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Police Power

Police Power
• The power to make laws, rules and regulation and ordinances the purpose of which is to
provide general welfare.
Eminent Domain
• The power to confiscate private property for public use with payment of just compensation.
Taxation Power
• The power to raise revenues for the support of the government.

The three powers regulate and limits the right to life, liberty and property. The most regulated
is the right to property.

Police Power
• Primarily law making, limits the right to property and liberty.
• Governs persons from birth to death in other words we are governed by law from the moment
we are conceived to the time we are dead.
• The most pervasive and least limited among the three powers.
• The basis of which is that the welfare of the people is the supreme law.
• The power to prescribe regulations to promote the health, morals, peace, good order, safety
and general welfare of the people
• That inherent and plenary power in the State which enables it to prohibit all that is hurtful to the
comfort, safety, and welfare of society.

Two tests for a valid exercise of police power

 Subject matter must be lawful (lawful subject)

 This means the promotion of public welfare.
 The object is to promote the general welfare.
 The object of the law is to prohibit the cause of the harm to the general welfare.
 This means not only to promote the welfare of individuals or group of individuals but society
as a whole.
• General welfare refers to public welfare, public order, public safety, public health, public
morals and anything that pertains to the promotion or protection of public interest.
• If there is a conflict between the rights of individuals and public welfare, the former must
yield because the welfare of the people is the supreme law. This is a justification of
police power, precisely a limitation on individual rights.

 Means to achieve the purpose must be lawful (lawful means)

 The means must be in consonance with the law.
• It must be reasonably necessary for the accomplishment of the purpose.
• It must not be oppressive on the rights of individuals.

Any taking of private property for public use must be paid with just compensation. It is not
justified by the exercise of police power, it falls to the power of eminent domain.

• For a valid exercise of police power, the two requisites or tests must concur.
◦ The subject and means must be lawful.
◦ Absence of one of the requisites will invalidate the exercise of police power.
(for further reference and examples, read the cases in the syllabus)

Zoning and regulatory ordinances

 Passed by local government units.
 Zoning refers to the classification of the use of the land, (commercial, residential and industrial
zones), the purpose of which is public safety and public order.
 This is an exercise of police power of the state, specifically the local government units.

(for further reference and examples, read the cases in the syllabus)

Exercise of Police Power

 Exercise of police power is primarily vested on the legislature or congress because police
power after all is law making.
 Police power of congress can be validly delegated because of the growing complexities in

 Delegation to the President

◦ Section 23 [2] Article 6 of the Constitution.
▪ Delegation of emergency powers to the president can only be made in cases of war or
national emergency. This is because the president can quickly respond to such
situations unlike congress which still needs to convene.
◦ Congress determines the existence of a state of war by a vote of 2/3 of its members voting
▪ Congress is vested with such prerogative because this involves the passing of a
law delegating emergency powers to the president so that the president can
prosecute the war. Like for example disbursement of public funds. Funds are needed
to be able to fund the war effort. In order that funds might be used, there should be
proper authority to disburse which is lodged with congress. If emergency powers is no
delegated to the president during the war, congress will still need to pass a law in order
to disburse funds, by that time we are already invaded.
◦ The president is never precluded from declaring war being the Commander-in-Chief of the
◦ The declaration of the state of war is for the purpose of granting emergency power to the
▪ Illustration: In the case where the Constitutionality of the declaration of state of national
emergency pursuant to Presidential Proclamation 1102 was questioned, the petitioners
thought that it should be the Congress who should declare the state of national
emergency as a condition precedent to the grant of emergency powers but the
Supreme Court held that the President is the best person to know in what
state the country is in considering that the Armed Forces is under his command.
◦ David, et al vs. Ermitta
▪ “The president has the power to declare State of National Emergency being the
Chief Executive and the Commander-in-Chief of the AFP.”
◦ Lacson case & Perez case:
▪ A declaration of State of Rebellion was in question and the Supreme Court sustained
that such declaration is in consonance with the Constitution.
◦ Can the President exercise emergency power if a state of emergency is already declared?
▪ Sec. 23, Art. VI is very clear that it is only upon express grant of law that the
Congress may authorize the President to exercise powers necessary & proper to
carry out a declared national policy.
◦ Can the President make any laws once emergency power is granted?
▪ Yes if it is allowed by law delegating the emergency powers to the president, also
known as the declared national policy. The power granted is subject to restrictions
prescribed by Congress and for limited time only. In fact, it can be withdrawn by
Resolution, if not, such power shall cease upon the next adjournment. Such grant is
limited because it is not a plenary power of the President; it is only delegated to him for
the purpose of promoting the public welfare.

