EN BANC

[ G.R. No. 238467, February 12, 2019 ]

MARK ANTHONY V. ZABAL, THITING ESTOSO JACOSALEM, AND

ODON S. BANDIOLA, PETITIONERS, V. RODRIGO R. DUTERTE,
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; SALVADOR C.
MEDIALDEA, EXECUTIVE SECRETARY; AND EDUARDO M. AÑO,
[SECRETARY] OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, RESPONDENTS.

DECISION

DEL CASTILLO, J.:

Paradise is a place of bliss, felicity, and delight.[1] For Filipinos and foreign nationals
alike, Boracay - a small island in Malay, Aklan, with its palm-fringed, pristine white sand
beaches, azure waters, coral reefs, rare seashells,[2] and a lot more to offer,[3] - is
indeed a piece of paradise. Unsurprisingly, Boracay is one of the country's prime tourist
destinations. However, this island-paradise has been disrespected, abused, degraded,
over-used, and taken advantage of by both locals and tourists. Hence, the government
gave Boracay its much-needed respite and rehabilitation. However, the process by
which the rehabilitation was to be implemented did not sit well with petitioners, hence,
the present petition.

The Case

Before this Court is a Petition for Prohibition and Mandamus with Application for
Temporary Restraining Order, Preliminary Injunction, and/or Status Quo Ante Order
filed by petitioners Mark Anthony V. Zabal (Zabal), Thiting Estoso Jacosalem
(Jacosalem), and Odon S. Bandiola (Bandiola) against respondents President Rodrigo R.
Duterte (President Duterte), Executive Secretary Salvador C. Medialdea, and Secretary
Eduardo M. Año of the Department of Interior and Local Government (DILG).

The Parties

Zabal and Jacosalem are both residents of Boracay who, at the time of the filing of the
petition, were earning a living from the tourist activities therein. Zabal claims to build
sandcastles for tourists while Jacosalem drives for tourists and workers in the island.
While not a resident, Bandiola, for his part, 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.[4] Respondents, on the other hand, are being
sued in their capacity as officials of the government.

The Facts
Claiming that Boracay has become a cesspool, President Duterte first made public his
plan to shut it down during a business forum held in Davao sometime February 2018.
[5] This was followed by several speeches and news releases stating that he would

place Boracay under a state of calamity. True to his words, President Duterte ordered
the shutting down of the island in a cabinet meeting held on April 4, 2018. This was
confirmed by then Presidential Spokesperson Harry L. Roque, Jr. in a press briefing the
following day wherein he formally announced that the total closure of Boracay would be
for a maximum period of six months starting April 26, 2018.[6]

Following this pronouncement, petitioners contend that around 630 police and military
personnel were readily deployed to Boracay including personnel for crowd dispersal
management.[7] They also allege that the DILG had already released guidelines for the
closure.[8]

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,[9] petitioners
filed the petition on April 25, 2018 praying that:

(a) Upon the filing of [the] petition, a TEMPORARY RESTRAINING

ORDER (TRO) and/or a WRIT OF PRELIMINARY PROHIBITORY
INJUNCTION be immediately issued RESTRAINING and/or
ENJOINING the respondents, and all persons acting under their
command, order, and responsibility from enforcing a closure of
Boracay Island or from banning the petitioners, tourists, and
non-residents therefrom, and a WRIT OF PRELIMINARY
MANDATORY INJUNCTION directing the respondents, and all
persons acting under their command, order, and responsibility to
ALLOW all of the said persons to enter and/or leave Boracay
Island unimpeded;

(b) In the alternative, if the respondents enforce the closure after

the instant petition is filed, that a STATUS QUO ANTE Order be
issued restoring and maintaining the condition prior to such
closure;

(c) After proper proceedings, a judgment be rendered

PERMANENTLY RESTRAINING and/or ENJOINING the
respondents, and all persons acting under their command, order,
and responsibility from enforcing a closure of Boracay Island or
from banning the petitioners, tourists, and non-residents
therefrom, and further DECLARING the closure of Boracay Island
or the ban against petitioners, tourists, and non-residents
therefrom to be UNCONSTITUTIONAL.

