December 3, 2015

Thursday
Atty. Galeon

Police power is taking property and liberty for the promotion of common good. Police power is one of the powers of state. The power of
eminent domain based its rules from the latin principle Salus Populi Est Suprema Lex which means that the welfare of the people is the supreme law
of the land. Likewise, the police power of state based its rules from the other latin principle which is Sic Utere Tuo Ut Alienum Non Laedas which
means that you cannot exercise your rights to implement or decrease the rights of others.
Example:
You owned a house situated in a subdivision. You have the right to use the property but you cannot set the same in fire because in the
process you will also damage the properties of others. Another example is you owned a karaoke system. Yes, you have the right to make
use of that karaoke system. But can you make use of that in the middle of the night wherein it will disturb your neighbors sleep? The
answer is no. See! Your rights are limited by the rights of others.
So again, there is a limit in the implementation of rights. That is when it prejudices the rights of others. Please take note that police power is not
granted by the constitution to the state because it is an inherent power of the state.
Now, aside from being an inherent power of the state, another essential characteristic of police power is that police power is the most pervasive
and considered as the least refutable and most demanding of the three powers of the state. It is most pervasive in the sense that while the power of
taxation affects only the property rights, in like manner the power of eminent domain affects only the property rights, police power affects not only
property rights but also the liberty of individuals. So in that sense, it would be safe to say that indeed police power is the most pervasive power of the
state. It is also considered as the most pervasive in the sense that police power practically governs every human domain, every human act beginning
from womb to tomb. That is why we have laws penalizing abortion. So even before a person is born, he is already afforded a protection in the eyes of
the law. Now we have laws already dealing with the disposition of the properties for the state. Hence, we have laws on succession, obligations and
contracts, establishments of family and home, laws dealing with sales and transactions. So indeed, the scope of this power is broad for it practically
corrects every human domain. So in that sense, you can therefore say that police power is the most pervasive, least refutable and most demanding
power of the state.
Another important characteristic of this power is that this cannot be bargained away through the medium of a contract or even a treaty. A
case in point is the case of Ichong vs Hernandez cited in the book of Cruz when what was the issue then is the validity of Retail Trade Nationalization
law prohibiting the petitioner to engage in retail trade business. Ichong is a chinese and nagbaligya man gihapon sya. Ichong said that the Retail
Trade Nationalization Law was repugnant to the treaty of amity between China and Philippines. Ichong contended that the Retail Trade
Nationalization Law is in violation of human rights. In other words, Ichong said that Retail Trade Nationalization law was in contravention with the
treaty obligations entered into by China and Philippines. And what was the ruling of the Supreme Court in that case? The Supreme Court said that
there is no actually a conflict at all between our national law, the Retail Trade Nationalization Law vis a vis the treaty entered into with China. The
Supreme Court further ruled that assuming there is a conflict, such conflict will be resolved in favor with upholding our national law. Why?
According to the Supreme Court, the Retail Trade Nationalization Law was enacted pursuant to the police power of the state. As such, it could never
be bargained away even by the medium of a treaty. But the ruling in the case of Ichong vs Hernandez would not simply win under the International
law because under the International law treaty obligations must be complied with in good faith. Thats the principle Pacta Sunt Servanda. It is Ichong
said that our local law should not go with the treaty stipulations. But that is the task of a party in International law. So the moral trend now is to
uphold respect to treaty stipulations. One case at point is the case of (?), Manila Branch vs Commissioner on Internal Revenue, our Supreme Court
susceptibly ruled that in International Law we should uphold the sanctity of treaty stipulations. But what remains is that police power can never be
bargained by the medium of treaty and contract.
Recalling the case of Ortigas vs CA, there was a contract selling a parcel of land under the condition that such parcel of land will be used only
for residential purposes. But subsequently, there was this resolution reclassifying that portion of land from residential to commercial such that it was
rented out to public. So the issue there is whether or not that resolution issued in 1981 could impair the contractual obligations entered into by the
parties as early as 1976. According to Ortigas, in order to uphold the validity of the contract, we have to condition our section 10 of article 3
providing that no law shall be passed impairing the obligations in contract. But the Supreme Court disagreed ruling that the resolution in question
was issued pursuant to police power of the state and as such it should prevail over such a contractual stipulations entered into in 1976. The ruling in
the case of Ortigas vs CA leads to the fact that indeed the police power of the state can never be bargained away through the medium of a contract.
Another case worthy of consideration is the case of MMDA vs Garin. Its the confiscation of drivers license. How do you characterize or
classify the possession of drivers license? Was it a right or a privilege? Its a privilege. As such, according to the Supreme Court, it can be revoked
pursuant to the police power of the state. Fortunately for Mr. Garin, MMDA that time is not bestowed the power to confiscate drivers license. No
doubt, if there had been already a law authorizing the MMDA to confiscate drivers license, then it could do so. Again, drivers license is just a
privilege and it can be revoked in the name of the police power of the state.
