We’re back!
I had a sort-of-nervous-breakdown last Friday after getting overwhelmed with the volume of topics for the bar. I didn’t think I’d be able to finish them all. So, I took a time off last weekend and heeded Sasa’s advice to make a schedule. I feel great now, and I’ll just stick to the discussing the important parts to increase my pace (without sacrificing comprehensibility, of course).
CONCEPT OF THE EQUAL PROTECTION CLAUSE
Luckily, the case of Biraogo v. Philippine Truth Commission (2010) completely explains the concept of the Equal Protection Clause:
[One of the basic principles on which this government was founded is that of the equality of right[s] which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.
“According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.” It “requires public bodies and institutions to treat similarly situated individuals in a similar manner.” “The purpose of the equal protection clause is to secure every person within a state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statu[t]e or by its improper execution through the state’s duly constituted authorities.” “In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.”
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all the departments of the government including the political and executive departments, and extend to all actions of a state denying equal protection of the laws, through whatever agency or whatever guise is taken.]
–Biraogo v. Philippine Truth Commission, 2010
From the first paragraph, we can see that the concept of the equal protection clause is embodied in the due process clause (freedom from arbitrariness). But it needed to be mentioned separately to stress its importance. We will also learn to use this “sharper weapon” in our discussion later on the levels of scrutiny of the equal protection analysis.
But the equal protection clause is not as simple as equality.
Notice how the phrase “unwarranted partiality or prejudice” is used in the Biraogo excerpt above and not merely “partiality or prejudice.” This is because there is what we call a sort of warranted or justified prejudice.
Here are some simple examples:
-A government office that refuses service to people who aren’t wearing shirts and shoes is discriminating against topless individuals.
-A government office that only hires people with college degrees in some positions is discriminating against people with high school degrees.
-A law that doesn’t allow non-lawyers to practice law is discriminatory against those that cannot pass the bar exam.
The discrimination in the above examples does not violate the equal protection clause. But why? How do we know if the equal protection clause is violated?
It starts with:
“Equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.”
In other words, equal protection does not require the universal application of the laws to all persons or things without distinction. What it simply requires is equality among equals as determined according to a valid classification.
So how do we know what is a valid classification?
REQUISITES FOR VALID CLASSIFICATION
“Indeed, the equal protection clause permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class. “Superficial differences do not make for a valid classification.””
To reiterate, these are the requsites:
1. Substantial distinction
2. Germane to the purpose of the law
3. Not limited to existing conditions only
4. It applies equally to all members of the same class
Let’s discuss these one by one.
Substantial Distinction
For a distinction to be substantial, it’s a little tricky because it’s still a little subjective.
“It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class should possess the same characteristics in equal degree. Substantial similarity will suffice.”
But, the bar exams will most likely use distinctions already ruled upon by the Supreme Court as substantial. Here are some of them:
-Height and weight for certain public employments
-lepers vs non-lepers
-age in the case of military service
-citizen vs alien
-public utilities vs private corporations
-jobs with higher risk such as policemen and firemen in relation to retirement privileges
-policemen vs other government employees when it comes to preventive suspension (policemen carry weapons and the badge of the law, which can be used to harass or intimidate witnesses against them)
-classification of cities in relation to their income
-Sandiganbayan vs other courts
-female domestic worker working abroad vs other workers
-those who failed the NMAT exam 3 times vs others (while every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor)
-print media vs broadcast media
I’m not going to cite each case where these came from because that would take too much time. From these examples, we already have an idea of what SUBSTANTIAL means.
Germane to the Purpose of the Law
They could have just said “relevant” to the purpose of the law. But oh well, let’s stick with “germane.”
This requisite simply means that the distinction the law made should be relevant to the purpose of the law. In other words, they have to answer the question: why did you make that distinction?
For example (not real):
The Supreme Court decided to lower the passing percentage of the bar exams from 75% to 70% for bar candidates over 60 years of age, while every other candidate will have a passing percentage of 75%. This is not germane to the purpose of the law (or government action) because what does age have to do with passing percentage? Why should we give special treatment to the older bar candidates? Senior citizens just have as much capacity to become lawyers compared to other candidates. Further, being a lawyer is a privilege and not a right. Even if there is a substantial distinction between senior citizens and others, such distinction is not related to the bar exam passing percentage.
