Foreign citizens and the Bill of Rights in the Philippine Constitution

by | Sep 18, 2016 | Other Practice Areas, Constitutional Law

Are aliens in the Philippines entitled to the protections of Article III, the Bill of Rights under the 1987 Constitution?

Yes. The Bill of Rights in our Constition generally applies to both aliens and citizens, thus the rights to due process and the rights of an accused under Article III of the 1987 Constitution are granted to a foreigner in the Philippines. However, jurisprudence has recognized citizenship as a valid legal ground for classification (say for economic policies, for restricting the practice of professions and for the exercise of political rights).

People vs. Chan Fook

The Supreme Court was emphatic about the rights of an alien accused as early as 1921. In People vs. Chan Fook, an alien was acquitted of the crime of resistance and disobedience to the public authority because the Supreme Court ruled that Chan Fook had rightly resisted an unlawful and warrantless search of his person by a public officer acting without authority. This notwithstanding that Chan Fook had grappled with and struck a customs agent in the stomach!

The Supreme Court ruled:

That foreigners in the Philippines are entitled to the benefits of the individual rights secured by the Philippine Bill is undeniable. In the case of Kepner vs. U. S. (195 U. S., 100), the Supreme Court said:

When Congress came to pass the Act of July 1, 1902, it enacted, almost in the language of the President’s instructions, the Bill of Rights of our Constitution. In view of the expressed declarations of the President, followed by the action of Congress, both adopting, with little alternation, the provisions of the Bill of Rights, there would seem to be no room for argument that in this form it was intended to carry to the Philippine Islands those principles of our government which the President declared to be established as rules of law for the maintenance of individual freedom, at the same time expressing regret that the inhabitants of the Islands had not therefore enjoyed their benefit.

And according to the principles underlying the Constitution, as extended to the Philippine Islands by the President’s instructions to the Commission and by the Philippine Bill, foreigners are entitled to the protection of their life, liberty, and property. In the case of Yick Wo vs. Hopkins (118 U. S., 356, 369), Justice Matthews says:

The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any State deprive any person of life, liberty, or properly without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.

In view of the foregoing, the judgment appealed from is reversed, and the accused must be, and is hereby, acquitted with the costs de oficio. So ordered.

Secretary of Justice vs. Lantion

In his concurring opinion to the case Secretary of Justice vs. Lantion, which involved an extradition request by the United States, Justice Leonardo Quisumbing wrote that the constitutional guarantees to persons, whether citizen or alien — including the rights of an accused under the Bill of Rights — should take precedence over even treaty rights claimed upon the Philippines by a contracting state.

The human rights of [a] person, whether citizen or alien, and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. Stated otherwise, the constitutionally mandated duties of our government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land.

Commissioner Andrea D. Domingo, Bureau of Immigration vs. Herbert Markus Emil Scheer

In Commissioner Andrea D. Domingo, Bureau of Immigration vs. Herbert Markus Emil Scheer, the Supreme Court struck down the actions of the Bureau of Immigration for violating a resident alien’s right to due process:

The respondent was not afforded any hearing at all. The BOC simply concluded that the respondent committed insurance fraud and illegal activities in Palawan without any evidence. The respondent was not afforded a chance to refute the charges. He cannot, thus, be arrested and deported without due process of law as required by the Bill of Rights of the Constitution. In Lao Gi v. Court of Appeals, we held that:

Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of such person to due process should not be denied. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal procedure are applicable to deportation proceedings.

It must be noted that the respondent was a permanent resident before his passport expired on July 2, 1995. In Chew v. Colding, the United States Federal Supreme Court ruled:

It is well established that if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law. Although it later may be established, as respondents contend, that petitioner can be expelled and deported, yet before his expulsion, he is entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal. Although Congress may prescribe conditions for his expulsion and deportation, not even Congress may expel him without allowing him a fair opportunity to be heard.

As Mr. Justice Murphy said in his concurring opinion in Bridges v. Wixon:

The Bill of Rights belongs to them as well as to all citizens. It protects them as long as they reside within the boundaries of our land. It protects them in the exercise of the great individual rights necessary to a sound political and economic democracy.

According to Vattal, an alien who is a permanent resident in a country is a member of the new society, at least as a permanent inhabitant, and is a kind of citizen of inferior order from the native citizens; but is, nevertheless, limited and subject to the society, without participating in all its advantages. Sir Robert Philconse called them de facto, though not de jure citizens of the country of their domicile.