Another case in point is the case of Chavez vs Romulo. What is the issue here is the validity of (?) regulations removing the permit to carry
firearms outside residence or BP F4. Now Chavez, the former SolGen of the Philippines, questioned such regulation. According to Chavez, he
already assigned his driver through that permit to carry his firearm outside his residence because without which he can be arrested for illegal
possession of firearm. However, according to the Supreme Court, such permit to carry firearms outside the residence is only a privilege as such it can
be revoked by the state in the name of Police power.
A similar conclusion was reached in the case of Opposa vs Factoran wherein the petitioner filed a case wanted to revoke the timber possession
agreements. The contention of the loggers is that they have the possession of the logs pursuant to the agreement. But the Supreme Court said that
such timber possession agreements can be revoked by the state in the exercise of police power.
So, the common ground here is, again, the police power of the state can never be bargained away through the medium of contract and treaty.
That is one of the important characteristic of the police power of the state.
Then, another important characteristic of this power is that this power is dynamic. The concept of police power changes with society and in
time. Example: Sa una pagswimming mo sa beach nakat-shirt pa. But now, some beaches kay naa nay mga topless. See! It shows that police power
changes in time. Another is that in US, same sex marriage before is not allowed. But now there is already a law allowing it to happen. Another is that
during the time of Atty. Gravador there is no cyber crime yet because there is no internet. But in my time now, there is already cybercrime law. It
shows only that police power is indeed dynamic.
Another important characteristic of police power is that in the exercise of police power it may use sometimes as a tool the other powers of
the state. A case in point is the case of Lutz vs Araneta cited in the book of Cruz wherein the state imposed a special tax on sugar producers for the
purpose of creating a special fund to be used for the rehabilitation of the sugar industry. The supreme court sustained such imposition because it was
done pursuant to the police power of the state through the power of taxation.
You remember the case of Carlos Super drugs involving special discounts of 20% to seniors like Atty. Torregoza, should he buy that vitamins
for vigor and vitality. In this case, the state exercises police power using the power of taxation as an instrument thereof. 1 What do you think is the
implication of the imposition of high tax rates to cigarettes? The purpose of this is to regulate the consumption and distribution of cigarettes. So
indeed, police power sometimes utilize the power of taxation as a tool. In like manner, the exercise of police power sometimes also utilizes the power
of eminent domain as a tool or as an implement thereof. What do you think is this distribution of lots to the landless under Comprehensive Agrarian
Reform Program (CARP)? When the state imposes a limitation in landholding, saying 5 hectares per person as the limit, then that is the exercise of
the police power of state. In so far as the CARP authorizes the distribution of lots to the landless in excess to the 5 hectares limit, then that is the
exercise of eminent domain. So it goes to show that indeed police power sometimes also utilize the power of eminent domain.
Lets go to the case of Carlos Super drugs. Diba 20% discount and this could be avail as tax deduction. The owners contended that they could
not get back the full reimbursement or the peso for peso reimbursement of what they give as 20% discount. Thus, under that scale, the establishment
owners would want to stop giving as much as 20% discount to senior citizens. But what was the ruling of the Supreme Court? In this case, how did
the state utilize the power of eminent domain as an implement or tool for the police power? Eminent domain in the sense that what was subsidize was
a useful property in the form of a revenue. So it shows indeed that police power is pervasive. It can utilize the other two powers of the state.
When police power utilizes the power of taxation or the power of eminent domain as a tool or an implement thereof, then in that sense we can
say that there will be a taking of beneficial property in the context of police power. Normally, the property taken by the state pursuant to the exercise
of police power is a noxious property and such it must be destroyed. But the exception is done when the taking was in the context of police power
using as an implement thereof the powers of taxation and eminent domain. So this answers the question of when can the state using police power take
beneficial properties.
That explains why in the case of PPI vs Comelec, the SolGen defends the validity of resolution no. 2772 stating that free space in newspapers
be given to comelec. What was the argument of the respondents pursuant to the exercise of the police power of state? It is because sometimes, again,
the police power can take useful properties by using the powers of taxation and eminent domain. But sadly, the SolGen did not elaborate in that
matter. Thats why the Supreme Court in this case ruled that the taking of free space by the Comelec would amount to taking of private property for
public use without the payment of just compensation. Hence, it was invalid.
