Boracay workers appeal SC decision upholding island closure

Mike Navallo, ABS-CBN News

Posted at Mar 19 2019 05:27 PM

MANILA - A group of Boracay workers has urged the Supreme Court to reconsider its decision upholding the constitutionality of Presidential Proclamation No. 475, which ordered the closure of Boracay Island.

The high court last month voted 11-2 to declare valid President Rodrigo Duterte’s order to close the island from tourism activities for 6 months to make way for its rehabilitation.

The SC said Proclamation No. 475 did not pose an actual impairment of the right to travel because the impact of the order was only temporary and incidental to the intended rehabilitation. The Court also said it was a valid police power measure.

ACTUAL AND DELIBERATE IMPAIRMENT OF RIGHT TO TRAVEL

Boracay was reopened in October. 

In their motion for reconsideration filed on March 13, petitioners Mark Anthony Zabal, Thiting Jacosalem and Odon Bandiola said there was an “actual and deliberate impairment of the right to travel” citing the presence of police, armed forces and coast guard personnel stationed at entry points to the island.

“The impairment of the right to travel was all too real. That the closure lasted for only six months does not erase the fact that it actually happened. The temporary or fleeting nature of a violation of a constitutional right cannot be a reason to deny that there was, indeed, such a violation,” they said, claiming a violation of their right to travel under section 6, Article III of the 1987 Constitution.

Section 6 prohibits impairment of the right to travel “except in the interest of national security, public safety, or public health, as may be provided by law.”

Petitioners pointed out that there is no law restricting the right to travel on the said grounds.

They also questioned the high tribunal’s finding that Proclamation No. 475 is a valid police power measure, claiming that the exercise of police power belongs to Congress as the legislative body.

“[W]ithout a law providing for a delegation of legislative power in relation to a given subject matter, any order issued by the President, or any other officer of the executive department, under the guise of an exercise of police power is perforce null and void. It amounts to a usurpation of legislative authority insofar as it deals with matters that are properly the subject of legislation,” the motion said.

ACTUAL WORK AND DIRECT INJURY

The workers challenged Duterte's order a day before Boracay was closed to tourists last year, citing possible loss of livelihood. Petitioner Zabal is a sandcastle maker while Jacosalem is a driver.

Businesses in the area, which earlier lobbied for a phased rehabilitation, had warned that an abrupt shutdown could lead to bankruptcies and job losses for many of the island's 17,000 tourism workers and some 11,000 construction workers.

But the Supreme Court in its February decision ruled petitioners had no standing or locus standi to bring the case in court because their right to income from Boracay tourists were merely “inchoate” or one that has not fully developed.

Petitioners, in their motion, however, claimed direct injury and violation of their right to due process, saying they had “actual work” and that their ability to continue engaging in their respective trades were affected because of the absence of tourists.

While acknowledging the need to rehabilitate the island, they said the Court should not ignore the violation of their constitutional rights.

“An unconstitutional act is not validated by the existence of a legitimate objective. The constitutionality of any police power measure cannot be gauged solely by its ends,” they said.

DISSENTING OPINIONS

Among the 13 justices who voted on the Boracay petition, only Associate Justices Marvic Leonen and Alfredo Benjamin Caguioa dissented.

Caguioa called the proclamation a “constitutional shortcut” violating the rights to travel and due process, and without basis in any law.

“In a democratic state governed by the rule of law, fundamental rights cannot be traded in exchange for the promise of paradise. Without question, under the rule of law, the end does not, and can never ever, justify the means,” he said, claiming that the way the majority decision “prioritizes swiftness of action over the rule of law” leads to the very evil the Constitution sought to guard against – tyranny.

Leonen called the proclamation an “impermissible exercise of police power” because it was “unduly vague” and “unconstitutionally broad.” He warned, the Boracay closure “easily opens the slope for ecological authoritarianism.”

“Authoritarian solutions based on fear are ironically weak. We are still a constitutional order that will become stronger with a democracy participated in by enlightened citizens,” he said.

“Ours is not, and should never be, a legal order ruled by diktat,” he added.