;192
and price controls on prime commodities.193
C. Zoning Regulations
Police power has also been invoked by local government units
in enacting zoning ordinances, which, as a consequence, restrict
the use of private property. In People v. Guzman,194 the Court
upheld a zoning ordinance prohibiting the operation of a
lumberyard within certain areas despite the protestation that said
ordinance invades the property rights of the lumberyard owners. In
Seng Kee & Co. v. Earnshaw and Piatt,195 the Court upheld the
authority of the City of Manila to divide its territory into
residential and industrial zones, and to prescribe hat offensive and
unwholesome trades and occupations are to be established
exclusively in the later zone. Thus, the City of Manila can forbid
the continued manufacture of toyo in residential zone, without
providing compensation. The Court said that this measure does not
deprive the residents of Manila of their property without just
compensation as they are not denied of their ownership or
possession but simply restricts them from the use of such property
at certain places for the good of the majority of the inhabitants.

190
Land Bank of the Philippines v. Court of Appeals, G.R. No. 190660, 11 April 2011.
191

Del Rosario v. Bengzon, 180 SCRA 521 (1989).

192

Melchor v. Moya, G.R. No. L-35256, 17 March 1983,121 SCRA 1.

193

Yakus v. White, 321 US 414 (1944).

194

People v. Guzman, 90 Phil. 132 (1951).

195

56 SCRA 204 (1931).

43

In the quite recent case of Social Justice Society (SJS) v.

Hon. Jose L. Atienza,196 the Court sustained Ordinance No. 8027
which reclassified the area where the oil depot is situated from
industrial to commercial as a valid exercise of police power. The
Court took notice that the ordinance was enacted for the purpose of
promoting sound urban planning, ensuring health, public safety
and general welfare of the residents of Manila and to protect the
residents of Manila from catastrophic devastation in case of a
terrorist attack on the Pandacan Terminals. The Court ruled against
the contention of the oil companies that the questioned Ordinance
is unfair and oppressive as it does not only regulate but also
absolutely prohibits them from conducting operations in the City
of Manila. The Court found that the oil companies are not
forbidden to do business in the City of Manila in the appropriate
zone. The oil companies also averred that the ordinance is unfair
and oppressive because they have invested billions of pesos in the
depot, hence, its forced closure will result in huge losses in income
and tremendous costs in constructing new facilities. The Court said
that since the ordinance was enacted in exercise of police power, it
involves no compensable taking, viz.:

Their contention has no merit. In the exercise of

police power, there is a limitation on or restriction of
property interests to promote public welfare which
involves no compensable taking. Compensation is
necessary only when the states power of eminent
domain is exercised. In eminent domain, property is
appropriated and applied to some public purpose.
Property condemned under the exercise of police
power, on the other hand, is noxious or intended for a
noxious or forbidden purpose and, consequently, is not

196
G.R. No. 156052, February 13, 2008.

44

compensable. The restriction imposed to protect lives,

public health and safety from danger is not a taking. It
is merely the prohibition or abatement of a noxious use
which interferes with paramount rights of the public.
Property has not only an individual function, insofar as
it has to provide for the needs of the owner, but also a
social function insofar as it has to provide for the needs
of the other members of society.

Note, however, that if the regulation goes too far as to

deprive a person of all the beneficial use of his property, it would
be considered an invalid exercise of police power. An ordinance
falling under this category is popularly known as regulatory
taking. The first concept is first introduced in the 1922 case of
Pennsylvania Coal v. Mahon,197 where the U.S. Court held that a
regulatory act constitutes a taking requiring compensation if such
regulation goes too far.

In the Philippines, the concept of regulatory taking was

applied in People v. Fajardo198 where the Surpeme Court
invalidated

municipal

ordinance

which

prohibited

the

construction of building that destroys the view of the Public

Plaza. In the said case, the accused Fajardo was charged for
violating an ordinance after he constructed a building on his
property without a building permit. Though he applied for a
building permit, his application was denied on the ground that his
building would destroy the view or beauty of the public plaza. The
Supreme Court acquitted him and found that the action of the
municipal authorities was unreasonable and oppressive as it

197
260 U.S. 393 (1922).
198

104 Phil. 443 (1958).

45

deprived him of his right to use his property without just

compensation solely to preserve or assure the aesthetic appearance
of the community. The Court declared that where the regulation of
private property becomes unreasonable and oppressive, as where it
operates to permanently deprive property owners of the reasonable
use of their property, the regulation oversteps the bounds of police
power and amounts to taking without just compensation. In this
case, every structure that may be erected on Fajardos land
regardless of its own beauty, stands condemned under the
ordinance in question, because it would interfere with the view of
the public plaza from the highway. Fajardo is therefore
constrained to let their land remain idle and unused for the obvious
purpose for which it is best suited, being urban in character, thus:
Zoning which admittedly limits property to a use which can
not reasonably be made of it cannot be said to set aside such
property to a use but constitutes the taking of such property
without just compensation. Use of property is an element of
ownership therein. Regardless of the opinion of zealots that
property may properly, by zoning, be utterly destroyed without
compensation, such principle finds no support in the genius of
our government nor in the principles of justice as we known
them. Such a doctrine shocks the sense of justice. If it be of
public benefit that property remain open and unused, then
certainly the public, and not the private individuals, should bear
the cost of reasonable compensation for such property under the
rules of law governing the condemnation of private property for
public use. (Citations omitted)

Similarly, in the City of Manila v. Laguio,199 the Court,

among other grounds, struck down an Ordinance of the City of
Manila for being unreasonable and oppressive as it substantially
divests the respondent of the beneficial use of their properties.
The questioned

Ordinance forbids

199
G.R. No. 118127, 12 April 2005.

46

the

running

of

some

businesses200 in the Ermita-Malate area and instructs its

owners/operators to wind up business operations or to transfer
outside the area or convert said businesses into allowed
businesses.201 The Court found that the ordinance permanently
restricts the use of property that it cannot be used for any
reasonable purpose goes beyond regulation and must be recognized
as a taking of the property without just compensation.

200

SECTION 1. Any provision of existing laws and ordinances to the contrary

notwithstanding, no person, partnership, corporation or entity shall, in the Ermita-Malate
area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito
Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be
allowed or authorized to contract and engage in, any business providing certain forms of
amusement, entertainment, services and facilities where women are used as tools in
entertainment and which tend to disturb the community, annoy the inhabitants, and
adversely affect the social and moral welfare of the community, such as but not limited
to: (1) Sauna Parlors; (2) Massage Parlors; (3) Karaoke Bars; (4) Beerhouses; (5) Night
Clubs; (6) Day Clubs; (7) Super Clubs; (8) Discotheques; (9) Cabarets; (10) Dance Hall;
(11) Motels; and (12) Inns
201

SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are hereby given three (3) months from the
date of approval of this ordinance 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, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined
activities for wholesome family entertainment that cater to both local and
foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures
but also of cultural shows, stage and theatrical plays, art exhibitions, concerts
and the like.
11. Businesses allowable within the law and medium intensity
districts as provided for in the zoning ordinances for Metropolitan Manila,
except new warehouse or open-storage depot, dock or yard, motor repair
shop, gasoline service station, light industry with any machinery, or funeral
establishments.

47

VI. LIMITATIONS ON THE EXERCISE OF POLICE POWER

In reviewing cases involving police power, our Court is
generally faced with the challenge of evaluating the law, ordinance
or regulation against the standards of due process, equal
protection and non-impairment of property rights. It is to be
stressed, however, that a police power regulation may encroach
upon specific rights protected by the Constitution, such as free
speech, freedom of religion, right to travel, privacy of
communications, among others, for which different ramifications
of the standards of review may apply.
Moreover, the various social justice provisions and national
economy and patrimony provisions in the Constitutions serve as
guideposts for the Court in weighing the interests involved. Thus,
while the general standards of review used by our Court are
heavily borrowed from U.S. jurisprudence, there have been
deviations in their application in our jurisdiction.
A. Due Process
The guarantee of due process is embodied in Article III,
section 1 of the 1987 Constitution, which provides: No person
shall be deprived of life, liberty or property without due process of
law
Due process has been described as responsiveness to the
supremacy of reason, obedience to the dictates of justice, the
embodiment of the sporting idea of fair play, or more simply,

48

freedom from arbitrariness.202

Like police power, due process is also an elastic concept. It
is not a narrow or technical conception with fixed content
unrelated to time, place and circumstances.203 Laws, regulations
or ordinances challenged on due process ground oblige the Court
to weigh competing social values, and thus, decisions of this nature
require close and perceptive inquiry into fundamental principles
of our society204 and are not to be treated narrowly or
pedantically in slavery to form or phrases.205
Due process protects of individuals from arbitrary
governmental

encroachment

against

the

life,

liberty

and

property,206 by imposing two related but distinct restrictions on

government actions: procedural due process and substantive due
process. The first concerns the procedures that the government
must follow before it deprives a person of life, liberty, or
property.207 Invariably, the principal question to be resolved in a
case involving procedural process issue is whether or not the
government action in question adhered to the established process
when it makes an intrusion into the private sphere.208 Questions
involving procedural process may range from notice requirement

202
Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,
supra., p. 860.
203

Id., citing Cafeteria Workers v. McElroy, 367 U.S. 1230 (1961).

204

Id., citing Bartkus v. Illonois, 359 U.S. 121 (1959).

205

Id., citing Pearson v. McGraw, 308 U.S. 313 (1939).

206

Whitelight Corporation v. City of Manila, G.R. No. 122846, 20 January 2009, 576
SCRA 416, 435.
207

Ibid. See also Lopez v. Director of Lands, 47 Phil. 23, 32 (1924).

208

Id., p. 435.

49

to the level of formality of a hearing.209

The second inquires whether or not the government has
sufficient justification for depriving a person of life, liberty, or
property.210 To determine this, our Court has adopted a two-fold
test. Thus, to be valid: (1) the invocation of police power must be
based on interests of the public generally as distinguished from
those of a particular class require the intervention of the State; (2)
this objective must be pursued in a lawful manner, i.e., the means
employed must be reasonably related to the accomplishment of the
purpose and not duly oppressive.211 Simply stated, the police
power legislation must be firmly grounded on public interest and
welfare, and a reasonable relation must exist between purposes
and means.212
Absent the confluence of these requirements, the questioned
law, ordinance or regulation will be invalidated as an improper
exercise of police power, as explained by the Court in Balacauit v.
CFI of Agusan del Norte,213to wit:

We must bear in mind that there must be public necessity

which demands the adoption of proper measures to secure

the ends sought to be attained by the enactment of the
ordinance, and the large discretion is necessarily vested in
the legislative authority to determine not only what the
interests of the public require, but what measures are

209

Ibid. See also City of Manila v. Laguio, G.R. No. 118127, 12 April 2005.

210

Whitelight Corporation v. City of Manila, supra., p. 436.

211

Lucena Grand Central Terminal, Inc., v. JAC Liner, Inc., supra. p. 185.

212

Ibid. See also Social Justice Society (SJS) v. Atienza, Jr., G.R. No. 156052, 13
February 2008, 545 SCRA 92, 138; MMDA v. Viron Transportation Co., supra.
213
G.R. No. L-38429, 30 June 1988, 163 SCRA 182.

50

necessary for the protection of such interests. The methods

or means used to protect the public health, morals, safety or
welfare, must have some relation to the end in view, for
under the guise of the police power, personal rights and
those pertaining to private property will not be permitted to
be arbitrarily invaded by the legislative department.214

In the said case, the Court did not find any public necessity or
purpose that could justify an ordinance declaring it unlawful for
any person, group of persons, entity, or corporation engaged in
the business of selling admission tickets to any movie or other
public exhibitions, games, contests, or other performances to
require children between seven (7) and twelve (12) years of age to
pay full payment for admission tickets intended for adults but
should charge only one-half of the value of the said tickets.

The Court observed that the evident purpose of the

ordinance is to help ease the burden of cost on the part of parents
who have to shell out the same amount of money for the admission
of their children, as they would for themselves.215 As such, it
found no discernible relation between the ordinance and the
promotion of public health, safety, morals and the general welfare,
as there is nothing pernicious, immoral or injurious in charging
equal price for both children and adults.216 The Court also found
the ordinance both unreasonable and oppressive, as the theater
owners would be the ones who are made to shoulder the
corresponding savings of the parents for the reduction in the price
of admission for children. The ordinance does not only make the
petitioners suffer the loss of earnings but it likewise penalizes them

214
Id., p. 193.
215
Id., p. 194.
216

Ibid.
51

for failure to comply with it. There is also an inherent difficulty in

implementing the ordinance, as the petitioners would then have to
require children to show proof of their age to avail of the
discounted rate.217

Similarly, in National Development Company v. Philippine

Veterans Bank,218 the Court invalidated Presidential Decree No.
1717 as it served no valid public purpose. The said decree sought
to rehabilitate Agrix Group of Companies, a private company, to
be administered by the National Development Company. Pursuant
to such rehabilitation, the decree extinguished all mortgages and
other liens attaching to any of the assets of the dissolved
corporations belonging to the Agrix Group of Companies.
The Court observed that the decree failed to identify the
public interest sought to be promoted, as the decree speaks
vaguely of the public, particularly the small investors, who would
be prejudiced if the corporation were not to be assisted.219 The
Court noted that the record does not state how many there are of
such investors, and who they are, and why they are being preferred
to the private respondent and other creditors of AGRIX with vested
property rights; hence:

The public interest supposedly involved is not identified or

explained. It has not been shown that by the creation of the
New Agrix, Inc. and the extinction of the property rights of
the creditors of AGRIX, the interests of the public as a
whole, as distinguished from those of a particular class,

217

Id., pp. 193-194.

218

G.R. Nos. 84132-33, 10 December 1990, 192 SCRA 257.

Id.