But a different conclusion was reached in the case of Telecommunications and Broadcast Attorneys of the Philippines vs Comelec cited in the
book of Cruz. What was the issue then was the validity of Sec. 92 of BP 881 requiring radio and television stations to give free air time to be used by
the Comelec for broadcasting informations regarding the candidates in the 1998 elections. This was questioned by the petitioners contending that it
would amount to the taking of private property without payment of just compensation. Kumpara mo sa PPI vs Comelec case wherein the Supreme
Court ruled that giving of free space is invalid for it would amount to the taking of private property without jus compensation.
Now, how do you distinguish this case of Telecommunications? Giving of free space was invalid; giving of free air is valid. Is there any
distinction? Perhaps you would say that the former involves a tangible property because it is a free space while the latter involves an intangible
property. Now, what differentiates one from the other is that in the case of Telecommunications and Broadcast Attorneys of the Philippines vs
Comelec what was involved there was the operation of radio stations and television. Take note that before one can operate a tv station or radio
station, one has to secure a franchise from the government. Under sec 17 of article 12 of 1987 constitution, a franchise is subject to modification,
revocation, invalidification or changes by the state. But if one is to engage in a newspaper publishing business, he does not need to secure a franchise
from the state. And i think this is the best differentiation we can offer to distinguish the case of PPI vs Comelec from Telecommunications and
Broadcast Attorneys of the Philippines vs Comelec.
The question now is: who can exercise the police power of the state? Congress, of course because these powers of the state are primarily lodged
in the legislature. But can this be exercise by the president? LGUs? Administrative bodies? The answer is yes, provided that there is a proper
delegation of legislative power because the rule is delegated power cannot be further delegated. No doubt, this can be exercise by the congress but
with the proper delegation of powers, this can also be exercised by the president, LGU and other administrative agencies. You take note, however,
that when police power is directly exercise by the congress, the question or issue as to when to exercise the same is considered to be under the sound
judgment of the congress. In other words, that is political in nature and cannot be questioned by the judiciary.
Example:
There is this problem of prostitution. If the congress acts to suppress this problem, then there is no problem with that. What if the congress did not act
at all, can we file a case for mandamus compelling congress to pass a law to solve the problem of prostitution? The answer is no because, again, the
issue as to when to exercise this police power is left in the sound judgment of Congress. In like manner as to what method is to be applied in solving
such problem is likewise under the sound judgment of congress. Say for example the problem of lung cancer caused by smoking. The congress has
two options: first, congress can prohibit smoking; second, congress may regulate smoking by imposing high taxes to cigarettes. Should the congress
pursue the second option, then generally, that could not be subject to judicial review. The reason is that, again, when it comes to the remedy to be
pursued, that is left in the sound judgment of congress. In like manner that the ascertainment of facts which the solution is to be based, this thing also
is left in the sound judgment of congress. This holds true when the judgment is supported by iota of proof and evidence that smoking could probably
cause cancer.
A case in point is the case of Jacobson vs Massachusetts cited in the book of Cruz where Jacobson was penalized for refusing to undergo a
vaccination for smallpox. Thus, he wants to prove that his refusal was founded on the ground that smallpox vaccination could probably cause other
diseases. But he was not allowed to do that by the US Supreme Court because according to the Court the ascertainment of facts on which the exercise
of police power is to be invoked is left in the sound judgment of the congress. But that is entirely different when the ascertainment of facts is not
based on an iota of proof and evidence. When that happens, the ascertainment of facts may now be review by our courts.
Example:
Lets assume that congress will enact a law to prohibit baldness or bald people like Atty. Torregoza and Atty. Gravador to come to public places
because baldness, according to congress, is contagious and a destruction of public view. Do you think it has a standing basis? The answer is no. When
that happens, that ascertainment of facts may now be open for judicial review. In this situation, it clearly shows that it is not supported by any iota of
evidence. (kung mahitabo diay ni, magfile jud complaint si atty. Torregoza questioning the validity of that law, otherwise, dili na sya makaguwas sa
ila balay)

1
In Carlos Superdrug Corp. v. CA, the SC held that the value added tax was enacted pursuant to the Police Power using the Power of Taxation as its implement thereof.
 Now, while it is true that the exercise of police power is left under the sound judgment of congress, it does not necessarily follows that it cannot
be reviewed by the Supreme Court. When the exercise of such power is intrinsically invalid, then the courts of law should not hesitate to review it. In
our jurisdiction, there are two tests to determine the validity of the exercise of police power. One such test is the existence of a lawful subject.
Meaning to say that in the taking or doing of an act which the state seeks to regulate must be in view of public interest. Otherwise, absent such
circumstance, the state has no right dealing with that matter. Although the scope of this power is broad, there are still human activities that cannot be
regulated by the state. An example is sleeping within the confines of your private room completely naked (except, perhaps, when you live in a glass
house). This cannot be regulated by the state. But the story is different when you go out of street completely naked. There are dangers into that.
