Zabal vs.

Duterte (2019)

Summary Cases:

● Zabal vs. Duterte

Subject: Non-suability of an incumbent President (President Duterte is dropped as respondent);

Facts:

President Duterte ordered the shutting down of the Boracay island in a cabinet meeting held on April 4,
2018. Following this pronouncement, around 630 police and military personnel were deployed to
Boracay for crowd dispersal management. The DILG had also released guidelines for the closure

This caused petitioners Zabal, Jacosalem, and Bandiola to file a Petition for Prohibition and Mandamus
against respondents President Duterte, Executive Secretary Salvador Medialdea, and DILG Secretary
Eduardo Año.

Zabal claims to build sandcastles for tourists while Jacosalem drives for tourists and workers in the
Boracay island. While not a resident, Bandiola claims to occasionally visit Boracay for business and
pleasure. The three base their locus standi on direct injury and also from the transcendental importance
doctrine.

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.

The day following the filing of their original petition, 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. On October 26, 2018, Boracay
was reopened to tourism.

Held:

Non-suability of an incumbent President (President Duterte is dropped as respondent)

1. President Duterte must be dropped as respondent in this case. In Professor David vs. President
Macapagal-Arroyo, on the non-suability of an incumbent President, the Court ruled: “Settled is the
doctrine that the President, during his tenure of office or actual incumbency, may not be sued in
any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations
while serving as such. Furthermore, it is important that he be freed from any form of harassment,
hindrance or distraction to enable him to fully attend to the performance of his official duties and
functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and
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anything which impairs his usefulness in the discharge of the many great and important duties imposed
upon him by the Constitution necessarily impairs the operation of the Government.”

Propriety of Prohibition and Mandamus

2. Under Section 2, Rule 65 of the Rules of Court, prohibition is a preventive remedy seeking that a
judgment be rendered directing the defendant to desist from continuing with the commission of an act
perceived to be illegal. As a rule, the proper function of a writ of prohibition is to prevent the performance
of an act which is about to be done.

3. Under Section 3 of Rule 65 of the Rules of Court, mandamus will lie if the tribunal, corporation, board,
officer, or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting
from an office, trust, or station.

4. Respondents maintain that prohibition is not proper in this case because the closure of Boracay is
already a fait accompli. Neither is mandamus appropriate since there is no neglect of duty on their part
as they were precisely performing their duty to protect the environment when the closure was ordered.

5. However, the use of prohibition and mandamus is not merely confined to Rule 65. These
extraordinary remedies may be invoked when constitutional violations or issues are raised. It
must be stressed, though, that resort to prohibition and mandamus on the basis of alleged constitutional
violations is not without limitations. It is not enough that this petition mounts a constitutional challenge
against Proclamation No. 475. It is likewise necessary that it meets the requisites for the exercise of the
power of judicial review before the Court sustains the propriety of the recourse.

6. The petition must be subjected to the 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 i
ssue of constitutionality must be the lis mota of the case.

Actual case or controversy

7. In La Bugal-B 'laan Tribal Association, Inc. vs. Sec. Ramos, an actual case or controversy was
characterized as a "case or controversy that is appropriate or ripe for determination, not conjectural or
anticipatory, lest the decision of the court would amount to an advisory opinion. The power does not
extend to hypothetical questions since any attempt at abstraction could only lead to dialectics and barren
legal question and to sterile conclusions unrelated to actualities."

8. The existence of an actual controversy in this case is evident. President Duterte issued Proclamation
No. 475 on April 26, 2018 and, pursuant thereto, Boracay was temporarily closed the same day. Entry of
non-residents and tourists to the island was not allowed until October 25, 2018. Certainly, the
implementation of the proclamation has rendered legitimate the concern of petitioners that constitutional
rights may have possibly been breached by this governmental measure. It bears to state that when
coupled with sufficient facts, "reasonable certainty of the occurrence of a perceived threat to any
constitutional interest suffices to provide a basis for mounting a constitutional challenge".

9. While it may be argued that the reopening of Boracay has seemingly rendered moot and academic
questions relating to the ban of tourists and non-residents into the island, abstention from judicial review
is precluded by such possibility of constitutional violation and also by the exceptional character of the
situation, the paramount public interest involved, and the fact that the case is capable of repetition

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Locus standi (legal standing)

10. 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. It calls for
more than just a generalized grievance. The term 'interest' means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental
interest. There must be a present substantial interest and not a mere expectancy or a future, contingent,
subordinate, or consequential interest.

11. Zabal is a sandcastle maker and Jacosalem, a driver. The nature of their livelihood is one wherein
earnings are not guaranteed. 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. Concomitantly, an assertion of direct injury on the
basis of loss of income does not clothe Zabal and Jacosalem with legal standing.

12. As to Bandiola, the petition is bereft of any allegation as to his substantial interest in the case and as
to how he sustained direct injury as a result of the issuance of Proclamation No. 475. It has been held
that a party who assails the constitutionality of a statute must have a direct and personal interest. He
must show not only that the law or any governmental act is invalid, but also that he sustained or is in
immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. He must show that he has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of. Indeed, the petition utterly fails to demonstrate
that Bandiola possesses the requisite legal standing to sue.

Transcendental importance

13. Notwithstanding petitioners' lack of locus standi, this Court will allow this petition to proceed to its
ultimate conclusion due to its transcendental importance. After all, the rule on locus standi is a mere
procedural technicality, which the Court, in a long line of cases involving subjects of transcendental
importance, has waived or relaxed, thus allowing non-traditional plaintiffs such as concerned citizens,
taxpayers, voters and legislators to sue in cases of public interest, albeit they may not have been
personally injured by a government act. The matters raised in this case affect public interests and
therefore are of transcendental importance to the people. In addition, the situation calls for review
because it is capable of repetition, the Court taking judicial notice of the many other places in our country
that are suffering from similar environmental degradation.

