UNIT I

INTRODUCTION TO TOURISM LAWS

Learning Objectives:
At the end of the course the students should be able to:
1. Learn the basic concept of law
2. Understand the relevance of learning laws in relation to hospitality management
3. Define law using the characteristics thereof
4. Discuss the sources of law relevant to tourism law and the reason for its hierarchy

A. Definitions of Law
Students who study tourism law frequently face the difficulty of studying a special
area of law without having an understanding of the law or the court system in general.
This Unit is not designed to be a comprehensive course in law and the judicial system
but it aims to provide a sufficient introduction to understand the remaining lessons of
this course. It starts with a discussion of law, giving consideration to its nature,
characteristics and classifications or kinds of law followed by a brief explanation of
tourism law focused on its application and sources.

For the purposes of this course, it is probably helpful to start with a consideration
of law as a set of rules which attempt to guide human conduct and a set of sanctions
which are applied when those rules are broken. The word law is derived from the
Teutonic word “lag,” (meaning definite). Thus, law can defined as a definite rule of
conduct and human relations or a uniform rule or conduct which is applicable equally
to all the people of a given community (i.e., basically the state). It prescribes and
regulates general conditions of human activity in the state.

The dictionary usually offers two main definitions of law: first, as a binding custom
or practice of a community or a rule of conduct or action prescribed or formally
recognized as binding or enforced by a controlling authority, or second, as the whole
body of such customs, practices, or rules that the courts to uphold, interpret, and apply.

Technically, the concept of law has been formally defined in two ways: (1) in its
general or abstract sense, and (2) its specific or material sense. In the general or
abstract sense, law pertains to the moral rules, founded on the rational nature of man,
which govern his free activity, for the realization of the individual and social ends, of a
nature both demandable and reciprocal. It is the mass of obligatory rules established
for the purpose of governing the relations of persons in society. In the specific sense, law
is seen as a juridical proposition or an aggregate of juridical propositions, promulgated
and published by the competent organs of the state in accordance with the
Constitution. It is a norm of human conduct in social life, established by a sovereign
organization and imposed for the compulsory observance of all. Thus, law is understood
as a rule of conduct, just, obligatory, and promulgated by the competent authority for
the common good of a people or nation, which constitutes an obligatory rule of
conduct for all its members.
There are many different definitions offered by legal writers, jurists, and authorities to
simply explain what law is, but perhaps the most accepted definition of law under the
Philippine legal system is the one proffered by the Spanish jurist Sanchez Roman.

In defining law, Sanchez Roman made a distinction between the two senses the
term law connotes: the general sense and the specific sense
 In the general sense (derecho), law is defined as the science of moral laws
based on the rational nature of man. These moral laws govern his free activity for
the realization of his individual and social ends. They are, by their very nature,
demandable and reciprocal.
When we speak of law in the general sense, we are referring to the abstract and
moral conception of law. Morality recognizes that humans, as rational creatures,
have free will, and that they have every right to exercise this free will to achieve
their unique and individual aspirations. This right cannot be infringed and must be
respected by other humans.
 In the specific sense (ley), law is defined as a rule of conduct. These rules of
conduct are just and obligatory. They are promulgated by legitimate authority
(typically by the Legislature). They are of common observance and benefit.

Not all human conduct is regulated by law. There are other forms of regulation,
such as morals and religion. Only the rules of law, however, have a legal sanction and
can be enforced by public authority. Based on the definitions presented above, law is
distinguished from morals. The law in many cases takes into account moral concepts;
however, not all moral duties have been converted into juridical obligations, because if
this were to happen, morals would lose their essential characteristic of being voluntary.
The field of morals is more extensive than that of law. Law covers only social activities, or
the relations of man to his fellow-man; but the field of morals includes, not only the
duties of man to his fellow-being, but also those to himself and to his God. Even among
our duties to our fellow-men, many are still dictated by morals, such as those which
have a psychological basis, including the duties of assistance and self-sacrifice.

Definitions of law also acknowledge that law is a product of social life and is a
creation of human nature. It was intended by man to serve man. It regulates the
relations of human beings so that harmony can be maintained in the social group, by
placing restrictions on individual liberty in order to make co-existence possible. Law,
therefore, rests upon the concepts of order, co-existence, and liberty.

