By Atty. Eduardo T. Reyes III
The Iloilo City government’s plan to mandatorily require Covid-19 inoculation as a condition for continued employment is surely coming from a good place. And it is surely within the general powers of a local government unit to flex its police power to protect the general welfare or interest. Not only that, but the police power is adaptive to changing times and conditions as to be exercisable in such a manner that an emergency can be effectively addressed as held in an old but still very relevant jurisprudence, viz:
“CORPUS JURIS SECUNDUM states: … The police power of a municipal corporation must be responsive, in the interest of common welfare, to the changing conditions and developing needs of growing communities, and is not confined within the narrow circumscription of precedents resting on past conditions. That which may at one time be regarded as not within such power may, at another time, by reason of changed conditions, be recognized as a legitimate exercise for the exercise of the power. Also, that which may be regarded as within the police power of one municipal corporation may not be so regarded as to another….” (PHILIPPINE LONG DISTANCE TELEPHONE COMPANY v. CITY OF DAVAO and the PUBLIC SERVICE COMMISSION, ITT PHILIPPINES, INC. G.R. No. L-23080 October 30, 1965, underscoring supplied).
It must be emphasized however, that the police power of the municipal government is lodged with the city council which is every unit’s local law-making body. This is the constitutional design in order to facilitate the devolution as well as delegation of powers from the national government to each local government unit. Looking to the US Constitution where we borrowed most of our democratic principles and governmental framework, it was authoritatively said that: “The American Constitutional “technique” for dealing with emergencies is for Congress to enact a statute that expands “normal executive powers”, and Congress has done so many times”.(p. 62, The Court and the World (American Law and The New Global Realities, by Stephen Breyer, underscoring supplied).
Similarly, Philippine jurisprudence also enunciates that the general welfare clause powers inure in municipal councils, not the executive, thus:
“Suffice it to say that in U.S. vs. Salaveria, supra, at pp. 109-110, we ruled otherwise: “The general welfare clause has two branches. One branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. With this class we are not here directly concerned. The second branch of the clause is much more independent of the specific functions of the council which are enumerated by law. It authorizes such ordinances “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.”(PHILIPPINE LONG DISTANCE TELEPHONE COMPANY v. CITY OF DAVAO and the PUBLIC SERVICE COMMISSION, ITT PHILIPPINES, INC. G.R. No. L-23080 October 30, 1965, underscoring supplied).
That having been said, granting that it would be the city council of Iloilo City that will enact the ordinance to require Covid-19 vaccination as a condition for employment; still, some constitutional rights and civil liberties must be taken into account. Foremost that comes to mind would be the rights to pursue a calling or profession, the right to freedom of religion and the right to privacy in general.
The right to work as a facet
of the right to due process
It has been jurisprudentially held that a person’s profession, trade or calling is embraced within the constitutionally-protected right to due process. Simply, this means that no one, not even the government in the exercise of its police powers, can take away a person’s job, without due process. “Due process” here means a valid law enacted upon a compelling reason.
Judging by precedent, when Boracay island was ordered closed for rehabilitation under the aegis of Proclamation No. 475, it was ruled that “[a] profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong.” (Mark Anthony V. Zabal, Thiting Estoso Jecosalem, and Odon S. Bandiola v. Rodrigo R. Duterte, President of the Philippines, Salvador C. Medialdea, Executive Secretary and Eduardo M. Año, Secretary of the Department of Interior and Local Government, G.R. No. 238467. February 12, 2019).
And yet, because the petitioners in the Zabal case were mere itinerant workers and the work stoppage was only temporary as Boracay island will be reopened again after the rehabilitation, the Supreme Court ruled that “It must be stressed, though, that ‘when the conditions so demand as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to general welfare.’ Otherwise, police power as an attribute to promote the common good would be diluted considerably if on the mere plea of petitioners that they will suffer loss of earnings and capital, government measures implemented pursuant to the said state power would be stymied or invalidated.” X x x “That they were not able to do so in Boracay, at least for the duration of its closure, is a necessary consequence of the police power measure to close and rehabilitate the island. X x x The temporary inconvenience that petitioners or other persons may have experienced or are experiencing is but the consequence of the police measure intended to attain a much higher purpose, that is, to protect the environment, the health of the people, and the general welfare. Indeed, any and all persons may be burdened by measures intended for the common good or to serve some important governmental interest.” (Mark Anthony V. Zabal, Thiting Estoso Jecosalem, and Odon S. Bandiola v. Rodrigo R. Duterte, President of the Philippines, Salvador C. Medialdea, Executive Secretary and Eduardo M. Año, Secretary of the Department of Interior and Local Government, G.R. No. 238467. February 12, 2019).
Freedom of religion
There are some religious sects whose teachings are against inoculations. In respect to this prized-right, local government units must also reckon this in their decision to roll-out the vaccines, thus: “Every person is free to tread the far territories of their conscience, no matter where they may lead – for the freedom to believe and act on one’s own convictions and the protection of such freedom extends to all people, from the theistic to the godless. The State must, as a matter of duty rather than consequence, guarantee that such pursuit remains unfettered. (DENMARK S. VALMORES v. DR. CRISTINA ACHACOSO, in her capacity as Dean of the College of Medicine, and DR. GIOVANNI CABILDO, Faculty of the Mindanao State University, G.R. No. 217453, July 19, 2017).
The right to privacy
Corollary to a person’s right to freedom of religion is his/ her right to privacy. “In ascertaining whether there is a violation of the right to privacy, courts use the “reasonable expectation of privacy” test. This test determines whether a person has a reasonable expectation of privacy and whether the expectation has been violated. In Ople v. Torres, we enunciated that “the reasonableness of a person’s expectation of privacy depends on a two-part test: (1) whether, by his conduct, the individual has exhibited an expectation of privacy; and (2) this expectation is one that society recognizes as reasonable.” Customs, community norms, and practices may, therefore, limit or extend an individual’s “reasonable expectation of privacy.” Hence, the reasonableness of a person’s expectation of privacy must be determined on a case-to-case basis since it depends on the factual circumstances surrounding the case. (SPOUSES BILL AND VICTORIA HING v. ALEXANDER CHOACHUY, SR. and ALLAN CHOACHUY, G.R. No. 179736 June 26, 2013).
It has been proven that democracy is vibrant when there is a healthy friction of the exercise of police power on one hand and a vigilant invocation of constitutional rights and civil liberties on the other. May the Iloilo City government be able to see its way clearly through this challenge of protecting the general welfare without impinging on its constituent’s precious, irreplaceable and amorphous freedoms and liberties.
(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).