Other requisites present

14. As to the two other requirements, their existence is indubitable. It will be recalled that even before a
formal issuance on the closure of Boracay was made by the government, petitioners already brought the
question of the constitutionality of the then intended closure to this Court. And, a day after Proclamation
No. 475 was issued, they filed a supplemental petition impugning its constitutionality. Clearly, the filing of
the petition and the supplemental petition signals the earliest opportunity that the constitutionality of the
subject government measure could be raised. There can also be no denying that the very lis mota of this
case is the constitutionality of Proclamation No. 475.

Defense of SLAPP does not apply

15. Respondents maintain that the petition is in the nature of a Strategic Lawsuit Against Public
Participation (SLAPP) under Rule 6 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental
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Cases, or 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. Respondents thus assert that the
petition must be dismissed since it was filed for the said sole purpose.

16. 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
should not, therefore, be made to apply.

Proclamation No. 475 does impair on the right to travel

17. 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. There is certainly no showing that Proclamation No. 475 deliberately meant
to impair the right to travel. The questioned proclamation is clearly focused on its purpose of
rehabilitating Boracay and any intention to directly restrict the right cannot, in any manner, be deduced
from its import.

18. 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.

In issuing Proclamation No. 475, the President was not exercising legislative power

19. In this light, a discussion on whether President Duterte exercised a power legislative in nature loses
its significance. Since Proclamation No. 475 does not actually impose a restriction on the right to travel,
its issuance did not result to any substantial alteration of the relationship between the State and the
people. The proclamation is therefore not a law and conversely, the President did not usurp the
law-making power of the legislature.

Even if so, Proclamation No. 475 must be upheld for being in the nature of a valid police power
measure

20. 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.

21. The question is: Was the temporary closure of Boracay as a tourist destination for six months
reasonably necessary under the circumstances? The answer is in the affirmative.As earlier noted, one of
the root causes of the problems that beset Boracay was tourist influx. Tourist arrivals in the island were
clearly far more than Boracay could handle. As early as 2007, the DENR had already determined this as
the major cause of the catastrophic depletion of the island's biodiversity. Also part of the equation is the
lack of commitment to effectively enforce pertinent environmental laws. Unfortunately, direct action on
these matters has been so elusive that the situation reached a critical level. Hence, by then, only bold
and sweeping steps were required by the situation.

22. The closure of Boracay, albeit temporarily, gave the island its much needed breather, and likewise
afforded the government the necessary leeway in its rehabilitation program. Note that apart from review,
evaluation and amendment of relevant policies, the bulk of the rehabilitation activities involved inspection,
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testing, demolition, relocation, and construction. These works could not have easily been done with
tourists present. Also, time is of the essence. Every precious moment lost is to the detriment of
Boracay's environment and of the health and well-being of the people thereat. Hence, any unnecessary
distraction or disruption is most unwelcome.

23. Proclamation No. 475 is a valid police power measure. To repeat, police power constitutes an
implied limitation to the Bill of Rights, and that even liberty itself, the greatest of all rights, is subject to the
far more overriding demands and requirements of the greater number.

Petitioners have no vested rights on their sources of income as to be entitled to due process

24. 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.

25. It must be stressed, though, that "when the conditions so demand as determined by the legislature,
property rights must bow to the primacy of police power because property rights, though sheltered by
due process, must yield to general welfare. Otherwise, police power as an attribute to promote the
common good would be diluted considerably if on the mere plea of petitioners that they will suffer loss of
earnings and capital, government measures implemented pursuant to the said state power would be
stymied or invalidated.

26. A right is not 'vested' unless it is more than a mere expectancy based on the anticipated continuance
of present laws; it must be an established interest in property, not open to doubt. To be vested in its
accurate legal sense, a right must be complete and consummated, and one of which the person to whom
it belongs cannot be divested without his consent.

27. Here, petitioners, particularly Zabal and Jacosalem, cannot be said to have already acquired vested
rights to their sources of income in Boracay. They are part of the informal sector of the economy where
earnings are not guaranteed. Zabal and Jacosalem's asserted right to whatever they may earn from
tourist arrivals in Boracay 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.

28. Besides, Proclamation No. 475 does not strip Zabal and Jacosalem of their right to work and earn a
living. They are free to work and practice their trade elsewhere. That they were not able to do so in
Boracay, at least for the duration of its closure, is a necessary consequence of the police power measure
to close and rehabilitate the island.

No intrusion into the autonomy of the concerned LGUs

29. Respondents contend that the issuance of Proclamation No. 475 is a valid exercise of delegated
legislative power, it being anchored on Section 16 of Republic Act (RA) No. 10121, otherwise known as
the Philippine Disaster Risk Reduction and Management Act of 2010, or the authority given to the
President to declare a state of calamity.

30. 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. The respective roles of
each government agency are particularly defined and enumerated in Executive Order No. 53 and all are
in accordance with their respective mandates. Also, the situation in Boracay can in no wise be
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characterized or labelled as a mere local issue as to leave its rehabilitation to local actors. Boracay is a
prime tourist destination which caters to both local and foreign tourists. Any issue thereat has
corresponding effects, direct or otherwise, at a national level. At any rate, notice must be taken of the
fact that even if the concerned LGUs have long been fully aware of the problems afflicting Boracay, they
failed to effectively remedy it.

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