219

52

would be promoted or protected. The indispensable link to

the welfare of the greater number has not been established.
On the contrary, it would appear that the decree was issued
only to favor a special group of investors who, for reasons
not given, have been preferred to the legitimate creditors of
AGRIX.220

The nexus between the purpose and the means is also

lacking in the case of Ynot v. IAC;221 hence, the Court invalided
Executive Order No. 626-A imposing absolute ban on the interprovincial movement of carabao and carabeef in order to conserve
the carabaos. To recall, in its predecessor case (U.S. v. Toribio),
the Court sustained the validity Executive Order No. 626, which
prohibited the slaughter of carabaos without prior permit. But
while the Court conceded in this case that the conservation of
carabaos is a valid purpose, it found the amendatory provision,
banning inter-provincial movement of carabaos, not reasonably
necessary to the purpose of the law, viz.:

.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.
We do not see how the prohibition of the inter-provincial
transport of carabaos can prevent their indiscriminate
slaughter, considering that they can be killed anywhere, with
no less difficulty in one province than in another. Obviously,
retaining the carabaos in one province will not prevent their
slaughter there, any more than moving them to another
province will make it easier to kill them there. As for the

220

Id.

221

GR No. L-74457, 20 March 1987, 148 SCRA 659.

53

carabeef, the prohibition is made to apply to it as otherwise,

so says executive order, it could be easily circumvented by
simply killing the animal. Perhaps so. However, if the
movement of the live animals for the purpose of preventing
their slaughter cannot be prohibited, it should follow that
there is no reason either to prohibit their transfer as, not to be
flippant dead meat.222

Moreover, the Court found the method employed oppressive

as the penalty imposed for the violation is outright confiscation of
the carabao or carabeef being transported, to be meted out by the
executive authorities, usually the police only. Due process, thus, is
violated because the owner of the property confiscated is denied
the right to be heard in his defense and is immediately condemned
and punished.223

Citing also the lack of confluence of purpose and means in

Lucena Grand Central Terminal, Inc. v. JAC Liner,224 the Court
invalidated the ordinance of City Council of Lucena, Batangas
banning bus terminals within the city to help ease traffic
congestion. The Court said that bus terminals per se do not impede
or help impede the flow of traffic. Therefore, the outright
proscription against the existence of all terminals, apart from that
franchised to petitioner is not as reasonably necessary to solve the
traffic problem. The Court then suggested that if terminals lack
adequate space such that bus drivers are compelled to load and
unload passengers on the streets instead of inside the terminals,
then reasonable specifications for the size of terminals could be

222
Id., p. 672.
223
Id., p. 674.
224

G.R. No. 148339, 23 February 2005, 452 SCRA 174.

54

instituted, with permits to operate the same denied those which are
unable to meet the specifications.225 Finally, upon the claim that
the challenged ordinance had been actually proven effective in
easing traffic congestion, the Court stressed that it is the
reasonableness and not its effectiveness that bears upon its
constitutionality. For [i]f the constitutionality of a law were
measured by its effectiveness, then even tyrannical laws may be
justified whenever they happen to be effective.226

The purpose-means test laid down in Toribio has since been

the standard of review for substantive due process analysis. Over
the years, however, this test, along with the reasonable
classification test used ion equal protection analysis, further
developed into different categories of judicial scrutiny, as shall be
jointly discussed later.
B. Equal Protection

The guarantee of equal protection can be found in the second

phrase of section 1 of the Bill of rights, to wit: nor shall any
person be denied the equal protection of the laws.
Like police power and due process, the concept of equal
protection has evolved through time, and its signification continues
to advance as social, political, religious, economic and cultural
barriers are shattered each passing day.

225

Id., p. 189.

226

Id., p. 191.

55

In deciding cases involving equal protection issues, our Court

has long deferred to Judge Cooleys explication of this guaranty,
viz.:
The equal protection of the law clause is against undue
favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not
intended to prohibit legislation, which is limited either in the
object to which it is directed or by the territory within which
it operates. It does not demand absolute equality among the
residents; it merely requires that all persons shall be treated
alike, under like circumstances and conditions, both as to the
privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which
applies to all persons within such a class, and reasonable
grounds exists for making a distinction between those who
fall within such class and those who do not.227

Thus, a police power regulation is questioned on equal

protection ground when such regulation makes unjustified
classification of persons which that results to difference in
treatment either on the benefits conferred or the burden imposed by
the regulation.228

The state enjoys a wide range of discretion making

classifications in exercise of its police power. It is not necessary
that the classification be based on scientific or marked differences
of things or in their relation, or that the classification be made

227
2 Colley, Constitutional Limitations, 824-825 as cited in Ichong v. Hernandez, 101
Phil. 1155, 1164 (1957).

228 Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54 (1974).

56

with mathematical nicety.229 It may properly rest on narrow

distinctions, for the equal protection guaranty does not preclude
the legislature from recognizing degrees of evil or harm, and
legislation is addressed to evils as they may appear.230

Furthermore, the legislature is not constrained by the equal

protection clause to choose between dealing with all problems of
the same kind at once, or not to deal with the problems at all. It has
been established principle that under-inclusiveness is not an
argument against valid classification. In other words, a law, which
hits the evil where it is most felt will not be invalidated on equal
protection ground just because there are other instances to which
it may have been applied.231

In Quinto v. COMELEC,232 our Court elucidated on this

principle when it sustained the validity of the second proviso of in
the third paragraph of Section 13 of Republic Act No. 9369 which
[T]hat any person holding a public appointive office or position,
including active members of the armed forces, and officers and
employees in government-owned or-controlled corporations, shall
be considered ipso facto resigned from his/her office and must
vacate the same at the start of the day of the filing of his/her
certification of candidacy.

229
Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54 (1974).
230

Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54 (1974); Ambros v. COA,

G.R. No. 159700, June 30, 2005.
231
F.A. Miller v. F.P. Wilson, 262 U.S. 373 (1915); Gomez v. Palomar, 25 SCRA 827
(1968); Bautista v. Junio, 127 SCRA 329 (1984).
232

G.R. No. 189698, February 22, 2010.

57

The Court rejected the argument that the provision violates

the equal protection clause simply because it did not include
elective officials, who are arguably more or less exposed as the
appointive officials, to the same evils the legislation seeks to
avoid, viz.:

[T]o remedy an injustice, the Legislature need not address

every manifestation of the evil at once; it may proceed one step
at a time. In addressing a societal concern, it must invariably
draw lines and make choices, thereby creating some inequity as
to those included or excluded. Nevertheless, as long as the
bounds of reasonable choice are not exceeded, the courts must
defer to the legislative judgment. We may not strike down a
law merely because the legislative aim would have been more
fully achieved by expanding the class. Stated differently, the
fact that a legislative classification, by itself, is under inclusive
will

not

render

invidious. There

it

unconstitutionally

no

constitutional

is

arbitrary

requirement

or
that

regulation must reach each and every class to which it might be

applied; that the Legislature must be held rigidly to the choice
of regulating all or none.233

This principle was earlier applied in Basco v. Pagcor,234

where the Court underscored that while some laws legalize
gambling activities like cockfighting, horse-racing, gambling
casinos, sweepstake lotteries and races under certain conditions,
this fact does not render laws prohibiting other gambling activities
violative of the equal protection clause.

233 Id.
234

G.R. No. 916649, 14 May 1991.

58

The same principle was followed in De Guzman v.

COMELEC235 where its held that while all other officers of the
Commission on Elections (COMELEC) are exposed to same evil
sought to be addressed by a provision of Rep. Act No. 8189
(Voters Registration Act of 1996), the fact that the prohibition on
holding office in the same City or Municipality for more than four
(4) years, is limited only to the City and Municipal Election
Officers does not render said provision repugnant to the equal
protection clause. The legislature has discerned that the purpose of
the law would be sufficiently served by breaking an important
link in the chain of corruption than by breaking up each and every
link thereof.236

But while Congress may prioritize how to deal with an

existing problem through classification, it appears that the reverse
may be subject to challenge as in the case of Villegas v. Hiu
Chiong Tsai Pao Ho.237 In this case, the Court invalidated an
ordinance enacted by the City Council of Manila, not on the basis
of unlawful classification, but precisely because the ordinance
failed to consider the need for differentiated treatment for different
classes of alien employees.

The challenged ordinance prohibits aliens from being

employed or to engage or participate in any position or occupation
or business enumerated therein, whether permanent, temporary or

235

De Guzman v. COMELEC, G.R. No. 129118, 19 July 2000.

236

Id.

237

86 SCRA 270 (1978).

59

casual, without first securing an employment permit from the

Mayor of Manila and paying the permit fee of P50.00 except
persons employed in the diplomatic or consular missions of foreign
countries, or in the technical assistance programs of both the
Philippine Government and any foreign government, and those
working in their respective households, and members of religious
orders or congregations, sect or denomination, who are not paid
monetarily or in kind.238

The Court said the ordinance violated the equal protection

clause as the same amount of P50.00 is being collected from every
employed alien whether he is casual or permanent, part time or full
time or whether he is a lowly employee or a highly paid executive.

In all, as enunciated by our Court in People v. Cayat,239 the

guaranty of the equal protection of the law is not violated by a
legislation based on reasonable classification. The classification,
to be reasonable, must fulfill the following requisites: (1) it must
rest on substantial distinction; (2) it must be germane to the
purpose of the law; (3) it must not be limited to existing conditions
only; and (4) it must apply equally to all members of the same
class.240

Applying this test in Beltran v. Secretary of Health,241 the

Court sustained the validity of Republic Act No. 7719 or The


238 Id.
239 G.R. No. L-45987, 5 May 1939, 68 Phil. 12 (1939).
240
241

Id.
476 SCRA 168 (2005).
60

National Blood Services Act of 1994, phasing out commercial

blood banks to improve the Philippine blood banking system and
to regulate the supply and proper collection of safe blood. In place
of commercial blood banks, the law mandates the establishment of
non-profit blood banks or blood centers which shall operate in
strict adherence to professional and scientific standards to be
established by the Department of Health (DOH).

The Court said that the classification made between nonprofit

blood banks/centers and commercial blood banks is valid and
reasonable.

The

classification

was

based

on

substantial

distinctions: (1) the former operates for purely humanitarian

reasons and as a medical service while the latter is motivated by
profit; and (2) while the former wholly encourages voluntary blood
donation, the latter treats blood as a sale of commodity. The
classification, and the consequent phase out of commercial blood
banks is germane to the purpose of the law, i.e., to provide the
nation with an adequate supply of safe blood by promoting
voluntary blood donation and treating blood transfusion as a
humanitarian or medical service rather than a commodity. This
necessarily involves the phase out of commercial blood banks
based on the fact that they operate as a business enterprise, and
they source their blood supply from paid blood donors who are
considered unsafe compared to voluntary blood donors as shown
by the USAID-sponsored study on the Philippine blood banking
system. Three, the Legislature intended for the general application
of the law. Its enactment was not solely to address the peculiar
circumstances of the situation nor was it intended to apply only to
the existing conditions. Lastly, the law applies equally to all

61

commercial blood banks without exception.242

The reasonable classification test laid down in Cayat has

since been used in our jurisdiction as the standard for the judicial
review of police power regulations that make certain classifications
and accord differentiated treatment. But as aforesaid, the judicial
review of police power regulations on both substantive due process
and equal protection analyses has evolved through time, with the
emergence of concepts such as fundamental rights, suspect
classifications, quasi-suspect classification, among others.

242
Id.

62

C. Standards of Judicial Review on Due Process and

Equal Protection

Through the years, judicial review of police power

regulations challenged on substantive due process and/or equal
protection grounds eventually evolved into three distinct levels of
tests or scrutiny: (1) rational basis test; (2) heightened or
intermediate scrutiny; and (3) strict scrutiny.

At this juncture, it must be stressed that purpose-means test

as the traditional yardstick for substantive due process cases and
the reasonable classification test for equal protection cases are
essentially retained. The modifications in the new standards of
review or levels of scrutiny center on: (a) the amount of
government interest involved for pursuing the purpose or making
the classification; (b) the relation of the means or the classification
to that interest; (c) the burdens imposed by means or the
classification.

As applied in substantive due process analysis, a police

power regulation, under the rational basis test, shall be held valid
if the violation of the right involved can be rationally (or
reasonably) related to a legitimate government purpose.243 Like
the purpose-means test enunciated in Toribio, what is merely
required is that purpose of the regulation is lawful for the
government to pursue and the means employed to pursue that
purpose is reasonable or non-arbitrary. It does not inquire into the
alternative ways by which such government purpose could be

243
Whitelight Corp. v. City of Manila, supra., p. 437.

63

achieved, but only that such means is not unduly oppressive.

244

When a police power regulation is subjected to rational basis test,

it is given strong presumption of validity and the burden lies with
the challenger to overturn such presumption of validity.245 Thus, it
is considered as the most deferential standard of review.246

Meanwhile, under intermediate review, the governmental

interest in the proposed measure is extensively examined and the
availability of less restrictive measures is considered.247 Unlike in
the rational basis test where it is enough that the state interest
pursued is legitimate or lawful, the heightened or intermediate
review requires that said interest be substantial. Furthermore, to
successfully hurdle the intermediate review, the measure must
substantially related to advancing this interest, and it must be
shown that the means employed is not substantially more
burdensome that necessary to advance this interest. 248

The strict scrutiny test is the highest standard of review. It

requires that the statute (1) must advance compelling state
interest; (2) the means or method used must be directly-related to
advancing those interest; and (3) that such means or methods is

244

See for instance, Bautista v. Juinio, G.R. No. L-50908, 31 June 1984.

245

Honda Motor Co., Ltd., et al. v. Oberg, 512 U.S. 415 (1994).

246

Whitelight Corporation v. City of Manila, supra., p. 438.

247

Id., p. 437.

248

Craig v. Boren, 429 U.S. 190 (1976). See also ERWIN CHEMERINSKY,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 529 (1997) as cited in R. RANDALL
KELSO, Standards of Review under the Equal Protection Clause and Related
Constitutional Doctrines Protecting Individual Rights: the Base Plus Six Model and
Modern Supreme Court Practice, 4 JOURNAL OF CONSTITUTIONAL LAW (Jan. 2002) 225,
234.