Other reliefs just and equitable under the premises are similarly prayed for.
[10]
On May 18, 2018, petitioners filed a Supplemental Petition[11] stating that the day
following the filing of their original petition or on April 26, 2018, President Duterte
issued Proclamation No. 475[12] 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. Thus, in addition to what they prayed for in
their original petition, petitioners implore the Court to declare as unconstitutional
Proclamation No. 475 insofar as it orders the closure of Boracay and ban of tourists and
nonresidents therefrom.[13]

In the Resolutions dated April 26, 2018[14] and June 5, 2018,[15] the Court required
respondents to file their Comment on the Petition and the Supplemental Petition,
respectively. Respondents filed their Consolidated Comment[16] on July 30, 2018 while
petitioners filed their Reply[17] thereto on October 12, 2018.

On October 26, 2018, Boracay was reopened to tourism.

Petitioners' Arguments

Petitioners state that a petition for prohibition is the appropriate remedy to raise
constitutional issues and to review and/or prohibit or nullify, when proper, acts of
legislative and executive officials. 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. Justifying their resort to prohibition and mandamus, petitioners
assert that (1) this case presents constitutional issues, i.e., whether President Duterte
acted within the scope of the powers granted him by the Constitution in ordering the
closure of Boracay and, whether 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; and, (2) President Duterte exercised a power legislative in
nature, thus unlawfully excluding the legislative department from the assertion of such
power.

As to the substantive aspect, petitioners argue that Proclamation No. 475 is an invalid
exercise of legislative powers. They posit that its issuance is in truth a law-making
exercise since the proclamation imposed a restriction on the right to travel and
therefore substantially altered the relationship between the State and its people by
increasing the former's power over the latter. Simply stated, petitioners posit that
Proclamation No. 475 partakes of a law the issuance of which is not vested in the
President. As such, Proclamation No. 475 must be struck down for being the product of
an invalid exercise of legislative power.

Likewise, petitioners argue that Proclamation No. 475 is unconstitutional for infringing
on the constitutional rights to travel and to due process.

Petitioners point out that although Section 6, Article III of the Constitution explicitly
allows the impairment of the right to travel, two conditions, however, must concur to
wit: (1) there is a law restricting the said right, and (2) the restriction is based on
national security, public safety or public health. For petitioners, neither of these
conditions have been complied with. For one, Proclamation No. 475 does not refer to
any specific law restricting the right to travel. Second, it has not been shown that the
presence of tourists in the island poses any threat or danger to national security, public
safety or public health.

As to the right to due process, petitioners aver that the same covers property rights
and these include the right to work and earn a living. Since the government, through
Proclamation No. 475, restricted the entry of tourists and non-residents into the island,
petitioners claim that they, as well as all others who work, do business, or earn a living
in the island, were deprived of the source of their livelihood as a result thereof. Their
right to work and earn a living was curtailed by the proclamation. Moreover, while
Proclamation No. 475 cites various violations of environmental laws in the island, these,
for the petitioners, do not justify disregard of the rights of thousands of law-abiding
people. They contend that environmental laws provide for specific penalties intended
only for violators. Verily, to make those innocent of environmental transgressions suffer
the consequences of the Boracay closure is tantamount to violating their right to due
process.

Petitioners likewise argue that the closure of Boracay could not be anchored on police
power. For one, police power must be exercised not by the executive but by legislative
bodies through the creation of statutes and ordinances that aim to promote the health,
moral, peace, education, safety, and general welfare of the people. For another, the
measure is unreasonably unnecessary and unduly oppressive.

In their Supplemental Petition, petitioners aver that Proclamation No. 475 unduly
impinges upon the local autonomy of affected Local Government Units (LGUs) since it
orders the said LGUs to implement the closure of Boracay and the ban of tourists and
non-residents therefrom. While petitioners acknowledge the President's power of
supervision over LGUs, they nevertheless point out that he does not wield the power of
control over them. 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.

Finally, petitioners state that this case does not simply revolve on the need to
rehabilitate Boracay, but rather, on the extent of executive power and the manner by
which it was wielded by President Duterte. To them, necessity does not justify the
President's abuse of power.

Respondents' Arguments

At the outset, respondents assert that President Duterte must be dropped as party-
respondent in this case because he is immune from suit. They also argue that the
petition should be dismissed outright for lack of basis. According to respondents,
prohibition is a preventive remedy to restrain future action. Here, President Duterte had
already issued Proclamation No. 475 and in fact, the rehabilitation of the island was
then already ongoing. These, according to respondents, have rendered improper the
issuance of a writ of prohibition considering that as a rule, prohibition does not lie to
restrain an act that is already fait accompli. Neither is mandamus proper. Section 3,
Rule 65 of the Rules of Court provides that a mandamus petition may be resorted to
when any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station. Respondents argue that mandamus will not lie in this case
because they were not neglectful of their duty to protect the environment; on the
contrary, they conscientiously performed what they were supposed to do by ordering
the closure of Boracay to give way to its rehabilitation. Thus, to them, mandamus is
obviously inappropriate.