Probably, you may scandalize the public or you may excite some to commit sin. In like manner that your belief in supernatural beings cannot likewise
be regulated by the state. However, it is different when it involves offering of virgin as a form of religious sacrifice.
How about the right to pursue a profession? Yes. That can be regulated by the state. Remember the case of PRC vs Students from Fatima
College, katong mga cheaters. The supreme court said that the state can regulate ones profession to safeguard the general welfare. The supreme court
said that we cannot just simply entrust the health of our people to incompetent persons aspiring to be physicians. In like manner, the state can regulate
the practice of law also. The state cannot just entrust the liberty of a person to undeserving aspirant.
How about the right to employment? Can it be regulated by the state? The answer is yes. Remember the case of JMM Corporations vs CA
which involves the employment of the Japayukis. Such regulation is valid because according to the Supreme Court it was imposed pursuant to the
police power of the state. Another is the case of Department of Education vs San Diego cited in the book of Cruz wherein the Supreme Court upheld
the regulation disqualifying any person who has failed three times the National Medical Admission Test from taking it again. According to the
Supreme Court, it is a proper exercise of police power with the goal of protecting the health of the people. Indeed, this accentuates the fact that in the
exercise of the police power of the state there must be the existence of a legal subject. Otherwise, there can never be a valid exercise of the police
power of state.
Another test in determining the validity of the exercise of police power is the employment of lawful means or method. The state has the right
to penalize theft as a crime. But what if the punishment for theft is decapitation, would that be considered as valid? The answer is no because it would
be considered as unusual, cruel or excessive punishment. This is not allowed under our constitution. It is because if you allowed that suss, imagina
nalang kung unsay penalty sa rape. Therefore, the state cannot employ such punishment because it is not lawful.
A case in point is the case of Ynot vs Intermediate Appellate Court wherein the validity of regulation prohibiting the transport of carabaos or
carabao meats across provincial boundaries without government clearance is being questioned. The purpose of which is to prevent the undue or
indiscriminate killings of carabaos. But the manner by which such regulation is to be carried out is arbitrary. Arbitrary because it allows the outright
killings of carabao even without the benefit of ...(wa ko kasabot) So, the rule or the regulation was considered as arbitrary or invalid.
Another case in point is the case of City of Manila vs Laguio. The issue here is the validity of city ordinance no. 7783 prohibiting the operation
of hotels and inns in the Ermita Malate area. The purpose of this ordinance is to solve the problem of prostitution. The purpose of such regulation is
noble, however, the manner by which it is to be carried out is unlawful. Why? It is because the options given to the owners are arbitrary. They have to
either convert the hotels to restaurant or to change to other place or to stop their business. According to the Supreme Court, such options would
amount to the taking of private property without the payment of just compensation. Hence, it is violative of our constitution. The purpose is noble but
the method is unlawful.
So the existence of a lawful subject is not enough for a valid exercise of police power. Such lawful subject must be coupled with or be executed
by means of a reasonable and lawful means. Otherwise, where one of the element is absent, the exercise of police power is considered as invalid.
Generally, when we talk about the lawful subject and lawful methods, it presupposes the basic tenets of procedural due process. However, if you can
recall in the case of Cabrera vs Lapid wherein the demolition of the fishpond was considered valid because it was characterize as a nuisance per se.
Hence, it can be abated without even the benefit of hearing. In the case of Pollution Adjudication Board vs CA, the Supreme Court upheld the
issuance of the Cease and desist order. (Anyway, we will expound our discussion in this when we reach due process)
You take note further that when police power is to be exercised by those delegated by congress, there is an additional requirement for the
validity of police power. Such additional requirement is that there must be an express grant of authority allowing that subordinate to exercise
such power. Absent of which, such exercise of police power is considered as invalid. Another additional requirement is that the exercise of such
power of that subordinate must be within the territorial jurisdiction only of that body. You take note that when the City Council of Cebu enacts
an ordinance, such ordinance must be regulated only within the territorial boundary of such city. Such ordinance cannot be imposed in other places.
In other words, the exercise of this delegated power is limited only within the territorial jurisdiction of such body. Another additional requirement is
that such exercise of delegated power must not contravene the constitution or any law for that matter. In fact in the case of Laguio, the
Supreme Court enumerated the additional requirements in order for an ordinance to be considered valid. What are these additional requirements: it
should not be against the constitution or any law; it should not be oppressive; it should not be unreasonable; it must be general in application and
consistent with public interest. In other words, when the police power is directly exercise by congress, there is only a need to determine the two tests:
existence of lawful subject and employment of lawful means.

This ends the discussion on Police power!!!