64

narrowly tailored or the least restrictive means of addressing the

state interest.249

On the other hand, like the reasonable classification requirement

in Cayat, the rational basis test, as applied in equal protection analysis,
needs only to show that the challenged classification is rationally
related to a legitimate state interest.250 In the heightened or
intermediate scrutiny, the government must show that the
challenged classification serves an important or substantial state
interest and that the classification is at least substantially related to
serving that interest.251 Under the strict judicial scrutiny, the State
needs to prove that the classification is necessary to achieve
a compelling state interest and that it is the least restrictive means to
protect such interest.252

In the United States, the rational basis test has since been
largely confined to the review for economic legislation, and nonfundamental rights. The strict judicial scrutiny, on the other
hand, has been devised to review police power regulations
involving fundamental rights and suspect classifications.
Meanwhile, the intermediate review has been applied to quasisuspect class.

It is fairly obvious that standards of review based on the due

249
Bowers v. Hardwick, 478 U.S. 186, 189 (1986).
250

Serrano v. Gallant Maritime Services, Inc. G.R. No. 167614, 24 March 2009, 582
SCRA 254, p. 278
251

Ibid.

252

Ibid.

65

process clause overlaps with that of equal protection clause. In the

United States, if a police power regulation makes a classification
of individuals based on suspect classification or the exercise of
a fundamental right, the equal protection analysis is used.
However, if the restriction on a fundamental right applies to all
persons, then due process clause analysis is used.

1. Fundamental rights
The

term

fundamental

right

has

particular

legal

signification in the United States. The U.S. Supreme Court has

generally determined whether rights are to be considered
fundamental by examining the historical foundations of those
rights and the determining whether their protection was part of a
long-standing tradition.253 Because of their unique legal tradition
and system of government, other rights may be guaranteed as
fundamental by individual states, but may not be considered so in
the federal level.

A scan of U.S. jurisprudence reveals that those considered

fundamental rights for which the strict judicial scrutiny has been
applied are either considered species of liberty or within the
zones or penumbra of the right to privacy such as those
concerning sex, marriage, child-bearing and child-rearing.254
Other rights considered fundamental are those relating to voting,255
fair administration of justice256 and interstate travel.257 Note that all

253
Reno v. Flores, 507 U.S. 292 (1993); United States v. Salerno, 481 U.S. 739 (1987);
Washington v. Glucksberg, 521 U.S. 702 (1997).
254

STEVEN L. EMANUEL, CONSTITUTIONAL LAW (1992), p. 164

255

Reynold v. Sims, 377 U.S. 533 (1964).

66

these identified fundamental rights were derived from the

interpretation of the Fourteenth Amendment258 to the U.S.
Constitution.

Although it has been argued that all enumerated rights (or

those which have specific recognition in the first eight amendments
of the U.S. Constitution)259 are fundamental rights,260 the three
levels of judicial review discussed earlier would only apply to
those rights which are deemed embraced in the Fourteenth
Amendment protection but which were not specifically enumerated
in U.S. Constitution. When a particular right has specific
protection under the U.S. Constitution, the standard of judicial
review crafted for that particular right is normally used, such as the
Free Speech and Free Exercise Clauses.

256
Griffin v. Illinois, 351 U.S. 12 (1956).
257

Shapiro v. Thompson, 394 U.S. 618 (1969).

258

Section 1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
259

The first eight Amendments refer to the following rights: Freedom of religion; speech,
press and the right to assemble peaceably and petition the government for redress and
grievances; right to keep and bear arms; right against accepting a soldier to be quartered
in house; right against unreasonable searches and seizures; right to criminal justice and
due process of law; right to speedy and public trial; right to trial by jury; right against
excessive bail, excessive fines and cruel and unusual punishments.
260

See for instance Sherbert v. Verner, 374 U.S. 398 (1963) where the right to free
exercise of religion is deemed fundamental right; Bates v. City of Little Rock, 361 U.S.
516 (1960) where the right to freedom of association is also considered a fundamental
right.

67

2. Suspect and Quasi-Suspect Classifications

The idea of a more stringent scrutiny for regulations

containing suspect classification was first introduced in the
famous Footnote Four261 in the case of United States v.
Carolene Products, Co.262 decided in 1938. In the said case, the
Court spoke of a possibility of a more searching judicial inquiry of
statutes containing classifications directed at discrete and insular
minorities. From this idea arose the concept of suspect
classification, defined as any group that is saddled with such
disabilities, or subject to such a history of purposeful unequal
treatment, or relegated to such a position of political
powerlessness, as to command extra-ordinary protection from the
majoritarian political process.263

261
There may be narrower scope for operation of the presumption of constitutionality
when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those of the first ten amendments, which are deemed equally
specific when held to be embraced within the Fourteenth

It is unnecessary to consider now whether legislation which restricts those political

processes which can ordinarily be expected to bring about repeal of undesirable
legislation, is to be subjected to more exacting judicial scrutiny under the general
prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we inquire whether similar considerations enter into the review of statutes
directed at particular religious or national or racial minorities : whether prejudice
against discrete and insular minorities may be a special condition, which tends seriously
to curtail the operation of those political processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more searching judicial inquiry.
262

304 U.S. 144 (1938).

263

San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973).

68

a. Race or National Origin

Given the political history of the United States, the first
identified suspect class is of course race, and in no uncertain
terms, the African Americans.264 In the 1880 case of Strauder v.
West Virginia,265 the U.S. Supreme Court emphatically said that
the intent of the Fourteenth Amendment was to precisely to protect
the African-Americans who were, at that time, recently
emancipated. It said:

This is one of a series of constitutional provisions having a

common purpose -- namely, securing to a race recently
emancipated, a race that, through many generations, had been
held in slavery, all the civil rights that the superior race
enjoy. The true spirit and meaning of the amendments, as we
said in the Slaughterhouse Cases, cannot be understood
without keeping in view the history of the times when they
were adopted and the general objects they plainly sought to
accomplish. At the time when they were incorporated into the
Constitution, it required little knowledge of human nature to
anticipate that those who had long been regarded as an
inferior and subject race would, when suddenly raised to the
rank of citizenship, be looked upon with jealousy and
positive dislike, and that State laws might be enacted or
enforced to perpetuate the distinctions that had before
existed. Discriminations against them had been habitual. It
was well known that, in some States, laws making such
discrimination then existed, and others might well be
expected. The colored race, as a race, was abject and

264

Daniel A. Farber, William N. Eskridge, Jr., Philip P. Frickey, Cases and Materials on
Constitutional Law: Themes for Constitutions Third Century (West Publishing Co., St.
Paul Minn. 1993), p. 133.
265

100 U.S. 303 (1880).

69

ignorant, and in that condition was unfitted to command the

respect of those who had superior intelligence. Their training
had left them mere children, and, as such, they needed the
protection which a wise government extend to those who are
unable to protect themselves. They especially needed
protection against unfriendly action in the States where they
were resident. It was in view of these considerations was
Fourteenth Amendment framed and adopted. It was designed
to assure to the colored race the enjoyment of all the civil
rights that, under the law, are enjoyed by white persons, and
to give to that race the protection of the general government
in that enjoyment whenever it should be denied by the States.
It not only gave citizenship and the privileges of citizenship
to persons of color, but it denied to any State the power to
withhold from them the equal protection of the laws, and
authorized Congress to enforce its provisions by appropriate
legislation.266

The equal protection clause was later expanded to national

origin to cover such other racially distinct minorities such as the
Orientals,267 and Mexican-Americans.268 Other scholars are of the
view that this should be extended to other distinct ethnic groups.269

In the 1943 case of Hirabayashi v. United States,270 it was

declared that [D]istinctions between citizens solely because of
their ancestry are, by their very, nature odious to a free people
whose institutions are founded upon the doctrine of equality. For

266
Id., p. 306-307.
267

Yick Wo v. Hopkins, 118 U.S. 356 (1886).

268

Hernandez v. Texas, 347 U.S. 475 (1954).

269

See for instance, EMANUEL, supra., p. 245.

270

320 U.S. 81 (1943).

70

that reason, legislative classification or discrimination based on

race alone has often been held to be a denial of equal protection.
In the succeeding case of Korematsu v. United States271 that the
U.S. Supreme Court declared that all legal restrictions which
curtail the civil rights of a single racial group are immediately
suspect, such that restrictions would be subjected to the most rigid
scrutiny, viz.:

It should be noted, to begin with, that all legal restrictions

which curtail the civil rights of a single racial group are
immediately suspect. That is not to say that all such
restrictions are unconstitutional. It is to say that courts must
subject them to the most rigid scrutiny. Pressing public
necessity may sometimes justify the existence of such
restrictions; racial antagonism never can.

272

The U.S. Court all together abandoned the rational

relationship test for statutes containing classifications based on
racial origin in Loving v. Virginia.273

b. Alienage

Classification based on alienage was held to be suspect in

earlier cases of In re Griffiths,274 Graham v. Richardson,275 and

271
323 U.S. 214 (1944).
272

Id., p. 214.

273

388 U.S. 1 (1967).

274

413 U.S. 717 (1973). In this case, the law excluding aliens from the practice
of law was truck down as the State has not met its burden of showing the
classification to have been necessary to vindicate the States undoubted interest
in maintaining high professional standards.

71

Sugarman v. Dougall.276 In all these cases, the court applied the

strict scrutiny test and invalidated the challenged regulations for
the failure of the State concerned to overcome the burden of
showing that the classification is necessary to serve the compelling
state interest.

In 1982 case of Plyer v. Doe,277 the U.S. Supreme Court

backed down and applied the intermediate scrutiny. In the end,
though, it struck down a state statute denying funding for
education to illegal aliens. The Court said although undocumented
resident aliens cannot be treated as a suspect class, and although
education is not a fundamental right, so as to require the State to
justify the statutory classification by showing that it serves a
compelling governmental interest, nevertheless the Texas statute
imposes a lifetime hardship on a discrete class of children not
accountable for their disabling status.

Note however, that while the U.S. Court applied strict

scrutiny in case Sugarman and struck down the law banning aliens
from holding positions in the state civil service, the Court,
however, stated that aliens may be prohibited from holding state
elective executive, legislative and judicial positions, and even in

275

403 U.S. 365, 372 (1971). In this case, the U.S Court held that a State may not
withhold welfare benefits from resident aliens merely because of their alienage. Such
discrimination, the Court concluded, would not only violate the Equal Protection Clause,
but would also encroach upon federal authority over lawfully admitted aliens. In support
of the latter conclusion, the Court noted that Congress had not seen fit to impose any
burden or restriction on aliens who become indigent after their entry into the United
States, but rather had chosen to afford lawfully admitted resident aliens ... the full and
equal benefit of all state laws for the security of persons and property. The States had
thus imposed an auxiliary [burden] upon the entrance or residence of aliens" that was
never contemplated by Congress.
276

413 U.S. 634 (1973).

277

457 U.S. 202 (1982).

72

important

non-elective

positions

in

any

branch

of

state

government. The Sugarman exception paved the way for barring

aliens in a wide range of state employments such as being state
troopers,278 public school teachers,279 and deputy probationary
officers.280

c. Gender

The U.S. Supreme Court traditionally use rationality test to

review police power regulation creating classification based on
gender.281 However, in Frontiero v. Richardson282 decided in
1973, the U.S. Court swung to the other extreme and held that
classification based on gender, like classifications based upon race,
alienage, or national origin are inherently suspect and must be
subjected to strict judicial scrutiny, thus:
It is true, of course, that the position of women in
America has improved markedly in recent decades.
Nevertheless, it can hardly be doubted that, in part because
of the high visibility of the sex characteristic, women still
face

pervasive,

although

at

times

more

subtle,

discrimination in our educational institutions, in the job

market and, perhaps most conspicuously, in the political
arena.

278
279

Foley v. Connelie, 435 U.S. 291 (1978).

Ambach v. Norwick, 441 U.S. 68 (1979).

280

Cabell v. Chavez-Salido, 454 U.S. 432 (1982)

281

See for instance, Goesart v. Cleary, 335 U.S. 464 (1948).

282

411 U.S. 677 (1973).

73

Moreover, since sex, like race and national origin, is an

immutable characteristic determined solely by the accident
of birth, the imposition of special disabilities upon the
members of a particular sex because of their sex would
seem to violate "the basic concept of our system that legal
burdens should bear some relationship to individual
responsibility. . . .". And what differentiates sex from such
non suspect statuses as intelligence or physical disability,
and aligns it with the recognized suspect criteria, is that the
sex characteristic frequently bears no relation to ability to
perform or contribute to society. As a result, statutory
distinctions between the sexes often have the effect of
invidiously relegating the entire class of females to inferior
legal status without regard to the actual capabilities of its
individual members.283 (citations omitted)

While essentially retaining the rationale of Frontiero for

applying a higher standard of scrutiny for gender-based
classification, the U.S. Court, however, retreated to intermediate
scrutiny in the 1976 case of Craig v. Boren.284 Since then,
classification based on gender is considered quasi-suspect and
the police power regulations making gender-classification are
subjected to intermediate review.285

d. Illegitimacy

There are those who suggest that classification based on

283
Id., pp. 685-687.
284

429 U.S. 190 (1976).

285

See for instance, Michael M. v. Superior Court, 450 U.S. 464 (1981); Rostker v.
Goldberg, 453 U.S. 57 (1981); Mississippi University for Women v. Hogan, 458 U.S.
718 (1982).

74

illegitimacy has the attained the status of a quasi-suspect such

that would entail subjecting police power regulations to
intermediate

review.