At any rate, respondents contend that there is no real justiciable controversy in this
case. They see no clash between the right of the State to preserve and protect its
natural resources and the right of petitioners to earn a living. Proclamation No. 475
does not prohibit anyone from being gainfully employed.

Respondents moreover 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 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.

With regard to the substantive aspect, 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, viz.:

SECTION 16. Declaration of State of Calamity. - The National Council shall

recommend to the President of the Philippines the declaration of a cluster of
barangays, municipalities, cities, provinces, and regions under a state of
calamity, and the lifting thereof, based on the criteria set by the National
Council. The President's declaration may warrant international humanitarian
assistance as deemed necessary.

xxxx

They likewise contend that Proclamation No. 475 was issued pursuant to the President's
executive power under Section 1, Article VII of the Constitution. As generally defined,
executive power is the power to enforce and administer laws. It is the power of
implementing the laws and enforcing their due observance. And in order to effectively
discharge the enforcement and administration of the laws, the President is granted
administrative power over bureaus and offices, which includes the power of control. The
power of control, in turn, refers to the authority to direct the performance of a duty,
restrain the commission of acts, review, approve, reverse or modify acts and decisions
of subordinate officials or units, and prescribe standards, guidelines, plans and
programs. Respondents allege that President Duterte's issuance of Proclamation No.
475 was precipitated by his approval of the recommendation of the National Disaster
Risk Reduction and Management Council (NDRRMC) to place Boracay under a state of
calamity. By giving his imprimatur, it is clear that the President merely exercised his
power of control over the executive branch.
In any case, respondents assert that the President has residual powers which are
implied from the grant of executive power and which are necessary for him to comply
with his duties under the Constitution as held in the case of Marcos v. Manglapus.[18]

In sum, respondents emphasize that the issuance of Proclamation No. 475 is within the
ambit of the powers of the President, not contrary to the doctrine of separation of
powers, and in accordance with the mechanism laid out by the Constitution.

Further, respondents dispute petitioners' allegation that Proclamation No. 475 infringes
upon the rights to travel and to due process. They emphasize that the right to travel is
not an absolute right. It may be impaired or restricted in the interest of national
security, public safety, or public health. In fact, there are already several existing laws
which serve as statutory limitations to the right to travel.

Anent the alleged violation of the right to due process, respondents challenge
petitioners' claim that they were deprived of their livelihood without due process.
Respondents call attention to the fact that Zabal as sandcastle maker and Jacosalem as
driver are freelancers and thus belong to the informal economy sector. This means that
their source of livelihood is never guaranteed and is susceptible to changes in
regulations and the over-all business climate. In any case, petitioners' contentions
must yield to the State's exercise of police power. As held in Ermita-Malate Hotel &
Motel Operators Association, Inc. v. The Hon. City Mayor of Manila,[19] the mere fact
that some individuals in the community may be deprived of their present business or of
a particular mode of living cannot prevent the exercise of the police power of the State.
Indeed, to respondents, private interests should yield to the reasonable prerogatives of
the State for the public good and welfare, which precisely are the primary objectives of
the government measure herein questioned

Lastly, respondents insist that Proclamation No. 475 does not unduly transgress upon
the local autonomy of the LGUs concerned. Under RA 10121, it is actually the Local
Disaster Risk Reduction Management Council concerned which, subject to several
criteria, is tasked to take the lead in preparing for, responding to, and recovering from
the effects of any disaster when a state of calamity is declared. In any case, the
devolution of powers upon LGUs pursuant to the constitutional mandate of ensuring
their autonomy does not mean that the State can no longer interfere in their affairs.
This is especially true in this case since Boracay's environmental disaster cannot be
treated as a localized problem that can be resolved by the concerned LGUs only. The
magnitude and gravity of the problem require the intervention and assistance of
different national government agencies in coordination with the concerned LGUs.

As a final point, respondents aver that the bottom line of petitioners' lengthy discourse
and constitutional posturing is their intention to re-open Boracay to tourists and non-
residents for the then remainder of the duration of the closure and thus perpetuate and
further aggravate the island's environmental degradation. Respondents posit that this is
unacceptable since Boracay cannot be sacrificed for the sake of profit and personal
convenience of the few.

Our Ruling

First, we discuss the procedural issues.

