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CLAUSE
As used in the impairment clause, "law" includes
statutes enacted by the national legislature, executive
"No law impairing the obligation of contracts shall
orders and administrative regulations promulgated
be passed." – ART III, Sec. 10, 1987 Constitution
under a valid delegation of power, and municipal
ordinances passed by the local legislative bodies.
Purpose of the Impairment Clause: “to safeguard the
However, it does not include judicial decisions or
integrity of valid contractual agreements against
adjudications made by administrative bodies in the
unwarranted interference by the State” As a rule,
exercise of their quasi-‐judicial powers.
they should be respected by the legislature and not
tampered with by subsequent laws that will change To impair, the law must retroact so as to affect existing
the intention of the parties or modify their rights and contracts concluded before its enactment.
obligations. The will of the obligor and the obligee
must be observed; the obligation of their contract There will be no impairment if the law is made to
must not be impaired. operate prospectively
only, to cover contracts entered
into after its enactment.
It should be stressed at the outset, however, that the
protection of the impairment clause is not absolute. Obligation
There are instances, as will appear later, when
contracts valid at the time of their conclusion may The "obligation" of the contract is the vinculum juris,
become invalid, or some of their provisions may be i.e., the tie that binds the parties to each other. "The
rendered inoperative or illegal, by virtue of obligation of a contract is the law or duty which binds
supervening legislation. the parties to perform their undertaking or agreement
according to its terms and intent."
Contract
Impairment
The term "contract" as used in the impairment clause
refers to any lawful agreement on property or property Impairment is anything that diminishes the efficacy of
rights, whether real or personal, tangible or intangible. the contract. The degree of the diminution is
The agreement may be executed or executory. The immaterial. As long as the original rights of either of
parties may be private persons only, natural or the parties are changed to his prejudice, there is an
artificial, or private persons on the one hand and the impairment of the obligation of the contract.
government or its
agencies on the other hand. It
includes franchises or charters granted to private Remedies: There will be impairment only if all of
persons or entities, like an authorization to operate a them are withdrawn, with the result that either of the
public utility. parties will be unable to enforce his rights under the
original agreement. No impairment as long as
But it does not cover licenses (Pedro v. Prov. Board of substantial and efficacious remedy remains. This holds
Rizal, 53 Phil. 123; according to Tan v. Director of true even if the remedy retained is the most difficult to
Forestry, 125 SCRA 302, "a license is merely a permit or employ.
privilege to do what otherwise would be unlawful and is
not a contract with the government."), say for operation Limitations:
of a liquor store or a cockpit, as these involve grants of
Proper exercise of the police power will prevail over
privileges only that are essentially revocable. Neither
does it include the marriage contract, which, more the contract. Into each contract are read the provisions
of existing law and, always, a reservation of the police
than a mere agreement between the spouses, is
power as long as the agreement deals with a matter
regarded as a social institution subject at all times to
regulation by the legislature and to change of the affecting the public welfare.
original conditions. Thus, a subsequent law allowing
Stone vs. Mississippi -‐ a franchise granted by the
divorce would be applicable to marriages previously
government in exchange for valuable consideration,
solemnized under a law prohibiting their dissolution.
for the operation of a lottery by a private corporation,
was in effect revoked when the legislature
subsequently imposed a prohibition on all kinds of
gambling within the state. The measure was sustained
although the term of the franchise had not yet expired.
Gold Clause Cases -‐ the creditors in many contracts of stipulated condition but the respondent invoked a
loan, anticipating a change in the legal tender from resolution adopted by the municipal council of
gold to silver, stipulated with the borrowers that their Mandaluyong declaring the area in which the lots
loans would be repaid in gold currency even if the were located a commercial and industrial zone.
conversion did take place. As expected, the United
States ultimately converted to the silver standard, the The Supreme Court upheld the respondent, ruling
law providing for the discharge of existing money that the zoning resolution had been adopted in the
obligations through payment in the new legal tender exercise of the police power, which was superior to the
dollar for dollar. The creditors objected, claiming an impairment clause and so could modify the provisions
impairment of the obligation of their contracts. The of the contract of sale.
U.S. Supreme Court sustained the law, holding that
the subject of the contract being currency, which was Lozano Case – Challenged BP 22 on the ground that it
within the exclusive power of the legislature to contravened with the impairment clause, Supreme
control, the agreement was subject to modification by Court rejected this challenge.
the State in the exercise of the police power.
