Module Title: CONSTITUTION

Course Title: LEGAL ASPECTS IN TOURISM AND

HOSPITALITY

Course Number: THC 8

Course Description: Philippine tourism industry has been a concern by may

Filipinos. It is a key source of foreign exchange heavily
on the country’s balance of payments and the
purchasing power of peso. It is a main source of
employment to millions of Filipinos working in various
hotels and resorts, restaurants and bars, travel agencies,
tour companies, entertainment outlets, parks, museums,
galleries, theaters, casinos, et al and around the country
and abroad (Cabulay & Carpio, 2011) just like any
dynamic industry, the forces of the market create
various business and personal experiences that cause
challenging situations to arise. This course will provide a
serious look at the different laws affecting the Philippine
tourism industry.

Total Learning Time: 3 hours/week

Pre-requisites: NONE
 MODULE 3

THE PHILIPPINE CONSTITUTION

CONSTITUTIONAL PROVISIONS RELATIVE TO HOTEL AND
TOURISM ESTABLISHMENTS

The constitution is defined as the original and fundamental principles of

law by which a system of government is created and according to which a country
is governed. It is the fundamental law of the land, to which all other laws must
conform. It is a written instrument by which the fundamental powers of the
government are established, limited and defined and by which those powers are
distributed among several departments for their safe and useful exercise for the
benefits of the body politic.

Constitution is the basic and highest law of the land to which all other laws
must conform and to which all persons, including the highest officials of the land,
must defer or comply. No act shall be valid, however noble its intentions, if it
conflicts with the constitution. The constitution must ever remain supreme. All
must bow down to the mandate of this law.

Supremacy of the Constitution; Doctrine of Constitutional Supremacy

Under the doctrine of constitutional supremacy, if a law or contract

violates any norm of the constitution, that law or contract, whether promulgated
by the legislative or the executive branch or entered into by private persons for
private purposes, is null and void (meaning not valid) and without any force and
effect. Thus, since the Constitution is fundamental, paramount and supreme law
of the nation, it is deemed written in every statute and contract.

Article III: The Bill of Rights

One of the provisions of the 1987 Constitution that finds application in the
Hospitality and Tourism Industry is Article III, Bill of Rights. However, before
going to the different sections of the same, one must understand the basic
principles of this article.
The Bill of Rights governs the relationship between the individual and the
state. Its concern is not the relation between individuals, between private
individual and other individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any power holder.
In its simplest term, the Bill of Rights is the limitation on the powers of the
government. Hence, it cannot be invoked if one who violated the same is a private
individual or entity. Use or invoke only the provisions of the Bill of Rights if the
one violated it is the government.

The Purpose of the Bill of Rights

The purpose of the Bill of Rights is to protect the people against arbitrary
and discriminatory use of political power. This bundle of rights guarantees the
preservation of our natural rights which include personal liberty and security
against invasion by the government or any of its branches or instrumentalities.

Section 1. No person shall be deprived of life, liberty and property without due
process of law nor shall any person be denied the equal protection of the laws.
Two important clauses: due process clause and equal protection clause

Under the constitution, the term “life” of which a person may not be
deprived without due process, means more that animal existence. With the
emphasis on social and economic rights at present, life includes at the very least
the right to a decent living.

According to Justice Malcolm, liberty means “the measure of freedom

which may be enjoyed in a civilized community consistently with the peaceful
enjoyment of life freedom in others. Liberty includes the rights to be free to use
his faculties in all lawful ways; to live and work where he wills; to earn his
livelihood by any lawful calling, to pursue any avocation; and for that purpose, to
enter into all contracts which may be proper, necessary and essential to his
carrying out these purposes to a successful conclusion. Liberty is freedom to do
right and never wrong; it is guided by reason and the upright and honorable
conscience of the individual.

“Property” is defined as “anything which is or may be the object of

appropriation.” Anything which has money value and which is supposed to be
within the commerce of man is embraced in the term property. The right to earn
one’s daily wage and the right to engage in business are likewise property. Equal
Protection of the law means: Persons similarly situated should be similarly
treated. There should be no favoritism. The benefits of membership in a state as
well as burdens should be distributed in equal measure. Uniformity of treatment
should be the rule.

“Due Process of Law” is a law which hears before it condemns; which

proceeds upon inquiry, and render judgment after trial. Due process of the law
does not necessarily mean a judicial proceeding in the regular courts. The
guarantee of due process, viewed in its procedural aspect, requires no particular
form of procedure. It implies due notice to the individual of the proceedings, an
opportunity to defend himself and the problem of the propriety of the
deprivations, under circumstances presented, must be resolved in a manner
consistent with essential fairness. It means essentially a fair and impartial trial
and reasonable opportunity for the preparation of the defense.

The essential requirements of the procedural due process in courts are as follows:
(1) There must be a court or tribunal clothed with judicial power to hear
and determine the matter before it;
(2) Jurisdiction must be lawfully acquired over the person of the
defendant or over the property which is the subject of the
 proceedings;
(3) The defendant must be given an opportunity to be heard; and
(4) Judgment must be rendered upon lawful hearing.

“Equal Protection” under the law means people of the same class shall
be treated alike, under like circumstances and conditions both as to their
privileges conferred and liabilities enforced. It does not mean absolute equality,
for otherwise there would be injustice.

However, these constitutional liberties are not absolute rights for they can
be regulated by a lawful order of the court. An order releasing a person accused of
a crime on bail is similar to a “lawful order of the court” as contemplated under
the above provision, and a hold departure order may be issued as this is a
necessary consequence of the function of the bail bond which is to secure
person’s appearance when needed.

Two Kinds of Person in Law

1. Natural Person (Human Beings)

2. Juridical Person/Artificial Being (Partnerships, Corporations)

Section 3. (1) The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or
order requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.