President Duterte is dropped
as respondent in this case

As correctly pointed out by respondents, President Duterte must be dropped as

respondent in this case. The Court's pronouncement in Professor David v. President
Macapagal-Arroyo[20] on the non-suability of an incumbent President cannot be any
clearer, viz.:

x x x 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 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.[21]

Accordingly, President Duterte is dropped as respondent in this case.

Propriety of Prohibition and Mandamus

Section 2, Rule 65 of the Rules of Court provides for a petition for prohibition as
follows:

SEC. 2. Petition for prohibition. – When the proceedings of any tribunal,

corporation, board, officer or person, whether exercising judicial, quasi-
judicial or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or in excess
of jurisdiction, and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and
justice may require.

xxxx

"Indeed, 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. It is not intended to
provide a remedy for acts already accomplished."[22]

Mandamus, on the other hand, is provided for by Section 3 of the same Rule 65:

SEC. 3. Petition for mandamus. – When any tribunal, corporation, board,

officer or person unlawfully neglects the performance of an act which the
 law specifically enjoins as a duty resulting from an office, trust, station, or
unlawfully excludes another from the use and enjoyment of a right or office
to which such other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent.

xxxx

"As the quoted provision instructs, 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."[23]

It is upon the above-discussed contexts of prohibition and mandamus that respondents

base their contention of improper recourse. 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.

Suffice it to state, however, that 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. As the Court stated in Spouses Imbong v. Hon. Ochoa,
Jr.:[24]

As far back as Tañada v. Angara, the Court has unequivocally declared that
certiorari, prohibition and mandamus are appropriate remedies to
raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials, as there is
no other plain, speedy or adequate remedy in the ordinary course of
law. This ruling was later on applied in Macalintal v. COMELEC, Aldaba v.
COMELEC, Magallona v. Ermita, and countless others. In Tañada, the Court
wrote:

In seeking to nullify an act of the Philippine Senate on the ground

that it contravenes the Constitution, the petition no doubt raises
a justiciable controversy. Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to
settle the dispute. 'The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld.' Once a 'controversy as
to the application or interpretation of constitutional provision is
raised before this Court, as in the instant case, it becomes a legal
issue which the Court is bound by constitutional mandate to
decide. x x x[25] (Citations omitted; emphasis supplied)
It must be stressed, though, that resort to prohibition and mandamus on the basis of
alleged constitutional violations is not without limitations. After all, this Court does not
have unrestrained authority to rule on just about any and every claim of constitutional
violation.[26] 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 issue of
constitutionality must be the lis mota of the case.[27] Hence, it is not enough that this
petition mounts a constitutional challenge against Proclamation No. 475. It is likewise
necessary that it meets the aforementioned requisites before the Court sustains the
propriety of the recourse.

Existence of Requisites for Judicial Review

In La Bugal-B'laan Tribal Association, Inc. v. Sec. Ramos,[28] 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."[29]

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".[30] And 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.[31]

As to legal standing, petitioners assert that they were directly injured since their right
to travel and, their right to work and earn a living which thrives solely on tourist
arrivals, were affected by the closure. They likewise want to convince the Court that the
issues here are of transcendental importance since according to them, the resolution of
the same will have far-reaching consequences upon all persons living and working in
Boracay; upon the Province of Aklan which is heavily reliant on the island's tourism
industry; and upon the whole country considering that fundamental constitutional
rights were allegedly breached.

"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."[32] There must be a present substantial interest and not a mere expectancy
or a future, contingent, subordinate, or consequential interest.[33]

In Galicto v. Aquino III,[34] the therein petitioner, Jelbert B. Galicto (Galicto)

questioned the constitutionality of Executive Order No. 7 (EO7) issued by President
Benigno Simeon C. Aquino III, which ordered, among others, a moratorium on the
increases in the salaries and other forms of compensation of all government-owned-
and-controlled corporations (GOCCs) and government financial institutions. The Court
held that Galicto, an employee of the GOCC Philhealth, has no legal standing to assail
EO7 for his failure to demonstrate that he has a personal stake or material interest in
the outcome of the case. His interest, if any, was speculative and based on a mere
expectancy. Future increases in his salaries and other benefits were contingent events
or expectancies to which he has no vested rights. Hence, he possessed no locus standi
to question the curtailment thereof.