– Law may be defined as the principles and regulations established in a

community by some authority and applicable to its people, whether in the form
of legislation or of customs and policies recognized and enforced by judicial
decision.
– Law is a system of rules that govern a society with the intention of maintaining
social order, upholding justice and preventing harm to individuals and property.
B. Characteristics of Law

Four characteristics of law may be deduced from its definition:

First, law is a rule of human conduct. The law indicates what shall be done and
what shall not be done with cognizance to external acts. Any action, things, dictate of
reason if regulated or gathered together could become a conglomeration of rules and
regulations that can create orderly relations among people so that justice may prevail.

Second, law is promulgated by competent and legitimate authority. Law has

been passed by the body that has care over the whole community, which in the case
of the state is the government. To promulgate means, a law is made known to those
who are expected to follow it. In the Philippines, the legislative body (e.g., Congress,
Sanggunian) is the law-making body while the executive is the implementing body and
the judiciary is the enforcing body.

Third, law is just and obligatory. Law is considered a positive command imposing
a duty to obey and involving a sanction which forces obedience. The treatment of law
should be equal for all to follow the law. There should be equivalent punishment or
penalties to enforce them. Obligation points to any duty binding parties to perform their
agreement.

Fourth, law is for the general or common observance and benefit. Law is
intended to regulate the relations of men in order to achieve the common good,
harmony, order and co-existence in society. The application of law should not be titled
of favoring an individual but should be by the observance of all and the benefits that
that may be derived from it.

C. Kinds of Law

The various kinds of law are determined by the way they are classified. Law in its
most comprehensive sense may be divided into two general groups: divine law and
human law. By divine law is meant that in which God himself is the legislator who has
promulgated the law. Divine law promulgated by God is said to include both physical
laws that govern the whole of material creation and natural or moral law that governs
man. By human law is meant that which is promulgated by man to regulate human
relations.

In the context of the state, human law divided into two main classes:

International law is that which governs the relations between nations or states,
that is, between human beings in their collective concept. International law is the body
of rules which guides and directs the behavior of the states in international relations. It
relies on by the willingness of states and the consent that they are willing to give to
obey rules of international law. It is law among sovereign states and not backed up by
any coercive power. Examples of international law are the Law of the Sea (UNCLOS),
International Covenant on Economic, Social and Cultural Rights or the UNWTO Global
Code of Ethics for Tourism.
 National law is that by which the people are governed by the state. National
laws are classified into several kinds.

Constitutional law is that which governs the relations between human beings as
citizens of a state and the governing power. Constitutional law is the supreme law of
the country and lays down the organization, powers, functions and inter-relationship of
the three organs of government. It also lays down the relationship between the people
and the government as well as the fundamental rights, freedoms and duties of the
citizens. All law making in the states is done on the basis of powers granted by the
constitution.

Statutory law or ordinary law is also called municipal law, or sometimes national
law itself. It is passed by the government legislature and it determines and regulates the
conduct and behavior of the people. It lays down the relations among the people and
their associations, organizations, groups and institutions. The laws passed by the
legislature are implemented and applied to specific cases by the other two branches
of government.

Statutory law is further subdivided into two sub types.

Private law or individual law is that which regulates the relations among
individuals. It lays down rules regarding the conduct of the individual in society and his
relation with other persons. It guarantees the enjoyment of his rights and it is through this
law that the state acts as the arbiter of disputes between any two individuals or their
groups. Among private laws are civil law, or that which regulates the relations of
individuals for purely private ends, mercantile law, or that which regulates the special
relations produced by commercial transactions, and procedural law, or that which
provides for the means by which private rights may be enforced. An example of a
private law is an employment contract of a hotel operator and its employees.

Public law is that which regulates the relations between the individual and the
state. It is made and enforced by the state on behalf of the community. It is further sub-
divided into two categories.

First is general public law is that which lays down the relations between the
private citizens (i.e., non-officials of government or who are not members of the civil
service) and the state; it applies to all the citizens in their relations with the state. Among
these is criminal law or that which guarantees the coercive power of the law so that it
will be obeyed.

Second is administrative law or that which governs the relations between officials
and employees of the government. Administrative law lays down the rules governing
the exercise of the constitutional authority which is delegated by the constitution to all
the organs of government. It also governs the relationship between the civil servants
and the public and lays down the relationship between the civil servants and the state.
 In private law, the parties concerned are private individuals and the state stands
as an impartial arbiter between them. In public law the state is both an arbiter and one
of the interested parties as well. An example of public statutory law in Republic Act
9593 or the national policy for tourism as an engine of investment, employment, growth
and national development, and strengthening the department of tourism and its
attached agencies to effectively and efficiently implement that policy.

