Gov’t lawyers ask SC to dismiss order vs Boracay closure

Published August 21, 2018, 8:30 PM

by Roel Tibay

By Rey Panaligan

Government lawyers have asked the Supreme Court (SC) to dismiss the petition that challenged President Duterte’s Proclamation No. 475 which ordered the closure of Boracay Island for six months from April 26 to October 25 this year.

WHAT'S AT THE END OF THE RAINBOW? — Residents, business owners, and transient workers share feelings of despair, uncertainty, and hope ahead of the closure of Boracay Island on April 26. (Tara Yap)
Boracay Island

The Office of the President had earlier said the closure of Boracay was for the purpose of rehabilitating the island. An inter-agency task force had been formed to implement the six-month rehabilitation work.

Led by Solicitor General Jose C. Calida, the lawyers told the SC that the proclamation did not violate the Constitution, particularly on the rights to travel and due process.

Calida said the President ordered the closure of Boracay Island to tourists and non-residents in the exercise of his power as Chief Executive under Sections 1 and 17, Article VII of the Constitution.

He said a state of calamity was declared in Boracay Island on recommendation done by the National Disaster Risk Reduction and Management Council (NDRRMC).

“In this case, the situation in Boracay Island called for a strong and urgent measure to address the human-induced hazards that have caused the degradation of Boracay Island’s eco-system…,” Calida said.

“Evidently, Proclamation No. 475 is nothing more that the President’s exercise of his power of control over the executive branch of government, especially in addressing the state of calamity in Boracay Island,” he stressed in his comment that was required by the SC.

At the same time, Calida pointed out that “had the President failed to act on the recommendation of the NDRRMC to address the environmental disaster in Boracay, he would have violated his bounden duty under existing laws and the Constitution.”

With the filing of the comment, the SC was asked to dismiss the petition and supplemental petition filed last April and June, respectively, by Mark Anthony Zabal, Thiting Estoso Jacosalem and Odeon Bandiola for lack of merit.

Despite the plea for a temporary restraining order (TRO) that could have stopped the six-month closure of Boracay Island, the SC did not issue the injuctive writ in favor of the petition. The SC merely required the filing of comment on the part of the government.

The petition filed through the National Union of Peoples’ Lawyers (NUPL), alleged that the closure order was a violation of the workers’ constitutional rights.

It said that the closure of Boracay to tourists and non-residents violates the peoples’ right to travel guaranteed under Section 6, Article III of the 1987 Constitution.

“Imposing restrictions upon persons visiting Boracay Island or depriving persons earning a living therein, even though they have not been found guilty of violating environmental laws, is arbitrary, whimsical, and unreasonable intrusion into individual rights, and a violation of the right to due process,” it stressed.

It pointed out that any order of the President “whether verbal or written that curtails or limits the enjoyment of fundamental rights can never be valid and must be struck down by the courts if it finds no statutory or constitutional basis.”

The Boracay Island workers “have been earning less and less ever since the government declared that it would close the island, and if it is closed to tourists, we lose our sources of income, and we would not be able to feed our families,” it added.

In the government’s comment, Calida also said the President did not usurp legislative power in issuing the proclamation.

As a matter of fact, Calida said, there was no conflict with Congress as the President was “merely implementing the policies laid out by the Legislative Department in various pertinent laws” like Philippine Clean Water Act, Solid Waste Management Act, and Philippine Disaster Risk Reduction and Management Act.

“It cannot be overemphasized therefore that the issuance of Proclamation No. 475 is within the ambit of the powers of the President and not contrary to the doctrine of separation of powers and the mechanisms laid out by the people through the Constitution,” he said.

On the right to travel, Calida said the mandate in the Constitution is not absolute since it provides exceptions in cases of “national security, public safety or public health,” which apply to Boracay Island.

On due process, Calida said: “Petitioners are not vested with any permanent right within the purview of the due process clause of the Constitution, since the State, under its all-encompassing police power, may alter, modify or amend the same, in accordance with the demands of the general welfare.”