Such permanent resident may be classified as a denizen, a kind of middle state between alien and a natural-born subject and partakes of both. Paraphrasing Justice Brewer in his dissenting opinion in Fong Yue Ting v. United States, when the right to liberty and residence is involved, some other protection than the mere discretion of the petitioner or the BOC is required. We recall the warning of the United States Supreme Court in Boyd v. United States:

Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to a gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.

In sum, the arrest and detention of the respondent and his deportation under the Summary Deportation Order of the BOC for insurance fraud and illegal activities in Palawan violated his constitutional and statutory rights to due process.

Forbes vs. Chuoco Tiaco

This 2004 case bears comparison with Forbes vs. Chuoco Tiaco (1910), in which a Chinese businessman, a resident with family in the Philippines after three decades, was deported by the colonial American Governor General. Chuoca Tiaco sued Governor Forbes on the claim of a violation of his right to due process.

The Supreme Court cited the doctrine of the political question in deferring to the judgment of the Governor General on what sort of due process Chuoca Tiaco was entitled to.

It has been repeatedly decided when a government is dealing with the political rights of aliens that it is not governed by that “due process of law” which governs in dealing with the civil rights of aliens. For instance, the courts of the United States have decided that in the deportation of an alien he is not entitled to right of trial by jury, the right of trial by jury being one of the steps in the “due process of law” in dealing with civil rights. (Fong Yue Ting vs. U. S., 149 U. S. 698; U. S. vs. Wong Dep Ken, 57 Fed. Rep., 206; U. S. vs. Wong Sing, 51 Fed. Rep., 79; In re Ng Loy Hoe, 53 Fed. Rep., 914.)

In the case of Moyer vs. Peabody, Governor of Colorado (212 U. S. , 78), Mr. Justice Holmes, speaking for the court upon the question of what is “due process of law,” said:

But it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation…

In Forbes, the Supreme Court ruled that the due process requirements for valid deportation cases against aliens are not the same as the due process requirements in other classes of cases.

In contrasting Commissioner vs. Scheer with Forbes, it can be argued that the former was struck down because no process at all was followed while in Forbes such limited due process as an alien is entitled to in deportation proceedings was actually complied with. Nonetheless, the particular context of the century old Forbes case — a colonial government enjoying judicial deference in view of the political question — should be kept in mind.

Contrasts with US Jurisprudence

Speaking of contexts, Philippine jurisprudence on the Bill of Rights’ coverage of aliens has not encountered some of the issues which have vexed that of the United States. Historical experience has led the courts of the United States to deliberate on the scope of the Bill of Rights’ protections of aliens in contexts — social, economic, racial, or wartime — not experienced by the Philippines.

American jurisprudence has elaborations in which it treats “some aliens are more alien than others,” deliberating on aliens along a spectrum of from virtually no application of the Bill of Rights to full protection.

“The fundamental notion that increased ties to the polity of the United States would entitle an alien to better rights is deeply rooted in the jurisprudence. Ordinarily, these rights tend to strengthen as one moves from the beginning of the alienage spectrum, which might involve the most attenuated contact, as in the case of enemy aliens detained by United States military in a foreign land or an overseas visa applicant, to the end of the spectrum, which might involve a United States citizen. While this seems to make perfect sense, a closer examination of the century-old jurisprudence suggests that the spectrum itself is replete with inconsistencies and is utterly disordered.”

[T]here seems to be a deeply ingrained sense that the increasing closeness of an alien’s ties with the United States should afford greater entitlement to the Constitution’s protections,” but this apparent jurisprudential order has its dissonant notes, particularly in cases of illegal immigration and those involving the War on Terror.


Atty. Francesco C. Britanico


  1. Simply Politically Curious

    I would just like to ask. Are non-citizen foreigners barred from engaging in any political activities (like protesting and joining a party assembly)? If so, would that be a violation of the Bill of Rights?

    • Lawyers in the Philippines

      As seen above, the Supreme Court has distinguished the exercise of political rights from the rights due to a criminally accused, and has upheld citizenship as a valid basis for classification with regard to political rights.

  2. moot

    may i ask for a few of those jurisprudence which stated that citizenship is a valid classification for the exercise of political rights? thank you!

    • Lawyers in the Philippines

      Those cited in the article are a good starting point. You may likewise benefit from reading other cases citing these.



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