In another specific sense, law may be classified into mandatory, prohibitory, and
permissive. In one sense, every law commands, because it is obligatory; but it
commands in three different ways: it is mandatory if the law commands that something
be done, it is prohibitory if the law commands that something should not be done, and
it is permissive if the law permits that something to be done should be tolerated or
respected.

Laws are compiled and organized systematically into codes. A code is a

collection of laws of the same kind; a body of legal provisions referring to a particular
branch of the law. There are various reasons for codification, among them being: the
necessity of simplifying and arranging the many juridical rules scattered in several laws,
the necessity of unifying various legislations, and the necessity of introducing reforms
occasioned by social changes.

Law and Morals

 Not all human conduct is regulated by law. There are other forms of regulation,
such as morals and religion. Only the rules of law, however, have a legal
sanction and can be enforced by public authority.
 Law and morals have a common ethical basis and spring from the same source
– the social conscience. In fact, there was a time in the remote past, when the
mind of man was still in its childish state, confused, unable to analyze and
abstract, when spiritual and moral concepts were indistinguishable from the
juristic and legal. It was useless then to search for the traces of law as distinct
from morals. This confusion continued even into the classical age, as may be
seen from the writings of Plato and Aristotle. In Greece, there was no word to
signify law, because it was included in the universal concept of justice. Among
the Romans, the term jus is derived from justice, and it has been defined as the
art of being good and fair.
 Since they spring from a common source, law and morals have many identical
precepts. But the Romans began to distinguish between law and morals, and the
distinction has remained to the present day. The law in many cases takes into
account moral concepts; however, not all moral duties have been converted
into juridical obligations, because if this were to happen, morals would lose their
essential characteristic of being voluntary.
 The field of morals is more extensive than that of law. Law covers only social
activities, or the relations of man to his fellow-man; but the field of morals
includes, not only the duties of man to his fellow-being, but also those to himself
and to his God. Even among our duties to our fellow-men, many are still dictated
 by morals, such as those which have a psychological basis, including the duties
of assistance and self-sacrifice.
 The purpose of law and morals is basically the same: happiness, which cannot
exist for man, except through a permanent and stable equilibrium between
human personalities. But because of the distinction between them, an act may
be entirely in conformity with law but contrary to morals; and vice versa,
conduct may be justifiable from the point of view of morals but contrary to law.
Law and morals according to Colin and Capitant are like two concentric circles;
it is, however, perhaps more accurate to say that they are like two intersecting
circles, with many principles in a common zone, and yet with some principles of
one at variance with those of the other.

D. Rule of Law

The rule of law is a principle of governance in which all persons, institutions and
entities, public and private, including the state itself, are accountable to laws that are
publicly promulgated, equally enforced and independently adjudicated, and which
are consistent with international human rights norms and standards. It requires, as well,
measures to ensure adherence to the principles of supremacy of law, equality before
the law, accountability to the law, fairness in the application of the law, separation of
powers, participation in decision-making, legal certainty, avoidance of arbitrariness
and procedural and legal transparency.

A rule of law framework includes the following:

– Constitution or its equivalent, as the highest law of the land

– A clear and consistent legal framework, and implementation thereof;
– Strong institutions of justice, governance, security and human rights that are
well structured, financed, trained and equipped;
– Transitional justice processes and mechanisms; and
– A public and civil society that contributes to strengthening the rule of law
and
– holding public officials and institutions accountable.

LEARNING TASK 1AND 2:

THREE INHERENT POWERS OF THE STATE

The totality of governmental power is contained in three great powers: police

power, power of eminent domain, and power of taxation. These powers are
considered inherent powers because they belong to the very essence of
government and without them, no government can exist. A Constitution can only
define and delimit them and allocate their exercise among various government
agencies. A Constitution does not grant them.

Police Power

establish all manner of wholesome and reasonable laws, statutes, ordinances,

either with penalties or without, not repugnant to the constitution, as they shall
judge to be for the good and welfare of the commonwealth, and the subjects
of the same.
welfare by restraining and regulating the use of
liberty and property.

three powers. The justification is found in the Latin maxims: salus populi est
suprema lex, and sic utere tuo ut alienum non laedas. (The welfare of the
people is the supreme law; one should use his own property in a manner in
such a manner as not to injure that of another.)
Scope: Police power rests upon public necessity and upon the right of the state
and of the public to self-protection. For this reason, its scope expands and
contracts with changing needs.

Power of Eminent Domain (See discussion under Article 3, Section 9)

power of the state to take (or expropriate) private property for public use
upon paying to the owner a just compensation to be ascertained according
to law.

