Due Process of Law Part I: Concept of Life, Liberty, and Property & Substantive Due Process

We’re done with the Concept of the Bill of Rights in our last discussion. So, let’s move on with the discussion of the Bill of Rights’ provisions, following the flow of the Supreme Court syllabus (the poorly edited screenshot above).

Due process of law is fittingly the first topic in the syllabus right after the Concept of the Bill of Rights. Why? Because the FIRST clause of Article III (The Bill of Rights) Section 1 of the Constitution states “No person shall be deprived of life, liberty, or property without due process of law…”

There are several interesting concepts/lessons in this clause so let’s discuss them one by one.

CONCEPT OF RIGHT TO LIFE, LIBERTY, AND PROPERTY

Before delving into due process, let’s discuss what it protects: the right to life, liberty, and property.

Life, liberty, and property pretty much encompass everything we hold dear. Life includes your existence, including having your dignity and living a good life (i.e. having a decent standard of living). Liberty includes your freedom from any restraint. Property includes the things you own, how you want to use, secure, or dispose of them, and it even includes your job.

Thus, our Constitution deems it important to protect our right to these three matters/things/stuff. Not without basis, of course. The basis is in the preamble, our source of “light” in interpreting the constitution, parts of which are “build a just and humane society” 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…”

Let’s ask the help of former SC Justice Antonio Nachura for the formal definitions of life, liberty, and property:

Life includes the right of an individual to his body in its completeness,
free from dismemberment, and extends to the use of God-given faculties which
make life enjoyable.
-Justice Malcolm, Philippine Constitutional Law, pp. 320321

Liberty includes “the right to exist and the right to be free from arbitrary
personal restraint or servitude, x x x (It) includes the right of the citizen to be free to use his faculties in all lawful ways x x x”
–Rubi v. Provincial Board of Mindoro, 39 Phil 660

Property is anything that can come under the right of ownership and
be the subject of contract. It represents more than the things a person owns; it
includes the right to secure, use and dispose of them
–Torraco v. Thompson, 263 U.S. 197

Justice Leonen also offers a more enlightened definition of “Life”:
“Life,” then, is more appropriately understood as the fullness of human potential: not merely organic, physiological existence, but consummate self-actualization, enabled and effected not only by freedom from bodily restraint but by facilitating an empowering existence. “Life and liberty,” placed in the context of a constitutional aspiration, it then becomes the duty of the government to facilitate this empowering existence. This is not an inventively novel understanding but one that has been at the bedrock of our social and political conceptions.
–Spark v. Quezon City, 2017, Leonen Concurring Opinion

However, take note, the right to life, liberty, and property is not absolute. There are still some laws that can restrict our rights. Otherwise, there will be total chaos if we give mankind absolute freedom (see Thomas Hobbes’ The Leviathan).

For example, the death penalty (although currently inactive/suspended) invades the right to life, imprisonment invades the right to liberty, expropriation (when the government forcibly “buys” your land) invades the right to property.

These laws are valid because they deprive life, liberty, or property WITH due process. This means that the laws have undergone a test (which we’ll discuss much later) of due process and passed.

So what is due process?

DUE PROCESS
Consulting Professor Google, we have these definitions of “due” and “process”

Combining these definitions, we have due process as:
“expected, proper, or adequate series of actions or steps taken in order to achieve a particular end.”

Okay, I admit this made it a little bit more complicated. But in layman’s terms, it’s basically proper/fair process. It can be shown when your dad interrogates you first before spanking you if you broke the vase. Or when you make sure that you have all the facts before getting mad at your boyfriend. It can also mean having a fair household policy of being home before 8 pm because your neighborhood is crime-riden.

But because we’re talking in legal terms, due process, according to Daniel Webster (not connected to the dictionary), is “a law that hears before it condemns, proceeds upon inquiry and renders judgment only after trial.”

Former US SC Justice Frankfurter puts it practically as “nothing more and nothing less than the sporting idea of fair play.”

Themistocles was the first to make it popular (probably) with the immortal words “Strike, but hear me first!”

But my favorite definition, even if quite lengthy, is the non-definition from the 1967 case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. The Honorable City Mayor of Manila:

There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. What then is the standard of due process which must exist both as a procedural and as substantive requisite to free the challenged ordinance, or any government. action for that matter, from the imputation of legal infirmity; sufficient to spell its doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reasons and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly has it been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. It exacts fealty “to those strivings for justice” and judges the act of officialdom of whatever branch “in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political thought.” It is not a narrow or “technical conception with fixed content unrelated to time, place and circumstances,” decisions based on such a clause requiring a “close and perceptive inquiry into fundamental principles of our society.” Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases.
-Penned by Former SC Chief Justice Enrique Fernando

I guess it’s safe to say there is no fixed definition of due process. According to my favorite Justice Isagani Cruz, this was intentionally not defined by the Constitution to give the courts freedom to interpret it in light of the specific case before them and the prevailing conditions which can change from generation to generation.

So what do we answer if the question is “what is due process?”

You don’t have to follow this, but I’ll answer with:
Due process, according to the Supreme Court, is freedom from arbitrariness. It is also the opportunity to be heard and the embodiment of the sporting idea of fair play. Section 1, Article III of the Constitution states that no person shall be deprived of life, liberty, or property without due process of law.

But I doubt the question will be like that.

Why? Because there are two kinds of due process: Substantive and Procedural. Most likely, if the question is about the definition, it will be specific to these two kinds of due process because these can be easier defined.

KINDS OF DUE PROCESS: SUBSTANTIVE AND PROCEDURAL DUE PROCESS

I’ll start this section with some definitions I found by browsing the SC e-library (I’m more comfortable with cases as my basis as opposed to textbooks).

Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a person’s life, liberty, or property. In other words, substantive due process looks to whether there is a sufficient justification for the government’s action.
–City of Manila v. Hon. Laguio, Jr, 2005

Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action.
–City of Manila v. Hon. Laguio, Jr, 2005

Due process of law has two aspects: substantive and procedural. Substantive due process refers to the intrinsic validity of a law that interferes with the rights of a person to his property. Procedural due process, on the other hand, means compliance with the procedures or steps, even periods, prescribed by the statute, in conformity with the standard of fair play and without arbitrariness on the part of those who are called upon to administer it.
–Maynilad v. Secretary of the DENR, 2019

^ These are the okay definitions, but personally, I’ll answer with:

For “What is substantive due process?”
Substantive due process refers to the intrinsic validity of a law or government action that interferes with the rights of a person to life, liberty, or property. It serves as a restriction on the government’s law- and rule-making powers.

For “What is procedural due process?”
Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. It serves as a restriction on actions of judicial and quasi-judicial agencies of government.

If you’ve read Nachura’s reviewer, the last two sentences of these answers are from him.

In a nutshell, substantive due process demands the government to present a valid reason before they can deprive anyone of the right life, liberty, or property, i.e. the punishment must fit the crime, the needs of the State must be very important if someone’s property must be taken away from him, there must be a very grave danger if people are forbidden to do something.

Procedural due process then demands that they should follow the rules and procedures in depriving anyone of the right to life, liberty or property, i.e. the person whose life, liberty, or property is in peril must be given the opportunity to be heard, the person whose property must be taken should be given just compensation.

But aside from questions of definition, what needs more attention are the requisites of these concepts. These will more often be asked, or if not asked, will be a guide to answering situational questions.

REQUISITES OF SUBSTANTIVE DUE PROCESS
Sample Question:
“There are rampant incidents of murder in the country and, incidentally, all of the victims always had a piece of blue clothing. Thus, a law was enacted which made it illegal to wear any form of blue clothing. Is there a violation of substantive due process?”

We can answer the above question simply by knowing the two requisites of due process:
1. The interests of the public, in general, as distinguished from those of a particular class, require the intervention of the State
2. The means employed are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals.
-From Nachura and inspired by Chavez v. COMELEC, 2004

To avoid the wordiness of these requisites, Justice Isagani Cruz offers two simple versions:
1. Valid governmental objective
2. the means employed must be reasonably related to the accomplishment of the purpose and not unduly oppressive

But I have to admit this also has a longer version:
To be so [valid], the law must have a valid governmental objective, i.e., the interests of the public generally as distinguished from those of a particular class require the intervention of the State. Furthermore, this objective must be pursued in a lawful manner, or, in other words, the means employed must be reasonably related to the accomplishment of the purpose and not unduly oppressive.

This can be found both in Justice Cruz’ book Constitutional Law and in ABAKADA Guro Party List v. Ermita (2005) without citations, so I’m not sure who copied who. But I bet it’s not Justice Cruz.

ANYWAY, back to the question.
“There are rampant incidents of murder in the country and, incidentally, all of the victims always had a piece of blue clothing. Thus, a law was enacted which made it illegal to wear any form of blue clothing. Is there a violation of substantive due process?”

Answer:
Yes, there is a violation of substantive due process.

In, ABAKADA Guro Party List v. Ermita, The Supreme Court provided two requisites for substantive due process:
1. valid governmental objective
2. the means employed must be reasonably related to the accomplishment of the purpose and not unduly oppressive

Here, even if there is a valid governmental objective of preventing the rampant murders, the means of criminalizing the wearing of blue clothing is not reasonably related to the accomplishment of such an objective and is unduly oppressive. It would be too absurd to think that the murders will suddenly stop if people stop wearing blue clothing. There are still less restrictive means to prevent the murders, and most of them include improvements in police work, not restriction in clothing. Further, there is no proof that blue clothing is related to the murderers’ motives. Without proof, it is a mere coincidence that does not warrant the deprivation of life, liberty, or property.

By the way, in answering exam questions, Redditor u/00698249300 has a great guide here. And notice that in my answer above, I cited an exact SC case. Actually, most of the time, we won’t be remembering all of the case titles that we read so it’s alright to use “The Supreme Court previously held” or “It is well-settled in this jurisdiction” or “it is a fundamental doctrine in,” etc. Just make sure you are using the right intro phrase (for example: don’t use it is well-settled in this jurisdiction if there has only been one case).
Personally, keeping it simple would be okay and it’s better to avoid the literary versions like “it is hornbook doctrine in..”

ANYWAY, back to Constitutional Law. I won’t discuss the specific cases which highlight the different variations of problems that require knowledge of substantive due process. As long as we know the two requisites by heart, it is easier to reason in the bar exams. After all, what’s important is we know the law, we know where that law came from, and we know how to apply the law.

Examples of regulations not violative of substantive due process:
Billboards banned as nuisance- Depends on the location
Limits on prices of prime commodities
Floor price for milk- Needed to protect quality of milk
Barbershop and massage services required to have a separate transparent room
Law/ordinance against video piracy
Private roads inside subdivisions converted to public- To decongest traffic
3-strike rule on NMAT- To ensure the quality of future doctors
Free airtime for COMELEC
Requirement to streamline I.D. systems of GOCCs
Ban against importation of used motor vehicles to protect domestic industries

It would be great to also discuss police power here, but I think it’s best to reserve that for the discussion on the Fundamental Powers of the State.

Well, I think that’s all for today. I just had new glasses (from 75/75 vision to 175/125. Yikes) so I’m feeling pretty woozy. I’ll continue tomorrow with the discussion on Procedural Due Process.

*Insert Closing Time song here.