One

scholar,

however,

have

this

observation:

The Supreme Courts treatment of classifications based

on legitimacy has been extremely confusing, and remains
so. About the most that can be said is that the Court gives
somewhat heightened scrutiny to such classifications, but
does not treat them as suspect. The Court never explicitly
described its treatment as intermediate-level scrutiny,
and it is difficult to say whether illegitimacy is more or
less scrutinized than the other two-middle level scrutiny
classifications, gender and alienage.286

Indeed a review of the cases on illegitimacy is somewhat

confusing, as the standard of review used by the Court is not
always clear. In Levy v. Louisiana,287 for instance, the Court did
not state what standard it was applying in striking down a law
refusing unacknowledged illegitimate children to bring an action
for a wrongful death for the demise of their mother. Nevertheless,
it laid down the foundation for looking at illegitimacy as a source
of invalid classification, viz.:

Legitimacy or illegitimacy of birth has no relation to the

nature of the wrong allegedly inflicted on the mother. These
children, though illegitimate, were dependent on her; she cared
for them and nurtured them; they were indeed hers in the
biological and in the spiritual sense; in her death they suffered

286
See EMMANUEL, supra., p. 335,
287

391 U.S. 68 (1968).

75

wrong in the sense that any dependent would.288

Meanwhile, in Matthews v. Lucas,289 the Court flatly

rejected the application of strict scrutiny and said that
discrimination against illegitimate has never approached the
severity or pervasiveness of that against the Blacks or the women,
but nonetheless acknowledged that there are instances when more
heightened scrutiny may be availing, thus:

It is true, of course, that the legal status of illegitimacy,

however defined, is, like race or national origin, a
characteristic determined by causes not within the control of
the illegitimate individual, and it bears no relation to the
individuals ability to participate in and contribute to society.
The Court recognized in Weber that visiting condemnation
upon the child in order to express society's disapproval of the
parents liaisons is illogical and unjust. Moreover, imposing
disabilities on the illegitimate child is contrary to the basic
concept of our system that legal burdens should bear some
relationship to individual responsibility or wrongdoing.
Obviously, no child is responsible for his birth and penalizing
the illegitimate child is an ineffectual - as well as an unjust way of deterring the parent.

But where the law is arbitrary in such a way, we have had no

difficulty in finding the discrimination impermissible on less
demanding standards than those advocated here. And such
irrationality in some classifications does not in itself
demonstrate that other, possibly rational, distinctions made in

288

Id.

289

427 U.S. 595 (1976).

76

part on the basis of legitimacy are inherently untenable.

Moreover, while the law has long placed the illegitimate child
in an inferior position relative to the legitimate in certain
circumstances, particularly in regard to obligations of support
or other aspects of family law, perhaps in part because the
roots of the discrimination rest in the conduct of the parents
rather than the child, and perhaps in part because illegitimacy
does not carry an obvious badge, as race or sex do, this
discrimination against illegitimates has never approached the
severity or pervasiveness of the historic legal and political
discrimination against women and Negroes.290

In Trimble v. Gordon,291 the Court applied a somewhat

middle-tier scrutiny when it invalidated a portion of the Illinois
intestate succession scheme that prevented illegitimate children
from inheriting from their father. In subsequent cases, although it
remains clear that the Court applies something more than mere
rationality review, and something less than strict scrutiny, to
discriminations against illegitimates, the precise standard is
extremely muddy.292

e. Wealth

In striking down a law requiring the payment of poll tax

before one can exercise the right to vote, the U.S. Supreme Court,
in Harper v. Virginia Board of Elections293stated:

290
Id.
291

430 U.S. 762 (1977).

292 EMMANUEL, supra., p. 337.

293

383 U.S. 663 (1966)

77

Wealth, like race, creed, or color, is not germane to one's

ability to participate intelligently in the electoral process.
Lines drawn on the basis of wealth or property, like those of
race, are traditionally disfavored. To introduce wealth or
payment of a fee as a measure of a voter's qualifications is
to introduce a capricious or irrelevant factor. The degree of
the discrimination is irrelevant. In this context -- that is, as a
condition of obtaining a ballot -- the requirement of fee
paying causes an "invidious" discrimination that runs afoul
of the Equal Protection.294 (citations omitted)

This statement prompted some observers to speculate the

possibility of wealth being considered a suspect class. But in
James v. Valtierra,295 this speculation was quelled when the Court
said that wealth classifications simply do not trigger any
heightened scrutiny.

D. Fundamental Rights, Liberty and Privacy in the Philippines

In our jurisdiction, the rational basis test has been the

standard followed in reviewing police power regulations on both
the substantive due process and on equal protection analyses.
However, in the 1967 case of Ermita-Malate and Motel
Operators v. City of Manila,296 the Court, through Chief Justice

294

Id.

295

402 U.S. 137 (1971).

296

G.R. No. L-24693, 31 July 1967, 20 Phil. 849.

78

(then Associate Justice) Enrique V. Fernando, intimated that a

more rigorous and exacting standard of review ought to guide the
Court where the liberty infringe upon involves the freedom of the
mind or the person, thus:

What cannot be stressed sufficiently is that if the liberty

involved were freedom of the mind or the person, the
standards for validity of governmental acts is much more
rigorous and exacting but where the liberty curtailed affects
at most rights of property, the permissible scope of
regulatory measure is wider.297

It is to be noted that while our Court in subsequent cases

refer to fundamental rights, liberty and privacy to apply stricter
scrutiny to police power regulations, the discussions eventually
boil down to Mr. Chief Justice Fernandos dichotomy of liberty :
that which involved the freedom of the mind and that which
affects most rights of property. It is therefore most helpful to try
to clarify these concepts to fully understand how our Court
approach and apply the standards of review in our jurisdiction.

In Rubi v. Provincial Board of Mindoro,298 Justice

Malcolms opined that the constitutional right to liberty include:
the right to exist and the right to be free from arbitrary restraint
or servitude. According to him, the term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy his faculties

297

Id., pp. 865-866.

298

39 Phil. 660 (1919).

79

with which he has been endowed by his Creator, subject only to

such restraint as are necessary for the common welfare.299 It also
embraces the rights of citizens to be free to use his faculties in all
lawful ways; to live and work where he will; to earn is livelihood
by any lawful calling; and to pursue any avocation, and for that
purpose, to enter into contracts which may be proper, necessary,
and carrying out these purposes to a successful conclusion.300

Despite his broad formulation, Justice Malcolms definition

of liberty undoubtedly centers on the pursuit of property and
economic rights. For him, the chief elements of the constitutional
guaranty to liberty are the right to contract, the right to choose
ones employment, the right to labor, and the right to
locomotion.301

Around that time in the United States, however, the concept

of liberty has already expanded beyond the pursuit of property or
economic activities. In 1923 case of Meyer v. Nebraska,302 the
U.S. Supreme Court underscored that right to liberty includes
decisions on marriage, the establishment of home, the rearing of
children and the worship of God. Invalidating a law forbidding,
under penalty, the teaching in any private, denominational,
parochial or public school, of any modern language, other than
English, to any child who has not attained and successfully passed

299

Id., p. 705.

300

Ibid.

301

Ibid.

302

262 U.S. 390 (1923).

80

the eighth grade, the U.S. Court elucidated on the concept

liberty, as follows:
While this court has not attempted to define with exactness the
liberty thus guaranteed, the term has received much
consideration and some of the included things have been
definitely stated. Without doubt, it denotes not merely freedom
from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to
acquire useful knowledge, to marry, establish a home and bring
up children, to worship God according to the dictates of his
own conscience, and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of
happiness by free men.303

In Pierce v. Society of Sisters,304 the Court invalidated a

statute requiring children to attend public schools as it violates the
liberty of parents and guardians to direct the upbringing and
education of children under their control.305

Meanwhile in Skinner v. Oklahoma,306 the Court struck

down a law, which provided for the compulsory sterilization of
persons convicted three times of felonies showing moral
turpitude on the ground that are marriage and procreation are
part of protected rights to liberty and are fundamental to the very

303

Id., p. 399.

304

268 U.S. 510 (1925).

305

316 U.S. 535 (1942)

306

Id.

81

existence of the race.307

The U.S. Supreme Court affirmed this formulation of liberty

in the 1992 case of Planned Parenthood of Southeastern Pa. v.
Casey,308Court defined liberty in the context of personal and
family decisions including decisions relating to marriage,
procreation, contraception, family relationships, child rearing,
and education. In explaining the respect the Constitution demands
for the autonomy of the person in making these choices, the U.S.
Supreme Court explained:

These matters, involving the most intimate and personal

choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment. At the heart of liberty
is the right to define ones own concept of existence, of
meaning, of universe, and of the mystery of human life. Beliefs
about these matters could not define the attributes of
personhood where they formed under compulsion of the
State.309

In the 2003 case of Lawrence v. Texas,310 the U.S. Supreme

Court ruled that individual decisions concerning the intimacies of
physical relationships, even when not intended to produce
offspring, are a form of liberty protected by due process.

307

Id.

308

505 U.S. 833 (1992).

309

Id., p. 851.

310

539 U.S. 558 (2003).

82

It is readily discernible that the description of liberty in

Planned Parenthood and Lawrence is akin to the exposition the
concept of privacy in the earlier case of Griswold v.
Connecticut311 decided in 1965. In the said case, the U.S. Court
struck down a statute criminalizing the use of contraceptives as
well as the aiding or counseling others in their use. Instead of the
liberty rights approach, the U.S. Court found that the Bill of Rights
guarantees to protect privacy interest and create a penumbra or
zones of privacy. The Court then concluded that the right of
married persons to use contraceptives fell within this penumbra,
thus:

These cases bear witness that the right of privacy which

presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the
zone of privacy created by several fundamental constitutional
guarantees. And it concerns a law which, in forbidding the use
of contraceptives rather than regulating their manufacture or
sale, seeks to achieve its goals by means having a maximum
destructive impact upon that relationship. Such a law cannot
stand in light of the familiar principle, so often applied by this
Court, that a governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be
achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms. Would we
allow the police to search the sacred precincts of marital
bedrooms for telltale signs of the use of contraceptives? The
very idea is repulsive to the notions of privacy surrounding the
marriage relationship.

311

381 U.S. 479 (1965)

83

We deal with a right of privacy older than the Bill of Rights older than our political parties, older than our school system.
Marriage is a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony
in living, not political faiths; a bilateral loyalty, not commercial
or social projects. Yet it is an association for as noble a purpose
as any involved in our prior decisions.312

But

the

term

privacy

itself

connotes

different

significations. It may refer to what is popularly known as

decisional privacy - the core of which is the right to personal
autonomy which has been the context of Lawrence v. Texas and
Griswold v. Connecticut. It is also in the context of decisional
privacy that the controversial Rhoe v. Wade313 which declared
that the woman has the right to terminate her pregnancy until
viability. And while it has been acknowledged that privacy as such
is accorded recognition independently of its identification with
liberty and in itself is fully deserving of constitutional
protection,314 succeeding cases in our jurisdiction seems to use the
analyze cases involving decisional privacy/personal autonomy
under the rubric of liberty.

Privacy can also refer to informational privacy which

deals with deals with the individuals interest in avoiding of
disclosing disclosure of personal matters.315 The earliest case

312

Id., p. 485.

313

410 U.S. 113 (1973).

314

Mutoc v. Morfe, supra., p. 444.; Ople v. Torres, supra., p.155.

315

Whalen v. Roe, 429 U.S. 589 (1977).

84

dealing with informational privacy in the United States is the 1977

case of Whalen v. Roe,316 relating to the requirement of disclosure
of patient-information. In our jurisdiction, informational privacy
was the core question in the 1968 case of Morfe v. Mutuc, which
involved a law requiring public officials to disclose their assets and
liabilities, as well as in Ople v. Torres,317 which concerns the
establishment of a national identification system.

Still, the right to privacy also many other aspects recognized

and enshrined in our Constitution, such as the right to privacy of
communication

and

correspondence;318

the

right

against

unreasonable searches and seizure;319 the liberty of abode and the

316

Id.

317

G.R. No. 127685, July 23, 1998.

318

1987 PHIL. CONST., ART. III, SEC. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon lawful order of the court, or when
public safety or order requires otherwise as prescribed by law."
319

1987 PHIL. CONST., ART. III, SEC. 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to
be seized.

85

right to travel;320the freedom of association;321 and the right against

self-incrimination,322 among others.

Our Court also acknowledged that zones of privacy are

likewise recognized and protected in our laws, to wit:

The Civil Code provides that [e]very person shall respect

the dignity, personality, privacy and peace of mind of his
neighbors and other persons and punishes as actionable
torts several acts by a person of meddling and prying into
the privacy of another. It also holds a public officer or
employee or any private individual liable for damages for
any violation of the rights and liberties of another
person, and recognizes the privacy of letters and other
private communications. The Revised Penal Code makes a
crime the violation of secrets by an officer, the revelation of
trade

and

industrial

secrets, and

trespass

to

dwelling. Invasion of privacy is an offense in special

laws like the Anti-Wiretapping Law, the Secrecy of Bank
Deposit Act and the Intellectual Property Code. The Rules
of Court on privileged communication likewise recognize
the privacy of certain information.323

320

1987 PHIL. CONST., ART. III, SEC. 6. The liberty of abode and of changing the
same within the limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by
law.

321

1987 PHIL. CONST., ART. III, SEC. 8. The right of the people, including those
employed in the public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged.

322

SEC.

323

Ople v. Torres, supra.,pp. 157-158.

1987 PHIL. CONST., ART. III,

witness against himself.

17. No person shall be compelled to be a

86

The foregoing discussion begs the question: are regulations

infringing any specie of the rights to liberty and privacy subject to
a more stringent (heightened or strict scrutiny), or may some of
them may pass constitutional muster by mere rational basis? An
extended gaze into our jurisprudence reveals that except in some
rare instances, our Court, consciously or unconsciously follows
Chief Justice Fernandos formula.

1. Liberty to Enter into Contract

The exercise of police power often collides with the liberty to

contract (contract clause) enshrined in section 10 of our Bill of
Rights, which reads: No law impairing the obligation of contracts
shall be passed.

Although the contract clause has been in existence in an

unbroken chain since the Philippine Bill of 1902,324 early cases
have already underscored the preeminence of police power over
contracts, recognizing that the constitutional guaranty must give
way to the States police power in the interest of general welfare.
Our jurisprudential history treated the liberty contract as
falling with Justice Fernandos category of liberty affecting at
most property rights where the permissible regulation is deemed
wider. Indeed, our Court has consistently applied the rational
basis test in reviewing police power regulations that encroach on
the contract clause.