Power of Taxation

property rights, for the use and support of the government and to enable it to
discharge its appropriate functions.
 INTRODUCTION TO CONSTITUTIONAL PROVISIONS RELATIVE TO THE TOURISM AND
HOSPITALITY INDUSTRY

Learning Objectives:
At the end of the course the students should be able to:
1. Define the Constitution
2. Learn the relevance of the constitution’s supremacy
3. Differentiate the three inherent powers of the state
4. Learn the following:
a) Due process law and equal protection of law
b) Right to privacy
c) Freedom of speech
d) Liberty of abode and the right to travel
e) Right to strike
f) Non-impairment clause
5. Apply the rights under Article III, 1987 Constitution in the lives of the students, as
well as in their profession
6. Discuss relevant jurisprudence in relation to the above-mentioned topics that are
specifically related to the hospitality industry

A. Definition of the Constitution and its Supremacy

1. Definition: The Constitution is the body of rules and maxims in accordance with
which the powers of sovereignty are habitually exercised.
2. Purpose:
a. To prescribe the permanent framework of a system of government;
b. To assign to the several departments their respective power and duties;
c. To establish certain first principles on which the government is founded.
3. Effect if an act is not in accordance with the constitution
– An unconstitutional act is not a law; it confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is inoperative as if it
had not been passed at all. (See Art 7 Civil Code)

B. Article III, Bill of Rights of the 1987 Constitution and its Applications

 Definition of Bill of rights – It may be defined as a declaration and enumeration of

a person’s right and privileges which the constitution is designed to protect
against violations by the government or by an individual or groups of individuals.\
-Example: right to receive a minimum wage and the right to adopt a child
of an unrelated person.

 Classes of Rights
1. Natural Rights are rights possess by every citizen without being granted by the
state for they are given to man by God as human being created to his image.
2. Constitutional Rights are rights which are conferred by the constitution.
 3. Statutory Rights are rights which are provided by laws by the law making body
and consequently maybe abolish by the same body.

 Classification of Constitutional Rights

1. Political Rights give the citizen the power to participate directly or indirectly.
2. Civil Rights are rights which the law enforces. This includes the rights to due
process and equal protection of the law.
3. Social and Economic Rights includes the rights which are intended to insure the
well- being and economic security of the individual.
4. Rights of the Accused are civil rights intended for the protection of the person
accused
of any crime, such as the right to presumption of innocence.

 Significance of the Bill of Rights

-Government is powerful. When unlimited, it becomes tyrannical. The Bill of Rights
is a guarantee that there are certain areas of a person’s life, liberty, and property
which governmental power may not touch.

A. Article III, 1987 Constitution – Section 1 (Due Process of Law and Equal Protection of
Law)

Section 1
No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.

Two aspects of due process

1. Substantive: As a substantive requirement, it is a prohibition of arbitrary laws.
2. Procedural: As a procedural requirement, it relates chiefly to the mode of
procedure which government agencies must follow in the enforcement and
application of laws. Its essence was expressed by Daniel Webster as a law which
hears before it condemns.
o Due process is not necessarily judicial process. It can be administrative.
o The requirement of substantive due process is not a rigid concept. The
heart of substantive due process is the requirement of reasonableness or
absence of exercise of arbitrary power.

Equal protection of laws

 The equal protection clause guarantees legal equality or the equality of all
persons before the law.
 The guaranty of the equal protection of the laws is not violated by a legislation
based on reasonable classification. The classification to be reasonable:
(1) must rest on substantial distinctions;
(2) must be germane to the purpose of the law;
(3) must not be limited to existing conditions only; and
(4) must apply equally to all members of the same class.
B. Article III, 1987 Constitution – Section 3 (Right to Privacy)

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.

Basic Concepts
1. The privacy of communication and correspondence covers letters, messages,
telephone calls, telegrams, and the like.
2. For the court to allow intrusion into the privacy of communication and
correspondence, the requirement of probable cause in Sec 2, Art 3 must be
followed. The privacy right is but an aspect of the right to be secure in one’s
person.
3. Requisites when intrusion is made without judicial order:
a. It would have to be based upon a government official’s assessment that public
safety and order demand such intrusion;
-Public order and safety were defined as the security of human lives, liberty,
and property against the activities of invaders, insurrectionists, and rebels.
b. The discretion of the public officer, moreover, must be exercised as prescribed
by law.
-The exercise of this power by an executive officer is subject to judicial review.
c. Other than the President, other executive officers should first be properly
authorized.
- To hold otherwise would be to opt for a government of men and not of laws.
Every police agent would feel authorized to snoop.
4. The right to privacy of communication and the inadmissibility of evidence was
applied to evidence taken by the wife.
5. The defense of inadmissibility of evidence under Sec 3(2) is purely personal.
6. In the absence of governmental interference, the constitutional right against
unreasonable search and seizure cannot be invoked against the State. The
protection against unreasonable search and seizure cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged
intrusion by the government.