On the other hand, the distinction of senior citizens vs others can be used by the law that grants discounts to senior citizens. This is because the purpose of the law is to give full support to the total well-being of the elderly, among others. RA 9994 or the Expanded Senior Citizens Act of 2010 enumerates the purpose of the law:
That’s understandable enough.
Not Limited to Existing Conditions Only
“The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the number included in the class.”
In other words, the classification must be enforced not only for the present but as long as the problem sought to be corrected continues to exist. It also should not be limited as to prevent others from being later on included in the class.
For example, in the case of People v. Cayat (1939), a law made it illegal for Non-Christian tribes to drink or possess foreign liquor. The goal of the law is to raise their standard of life and civilization. It turns out that their drinking of highly intoxicating liquor often resulted in lawlessness and crimes. The law was questioned as being violative of equal protection.
In terms of violating the third requisite of not limited to existing conditions only, the Supreme Court has this to say:
“The law is not limited in its application to conditions existing at the time of its enactment. It is intended to apply for all times as long as those conditions exist. The Act was not predicated, as counsel for appellant asserts, upon the assumption that the non-Christians are “impermeable to any civilizing influence.” On the contrary, the Legislature understood that the civilization of a people is a slow process and that hand in hand with it must go measures of protection and security.”
In other words, the ban of alcohol for Non-Christian tribes will continue until they become civilized enough to handle their liquor.
I don’t agree with this ruling. What about the educated Non-Christians? What about those that can handle their liquor? The Supreme Court said that their incidental suffering is a necessary sacrifice: “the justification still exists in the all-comprehending principle of salus populi supremo, est lex.” Oh well. Maybe it was necessary during 1939.
A better, simpler example is found in the case of Ormoc Sugar Co. v. Treasurer of Ormoc City (1968). There was an ordinance that specifically taxes only the Ormoc Sugar Co.:
“Section 1: There shall be paid to the City Treasurer on any and all productions of centrifugal sugar milled at the Ormoc Sugar Company Incorporated in Ormoc City a municipal tax equivalent to one per centum (1%) per export sale to the United States of America and other foreign countries.”
Obviously, this violates the third requisite as only the Ormoc Sugar Co. is named in the tax ordinance, leaving other future sugar millers companies from the tax. Though it is true that at the time of the ordinance’s enactment, only the Ormoc Sugar Co. exists.
“A perusal of the requisites instantly shows that the questioned ordinance does not meet them, for it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company, Inc. and none other. At the time of the taxing ordinance’s enactment, Ormoc Sugar Company, Inc., it is true, was the only sugar central in the city of Ormoc. Still the classification, to be reasonable, should be in terms applicable to future conditions as well. The taxing ordinance should not be singular and exclusive to exclude any subsequently established sugar central, of the same class as plaintiff, from the coverage of the tax. As it is now, even if later a similar company is set up, it cannot be subject to the tax because the ordinance expressly points only to Ormoc Sugar Company, Inc. as the entity to be levied upon.“
On to the last requisite.
It Applies Equally to All Members of the Same Class
This is pretty self-explanatory. It’s also in symphony with the 1st requisite substantial distinction. The first requisite requires that if you must distinguish, members of a class must be substantially similar. This last requisite requires that members of the same class must be treated similarly. Thus, if your “grouping” or “non-grouping” is problematic, it violates both the first and last requisite.
How?
If the law imposes lower tariffs on Petron, Shell, and Caltex compared to other oil companies, that is violative of the last requisite. Why? Because oil companies belong to the same class and all should have the same rates for tariffs.
–Tatad v. Secretary of Energy and Secretary of Finance
It also follows that you violated the first requisite of a valid classification because why did you classify Petron, Shell, and Caltex in a separate group away from other oil companies.
Another example is the case of Villegas v. Hui Chiong where an ordinance taxed all employed aliens P50.00. It violated the last requisite because it did not consider that these employees belong to different classes determined by their employment status: full-time, part-time, permanent, casual, rank-and-file, or executive. So, they should have different rates, but those belonging to the same class should have similar rates.
It also follows that the first requisite is violated because the ordinance failed to provide a substantial distinction based on employment status.
Anyway, it doesn’t really matter which requisite is violated. As long as there is an absence of one, it already violates the equal protection clause.
