NOTES ON DUE PROCESS OF LAW AND POLICE POWER

By Atty. Roberto A. Demigillo

1. Excerpts from Barnabas D. Johnson

The phrase "due process of law" originated in a 1355 restatement of the 1215
Magna Carta, by which for the first time in history (apparently) "the government" –
in this case, King John of England – was brought "under the law" ... that is, became
subject to something called "the law of the land" which he was not empowered to
alter in its fundamental character. This is the origin of the concept of "government
under law" as distinct from merely "government by laws".

In effect, and as interpreted over the centuries, Magna Carta and subsequent
restatements – including two "due process clauses" in the U.S. Constitution
(actually, its Fifth and Fourteenth Amendments) – have ordained that no person
may be deprived of life, liberty, property, or other basic rights except by a
fundamentally rational law ("substantive due process") applied in a fundamentally
fair proceeding ("procedural due process"). Of course, no law is worth anything
unless it includes remedies. A court has to be able to order an official or
government agency to stop depriving individuals or groups of their due-process
rights. The exact nature of those rights and remedies is the subject of a vast and
growing literature, including thousands of judicial opinions focused on defining
what "due process of law" means in every particular. This concept is not self-
defining, and new circumstances require courts to refine their case law (called
"jurisprudence" in some countries) and thereby keep "government under law" alive
and healthy.

Although the requirements of rationality and fairness are complicated and even
controversial, partly because the meaning of "due process of law" has evolved over
many centuries and is still evolving, the task of securing and maintaining a healthy
"law of the land" (for all countries and for our entire planet, including the oceans,
and perhaps, in due course, "outer space" also) challenges us to state these
requirements as clearly and simply as possible:

Substantive due process requires governments (broadly defined to include all

legislative, executive, and judicial officers and institutions) to make thoughtful and
informed determinations of societal problems and opportunities, etc., and then – if
and when making laws to address these subjects – to do so in a rational or
"proportional" way that is not "overkill" and does not restrict basic rights without
good reasons. When making laws that curtail the most fundamental of human
rights, such as freedom of inquiry and expression, governments must carry an
especially heavy burden of proving that their curtailments are the least-restrictive
possible, given the governmental necessity to adequately address a compelling
public interest. Some lawyers and scholars devote their lives to debating and
refining the intricacies of evolving law regarding these matters. All countries have
to get better at finding "least restrictive alternatives" when regulating fundamental
liberties and balancing competing rights.

Rationality includes the standards set forth in Rule of Law. For example, "the law
of the land" must be knowable – setting forth ascertainable standards of conduct –
and must not command absurd or impossible conduct. Rationality also includes the
harder-to-define standards set forth in Rule of Reason, including the methods of
legal reasoning so central to making and applying "law-based law" and thereby
doing justice.

Procedural due process cannot be understood in isolation from substantive due

process. For example, the U.S. Constitution's "Equal Protection Clause" – a key
element of law-based governance and hence of "due process" properly understood
– includes both substantive and procedural elements. Indeed, the focus of
procedural due process is to ensure that laws which conform to substantive
standards of rationality and justice are also applied properly and fairly. Liberty
bounded and secured by justice is the focus of that "law of the land" which is due –
is owed – in its many particulars – to all; and justice necessarily includes
substance and procedure ... often profoundly intertwined.

Procedural due process requires that any deprivation of life, liberty, property, or
other basic rights will occur only following a fundamentally fair proceeding. The
elements of such a proceeding include (a) notice, (b) an opportunity to be heard
(including the right to refute the accusations, ordinarily with the assistance of a
lawyer), and (c) a trial before an impartial judge or judge-like tribunal, including
an opportunity to appeal any initial judgment to a higher judicial authority that is
completely independent from the government and can order the government to
abide by the law as thus independently defined and applied.

The best simple definition of "due process of law" is fundamental rationality and
fairness.