324
PHILIPPINE BILL OF 1902, SEC. 3, PAR. 5; PHILIPPINE AUTONOMY ACT OF 1916, SEC. 5,
PAR. 5; 1935 PHIL. CONST., ART. III, SEC. 1 (10); 1973 PHIL. CONST., ART. IV, SEC. 11.

87

In Pangasinan Transportation Company v. Public Service

Commission325, it was held that regulatory statutes enacted in the
proper exercise of police power apply not only to public utilities
that will come into existence after the passage of such laws, but
even to those already existing and operating. The Court also
upheld a law setting a ceiling to profits that certain public utilities
could earn and applied such law even to existing contracts.326

Police power justified a statute that granted workers rights

that they did not have under existing contracts327 as well as
remedial legislation pertaining to the governments social justice
program and security of tenure in favor of agricultural tenants.328
In fact, starting with Ramas v. Court of Agrarian Relations,329 the
Court upheld the right of the tenants under Section 14 of R.A. 1199
to unilaterally convert the existing relationship with the landowner
from share tenancy to leasehold tenancy.330 The Court has further
ruled that the non-applicability of police power legislation that are
otherwise valid, to existing conditions and contracts, would be
self-defeating in character and render nugatory such valid exercise
of police power.331

325

70 Phil. 221, 232 (1940).

326

Alalayan v. National Power Corporation, G.R. No. L-24396, 29 July 1968.

327

Abe v. Foster Wheeler Corporation, G.R. No. L-14785, 29 November 1960.

328

Tapang v. Court of Industrial Relations, 72 Phil.79 (1941); Ongsiako v. Gamboa, 86

Phil. 50 (1950); Primero v. Court of Agrarian Relations, 101 Phil. 675 (1957).
329

G.R. No. L-19555, May 29, 1964.

330

See also Ilusorio v. Court of Agrarian Relations, 17 SCRA 25.

331

Ongsiako v. Gamboa, supra; Alalayan v. National Power Corporation, supra.

88

Police power has also been cited as the basis for various labor
legislation that have incidentally destroyed existing contract rights.
Time and again, the Supreme Court ruled that labor contracts must
give way to the necessities and demands of the common good.
Thus, a Blue Sunday Law was declared as valid, although it had the
effect of nullifying existing contractual stipulations for either work
or play to be provided on Sundays.332 A return to work order was
also held as lawful, despites it effectively terminating the contracts
entered into with replacements for the striking employees.333 A
separation pay law was retroactively applied to existing contracts
to benefit employees terminated based on authorized causes.334

In Philippine Association of Service Importers v. Drilon,335

recruitment agencies questioned the suspension imposed by the
Department of Labor and Employment against the overseas
deployment of Filipino domestic and household workers as
violative of the non-impairment clause and unduly prejudicial to
their business. The Court found that the order was issued as a
lawful exercise of police power.

Furthermore, the concern of

government is not necessarily to maintain profits of business, but

to provide a decent and safe living for its citizens.

One of the leading Philippine cases on the non-impairment

clause is Rutter v. Esteban.336 The case involved a question on the
validity of Republic Act No. 342 (subsequently, the Moratorium

332
Asia Bed Factory v. National Bed and Kapok Industries Workers Union, 100 Phil.
837, 840 (1957).
333

FEATI University v. Bautista, G.R. No. L-21278, 27 December 1966.

334

Abella v. NLRC, 152 SCRA 140 (1987).

335

163 SCRA 386 (1988).

93 Phil 68 (1969).

336

89

Law), which provided that all debts and monetary obligations

contracted before December 8, 1941 (the outbreak of the Second
World War in the Philippines) shall not be due and demandable for
a period of eight years from and after settlement of the war damage
claim of the debtor by the Philippine War Damage Commission.
The Supreme Court said that, while it may be conceded that the
Moratorium Law impaired the obligation of contract, it was
nevertheless justified as a valid exercise by the State of its police
power. According to the Court, the true test of the constitutionality
of a moratorium statute lay in the determination of the period of
suspension of the remedy. This meant that the suspension must be
definite and reasonable.

Applying that standard to this case, the Court said that the
Moratorium Law was valid at the time it was passed, considering
that it sought to afford prewar debtors an opportunity to
rehabilitate themselves by giving them a reasonable time within
which to pay their prewar debts, so they would not be victimized
by their creditors. The real issue before the Court, however, was
the validity of the continued operation and enforcement of the
Moratorium Law during the period of time set by the legislature.337
However, the Court noted that, at the time the case was brought
before it, the financial condition of the country and the people had
returned to normal, and that business, industry and agriculture had
picked up. In addition, the Court found as unreasonable the length
of extension (a total of 12 years), during which time all the rights
of the creditors were suspended, the fact that the credits were
unsecured and the fact that the debtor was not required to pay
interest during the period of operation of the moratory law.338

337
Rutter v. Esteban, supra.

90

Thus, it concluded that the continued operation and enforcement of

the Moratorium Law at that time was already unreasonable and
oppressive. Therefore, it declared the law null and void and
without effect.

Ortigas & Co. v. Feati Bank339 involves a zoning ordinance.

Here, the petitioners sold two lots on the condition that the lots
would only be used for residential purposes. Subsequently, the
respondent bank acquired the lots and began constructing a
commercial building on them. Petitioner sought to restrain such
development on account of the original stipulated condition as to
the use of the lots. The bank, on the other hand, raised a resolution
adopted by the municipal council of Mandaluyong declaring the
area in which the lots were located as a commercial and industrial
zone. The bank prevailed before the Supreme Court, with the
Court ruling that the zoning resolution was validly adopted in the
municipalitys exercise of police power, and as such, could modify
the original agreement of sale.

The non-impairment clause was also invoked as basis for

nullifying the Generics Act (R.A. No. 6675). The Court rejected
this stance, holding that no contract ever results from a
consultation between a patient and physician.340 In any case, no
private contract can override the police power of the State to
promote and secure public health. 341

338
Id.
339
340

94 SCRA 533.
Del Rosario v. Bengzon, 180 SCRA 521 (1989).

91

2. Right to Pursue a Profession, Calling or Trade

The right to pursue a profession is yet another specie of

liberty, which found explicit protection in our Constitution.342
But a profession, calling or trade, is treated as a property right,
viz.:

A profession, trade of calling is a property right within the

meaning of our constitutional guarantees. One cannot be
deprived of the right to work and right to make a living
because these rights are property rights, the arbitrary and
unwarranted deprivation of which normally constitutes an
actionable wrong.343

Thus, in assessing the validity of various administrative

orders issued by the Department of Labor and Employment
(DOLE), the Court JMM Promotion and Management, Inc. v.
Court of Appeals,344 the Court employed the rational basis test,
following Justice Fernandos dichotomy in Ermita-Malate. It said:

In any case, where the liberty curtailed affects at most the

rights of property, the permissible scope of regulatory
measures is certainly much wider. To pretend that licensing
or accreditation requirements violates the due process clause
is to ignore the settled practice, under the mantle of the
police power, of regulating entry to the practice of various

341
Id.
342

1987 Const., Art. , XIV, sec. 5 (3). [E]very citizen has a right to select a profession or
course of study, subject to fair, reasonable, and equitable admission and academic
requirements.
343

JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, 5
August 1996
344
Id.

92

trades or professions. Professionals leaving for abroad are

required to pass rigid written and practical exams before
they are deemed fit to practice their trade. Seamen are
required to take tests determining their seamanship. Locally,
the Professional Regulation Commission has began to
require previously licensed doctors and other professionals
to furnish documentary proof that they has either re-trained
or had undertaken continuing education courses as a
requirement for renewal of their licenses. It is not claimed
that these requirements pose an unwarranted deprivation of a
property right under the due process clause. So long as
professionals and other workers meet reasonable regulatory
standards no such deprivation exists.345

It may be recalled that early as the 1915 case of U.S. v.

Gomez de Jesus,346 the Court already declared that it is within the
police power of the State to prescribe the qualifications for the
practice of professions or trades which affect the public welfare,
the public health, the public morals, and the public safety, and to
regulate or control such professions or trades, even to the point of
revoking such right altogether.

In Tablarin v. Gutierrez,347 decided by the Supreme Court

under the 1987 Constitution, the constitutionality of the National
Medical Admission Test (NMAT) as a measure intended to limit
the admission to medical schools only to those who have initially
proved their competence and preparation for the medical education

345

Id.

346

U.S. v. Gomez Jesus, 31 Phil. 218 (1915); People v. Ventura, G.R. No. L-15079,
January 31, 1962.
347

G.R. No. 78164, July 31, 1987, 154 SCRA 730 (1987).
93

was upheld. In similar fashion, the Court in DECS v. Sandiego348

held as valid the three-flunk rule, which prohibits a student who
has failed three successive times in the NMAT from taking the said
examination for the fourth time. In all these cases, the Court only
applied the rational basis test.

3. Liberty of Abode and Right to Travel

Another significant deviation from the U.S. legal tradition is

the treatment of the freedom of movement. In our jurisdiction, the
liberty of abode and the right to travel are enumerated rights under
the 1987 Constitution, viz.:

Sec. 6.The liberty of abode and of changing the same

within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of
national security, public safety or public health, as may
be provided by law.

Although related, these two rights are treated differently.

Hence, while the there must be a law before either rights may be
infringed, an additional requirement is imposed before the liberty
of abode can be impaired: it must only be upon lawful order of
the court. In contrast, the curtailment of the right to travel can be
done without order from the court, so long as it is predicated on the
interest of national security, public safety, or public health
which are set forth in the law.

348

180 SCRA 534 (1989).

94

Under the 1935 Constitution, the right to travel does not

appear, but it is presumed to be subsumed under the guaranty of
the liberty of abode found in Article III, sec. 1 (4), which states:
[T]he liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired.

Under the 1973 Constitution, the right to travel first appeared

and was similarly treated as the liberty of abode. The formulation
under this Martial Constitution removed the requirement for prior
legislation before these rights may be curtailed; thus: reads:

The liberty of abode and of travel shall not be impaired

except upon lawful order of the court, or when necessary in
the interest of national security, public safety, or public
health.349

With this formulation under the 1973 Constitution, liberty of

abode and the right to travel can be impaired upon order of the
court or even without such order when necessary in the interest
of national security, public safety, or public health. In other
words, the liberty of abode and right to travel may be curtailed by
an executive officer, even without legislative fiat.

The change in the phraseology in the 1987 Constitution,

requiring prior legislative act before the liberty of abode and the
right to travel may be curtailed is said to be a reaction to the ban on

349
1973 Phil. Const. Art. IV, sec. 5.

95

international travel imposed under the previous regime when there

was a Travel Processing Center, which issued certificates of
eligibility to travel upon application of an interested party.350 This
should not be construed as delimiting the inherent power of the
Courts to use all means necessary to carry their orders into effect
in criminal cases pending before them

Philippine jurisprudence dealing with the freedom of

movement is very scant. The first case dealing with this issue is the
controversial 1919 case of Rubi v. Provincial Board of
Mindoro,351 decided under the colonial regime. In this case,
despite the salutations on the fundamental right of the person to
liberty, the Court upheld the forced relocation of Non-Christian
tribes to a reservation area. With their low degree of civilization,
the Court said that they do not possess the right conception of
liberty and therefore are not entitled to the due process guarantee,
thus:

Living a nomadic and a wayfaring life and evading the

influence of civilization, they (the manguianes) are engaged in
the works of destruction burning and destroying the forests
and making illegal caigins thereon. Not bringing any benefit
to the State but instead injuring and damaging its interests,
what will ultimately become of these people with the sort of
liberty they wish to preserve and for which they are now
fighting in court? They will ultimately become a heavy burden
to the State and on account of their ignorance they will commit
crimes and make depredations, or if not they will be subjected
to involuntary servitude by those who may want to abuse

350
Silverio v. Court of Appeals, G.R. No. 94284, 8 April 1991.
351

G.R. No. 14078, 7 March 1919, 39 Phil. 660.

96

them.

There is no doubt in my mind that this people a right

conception of liberty and does not practice liberty in a rightful
way. They understand liberty as the right to do anything they
will going from one place to another in the mountains,
burning and destroying forests and making illegal caigins
thereon.

Not knowing what true liberty is and not practising the same
rightfully, how can they allege that they are being deprived
thereof without due process of law?
xxx

xxx

xxx

But does the Constitutional guaranty that 'no person shall be

deprived of his liberty without due process of law' apply to a
class of persons who do not have a correct idea of what liberty
is and do not practise liberty in a rightful way?

To say that it does will mean to sanction and defend an

erroneous idea of such class of persons as to what liberty is. It
will mean, in the case at bar, that the Government should not
adopt any measures looking to the welfare and advancement of
the class of persons in question. It will mean that this people
should be let along in the mountains and in a permanent state
of savagery without even the remotest hope of coming to
understand liberty in its true and noble sense.

In dealing with the backward population, like the Manguianes,

the Government has been placed in the alternative of either
letting them alone or guiding them in the path of civilization.

97

The latter measure was adopted as the one more in accord with
humanity and with national conscience.
xxx

xxx

xxx

The national legislation on the subject of non-Christian people

has tended more and more towards the education and
civilization of such people and fitting them to be citizens. The
progress of those people under the tutelage of the Government
is indeed encouraging and the signs of the times point to a day
which is not far distant when they will become useful citizens.
In the light of what has already been accomplished which has
been winning the gratitude of most of the backward people,
shall we give up the noble work simply because a certain
element, believing that their personal interests would be
injured by such a measure has come forward and challenged
the authority of the Government to lead this people in the pat
of civilization? Shall we, after expending sweat, treasure, and
even blood only to redeem this people from the claws of
ignorance and superstition, now willingly retire because there
has been erroneously invoked in their favor that Constitutional
guaranty that no person shall be deprived of his liberty without
due process of law? To allow them to successfully invoke that
Constitutional guaranty at this time will leave the Government
without recourse to pursue the works of civilizing them and
making them useful citizens. They will thus left in a
permanent state of savagery and become a vulnerable point to
attack by those who doubt, nay challenge, the ability of the
nation to deal with our backward brothers.