Here, as mentioned, Zabal is a sandcastle maker and Jacosalem, a driver. The nature of
their livelihood is one wherein earnings are not guaranteed. As correctly pointed out by
respondents, their earnings are not fixed and may vary depending on the business
climate in that while they can earn much on peak seasons, it is also possible for them
not to earn anything on lean seasons, especially when the rainy days set in. Zabal and
Jacosalem could not have been oblivious to this kind of situation, they having been in
the practice of their trade for a considerable length of time. 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, just like in Galicto. Concomitantly, an assertion
of direct injury on the basis of loss of income does not clothe Zabal and Jacosalem with
legal standing.

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. While the allegation that he is a non-resident who occasionally
goes to Boracay for business and pleasure may suggest that he is claiming direct injury
on the premise that his right to travel was affected by the proclamation, the petition
fails to expressly provide specifics as to how. "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."[35] Indeed, the petition utterly
fails to demonstrate that Bandiola possesses the requisite legal standing to sue.

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.[36] More importantly, the matters raised in this case,
involved on one hand, possible violations of the Constitution and, on the other, the
need to rehabilitate the country's prime tourist destination. Undeniably, these matters
affect public interests and therefore are of transcendental importance to the people. In
addition, the situation calls for review because as stated, 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.

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

Suffice it to state that 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.

Now as to the substantive issues.

We first quote in full Proclamation No. 475.

PROCLAMATION No. 475

DECLARING A STATE OF CALAMITY IN THE BARANGAYS OF BALABAG,

MANOC-MANOC AND YAPAK (ISLAND OF BORACAY) IN THE MUNICIPALITY
OF MALAY, AKLAN, AND TEMPORARY CLOSURE OF THE ISLAND AS A
TOURIST DESTINATION

WHEREAS, Section 15, Article II of the 1987 Constitution states that the
State shall protect and promote the right to health of the people and instill
health consciousness among them;

WHEREAS, Section 16, Article II of the 1987 Constitution provides that it is

the policy of the State to protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature;

WHEREAS, Section 2, Article XII of the 1987 Constitution provides that the
State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone;

WHEREAS, an Inter-Agency Task Force, composed of the Department of

Environment and Natural Resources (DENR), the [DILG] and the Department
of Tourism (DOT), was established to evaluate the environmental state of
the Island of Boracay, and investigate possible violations of existing
environmental and health laws, rules and regulations;

WHEREAS, the investigations and validation undertaken revealed that:

a. There is a high concentration of fecal coliform in the Bolabog beaches

located in the eastern side of Boracay Island due to insufficient sewer
lines and illegal discharge of untreated waste water into the beach,
with daily tests conducted from 6 to 10 March 2018 revealing
consistent failure in compliance with acceptable water standards, with
an average result of 18,000 most probable number (MPN)/100ml,
exceeding the standard level of 400 MPN/100ml;

b. Most commercial establishments and residences are not connected to

the sewerage infrastructure of Boracay Island, and waste products are
not being disposed through the proper sewerage infrastructures in
violation of environmental law, rules, and regulations;

c. Only 14 out of 51 establishments near the shores of Boracay Island are

compliant with the provision of Republic Act (RA) No. 9275 or the
Philippine Clean Water Act of 2004;

d. Dirty water results in the degradation of the coral reefs and coral cover
of Boracay Island, which declined by approximately 70.5% from 1988
to 2011, with the highest decrease taking place between 2008 and
2011 during a period of increased tourist arrivals (approximately
38.4%);

e. Solid waste within Boracay Island is at a generation rate of 90 to 115

tons per day, while the hauling capacity of the local government is only
30 tons per day, hence, leaving approximately 85 tons of waste in the
Island daily;

f. The natural habitats of Puka shells, nesting grounds of marine turtles,

and roosting grounds of flying foxes or fruit bats have been damaged
and/or destroyed; and

g. Only four (4) out of nine (9) wetlands in Boracay Island remain due to
illegal encroachment of structures, including 937 identified illegal
structures constructed on forestlands and wetlands, as well as 102
illegal structures constructed on areas already classified as easements,
and the disappearance of the wetlands, which acts as natural
catchments, enhances flooding in the area;

WHEREAS, the findings of the Department of Science and Technology

(DOST) reveal that beach erosion is prevalent in Boracay Island, particularly
along the West Beach, where as much as 40 meters of erosion has taken
place in the past 20 years from 1993 to 2003, due to storms, extraction of
sand along the beach to construct properties and structures along the
foreshore, and discharge of waste water near the shore causing degradation
of coral reefs and seagrass meadows that supply the beach with sediments
and serve as buffer to wave action;