‘We find no valid ground to sustain the contention that BP
Rutter vs. Esteban -‐ The Philippine government 22 impairs freedom of contract. The freedom of contract
which is constitutionally protected is freedom to enter into
declared, first by executive order of the President and
lawful' con tracts. Contracts which contravene public policy
later by congressional enactment, a moratorium on are not lawful. Besides, we must bear in mind that checks
the payment of pre-‐war debts until after eight years can not be categorized as mere contracts. It is a commercial
from the settlement of the war damage claims of the instrument which, in this modern day and age, has become
debtors. a convenient substitute for money, it forms part of the
banking system and therefore not entirely free from the
The law was annulled by the Supreme Court as regulatory power of the state.’
violative of the impairment clause. The Court declared
that, to begin with, the emergency caused by the war Tiro vs. Hontanotas -‐ Supreme Court declared that a
that earlier had justified the moratorium was no government directive which in effect discontinued the
longer existing. Secondly, the period was oppressively assignment of the salaries of public school teachers to
long, extending over a period of four years, when the their creditor was not offensive to the impairment
executive order was in force, and another eight years clause because the latter could still collect its loans
as provided under the law, during which the creditor after the salaries had been drawn by the employees
could not enforce his claim. Finally, during the themselves.
moratorium, all the rights of the creditors were
suspended, including the right to collect interest on Ganzon vs. Inserto -‐ it was held that the clause would
the principal of the loan as long as it remained unpaid. be violated by the substitution of a mortgage with a
The Court noted that in the United States, the usual surety bond as security for the payment of a loan as
period of moratorium did not extend beyond two this would change the terms and conditions of the
years and during this period all the rights of the original mortgage contract over the mortgagee's
creditor, except only the right to collect the principal objection. Remarkably, the change was made by a
of the loan, were continued in force. decision of the trial court, which is not supposed to be
covered by the term "law" as used in the impairment
Ilusorio v. Court of Agrarian Relations -‐ the issue was clause.
whether a pre-‐existing share tenancy contract could be
validly converted by the tenants into leasehold tenancy Article XII, Section 11, of the Constitution, it is
in accordance with the provisions of a subsequent law. provided that no franchise to operate a public utility
The Supreme Court held this was allowed because – shall be granted except under the condition that it
“…By enacting regulations reasonably necessary to shall be subject to "amendment, alteration or repeal
secure the health, safety, morals, comfort, or general by the Congress when the common good so
welfare of the community, even the contracts may requires"
thereby be affected; for such matter cannot be placed
by contract beyond the power of the State to regulate Other inherent powers, ED & T, may validly limit the
and control them.” impairment clause.
Ortigas & Co. vs. Feati Bank – Petitioner sold two lots. Long Island Water Supply Co. v. Brooklyn – private
On a condition that said lots be used for residential corporation contracted to supply a town with water for
purposes only. Respondent acquired said lot and 25 years. In sustaining the expropriation, the U.S.
erected a commercial building. The petitioner sought Supreme Court declared that "a contract is property
to restrain such construction on the strength of the and, like any other property, may be taken for public use
. . . subject to the rule of just compensation. The true (5) Every law which, assuming to regulate civil rights
view is that the condemnation proceedings do not and remedies only, in effect imposes a penalty or the
impair the contract, do not break its obligations, but deprivation of a right for something which when done
appropriate it, as they do the tangible property of the was lawful.
company, to public uses."
(6) Every law which deprives persons accused of crime
It has also been held that a “lawful tax” on a new of some lawful protection to which they have become
subject, or an increased tax on an old one, does not entitled, such as the protection of a former conviction
interfere
with a contract or impair its obligation or acquittal, or of a proclamation of amnesty.
within the meaning
of the Constitution.
Characteristics
On the other hand, where a law grants a tax exemption
in exchange for valuable consideration, such exemption It will appear from the above enumeration that to be
is considered a contract and cannot be repealed ex post facto, the law must (CRP): (1) refer to criminal
because of the impairment clause. All other tax matters; and (2) be retroactive in its application; (3) to
exemptions are not contractual and so may be the prejudice of the accused.
revoked at will by the legislature.
Republic vs. Fernandez -‐ the War Profits Tax Law
CHAPTER 15: EX-‐POST FACTO LAWS retroactively imposing taxes on properties and income
acquired during the Japanese Occupation was not an ex
post facto law as "the prohibition applies only to
"No ex post facto law or bill of attainder shall be en criminal or penal matters and not to laws which
acted." – Art. III, Sec. 22, 1987 Constitution concern civil matters or proceedings generally, or
which affect or regulate civil or private rights."
Ex Post Facto Law
Bayot vs. Sandiganbayan -‐ Where a law amending
The equivalent of impairment clause in criminal R.A. 3019 (Anti-‐Graft and Corrupt Practices Act)
matters is the prohibition against the passage of the provided for the suspension pendente lite (‘pending
ex post facto law. This is so because the ex post facto litigation’) of any public officer or employee accused of
law, like the law impairing the obligation of the offenses involving fraudulent use of public funds or
contract, operates retroactively to affect antecedent property, including those charged earlier, it was held
acts. A law can never be considered ex post facto as that the amendment was not ex post facto even if
long as it operates prospectively since its strictures applied retroactively because the suspension was not
would cover only offenses committed after and not punitive but merely preventive. P.D. No. 1606 itself,
before its enactment. Basically, an ex post facto law creating the Sandiganbayan, was held to be not a
is one that would make a previous act criminal penal law and therefore not ex post facto.
although it was not so at the time it was committed.
Similar rulings were made concerning habeas corpus
Kinds proceedings, and also the proclamation suspending
the privilege of the writ of habeas corpus.