Delegation of Police Power to Administrative Bodies

 No one knows better or best than those who are expert in the field. (E.g. for financial
matters- Dept. Of Finance)
◦ limited to rule execution rather than law making.
 ‘Power of Subordinate Legislation’
◦ The authority conferred to administrative bodies to pass rules and regulations to
implement the laws made by the legislative bodies.
 Implementing Rules and Regulations may not be laws but they have the force and
effects of laws.
 Requisites for Valid Delegation: (To avoid Administrative Bodies on making laws, both
shall concur)
◦ Completeness test – the law must be complete in all its essential terms and
conditions when it leaves the legislature so that there will be nothing left for the
delegate to do when it reaches him except to enforce it.
▪ (see Santiago vs. Lapuz {insufficient to carry out amendments} : issue of charter
change in relation to R.A. 6735)
▪ (See Gerochi vs. Dept. Of Energy {for completeness and sufficiency of the law}:
issue of EPIRA )
◦ Sufficient standard test – the law must contain boundaries of the delegate’s
authority by defining the legislative policy and indicating the circumstances under
which it is to be pursued and effected.
 It is also essential that if police power is delegated to the administrative bodies, the
implementing rules and regulations should be signed by the department head.
◦ Illustration: In Echegaray vs. Sec. Of Justice, a manual on how to enforce lethal
injection was questioned by Echegaray’s lawyer because it was not signed by the
head of the department of the Bureau of Corrections which is under the
Department of Justice and the signatory is only the Director of the Bureau.

Delegation of power to the local government units

 police power is not inherent in the local government
 therefore in order to express the power of local government, they take care of there to the
express grant of police power to LGU, they cannot legislate for the promotion of general
welfare of the locality
 delegation of power R.A. 7160 - local gov code - gen welfare, armm, provinces, cities,
sanguniang bayan of the municipality
 sanguniang pangbarangay - exercise legislative power under gen welfare clause - exercising
police power
 because the power is delegated by congress to local gov, it is understood that the exercise of
the power is limited in the sense that the they cannot create laws contrary to the constitution
and against existing laws - laws passed by congress because they cannot rise above the
source of that created them, must be in accordance with the constitution and laws passed by
 LGU cannot prohibIt the trade or acitivity, that is if it is allowed by existing laws
◦ cruz vs paras - midnight clubs for public safety and morals, order of closure. does the lgu
pass laws to prohibit? no law prohibiting passed by congress...hence lgu cannot prohibit
but only regulate
◦ magtajas vs - casinos, law by PAGCOR allowing the activity, contrary to morals, cagayan
de oro cannot prohibit
◦ acebedo case - clinic and business, no busness permit, lgu, he complains that lgu cannot
prohibit him from practice of his profession, “closure of my store is tantamount of prohibiting
me from practice of my profession” lgu can - by the ordinance... business vs profession
◦ pangasinan or pampanga case - prohibiting big busses to go inside the city so not to cause

Case: Bus operators are not allowed to enter a particular city, provided for by an ordinance passed by
the LGU even though they have franchise permits provided by the national government
Q: Is there a violation of the law? Yes, SC – ordinance is unconstitutional, LGU can only regulate, but
not prohibit

Q: prohibition of linggam massages

A: If the law allows it and there’s a prohibition - there’s a violation, you can only regulate it

The ordinances passed by LGU must not be oppressive and must be territorial
What is passed as an ordinance in Cebu City, doesn’t apply to Cebu province or any other province

Q: Is MMDA a Local Government Unit, vested with police power?

A: NO, it is an Administrative Coordinating Body consisting of the Metropolitan Manila (cities and
municipalities), primarily to coordinate with the LGU’s comprising Metropolitan Manila for the purpose
of delivery of basic services (examples: traffic management, collection of solid waste, water
distribution, etc)

• Bel Air vs MMDA – MMDA allowed traffic to enter Bel-Air a private subdivision without just
o SC: Bel-Air is not a noxious by nature; MMDA cannot order the entry into the village to
use it for traffic decongestion
• Garin vs MMDA – MMDA confiscated license of Garin for violation of traffic rules
o SC: if LGU has these rules implementing traffic rules allowing MMDA to do it, then
MMDA has the authority and duty to do it;
• Francisco vs Fernando – ‘wet-flag scheme’ – when you are caught jay-walking, you will be
drenched with water; contention: undue process, MMDA can’t exercise police power
o SC: MMDA was given by the LGU’s the authority to provide sanctions to violators of
traffic rules; it is an immediate resolutions for pedestrians and traffic violators;