The manguianes in question have been directed to live

together at Tigbao. There they are being taught and guided to
improve their living conditions. They are being made to
understand that they object of the government is to organize
them politically into fixed and permanent communities. They
are being aided to live and work. Their children are being

98

educated in a school especially established for them. In short,

everything is being done from them in order that their
advancement in civilization and material prosperity may be
assured. Certainly their living together in Tigbao does not
make them slaves or put them in a condition compelled to do
services for another. They do not work for anybody but for
themselves. There is, therefore, no involuntary servitude.

But they are compelled to live there and prohibited from

emigrating

to

some

other

places

under

penalty

of

imprisonment. Attention in this connection is invited to the

fact that this people, living a nomadic and wayfaring life, do
not have permanent individual property. They move from one
place to another as the conditions of living warrants, and the
entire space where they are roving about is the property of the
nation, the greater part being lands of public domain.
Wandering from one place to another on the public lands, why
can not the government adopt a measure to concentrate them
in a certain fixed place on the public lands, instead of
permitting them to roam all over the entire territory? This
measure is necessary both in the interest of the public as owner
of the lands about which they are roving and for the proper
accomplishment of the purposes and objectives of the
government. For as people accustomed to nomadic habit, they
will always long to return to the mountains and follow a
wayfaring life, and unless a penalty is provinced for, you can
not make them live together and the noble intention of the
Government of organizing them politically will come to
naught.352

As aforesaid, Justice Malcolms explication of the concept

liberty centers on economic activities such as the right to contract,

352
Id., pp. 713-716.

99

the right to choose ones employment, the right to labor, and the
right of locomotion.353 Today, the freedom of movement is
considered a fundamental right354 in itself, which is available to
all residents regardless of nationality,355 and independent of the
economic or property rights considerations.

Nevertheless, when right to travel is intimately related to

the use of property, it readily discernible that the Court employs
the rationality basis test, as it now falls into the Justice
Fernandos category of exercise of liberty, which affects mostly
property rights.

For instance, in the case of Bautista v. Juinio,356 The Court,

applying the rational basis test, upheld the validity of Letter of
Instruction No. 869 restricting the use of private motor vehicles
on some hours and days. The petitioner alleged that the regulation
deprives them of the use of property and infringes on their
freedom to travel and hold family gatherings, reunions and
outings on week-ends and holidays.357 The Court ruled that
questioned regulation has valid purpose, i.e., energy conservation
and the restriction on the use of private motor vehicle is an
appropriate response to a problem that presses urgently for
solution. The Court further underscored that while said measure

353

Id., p. 705.

354

Kwong v. PCGG, G.R. No. 79484, December 7, 1987.

355

Id.

356

G.R. No. L-50908, January 31, 1984

357

Id.

100

may not be the only alternative, its reasonableness is immediately

apparent. Consequently, substantive due process, which is the
epitome of reasonableness and fair play, is not ignored, much less
infringed.358 The Court refused to elaborate on the right to travel,
perhaps because the claim of infringement is so nebulous and so
intimately related to the use of property.

What is implied in the Bautista case was expressly addressed

in Mirasol v. DPWH.359 In this case the prohibition on the use of
certain types of motor vehicles (motorcycles, bicycles, tricycles,
pedicabs, and any non-motorized vehicles) along limited access
highways was deemed not violative of the right to travel. The
Court clarified that while the right to travel guarantees the
freedom of movement from one place to another, it does not give
the person an absolute right to choose the best mode of
transportation or the best route to his destination. The State,
through its police power, may restrict the means by which the
right to travel may be exercised. In other words, the restriction is
on the use of property and the effects on the right to travel is only
incidental. The Court noted that a toll way is not an ordinary road;
it is a facility designed to promote the fastest access to certain
destinations and thus, public interest and safety require close
regulation of its use, operation and maintenance. As a special kind
of road, the Court found it reasonable that not all forms of
transport could use it.

The right to travel does not mean the right to choose any

358

Id.

359

G.R. No. 158793, June 8, 2006.

101

vehicle in traversing a toll way. The right to travel refers to

the right to move from one place to another. Petitioners can
traverse the toll way any time they choose using private or
public four-wheeled vehicles. Petitioners are not denied the
right to move from Point A to Point B along the toll way.
Petitioners are free to access the toll way, much as the rest of
the public can. The mode by which petitioners wish to travel
pertains to the manner of using the toll way, a subject that
can be validly limited by regulation.

Petitioners themselves admit that alternative routes are

available to them. Their complaint is that these routes are not
the safest and most convenient. Even if their claim is true, it
hardly qualifies as an undue curtailment of their freedom of
movement and travel. The right to travel does not entitle a
person to the best form of transport or to the most convenient
route to his destination. The obstructions found in normal
streets, which petitioners complain of (i.e., potholes,
manholes, construction barriers, etc.), are not suffered by
them alone.360

The Court also rebuffed petitioners claim that the possession

of a drivers license from the Land Transportation Office (LTO)
and the registration of ones vehicle with the same office entitle a
person to use all kinds of roads in the country. The Court stressed
that drivers license issued by the LTO merely allows one to drive
a particular mode of transport; it is not a license to drive or
operate any form of transportation on any type of road. On the
other hand, vehicle registration in the LTO merely signifies the
roadworthiness of a vehicle; this does not preclude the

360
Id.

102

government from prescribing which roads are accessible to certain

vehicles.361

Meanwhile, in Philippine Association of Service Exporters,

Inc. v. Drilon,362 the encroachment on right to travel was closely
related to the prohibition on the practice of profession, trade or
calling, which as earlier pointed out, was considered by the court as
property rights. In this case, the Court sustained the validity of
temporary suspension of deployment of Filipina domestic and
household helpers, as a police power measure to protect them from
exploitative working conditions, thus:

The consequence the deployment ban has on the right to

travel does not impair the right. The right to travel is subject,
among other things, to the requirements of public safety, as
may be provided by law. Department Order No. 1 is a valid
implementation of the Labor Code, in particular, its basic
policy to afford protection to labor, pursuant to the
respondent Department of Labor's rule-making authority
vested in it by the Labor Code. The petitioner assumes that it
is unreasonable simply because of its impact on the right to
travel, but as we have stated, the right itself is not absolute.
The disputed Order is a valid qualification thereto.363

4. Personal Autonomy or Liberty/ Decisional Privacy

In the landmark case of Mutuc v. Morfe, our Court cited the

361
Id.
362

G.R. No. 81958, June 30, 1988.

363

Id.

103

U.S. case of Griswold, in affirming the existence of zones of

privacy and their protection in our Constitution. Although
Griswold framed the issue, i.e., the right to use contraceptives by
married couples using marital privacy as lense, it essentially
followed the long line of cases starting with Meyer, affirming the
right of individuals on decisions involving marriage, procreation,
contraception,

family

relationships,

child

rearing,

and

education, which were decided using liberty rights as lense. For

the purpose of this discussion, we shall be referring issues of this
nature as pertaining to decisional privacy or personal autonomy, as
contrasted to informational privacy, which is the core of the
decision in Morfe.

In Eisensdat v. Baird,

364

the U.S. Court stressed that

decisions involving procreation and contraception is equally

available to non-married individuals, thus:

It is true that in Griswold the right of privacy in question

inhered in the marital relationship. Yet the marital couple is
not an independent entity with a mind and heart of its own,
but an association of two individuals each with a separate
intellectual and emotional makeup. If the right of privacy
means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the
decision whether to bear or beget a child.365

364
405 U.S. 438 (1972).
365
Id.

104

The decision in Roe v. Wade366 elevated the matter of

decisional privacy/personal autonomy a notch higher, when the
U.S. Supreme Court recognized the right of a woman to terminate
her pregnancy and have an abortion. This right, however, must be
balanced against the states two legitimate interests to protect
prenatal life and the mothers health.

In Lawrence v. Texas,367 the U.S. Supreme Court extended

the protected right to intimacies of physical relationships to
homosexual relationships and invalidated a Texas criminal statute
penalizing sodomy between consenting same-sex adults. Lawrence
overruled the U.S. Courts earlier ruling in Bowers v. Hardwick,368
acknowledging that it had viewed liberty too narrowly.

It must be stressed that some point or another, our own

Supreme Court cited the cases of Griswold, Lawrence, Roe and
Eisensdat

in one way or the other. Let us now examine the

applicability of these principles in light of our own constitutional

history and jurisprudence.

a. Decisions on Family Life

Our Constitution declares that it shall protect the family as a

366

410 U.S. 113 (1973).

367

539 U.S. 558 (2003).

368

478 U.S. 186 (1986).

105

basic autonomous social institution,369 and devoted an entire

Article370 on family rights. It clearly acknowledges the right of
spouses on decisions to found a family in accordance with their
religious

convictions

and

the

demands

of

responsible

parenthood.371 Whether this protection extends to decision

involving the termination of pregnancy is still debatable, for our
Constitution commands the States to equally protect the life of the
mother and the life of the unborn from conception. As it is,
abortion remains illegal in the country and punishable under the
Revised Penal Code.372

369

1987 PHIL. CONST., ART. II, SEC. 12. The State recognizes the sanctity of family life
and shall protect and strengthen the family as a basic autonomous social institution. It
shall equally protect the life of the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
government.
370

1987 PHIL. CONST., ART. XV, SEC 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and
shall be protected by the State.

Section 3. The State shall defend:

(1) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
(2) The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation and other
conditions prejudicial to their development;
(3) The right of the family to a family living wage and income; and
(4) The right of families or family associations to participate in the planning and
implementation of policies and programs that affect them.
Section 4. The family has the duty to care for its elderly members but the State may also
do so through just programs of social security.
371

1987 PHIL. CONST., ART. XV, SEC. 3 (1).

372

REVISED PENAL CODE (1930), ARTS. 256-259.

106

The Constitution also affirms the natural and primary right

and duty of parents in the rearing of the youth, especially in
decisions regarding education. Thus, the optional religious
instruction in public elementary and high schools can only be done
with the consent expressed in writing by the parents or
guardians.373 Without, however, limiting the natural rights of the
parents in rearing their children, elementary education is
compulsory for all children of school age.374

b. Sexual Conduct

The right of adult individuals to consummate their relations,

against the prying eyes of the State, has been acknowledged by our
Court in the recent cases of City of Manila v. Laguio375 and
Whitelight Corp. v. City of Manila.376 These cases explicitly
afford the protection to both married and single individuals. The
cases also did not distinguish between heterosexual and
homosexual relationships, as they in fact cited the Lawrence case,
where, as aforementioned, the U.S. Court extended the protection
of sexual intimacies between consenting adults of the same sex.

373
1987 PHIL. CONST., ART. XIV, SEC. 3 (3). At the option expressed in writing by the
parents or guardians, religion shall be allowed to be taught to their children or wards in
public elementary and high schools within the regular class hours by instructors
designated or approved by the religious authorities of the religion to which the children or
wards belong, without additional cost to the government.
374

1987 PHIL. CONST., ART. XV, SEC. 2 (2).

375

G.R. No. 118127, April 12, 2005.

376

576 SCRA 416 (2009).

107

Although the subject ordinances in both these cases were

guised as property regulations, the Court found that they unduly
restrict liberty and privacy. In City of Manila v. Laguio, the Court
struck down an ordinance prohibiting the operation of motels,
lodging houses and inns in the Ermita-Malate area. While on its
face, the ordinance is merely a restriction on the use of property,
the Court said that it infringes the right of motel patrons to liberty
and privacy, viz.:

Persons desirous to own, operate and patronize the

enumerated

establishments

under

Section

of

the Ordinance may seek autonomy for these purposes.

Motel patrons who are single and unmarried may invoke this
right to autonomy to consummate their bonds in intimate
sexual conduct within the motels premises; be it stressed that
their consensual sexual behavior does not contravene any
fundamental

state

policy

as

contained

in

the

Constitution. Adults have a right to choose to forge such

relationships with others in the confines of their own private
lives and still retain their dignity as free persons. The liberty
protected by the Constitution allows persons the right to make
this choice. Their right to liberty under the due process clause
gives them the full right to engage in their conduct without
intervention of the government, as long as they do not run
afoul of the law. Liberty should be the rule and restraint the
exception.

Liberty in the constitutional sense not only means freedom

from unlawful government restraint; it must include privacy
as well, if it is to be a repository of freedom. The right to be
let alone is the beginning of all freedom; it is the most

108

comprehensive of rights and the right most valued by civilized

men.377

Using the same judicial lense, in Whitelight Corp. v. City of

Manila,378 the Court struck down a city ordinance prohibiting the
motels, inns and other establishments from offering short-time
admission, as well as pro-rated or wash-up rates for such
abbreviated stays. Thus, the Court said:

It cannot be denied that the primary animus behind the

ordinance is the curtailment of sexual behavior. The City
asserts before this Court that the subject establishments have
gained notoriety as venue of prostitution, adultery and
fornications in Manila since they provide the necessary
atmosphere for clandestine entry, presence and exit and thus
became

the

ideal

haven

for

prostitutes

and

thrill-

seekers. Whether or not this depiction of a mise-en-scene of

vice is accurate, it cannot be denied that legitimate sexual
behavior among willing married or consenting single adults
which is constitutionally protected will be curtailed as well, as
it was in the City of Manila case. Our holding therein retains
significance for our purposes: The concept of liberty compels
respect for the individual whose claim to privacy and
interference demands respect.
.

