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Boracay closure constitutional – SC


By Rey Panaligan 

The Supreme Court (SC) declared constitutional President Duterte’s Proclamation No. 475 which closed Boracay Island to tourists and non-residents for six months from April 26 to October 25 last year.

A Supreme Court source said the High Court voted 11-2 to dismiss the petition filed by three Boracay residents — Mark Anthony Zabal, Thiting Estoso Jacosalem and Odeon Bandiola – for lack of merit.

This photo taken on April 25, 2018 shows workers making a sand castle on Boracay island. (AFP PHOTO / NOEL CELIS / MANILA BULLETIN)

This photo taken on April 25, 2018 shows workers making a sand castle on Boracay island.

A copy of the decision was not immediately available.

The re-opening of Boracay Island on Oct. 26, 2018 could have made the petition moot and academic. But the SC decided to rule on the merits of the case, the source added.

The SC decision, in effect, upheld the position of the government that the six-month closure of Boracay Island did not violate the Constitution, particularly the rights to travel and due process.

Earlier, the Office of the President had said the closure of Boracay Island was for the purpose of rehabilitating the island. An inter-agency task force implemented the six-month rehabilitation work.

Solicitor General Jose C. Calida, the government’s chief lawyer, said the closure of Boracay Island was in line with the power of the President 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 than 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.

“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,” he added.

Implementing policies

At the same time, Calida said the President did not usurp legislative power in issuing the proclamation.

As a matter of fact, he 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 the Philippine Clean Water Act, Solid Waste Management Act, and the 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, he 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.”

In their petition, the three residents – through the National Union of Peoples’ Lawyers (NUPL) — alleged that the closure order was a violation of the workers’ constitutional rights.

They claimed 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,” they said.

They 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.”

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