C. Article III, 1987 Constitution – Section 4 (Freedom of Speech)

Section 4
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.

 Speech, expression, and press include every form of expression, whether

oral, written, tape or disc recoded. It also includes movies as well as what
is referred to as symbolic speech such as wearing of arm band as a
 symbol of protest. Peaceful picketing had also been included within the
meaning of speech.

Basic Prohibitions of the Free Speech and Press Clause

1. Prior restraint
-It means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination.
Examples: (1) movie censorship, although not placed on the same level as
press censorship;
(2) judicial prior restraint which takes the form of an injunction against
publication.
2. Subsequent punishment
This has the effect of unduly curtailing expression. For indeed, if prior
restraint were all that the constitutional guarantee prohibited and government
could impose subsequent punishment without restraint, freedom of expression
would be a mockery and delusion.

Standards/Tests for allowable subsequent punishment of expression:

 Dangerous tendency test
Speech may be curtailed or punished when it creates dangerous tendency
which the State has a right to prevent. All that it requires, for speech to be
punishable, is that there be a rational connection between the speech and
the evil apprehended.
Example: If the intention and effect is seditious

 Clear and present danger test

Whether the words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of
proximity and degree.
In each case, courts must ask whether the gravity of the evil, discounted by
its improbability, justified such invasion of free speech as is necessary to avoid
the danger.

 Balancing of interest test

It rests on the theory that it is the Court’s function in the case before it when it
finds public interests served by legislation on the one hand and constitutional
freedoms affected by it on the other, to balance the one against the other
and to arrive at a judgment where the greater weight shall be placed.
It rests on the basis that constitutional freedoms are not absolute and that
they may be abridged to some extent to serve appropriate and important
interests.

Unprotected speech
Libel
Under Article 353 of the Philippines Revised Penal Code, libel is
defined as “a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status or
 circumstance tending to cause dishonor, discredit or contempt of a
natural or juridical person, or to blacken the memory of one who is dead.”
As is in the in nearly every other country, in the Philippines, slander is
spoken, defamation and libel is written defamation.

D. Article III, 1987 Constitution – Section 6 (Liberty of Abode and the Right to Travel)

Section 6
The liberty of abode and of changing the same within the limits prescribed by law shall not
Liberty guaranteed
be impaired except upon lawful order of the court. Neither shall the right to travel be
1. Freedom
impaired except to
in choose and
the interest of change one’s place
national security, publicofsafety,
abode; or public health, as may
2. Freedom to
be provided by law. travel within the country and outside.

1. Liberty of abode may be impaired only upon lawful order of the court and
within the limits prescribed by law. The right to travel, however, may be
curtailed even by administrative authorities, such as passport officers, in the
interest of national authority, public safety or public health and as may be
provided by law.
2. A court may prevent a person admitted to bail from leaving the country. This is
a necessary consequence of the function of a bail bond which is to secure a
person’s appearance when needed.
 Art III, Sec 6 should by no means be construed as delimiting the inherent
power of the courts to use all means necessary to carry their orders into
effect in criminal case pending before them. When by law, jurisdiction is
conferred on a court or judicial officer, all auxiliary writs, process and other
means necessary to carry it into effect may be employed by such court or
judicial officer.

E. Article III, 1987 Constitution – Section 8 (Right to Strike)

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.

Basic concepts
1. All these means is that the right to form associations shall not be impaired without
due process of law. It is therefore an aspect of the general right of liberty. More
specifically it is an aspect of freedom of contract; and in so far as associations may
have for their object the advancement of belief and ideas, freedom of association
is an aspect of freedom of expression and of belief.
2. The guarantee also covers the right not to join an association.

F. Article III, 1987 Constitution – Section 10 (Non-Impairment Clause)

Section 10, No law impairing the obligation of contracts shall be passed

 Instances when a law may be said to have impaired the obligations of contracts:
1. When it changes the terms of legal contract between parties, either in the time
or mode of performance;
2. When it imposes new conditions;
3. When it dispenses with those expressed;
4. When it authorizes for its satisfaction something different from that provided in its
terms.