SolGen asks SC to junk petition vs. Boracay closure

In a 61-page comment, Solicitor General Jose Calida said the petition for prohibition and mandamus filed Mark Anthony Zabal and Thiting Jacosalem, represented by lawyer Angelo Karlo Guillen, of the National Union of People’s Lawyers (NUPL) Panay chapter must be dismissed due to lack of merit. (PNA file photo)

MANILA — The Office of Solicitor General (OSG) asked the Supreme Court to dismiss the petition filed by residents and workers in Boracay seeking to stop the closure of the island.

In a 61-page comment, Solicitor General Jose Calida said the petition for prohibition and mandamus filed Mark Anthony Zabal and Thiting Jacosalem, represented by lawyer Angelo Karlo Guillen, of the National Union of People’s Lawyers (NUPL) Panay chapter must be dismissed due to lack of merit.

The petitioners urged the High Court to nullify President Duterte’s Proclamation No. 475, which closed Boracay to tourists and non-residents from April 26 to Oct. 25. Petitioners said the proclamation violated the separation of powers as well as the rights to travel and due process.

The government closed Boracay to tourists last April 26 to fix its sewage system and address numerous environment-related problems.

The top government counsel argued that Proclamation No. 475 did not violate any provision of the 1987 Constitution as he rebutted the claims of petitioners that it violated the separation of powers, as well as the rights to travel and due process.

Calida said the President ordered the closure of Boracay pursuant to his power as chief executive under Sections 1 and 17, Article VII of the Constitution and declared Boracay under state of calamity upon recommendation by the National Disaster Risk Reduction and Management Council.

“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… 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,” read the comment.

“Had the President failed to act on the recommendation of the National Council to address the environmental disaster in Boracay, he would have violated his bounden duty under existing laws and the Constitution,” Calida added.

The Solicitor General pointed out that there is no usurpation of power on the part of the President because he is only implementing pertinent laws such as the 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,” the solicitor general argued.

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

He also debunked the claim of petitioners that their right to due process was violated by the closure order, saying the government’s police power superseded Zabal and Jacosalem’s right to their freelance jobs as sand-castle maker and tricycle driver in the island, respectively.

“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,” he explained.

“With the proper exercise of police power, petitioners cannot just conveniently invoke the due process clause of the Constitution and insist that every government action should be to their liking. Private ends should yield to the reasonable prerogatives of the State for public good and welfare,” Calida said.

Calida added that the petition should have been dismissed outright because its sole purpose is “harassing, vexing, putting undue pressure, or stifling any legal recourse that the respondents have taken or will take in the enforcement of environmental laws (o)n Boracay Island.”

Calida filed the comment to represent the respondents namely Executive Secretary Salvador Medialdea and Department of the Interior and Local Government OIC-Secretary Eduardo Año.

According to the petition, Zabal earns a living by making sand castles for tourists in the beaches of Boracay Island while Jacosalem works as a driver for tourists and workers on the island.

Also among the petitioners is Odon Bandiola, a resident of Aklan, who travels to Boracay for business and pleasure.

They questioned the authority of President Rodrigo Duterte to order the closure of the island to tourists and non-residents and accused him of violating constitutional rights to travel and due process.

The petitioners alleged that the order violated the separation of powers under the 1987 Constitution since the executive branch has no authority to exercise to close down the island based on its supposed police power.

Recently, Duterte said he is eyeing the creation of a committee that will identify the land owners of Boracay Island, which is currently undergoing rehabilitation.

“Now the problem is how to determine who owns what. There has to be a committee to be fair to everybody. From the local government then from the origins of any title there,” Duterte said.

Upon Duterte’s orders, the government closed Boracay to tourists on April 26. It is set to re-open on October 26.

Duterte, meanwhile, declared the entire Boracay Island as a land reform area last May 30.

Macau-based Galaxy Entertainment Group and its Filipino partner, AB Leisure Exponent Inc., earlier revealed a plan to build a USD500-million integrated resort-casino complex on a 23-hectare property in Barangay Manoc-Manoc on Boracay Island.

Malacañang, however, assured that all investments are still welcome in Boracay Island except casinos.