More specifically, the following are considered ex post
facto laws: MACiARD US vs. Gomez Coronel -‐ an information for adultery
filed by the prosecutor was dismissed by the
(1) Every law that makes criminal an act done before
Supreme Court on the ground that at the time of the
the passage of the law and which was innocent when
alleged commission of the offense, prosecution could be
done, and punishes such an act.
commenced only on complaint of the offended spouse.
It was held that the amendatory law permitting the
(2) Every law that aggravates a crime, or makes it
prosecutor to initiate the charge was ex post facto.
greater than it was when committed.
People v. Vilo -‐ the Supreme Court sustained the
(3) Every law that changes punishment, and inflicts a
retroactive application to the accused of an
greater punishment than the law annexed to the crime
amendatory law allowing affirmation of the death
when committed.
sentence by only eight justices although unanimity
(4) Every law that alters the legal rules of evidence, was required when the crime was committed by the
and receives less or different testimony than the law defendant. The majority decided that the amendment
required at the time of the commission of the offense, was merely procedural in nature and so did not partake
in order to convict the offender. of the nature of an ex post facto law.
Even if the law be penal and retroactive, it will still not Bill of Attainder
be ex post facto if it does not operate to the
disadvantage of the accused Characteristics
Thus, a law reducing the penalty for murder from A bill of attainder is a legislative act that inflicts
death to life imprisonment, applied retroactively, will punishment without trial, its essence being the
benefit rather than prejudice the convict and so will be substitution of legislative fiat for a judicial
constitutional. determination of guilt. It is only when a statute
applies either to named individuals or to easily
People vs. Ferrer -‐ Supreme Court rejected the ascertainable members of a group in such a way as to
argument that the Anti-‐Subversion Act was inflict punishment on them without a judicial trial
unconstitutional on the ground inter alia that it that it becomes a bill of attainder.
punished past membership in the Communist Party
and other similarly-‐ oriented organizations. US vs. Lovett -‐ a law contained a provision prohibiting
payment from public funds of compensation to the
It declared that the prohibition applied only "to acts respondents, who were individually named therein,
committed 'after the approval of this Act.' Only except for jury or military service, unless they were
those who knowingly, willfully and by overt acts reappointed by the President with the advice and
affiliate themselves with, become or remain members consent of the Senate… "Section 304 thus clearly
of the Communist Party of the Philippines and/or its accomplished the punishment of named individuals
successors or of any subversive association' after June without judicial trial,"
20, 1957, are punished. Those who were members of
the Party or of any other subversive association at the Garner v. Board of Public Works of Los Angeles -‐ an
time of the enactment of the law were given the ordinance prohibited the employment by the City of
opportunity of purging themselves of liability by Los Angeles of any person who during the past five
renouncing in writing and under oath their years "advised, advocated or taught the overthrow of
membership in the Party. The law expressly provides the government of the United States or of California"
that such renunciation shall operate to exempt such or had been affiliated with any group doing such acts.
persons from penal liability."
The Act also required every incumbent employee to
Rodriguez v. Sandiganbayan -‐ PD 1606 creating this execute an affidavit stating "whether or not he is or
court was held not to be an ex post facto law ever was a member of the Communist Party of the
notwithstanding the petitioner's claim that he and his United States of America or of the Communist
witnesses, who were living in Cagayan de Oro, would Political Association, and if he is or ever was such a
be incurring tremendous expenses in coming to and member, stating the date when he became, and the
from his trial in Manila where the Sandiganbayan was period during which he was, such a member."
holding its hearings. The disadvantage or Challenged by seventeen employees who were
inconvenience was only "limited and unsubstantial," discharged for refusal to comply with the requirement,
according to Justice Escolin. the ordinance was sustained by the U.S. Supreme
Court.
Katigbak vs. Solicitor General – “The forfeiture of the
property provided for in Republic Act No. 1379 being in the “We think that a municipal employer is not disabled
nature of a penalty; … it fol lows that that penalty of because it is an agency of the State from inquiring of its
forfeiture prescribed by Republic Act No. 1379 cannot be employees as to matters that may prove relevant to their
applied to acquisitions made prior to its passage without fitness and suitability for the public service. Past conduct
running afoul of the Constitutional provision condemning may well relate to present fitness; past loyalty may have a
ex post facto laws or bills of attainder. But this is precisely reasonable relationship to present and future trust. Both are
what has been done in the case of the Katigbaks. The trial commonly inquired into a determining fitness for both high
court declared certain of their acquisitions in 1953, 1954 and and low positions in private industry and are not less
1955 to be illegal under Republic Act 1379 although made relevant in public employment. The affidavit requirement
prior to the enactment of the law, and imposed a lien is valid.
thereon in favor of the government in the sum of P100.000.
Such a disposition is constitutionally impermissible. “ Bills of attainder are legislative acts... that apply either to
named individuals or to easily ascertainable members of a
group in such a way as to inflict punishment on them
without a judicial trial... United States v. Lovett,
Punishment is a prerequisite. We are unable to conclude
that punishment is imposed by a general regulation which
merely provides standards of qualification and eligibility for
employment.”