***

The phase "due process of law" is one of the deepest and most beautiful phrases of
our emerging global culture. Understanding what it means should be every
enlightened citizen's responsibility.

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Where an Administrative Order limits or shortens the term/period of a license

which is a property right vested once it allows practice of the profession until
retirement age, such order is unreasonable and is a deprivation of property without
due process of law.

In a pension plan where employee participation is mandatory, employees have

vested rights in the pension where the pension is part of the terms of employment.
Where the employee retires and meets the eligibility requirements, he acquires a
vested right to benefits that is protected by the due process clause.

The due process guarantee cannot be invoked when no vested right has been
acquired.

A law that imposes rent control is a police power legislation intended to remedy
the situation of lessees because housing shortage has resulted in unwarranted
increase in rental to the prejudice of low income groups.

The Constitution mandates the government to extend protection to overseas

workers. While a calling is a property right, it is subject to valid exercise of police
power.
The uses of public highways by motor vehicles are subject to regulation as an
exercise of police power of the state.

While the rights of workers to security of tenure is guaranteed by the Constitution,

its exercise may be reasonable regulated pursuant to the police power of the state
to safeguard the health, safety and general welfare of the people.

Police power as an attribute to promote the common good will is diluted

considerably if on the mere plea of business establishments required to give senior
citizens discount, that they will suffer loss of earnings and capital, the provision of
the law is invalidated.

A statue is vague when it lacks comprehensible standards that men of common

intelligence must guess at its meaning and differ in its application. The vagueness
doctrine merely requires a reasonable degree of certainty for the statute to be
upheld not absolute precision. An act will not be held invalid merely because it
might have been more explicit or detailed in its provisions.

The overbreadth doctrine decrees that a governmental purpose may not be

achieved by means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms.

A facial challenge is allowed to be made to a stature which is vague and which is

overbroad because of possible chilling effect upon protected speech. This
however, does not apply to penal statutes. The overbreadth and vagueness
doctrines have special application only to free speech cases.

A statute or regulation is void for overbreadth when it offends the constitutional

principle that a government purpose to control or prevent activities constitutionally
subject to State regulation may not be achieved by means that sweep unnecessarily
broadly and thereby invade the area of protected freedoms.

The right to privacy does not bar the adoption of reasonable identification card
systems by government entities.

The requirements of due process of law mandate that every respondent be apprised
of the nature and cause of the charge against him and the evidence in support of it
are made available to him so that he can meet the charge with traversing or
exculpatory evidence.

The right to a hearing may be waived.

The one who can invoke lack of notice is the party deprived of due process.

Ordinary requirements of due process yield to the necessities of protecting vital

public interests through the exercise of police power.

The right to appeal is merely a statutory right. The requirement of due process may
be satisfied despite the denial of the right to appeal, for the essence of due process
is simply the opportunity to be heard.

Due process in an administrative contest does not require trial type proceedings
similar to those in courts of justice.
The judge has the duty not only to render an impartial decision but also to render it
in a manner as to be free from suspicion as to its impartiality.

The right of the accused to a fair and impartial trial must prevail over freedom of
the press and the right to public information. Due process guarantees the accused a
presumption of innocence until the contrary is proved in a trial where the
conclusions reached are induced not be any outside force or influence.

Facial Challenge and As Applied challenge.

The established rule is that a party can question the validity of a statute only if, as
applied to him, it is unconstitutional. The exception is the so called Facial
Challenge. But the only time a facial challenge to a statute is allowed is when it
operates in the area of freedom of expression. In such instance, the overbreadth
doctrine permits a party to challenge the validity of a statute even though, as
applied to him, it is not unconstitutional, but it might be if applied to others not
before the Court whose activities are constitutionally protected.

Invalidation of a statute “on its face’ rather than ‘as applied” is permitted in the
interest of preventing a “chilling effect” on freedom of expression.

Read cases: Imbong v Ochoa

David v Arroyo
Southern Hemisphere Engagement Network Inc. v Anti-Terrorism Council