Essence of Right to Privacy

The very essence of this right is simply the right to be let alone. Because of
this, the government or any of its agencies as a rule, cannot intrude, interfere or
even pry with the private affairs of an individual.

It must be noted that an individual cannot simply invoke the right to

privacy. A person must prove that he/she has privacy in the first place. Thus, if
one performs an act in public place, or it was made for the public, there is no
privacy to speak of.

Important topics under Right to Privacy:

1. Doctrine of the Fruit of the Poisonous Tree

2. RA 4200 or the Anti-Wiretapping Law
3. RA 9995 or the Anti-Photo and Video Voyeurism Act of 2009

Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.

Under Section 6 of Article III, there are two rights that are protected:

1. The liberty of abode (home/residence)

2. The right to travel

The Liberty of Abode

The constitution guarantees the right of the person to establish his own
residence or home. In the same manner, any person can also change his
residence or dwelling from one place to another.

The Right to Travel

Every person has the right to travel within or outside the country.
However, there are cases wherein this right can be impaired or restricted by the
government. Under the Bill of Rights, the right to travel may be restricted if any
of the following circumstances are present, to wit:
1. Interest of national security
2. Public safety
3. Public health.

Section 8. The right of the people, including those employed in the public
and private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.

Whether an employee is working in the government service or in the

private entity, both has the right to form union, association or society, provided,
the purpose or objective is not contrary to law.

Right to Form Union in the Private Sector

The right to form union in the private sector is not only constitutional but
also a statutory right. A company cannot prevent its employees to form a union
nor shall it terminate an employee simply because said employee formed a union.

Employees in the private sector have the right to strike but the employees
in the government service do not enjoy the right to strike.

Article XII: National Economy and Patrimony

Section 10. The Congress shall, upon recommendation of the economic

and planning agency, when the national interest dictates, reserve to citizens of
the Philippines or to corporations or associations at least sixty per centum of
whose capital is owned by such citizens, or such higher percentage as Congress
may prescribe, certain areas of investments. The Congress shall enact measures
that will encourage the formation and operation of enterprises whose capital is
wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national

economy and patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.

National Patrimony

In its plain and ordinary meaning, the term patrimony pertains to

heritage. When the Constitution speaks of national patrimony, it refers not only
to the natural resources of the Philippines, but also to the cultural heritage of the
Filipinos.

Illustrative Case:

MANILA PRINCE HOTEL vs. GSIS (G.R. No. 122156; February 3, 1997)

FACTS:

The Government Service Insurance System (GSIS) decided to sell through

public bidding 30% to 51% of the issued and outstanding shares of the Manila
Hotel (MHC).

In a close bidding, two bidders participated: Manila Prince Hotel

Corporation (MPHC), a Filipino corporation, which offered to buy 51% of the
MHC at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-
Sheraton as its hotel operator, which bid for the same number of shares at
P44.00 per share, or P2.42 more than the bid of petitioner.

Pending the declaration of Renong Berhard as the winning bidder and the
execution of the contracts, the MPHC matched the bid price in a letter to GSIS.
MPHC sent a manager’s check to the GSIS in a subsequent letter, which GSIS
refused to accept. On 17 October 1995, perhaps apprehensive that GSIS has
disregarded the tender of the matching bid, MPHC came to the Court on
prohibition and mandamus.

Petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution
and submits that the Manila Hotel has been identified with the Filipino nation
and has practically become a historical monument which reflects the vibrancy of
Philippine heritage and culture.

Respondents assert that Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-
executing provision and requires implementing legislation(s).
ISSUE:

Whether the provisions of the Constitution, particularly Article XII Section

10, are self-executing.

RULING:

Yes. Sec 10, Art. XII of the 1987 Constitution is a self-executing provision.

A provision which lays down a general principle, such as those found in

Article II of the 1987 Constitution, is usually not self-executing. But a provision
which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by
means of which the right it grants may be enjoyed or protected, is self-executing.

Hence, unless it is expressly provided that a legislative act is necessary to

enforce a constitutional mandate, the presumption now is that all provisions of
the constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law.

In fine, Section 10, second paragraph, Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its
very words the provision does not require any legislation to put it in operation.

In this case of Manila Prince Hotel vs GSIS, Manila Hotel was considered
part of the national patrimony – it being a landmark and a living testimonial of
Philippine heritage.

Foreign Investments in the Philippines

Under the Foreign Investment Act of 1991, foreign investment shall be

encouraged in enterprises that significantly expand the livelihood and
employment opportunities for the Filipino.

However, there are investments in the Philippines in which foreigners are

not allowed to engage or invest such as mass media, practice of profession,
private security agencies, manufacture of fire crackers and other pyrotechnic
devices, cooperatives and among others.

In tourism establishment such as sauna and steam bathhouses, massage

clinics and other like activities, foreign equity is allowed but only up to forty (40)
percent.
Evaluation:

True or False

1. Equal protection means absolute equality between or among persons.

2. The Constitution is the fundamental law of the land.
3. Statutes are superior laws over the constitution.
4. Mr. X wants to establish a restaurant business in Boracay beach. He has
all the rights to build his restaurant in any place he wants in Boracay.
5. A hotel employee who was terminated by an employer without notice and
hearing is violative of the due process clause under the Bill of Rights.
6. Employees of Cebu Pacific and Philippine Airlines can form a union and
can stage a strike.
7. National patrimony refers not only to the natural resources of the
Philippines, but also to the cultural heritage of the Filipinos.
8. The right to travel or a person is absolute and may not be restricted.
9. A corporation is an example of a natural person.
10. The very essence of the right to due process is simply the right to be let
alone.