We cannot discount other legitimate activities which the

Ordinance would proscribe or impair. There are very legitimate

377
Id.
378

576 SCRA 416 (2009).

109

uses for a wash rate or renting the room out for more than twice
a day. Entire families are known to choose pass the time in a
motel or hotel whilst the power is momentarily out in their
homes. In transit passengers who wish to wash up and rest
between trips have a legitimate purpose for abbreviated stays in
motels or hotels. Indeed any person or groups of persons in
need of comfortable private spaces for a span of a few hours
with purposes other than having sex or using illegal drugs can
legitimately look to staying in a motel or hotel as a convenient
alternative.379

It is must be stressed that in both cases, the Court used the

terms liberty and privacy in the context of decisional privacy.
Both cases also acknowledge that this right is fundamental.380 But
while City of Manila case was silent on the standard of review, the
White Light case explicitly rejected the rational basis test.

If we were to take the myopic view that an Ordinance should

be analyzed strictly as to its effect only on the petitioners at bar,
then it would seem that the only restraint imposed by the law
which are capacitated to act upon is the injury to property
sustained by the petitioners, an injury that warrant the
application of the most deferential standard the rational basis
test. Yet, as earlier stated, we recognize the capacity of the
petitioners to invoke as well the constitutional rights of their
patrons those persons who would be deprived of availing
short time access or wash-up rates to the lodging establishment
in question.

Viewed cynically, one might say that the infringed rights of

379

Id., 439-441

380

Id. p. 439; City of Manila v. Laguio, supra.

110

these customers are trivial since they seem shorn of political

consequence. Concededly, these are not the ort 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 freedomswhich the people reflexively exercise any day without
impairing awareness of their constitutional consequence that
accurately reflect the degree of liberty enjoyed by the
people.381

Flowing from its previous discussions on the standards of

review on due process grounds, the Court intimated that strict
scrutiny ought to be used as the ordinance infringes on
fundamental right. Curiously, as in the case of City of Manila, the
Court fell short of discussing the application of the strict scrutiny.

5. Informational Privacy

As aforesaid, our Court used the Griswold ruling in the 1968

case of Morfe v. Mutuc in holding that informational privacy is
protected by our Constitution. In the United States, however, the
right to informational privacy was first invoked only in the 1977
case of Whalen v. Roe.382

The Morfe case involved a question on the constitutionality

of Rep. Act No. 3019 (Anti-Graft and Corrupt Practices Act)
requiring public officials to periodically submit a statement of their

381

Id., p. 438.

382

429 U.S. 589 (1977).

111

assets and liabilities, including their financial and other business

interests. In this case, the Court suggested that the right to privacy
on matters pertaining to personal information deserves the same
protection as privacy involving personal decisions. The Court,
however, said that the law did not violate the constitutional right to
privacy and due process for the it serves to promote morality in
public

administration

by

curtailing

and

minimizing

the

opportunities for official corruption and maintaining a standard of

honesty in the public service. The Court noted that the law is
comprehensive in character, sufficiently detailed and explicit to
make clear to all and sundry what practices were prohibited and
penalized.383

In Whalen case the constitutionality of the New York State

Controlled Substance Act of 1972 was challenged before the U.S.
Supreme Court alleging that the requirement for a centralized
computer record of the names and addresses of all persons who
obtained certain drugs pursuant to a doctors prescription, invaded
a constitutionally protected zone of privacy, i.e., the individual
interest in avoiding disclosure of personal matters, and the interest
in independence in making certain kinds of important decisions.

The

U.S.

Supreme

Court

refused

to

categorically

acknowledge the existence of right to informational privacy, but it

assumed without deciding that there might be an individuals
interest in avoiding disclosure of personal matter as an aspect of
the right to privacy. Even then, the Court said that the statute did
not pose a grievous threat to establish a constitutional violation.
The Court found that the statute was necessary to aid in the

383
Id.

112

enforcement of laws designed to minimize the misuse of dangerous

drugs. The patient-identification requirement was a product of an
orderly

and

rational

legislative

decision

made

upon

recommendation by a specially appointed commission, which held

extensive hearings on the matter. Moreover, the statute was
narrowly drawn and contained numerous safeguards against
indiscriminate disclosure. The statute laid down the procedure and
requirements for the gathering, storage and retrieval of the
information. It enumerated who were authorized to access the data.
It also prohibited public disclosure of the data by imposing
penalties for its violation.

On this point alone, our Court already made a marked

departure from U.S. jurisprudence. While our Court in Morfe
explicitly acknowledges the existence of the right to informational
privacy and equally deserving of consideration as decisional
privacy, the U.S. Supreme Court in Whalen was hesitant to
categorically state so. This hesitation is plainly evident in the
succeeding case of Nixon v. Administrator of General Services,384
and the more so, in the recent case of NASA v. Welson.385

In Nixon, the validity of he Presidential Recordings and

Materials Preservation Act was challenged by former President
Richard Nixon, on the ground, among others that it violates his
constitutional right to informational privacy. The said law directed
the Administrator of General Services to take custody of Nixons
presidential papers and tape recordings. The seized materials were
to be screened by Government archivists. The materials deemed

384
433 U.S. 425 (1977).
385

Decided on 19 January 2011.

113

personal and private in nature were to be returned to Nixon and

those with historic value were to be preserved. The Act further
directed that the seized materials be made available for use in
judicial proceedings subject to any rights, defenses, or privileges of
the government or any person. The Act also directed the General
Services

Administration

(GSA)

to

promulgate

regulations

regarding the release of the materials to the public. The Act

required that the regulations must protect the opportunity of any
person to assert any legal or constitutional right or privilege, and
must provide for the return of personal and private materials to
Nixon.

The U.S. Supreme Court prescinded from the same premise

as Whalen, i.e., it assumed without deciding that Nixon might have
a

legitimate

expectation

of

privacy

in

his

personal

communications. However, it said that the constitutionality of the

Act must be viewed in the context of the limited intrusion of the
screening process, of his status as a public figure, his lack of
expectation of privacy in the overwhelming majority of the
materials, and the virtual impossibility of segregating the
apparently

small

quantity

of

private

materials

without

comprehensive screening. The U.S. Court also said that Nixons

privacy claim has no merit in light of the Acts sensitivity to his
legitimate privacy interests.

In NASA, at issue was the requirement for the disclosure of

some personal information by employees of the National
Aeronautics and Space Administration (NASA). The respondents
in this case were longtime government contract employees at
NASAs Jet Propulsion Laboratory (JPL) in California. At the time

114

they were hired by NASA, there was as yet no policy in place that
required government background checks on contract employees.
The Department of Commerce later mandated that all contract
employees with long-term access to federal facilities would have to
undergo a standard background check by October 2007. As a
result, the JPL announced that employees who did not timely
complete the new required background check would be denied
access to the JPL and face termination.

The employees were required to fill-up standard form (SF85), which inquires into whether an employee has used,
possessed, supplied, or manufactured illegal drugs within the last
year. If a JPL employee answers in the affirmative, then he or she
must provide details about any treatment or counseling received
and then sign a release authorizing the government to obtain
personal information from schools and employers, among others.
Upon the completion of SF-85, the government mails a
questionnaire (Form 42) to the employees references that asks
open-ended questions about the honesty and trustworthiness of the
employee.

Challenged

for

violating

the

employees

right

to

informational privacy. In the same stock as Whalen and Nixon, the

U.S. Supreme Court premised its decision on the assumption that
there exist such a right as informational privacy. After examining
the interests at stake, the U.S. Supreme Court ruled that assuming
that the U.S. governments challenged inquiries implicate a privacy
interest of constitutional significance, that interest, whatever its
scope, does not prevent the Government from asking reasonable

115

questions of the sort included on SF85 and Form 42 in an

employment background investigation. In any case, the U.S.
Supreme Court said that the employees privacy interests in the
subject matter of the inquiries are protected by the Privacy Acts
safeguards against public disclosure.

In stark contrast to the U.S. Supreme Courts apparent

indecision to acknowledge the existence of informational privacy,
our own Supreme Court made a bold declaration in the case of
Ople v. Torres386 not only categorically acknowledging the
existence of constitutional right to informational privacy but also
explicitly applying the strict scrutiny as the standard of review.

This case involved Administrative Order No. 58 providing

the use of Population Reference Number (PRN) as a common
reference number to establish a linkage among concerned
agencies through the use of Biometrics Technology and
computer application designs. The proposed measure requires
every citizen transacting with the government to have an
identification card where all information regarding his transactions
with the government will be recorded. The proposed measure seeks
to address the following purposes: (1) the need to provides our
citizens and foreigners with the facility to conveniently transact
business with basic service and social security providers and other
government instrumentalities, and (2) the need to reduce, if not
totally eradicate, fraudulent transactions and misrepresentations
by persons seeking basic services.387

386
G.R. No. 127685, 23 July 1998, 293 SCRA 141.
387
Id., p. 158.

116

Administrative Order No. 58 was primarily struck down on

the ground that there was no legislative authority given to the
President to issue the questioned Order. But assuming that the
Court had such authority, the Court unequivocally stated that since
it involves a fundamental right guaranteed by the Constitution, it
should be measured against the standard of strict judicial
scrutiny. Hence, it is the burden of government to show that A.O.
No. 308 is justified by some compelling state interest and that it is
narrowly drawn.388

The Court said it is debatable whether the interests

propounded by the State are compelling enough to warrant the
issuance of the questioned Administrative Order. But assuming
that such interests were compelling, the Court found that said
Administrative

Order

suffers

from

broadness,

vagueness,

overbreadth, which if implemented will put our people's right to

privacy in clear and present danger.389 In other words, the means
employed where not narrowly drawn to serve the state interests
advanced.
The Court observed that it is not clear in the Administrative
Order what specific biological characteristics and what particular
biometrics technology shall be used to identify people who will
seek its coverage.390 Moreover, the encoding of personal data will
not be limited to biological information alone for identification
purposes, as is the avowed purpose of the Administrative Order.391
The Court feared the indefiniteness of A.O. No. 308 can give the

388

Ibid.

389

Ibid.

390

Id., p. 160.
Ibid.

391

117

government the roving authority to store and retrieve information

for a purpose other than the identification of the individual
through his PRN.392 The Court also decried the lack of clear
standards on how the information will be stored and how the
privacy interests of the individuals would be protected.
The potential for misuse of the data to be gathered
under A.O. No. 308 cannot be underplayed as the
dissenters do. Pursuant to said administrative order, an
individual must present his PRN every time he deals
with a government agency to avail of basic services and
security. His transactions with the government agency
will necessarily be recorded whether it be in the
computer or in the documentary file of the agency. The
individuals file may include his transactions for loan
availments, income tax returns, statement of assets and
liabilities,

reimbursements

for

medication,

hospitalization, etc. The more frequent the use of the

PRN, the better the chance of building a huge
formidable information base through the electronic
linkage of the files. The data may be gathered for
gainful and useful government purposes; but the
existence of this vast reservoir of personal information
constitutes a covert invitation to misuse, a temptation
that may be too great for some of our authorities to
resist.

We can even grant, arguendo, that the computer data

file will be limited to the name, address and other basic
personal infomation about the individual. Even that
hospitable assumption will not save A.O. No. 308 from
constitutional infirmity for again said order does not tell

392

Id., p. 161.
118

us in clear and categorical terms how these information

gathered shall he handled. It does not provide who shall
control and access the data, under what circumstances
and for what purpose. These factors are essential to
safeguard the privacy and guaranty the integrity of the
information. Well to note, the computer linkage gives
other government agencies access to the information.
Yet, there are no controls to guard against leakage of
information. When the access code of the control
programs of the particular computer system is broken,
an intruder, without fear of sanction or penalty, can
make use of the data for whatever purpose, or worse,
manipulate the data stored within the system.

It is plain and we hold that A.O. No. 308 falls short of

assuring that personal information which will be
gathered about our people will only be processed for
unequivocally specified purposes. The lack of proper
safeguards in this regard of A.O. No. 308 may interfere
with the individual's liberty of abode and travel by
enabling authorities to track down his movement; it
may also enable unscrupulous persons to access
confidential information and circumvent the right
against self-incrimination; it may pave the way for
fishing expeditions by government authorities and
evade the right against unreasonable searches and
seizures. The possibilities of abuse and misuse of the
PRN,

biometrics

and

computer

technology

are

accentuated when we consider that the individual lacks

control over what can be read or placed on his ID,
much less verify the correctness of the data encoded.
They threaten the very abuses that the Bill of Rights
seeks to prevent.

119

The ability of sophisticated data center to generate a

comprehensive cradle-to-grave dossier on an individual
and transmit it over a national network is one of the
most graphic threats of the computer revolution. The
computer is capable of producing a comprehensive
dossier on individuals out of information given at
different times and for varied purposes. It can continue
adding to the stored data and keeping the information
up to date. Retrieval of stored date is simple. When
information of a privileged character finds its way into
the computer, it can be extracted together with other
data on the subject. Once extracted, the information is
putty in the hands of any person. The end of privacy
begins.393 (citations omitted)

Finally, the Court said that the questioned Administrative

Order does not give the individual reasonable expectation of
privacy with regard to the National ID system and the use of
biometrics technology, as there are no safeguards in place that
would warrant such reasonable expectation of privacy.394 While
there are various specific privacy laws that prohibited disclosure of
by any person of the data furnished by the individual to
government agencies, it was not clear whether these laws maybe
applied to data with the other government agencies forming part of
the National ID System. The Court said that this concern all the
more warrants that the measure be enacted by Congress. 395

393
Id., pp. 161-163.
394

Id., p. 164.

395

Id., p. 165.

120

6. Privacy of Communication and correspondence

Another aspect of privacy which our Constitution protects,

and which does not have a counter-part provision in United States
Constitution is the right of privacy of communication and
correspondence, to wit:

Sec. 3 (1). The privacy of communication and the

correspondence shall be inviolable, except upon lawful order of
the court, or when public safety or order requires otherwise as
prescribed by law.

The protection on the privacy of communication and

correspondence has attained a constitutional status since the
Malolos Constitution396 and has been part of the 1935397 and
1973398 Constitutions and eventually carried over to the 1987
Constitution. In the United States, issues relating to privacy of
communication are resolved under the rubric of the search and
seizure doctrine.