We just have to memorize these requisites for a valid classification:
1. Substantial distinction
2. Germane to the purpose of the law
3. Not limited to existing conditions only
4. Apply equally to all the members of the same class
And if we keep in mind the complications we discussed above, we’re good to go.
Nope. Just kidding. There are times when bar exam questions will just require us to analyze based on the 4 requisites of valid classification, but there are may come a time when we will be required to provide a thorough analysis or scrutiny. Just like in Due Process, Equal Protection Clause also has its levels of scrutiny.
LEVELS OF SCRUTINY
Similar to due process analysis, the levels of scrutiny in equal protection analysis are distinguished by the importance of the rights. However, to determine which level of scrutiny to use, instead of depending on the magnitude or level of freedoms or rights that are being deprived/restricted, it depends on whether the classification disadvantages a “protected class” or a “suspect” class. We’ll explain as we go along.
The Concurring Opinion of Justice Leonardo-De Castro in Garcia v. Drilon masterfully explains the levels of scrutiny:
Rational Basis Scrutiny/Rational Basis Test – the traditional test, which requires “only that government must not impose differences in treatment except upon some reasonable differentiation fairly related to the object of regulation.” Simply put, it merely demands that the classification in the statute reasonably relates to the legislative purpose. We still go back to LEGITIMATE GOVERNMENT INTEREST and that there is only a REASONABLE CONNECTION between it and the classification.
This test is used when no “suspect class” nor “quasi-suspect class” is disadvantaged by the law. Thus, this is mostly used in economic legislation, such as when a large business is distinguished from a small company.
Intermediate Scrutiny/Intermediate Revie/Middle-Tier Scrutiny – requires that the classification (means) must serve an IMPORTANT GOVERNMENTAL OBJECTIVE (ends) and is SUBSTANTIALLY RELATED to the achievement of such objective. In due process, the keywords are IMPORTANT GOVERNMENT INTEREST and SUBTANTIAL CONNECTION. Either option is okay.
A classification based on sex is the best-established example of an intermediate level of review. It also can be used in discrimination concerning gender, sexual orientation, and illegitimacy. These are what we call “quasi-suspect classes“.
Strict Scrutiny – requires that the classification serves a compelling state interest and is necessary to achieve such interest. This level is used when suspect classifications or fundamental rights are involved. I guess in the case of an equal protection analysis, the requirement of LEAST RESTRICTIVE MEANS is replaced by NECESSARY. Because note that what is being scrutinized here is the classification and not the means. So the new keywords here are COMPELLING STATE INTEREST and add in the NECESSARY.
“Suspect” or “protected” classes are those that are favored by the Constitution like the working class (OFWs in the case of Serrano v. Gallant) because of the Constitution’s “full protection to labor”. Others include race, religion, national origin, ancestry, and alienage.
Well, that’s pretty much it. To give an example of how an equal protection analysis works, here’s a “for dummies like us” guide.
1. First, determine the class that may be disadvantaged.
Is it a religion? OFWs? a race? a nationality? or any other suspect class? If so, use Strict Scrutiny.
Is it women? sexual orientation? Illegitimate children? Use Intermediate Scrutiny.
Is it none of the above? Use Rational Basis Scrutiny.
2. Next, determine if the governmental interest or objective is Legitimate, Important, or Compelling.
If we’re using Strict Scrutiny, the governmental interest must be COMPELLING. I would think that public health and safety, public order, national security, morals, respect for fundamental rights, military necessity, are valid compelling state interest. It’s up to us how to reason that. We can use constitutional provisions especially in the declaration of principles and state policies, Article II.
If we’re using Intermediate Scrutiny, the governmental interest must be IMPORTANT. So this includes of course the COMPELLING interest above plus others like to safeguard human rights and to ensure gender equality and woman empowerment.
If we’re using the Rational Basis Scrutiny, the governmental interest must be LEGITIMATE. I guess anything that’s not stupid like “to make our state officials richer” counts as a legitimate governmental interest.
3. Lastly, determine if the Classification is Reasonably Related, Substantially Related, or Necessary to the governmental interest.
We’ll just have to justify whether the classification makes sense in relation to the governmental interest.
That’s it. Next up, we’ll discuss the dreaded Right against unreasonable searches and seizures.
The Bartender 