Tag: #Boracayrehabilitation

ZABAL et. al. vs. RODRIGO R. DUTERTE, President of the Republic of the Philippines; et. al
G.R. No. 238467 February 12, 2019
DEL CASTILLO, J. https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/64872

Facts
• Claiming that Boracay has become a cesspool, President Duterte stated that he would place Boracay under a state of calamity and order the total closure of Boracay would be for a maximum period of six months.
• Following this pronouncement, petitioners contend that around police and military personnel were readily deployed to Boracay including personnel for crowd dispersal management. They also allege that the DILG had already released guidelines for the closure.
• Petitioners claim that ever since the news of Boracay’s closure came about, fewer tourists had been engaging the services of Zabal and Jacosalem such that their earnings were barely enough to feed their families. They fear that if the closure pushes through, they would suffer grave and irreparable damage. Hence, despite the fact that the government was then yet to release a formal issuance on the matter, petitioners filed the petition for TRO, Writ of PI of the said closure; In the alternative, if the respondents enforce the closure after the instant petition is filed, that a STATUS QUO ANTE Order; and to DECLARING the closure of Boracay Island or the ban against petitioners, tourists, and non-residents therefrom to be UNCONSTITUTIONAL.
• President Duterte issued Proclamation No. 475 formally declaring a state of calamity in Boracay and ordering its closure for six months from April 26, 2018 to October 25, 2018. The closure was implemented on even date.

https://www.officialgazette.gov.ph/2018/04/26/proclamation-no-475-s-2018/
• Petitioner’s Argument
o An action for mandamus, on the other hand, lies against a respondent who unlawfully excludes another from the enjoyment of an entitled right or office.
o President Duterte acted within the scope of the powers granted him by the Constitution in ordering the closure of Boracay and the measures implemented infringe upon the constitutional rights to travel and to due process of petitioners as well as of tourists and non-residents of the island.
o President Duterte exercised a power legislative in nature, thus unlawfully excluding the legislative department from the assertion of such power.
o The President does not wield the power of control over LGUs. As such, President Duterte can only call the attention of the LGUs concerned with regard to rules not being followed, which is the true essence of supervision, but he cannot lay down the rules himself as this already constitutes control.

ISSUES	RATIONALE
Whether mandamus is the proper remedy of petitioners. (No – but due to the transcendal importance of the case, the Court resolved to decide on the case)	“Legal standing or locus standi is a party’s personal and substantial interest in a case such that he has sustained or will sustain direct injury as a result of the governmental act being challenged. There must be a present substantial interest and not a mere expectancy or a future, contingent, subordinate, or consequential interest. s solely on tourist arrivals, were affected by the closure. Zabal is a sandcastle maker and Jacosalem, a driver. The nature of their livelihood is one wherein earnings are not guaranteed. Clearly, therefore, what Zabal and Jacosalem could lose in this case are mere projected earnings which are in no way guaranteed, and are sheer expectancies characterized as contingent, subordinate, or consequential interest.
Is the Defense of SLAPP valid. (No)	While this case touches on the environmental issues in Boracay, the ultimate issue for resolution is the constitutionality of Proclamation No. 475. The procedure in the treatment of a defense of SLAPP provided for under Rule 6 of the Rules of Procedure for Environmental Cases should not, therefore, be made to apply. It must be noted at the outset that petitioners failed to present and establish the factual bases of their arguments because they went directly to this Court. In ruling on the substantive issues in this case, the Court is, thus, constrained to rely on, and uphold the factual bases, which prompted the issuance of the challenged proclamation, as asserted by respondents.
Whether Proclamation No. 475 constitute an impairment on the right to travel. (No)	The impact of Proclamation No. 475 on the right to travel is not direct but merely consequential; and, the same is only for a reasonably short period of time or merely temporary. Any bearing that Proclamation No. 475 may have on the right to travel is merely corollary to the closure of Boracay and the ban of tourists and non-residents therefrom which were necessary incidents of the island’s rehabilitation.
Whether Proclamation No. 475 must be upheld for being in the nature of a valid police power measure. (Yes)	The ‘state authority to enact legislation that may interfere with personal liberty or property in order to promote general welfare.” “As defined, it consists of (1) imposition or restraint upon liberty or property, (2) in order to foster the common good. That the assailed governmental measure in this case is within the scope of police power cannot be disputed. Verily, the statutes  from which the said measure draws authority and the constitutional provisions  which serve as its framework are primarily concerned with the environment and health, safety, and well-being of the people, the promotion and securing of which are clearly legitimate objectives of governmental efforts and regulations. The motivating factor in the issuance of Proclamation No. 475 is without a doubt the interest of the public in general.
Whether Petitioners have vested rights on their sources of income as to be entitled to due process. (None)	A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong. Zabal and Jacosalem, cannot be said to have already acquired vested rights to their sources of income in Boracay. As heretofore mentioned, they are part of the informal sector of the economy where earnings are not guaranteed. It is merely an inchoate right or one that has not fully developed and therefore cannot be claimed as one’s own. An inchoate right is a mere expectation, which may or may not come into fruition.
Whether the Presidents intrude into the autonomy of the concerned LGUs. (No)	Contrary to petitioners’ argument, RA 10121 recognizes and even puts a premium on the role of the LGUs in disaster risk reduction and management as shown by the fact that a number of the legislative policies set out in the subject statute recognize and aim to strengthen the powers decentralized to LGUs. This role is echoed in the questioned proclamation. The fact that other government agencies are involved in the rehabilitation works does not create the inference that the powers and functions of the LGUs are being encroached upon.

Further Discussions:
a. On Mandamus
Four exacting requisites for the exercise of the power of judicial review, viz.:
(a) there must be an actual case or controversy;
(b) the petitioners must possess locus standi;
(c) the question of constitutionality must be raised at the earliest opportunity; and
(d) the issue of constitutionality must be the lis mota of the case.

b. Strategic Lawsuit Against Public Participation (SLAPP) under Rule 6 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases https://lawphil.net/courts/supreme/am/am_09-6-8-sc_2010.html

• a legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights.
  Section 6. Service of the complaint on the government or its agencies. – Upon the filing of the complaint, the plaintiff is required to furnish the government or the appropriate agency, although not a party, a copy of the complaint. Proof of service upon the government or the appropriate agency shall be attached to the complaint.

c. The ‘state authority to enact legislation that may interfere with personal liberty or property in order to promote general welfare.” “As defined, it consists of:
(1) imposition or restraint upon liberty or property,
(2) in order to foster the common good.

d. vested property rights – A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong.

e. Republic Act 10121- “Philippine Disaster Risk Reduction and Management Act of 2010”https://www.officialgazette.gov.ph/2010/05/27/republic-act-no-10121/

f. Metropolitan Manila Development Authority vs. Concerned Residents of Manila Bay – The Court called out the concerned government agencies for their cavalier attitude towards solving environmental destruction despite hard evidence and clear signs of climate crisis. It equated the failure to put environmental protection on a plane of high national priority to the then lacking level of bureaucratic efficiency and commitment. Hence, the Court therein took it upon itself to put the heads of concerned department-agencies and the bureaus and offices under them on continuing notice and to enjoin them to perform their mandates and duties towards the clean-up and/or restoration of Manila Bay, through a “continuing mandamus.”https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/48335