396

MALOLOS CONSTITUTION, TITLE IV, ART. In no case may correspondence confided to

the post office be detained or opened by government authorities, nor any telegraphic or
telephonic message detained. However, by virtue of a competent court, correspondence
may be detained and opened in the presence of the sender.
397

1935 PHIL. CONST., ART. III, SEC. 1 (5). The privacy of communication and
correspondence shall be inviolable except upon lawful order of the court or when public
safety and order require otherwise.

398

1973 PHIL. CONST., ART. IV, SEC. 4 (1). The privacy of communication and
correspondence shall be inviolable except upon lawful order of the court, or when public
safety and order require otherwise.

121

No case has yet reached the Supreme Court specifically

dealing with the exercise of police power and its effect on the
privacy of communication and correspondence.

E. Suspect & Quasi-Suspect Classification in the Philippines

The concept of suspect and quasi-suspect classification is

quite new in our jurisdiction. In fact, early Philippine cases decided
under the colonial regime has been most discriminatory to
members of indigenous cultural minorities a group of persons
that have had traditionally been saddled with such disabilities, or
subject to such a history of purposeful unequal treatment, or
relegated to such a position of political powerlessness, as to
command extra-ordinary protection from the majoritarian political
process and thus, would easily fit into the concept of suspect
class.

Following the case of Rubi discussed earlier, another

discriminatory law (Act No. 1639) against the so-called members
of the non-Christian tribe was passed, this time, prohibiting the
members of non-Christian tribe to buy, receive, have in his
possession, or drink any ardent spirits, ale, beer, wine, or
intoxicating liquors of any kind, other than the so-called native
wines and liquors which the members of such tribes have been
accustomed themselves to make.399

399

Id.
122

Upholding the validity of the law in People v. Cayat,400 the

Court upheld, our Court said that the classification rests on real and
substantial distinctions; it is not based upon accident of birth or
parentage but upon the degree of civilization and culture. The
Court argued that the term non- Christian tribes refers, not to
religious belief, but, in a way, to the geographical area, and, more
directly, to natives of the Philippine Islands of a low grade of
civilization, usually living in tribal relationship apart from settled
communities.401

The classification is also germane to the purpose of the law

since the prohibited acts are unquestionably designed to insure
peace and order in and among the non-Christian tribes. The Court
observed that the free use of highly intoxicating liquors by the
non-Christian tribes have often resulted in lawlessness and crimes,
thereby hampering the efforts of the government to raise their
standard of life and civilization.402

The Court said that the law is not limited in its application to
conditions existing at the time of its enactment but is intended to
apply for all times as long as those conditions exist, ratiocinating
that civilization of a people is a slow process and that hand in
hand with it must go measures of protection and security.403

400

68 Phil. 12 (1939).

401

Id.

402

Id.

403

Id.

123

Finally, that the Court said that the Act applies equally to all
members of the class. While it may be unfair in its operation
against a certain number non-Christians by reason of their degree
of culture, the Court said that such is not an argument against the
equality of its application.404

2. Alienage
In our jurisdiction, classification based on citizenship will not
by itself be considered suspect that would trigger heightened
scrutiny. Unlike in the United States, our Constitution itself
reserves the right of suffrage;405 the right to seek elective office to
Filipinos;406 to hold position in the judiciary;407 the Constitutional
Commissions408 and other Constitutional Offices.409There are also
several restrictions on property ownership;410 operation of public
utilities;411 and the practice of profession412

404

Id.

405

1987 PHIL. CONST., ART. V, SEC. 1. Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year, and in the place wherein
they propose to vote, for at least six months immediately preceding the election. No
literacy, property, or other substantive requirement shall be imposed on the exercise of
suffrage.
406

See 1987 PHIL. CONST., ART VI, secs. 3 & 6 for the qualification of the Senators and
the Members of the House of Representatives; ART. VII, SECS. 2 & 3 for the qualification
of the President and Vice President;
407

See 1987 PHIL. CONST., ART. VIII, SEC. 7 for the qualifications of the members of the
judiciary.
408

See 1987 PHIL. CONST., ART. IX-B, SEC. 1; ART. IX-C, SEC. 1; ART. IX-D, SEC. 1.

409

See 1987 PHIL. CONST., ART. XI, SEC. 8 for the qualification of the Ombudsman and
his Deputies; ART. XVII, SEC. 17 (2) for the qualifications of the member of the
Commission on Human Rights.
410

1987 PHIL. CONST., ART. XII, SEC. 7.

411

1987 PHIL. CONST., ART. XII, SEC. 11.

124

In Ichong v. Hernandez,413 the Court affirmed that

citizenship may be a basis of valid classification in depriving aliens
of some economic privileges. In the said case, the Court justified
the restriction on aliens involvement in retail trade, ratiocinating
that the objectionable characteristics of the exercise of the retail
trade by the aliens, which are actual and real, furnish sufficient
grounds for legislative classification of retail traders into nationals
and aliens, thus:

The alien resident owes allegiance to the country of his birth

or his adopted country; his stay here is for personal
convenience; he is attracted by the lure of gain and profit. His
aim or purpose of stay, we admit, is neither illegitimate nor
immoral, but he is naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily stays and
makes his living, or of that spirit of regard, sympathy and
consideration for his Filipino customers as would prevent him
from taking advantage of their weakness and exploiting them.
The faster he makes his pile, the earlier can the alien go back to
his beloved country and his beloved kin and countrymen. The
experience of the country is that the alien retailer has shown
such utter disregard for his customers and the people on whom
he makes his profit, that it has been found necessary to adopt
the legislation, radical as it may seem.

Another objection to the alien retailer in this country is that he

never really makes a genuine contribution to national income
and wealth. He undoubtedly contributes to general distribution,
but the gains and profits he makes are not invested in industries

412

1987 PHIL. CONST., ART. XII, SEC. 14.

413

101 Phil. 1155 (1957).

125

that would help the country's economy and increase national

wealth. The alien's interest in this country being merely
transient and temporary, it would indeed be ill-advised to
continue entrusting the very important function of retail
distribution to his hands.

The practices resorted to by aliens in the control of distribution,

as already pointed out above, their secret manipulations of
stocks of commodities and prices, their utter disregard of the
welfare of their customers and of the ultimate happiness of the
people of the nation of which they are mere guests, which
practices, manipulations and disregard do not attend the
exercise of the trade by the nationals, show the existence of real
and actual, positive and fundamental differences between an
alien and a national which fully justify the legislative
classification adopted in the retail trade measure. These
differences are certainly a valid reason for the State to prefer
the national over the alien in the retail trade. We would be
doing violence to fact and reality were we to hold that no reason
or ground for a legitimate distinction can be found between one
and the other.414

Other cases sustaining statutes excluding aliens from certain

economic activities like engaging in coastwise trade;415 acquiring
certain public lands;416leasing expropriated property;417 operation
of public markets which are considered public service or
utilities.418

414
Id.
415

Smith, bell and Co. v. Natividad, 40 Phil. 136 (1919).

416

Li Seng Guap & Co. v. Director of Lands, 59 Phil. 689 (1934); Mitsui Bussan Kaisha
v. Manila, E.R.R. & L. Co., 3 Phil. 624 (1919).
417

Tan Ty v. Land Tenure Administration, 35 SCRA 350 (1970).

126

3. Gender
In Philippine Association of Service Exporters, Inc. v.
Drilon,419 the Administrative Orders issued by the Department of
Labor and Employment (DOLE) banning the deployment of
domestic workers was challenged for being violative of equal
protection clause, as only female Overseas Filipino Workers
(OFWs) were affected by the said ban. The Court said that there
was enough evidence to justify the ban on deployment, viz.:

The Court is satisfied that the classification made-the

preference for female workers rests on substantial
distinctions.

As a matter of judicial notice, the Court is well aware of the

unhappy plight that has befallen our female labor force
abroad, especially domestic servants, amid exploitative
working conditions marked by, in not a few cases, physical
and personal abuse. The sordid tales of maltreatment suffered
by migrant Filipina workers, even rape and various forms of
torture, confirmed by testimonies of returning workers, are
compelling motives for urgent Government action. As
precisely the caretaker of Constitutional rights, the Court is
called upon to protect victims of exploitation. In fulfilling
that duty, the Court sustains the Government's efforts.

The same, however, cannot be said of our male workers. In

the first place, there is no evidence that, except perhaps for
isolated instances, our men abroad have been afflicted with
an Identical predicament. The petitioner has proffered no

418
Co Chiong v. Cuaderno, 83 Phil. 242 (1949); Co Chiong v. Mayor of Manila, 83 Phil.
257 (1949).
419 Supra.

127

argument that the Government should act similarly with

respect to male workers. The Court, of course, is not
impressing some male chauvinistic notion that men are
superior to women. What the Court is saying is that it was
largely a matter of evidence (that women domestic workers
are being ill-treated abroad in massive instances) and not
upon some fanciful or arbitrary yardstick that the
Government acted in this case. It is evidence capable indeed
of unquestionable demonstration and evidence this Court
accepts. The Court cannot, however, say the same thing as far
as men are concerned. There is simply no evidence to justify
such an inference. Suffice it to state, then, that insofar as
classifications are concerned, this Court is content that
distinctions are borne by the evidence. Discrimination in this
case is justified.

The Court also said that while laws discriminating the young,
women and cultural minorities are presumed invalid, it is not so
when these groups are precisely singled out for favorable
treatment. In other words, the ban was not intended to
unreasonably disfavor the women but was actually enforced to
protect their welfare.

4.

Person

Accorded

Special

Protection

by

the

Constitution

Unlike in the United States where the Supreme Court is

reluctant to find suspect classification beyond race, national origin,
alienage and to some extent, gender, our Court has extended the
recognition of such suspect classification for persons accorded

128

special protection by the Constitution.

In Central Bank (now Bangko Sentral ng Pilipinas)

Employee

Association,

Inc.

v.

Bangko

Sentral

ng

Pilipinas,420the Court laid down the rule that where the

classification violates a fundamental right, or prejudices persons
accorded special protection by the Constitution, the Court must
apply strict judicial scrutiny, thus:

Congress retains its wide discretion in providing for a valid

classification,

and

its

policies

should

be

accorded

recognition and respect by the courts of justice except when

they run afoul of the Constitution. The deference stops
where the classification violates a fundamental right,
or prejudices persons accorded special protection by the
Constitution. When these violations arise, this Court must
discharge its primary role as the vanguard of constitutional
guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should
not suffice.

Admittedly, the view that prejudice to persons accorded

special protection by the Constitution requires a stricter
judicial scrutiny finds no support in American or English
jurisprudence. Nevertheless, these foreign decisions and
authorities are not per se controlling in this jurisdiction. At
best, they are persuasive and have been used to support
many of our decisions. We should not place undue and
fawning

reliance

upon

them

and

regard

them

as

indispensable mental crutches without which we cannot

420
G.R. No. 148208, December 15, 2004, 446 SCRA 299.

129

come to our own decisions through the employment of our

own endowments. We live in a different ambience and must
decide our own problems in the light of our own interests
and needs, and of our qualities and even idiosyncrasies as a
people, and always with our own concept of law and justice.
Our laws must be construed in accordance with the intention
of our own lawmakers and such intent may be deduced from
the language of each law and the context of other local
legislation related thereto. More importantly, they must be
construed to serve our own public interest which is the be-all
and the end-all of all our laws. And it need not be stressed
that our public interest is distinct and different from
others.421

In the said case, the constitutionality of a provision in the

charter of the Bangko Sentral ng Pilipinas (BSP), a government
financial institution (GFI), was challenged for maintaining its rankand-file employees under the Salary Standardization Law (SSL),
even when the rank-and-file employees of other GFIs had been
exempted from the SSL by their respective charters.

Finding that the disputed provision contained classification

based on salary grade, which prejudices persons accorded
special protection by the Constitution, the Court employed the
standard of strict judicial scrutiny in its review of the
constitutionality of said provision.

Following the Central Bank ruling, the Court in Serrano v.

Gallant Maritime Services,422 applied the strict scrutiny test in

421
Pp. 386-387.
422
G.R. No. 167614, March 24, 2009

130

reviewing a provision of Rep. Act No. 8042 which put a threemonth cap to the money claim of illegally dismissed Overseas
Filipino Workers (OFWs) with an unexpired portion of one year or more
in their employment contract, whereas no such limitation is imposed on
local workers with fixed-term employment.

Applying the principle in Central Bank case, the Court finds that
strict judicial scrutiny is in order since the subject law singles out one
classification of OFWs, a vulnerable sector protected by the
Constitution, and burdens it with a peculiar disadvantage.

Upon examining the records, the Court found no compelling state

interest that the subject clause may possibly serve. The Court rejected
that argument that the limiting the monetary liability of foreign
employers to three months salary for each year of unexpired portion of
the OFWs contract and in the process, mitigating the solidary liability of
local placement agencies, would give OFWs better chance of getting
hired by foreign employers.

Assuming that, as advanced by the OSG, the purpose of the subject

clause is to protect the employment of OFWs by mitigating the
solidary liability of placement agencies, such callous and cavalier
rationale will have to be rejected. There can never be a justification
for any form of government action that alleviates the burden of one
sector, but imposes the same burden on another sector, especially
when the favored sector is composed of private businesses such as
placement agencies, while the disadvantaged sector is composed of
OFWs

whose

protection no

less

131

than

the

Constitution

commands. The idea that private business interest can be elevated to

the level of a compelling state interest is odious.423

In addition, there Court said that if the purpose of the subject

clause is to lessen the solidary liability of placement agencies vis-avis their foreign principals, there are less restrictive means to achieve that
purpose without infringing on the constitutional rights of OFWs. The
Court cited as examples POEA Rules and Regulations Governing the
Recruitment and Employment of Land-Based Overseas Workers424 and
POEA Rules and Regulations Governing the Recruitment and
Employment of Seafarers425 which both impose administrative
disciplinary measures, ranging from temporary disqualification to
preventive suspension, on erring foreign employers who default on their
contractual obligations to migrant workers and/or their Philippine agents.

423
Id., p. 229.
424
Dated February 4, 2002.
425

Dated May 23, 2003.

132