WHEREAS, the DOST also reports that based on the 2010-2015 Coastal
Ecosystem Conservation and Adaptive Management Study of the Japan
International Cooperation Agency, direct discharge of waste water near the
shore has resulted in the frequent algal bloom and coral deterioration, which
may reduce the source of sand and cause erosion;

WHEREAS, the data from the Region VI - Western Visayas Regional Disaster
Risk Reduction and Management Council shows that the number of tourists
in the island in a day amounts to 18,082, and the tourist arrival increased by
more than 160% from 2012 to 2017;

WHEREAS, the continuous rise of tourist arrivals, the insufficient sewer and
waste management system, and environmental violations of establishments
aggravate the environmental degradation and destroy the ecological balance
of the Island of Boracay, resulting in major damage to property and natural
resources, as well as the disruption of the normal way of life of the people
therein;

WHEREAS, it is necessary to implement urgent measures to address the

abovementioned human-induced hazards, to protect and promote the health
and well-being of its residents, workers and tourists, and to rehabilitate the
Island in order to ensure the sustainability of the area and prevent further
degradation of its rich ecosystem;

WHEREAS, RA No. 9275 provides that the DENR shall designate water
bodies, or portions thereof, where specific pollutants from either natural or
man-made source have already exceeded water quality guidelines as non-
attainment areas for the exceeded pollutants and shall prepare and
implement a program that will not allow new sources of exceeded water
pollutant in non-attainment areas without a corresponding reduction in
discharges from existing sources;

WHEREAS, RA No. 9275 also mandates the DENR, in coordination with

other concerned agencies and the private sectors, to take such measures as
may be necessary to upgrade the quality of such water in non-attainment
areas to meet the standards under which it has been classified, and the local
government units to prepare and implement contingency plans and other
measures including relocation, whenever necessary, for the protection of
health and welfare of the residents within potentially affected areas;

WHEREAS, Proclamation No. 1064 (s. 2006) classified the Island of Boracay
into 377.68 hectares of reserved forest land for protection purposes and
628.96 hectares of agricultural land as alienable and disposable land;

WHEREAS, pursuant to the Regalian Doctrine, and as emphasized in recent

jurisprudence, whereby all lands not privately owned belong to the State,
the entire island of Boracay is state-owned, except for lands already covered
by existing valid titles;

WHEREAS, pursuant to RA No. 10121, or the Philippine Disaster Risk

Reduction and Management Act of 2010, the National Disaster Risk
Reduction and Management Council has recommended the declaration of a
State of Calamity in the Island of Boracay and the temporary closure of the
Island as a tourist destination to ensure public safety and public health, and
to assist the government in its expeditious rehabilitation, as well as in
addressing the evolving socio-economic needs of affected communities;

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the

Philippines, by virtue of the powers vested in me by the Constitution and
existing laws, do hereby declare a State of Calamity in the barangays of
Balabag, Manoc-Manoc and Yapak (Island of Boracay) in the Municipality of
Malay, Aklan. In this regard, the temporary closure of the Island as a tourist
destination for six (6) months starting 26 April 2018, or until 25 October
2018, is hereby ordered subject to applicable laws, rules, regulations and
jurisprudence.

Concerned government agencies shall, as may be necessary or appropriate,

undertake the remedial measures during a State of Calamity as provided in
RA No. 10121 and other applicable laws, rules and regulations, such as
control of the prices of basic goods and commodities for the affected areas,
employment of negotiated procurement and utilization of appropriate funds,
including the National Disaster Risk Reduction and Management Fund, for
relief and rehabilitation efforts in the area. All departments and other
concerned government agencies are also hereby directed to coordinate with,
and provide or augment the basic services and facilities of affected local
government units, if necessary.

The State of Calamity in the Island of Boracay shall remain in force and
effect until lifted by the President, notwithstanding the lapse of the six-
month closure period.

All departments, agencies and offices, including government-owned or

controlled corporations and affected local government units are hereby
directed to implement and execute the abovementioned closure and the
appropriate rehabilitation works, in accordance with pertinent operational
plans and directives, including the Boracay Action Plan.

The Philippine National Police, Philippine Coast Guard and other law
enforcement agencies, with the support of the Armed Forces of the
Philippines, are hereby directed to act with restraint and within the bounds
of the law in the strict implementation of the closure of the Island and
ensuring peace and order in the area.

The Municipality of Malay, Aklan is also hereby directed to ensure that no

tourist will be allowed entry to the island of Boracay until such time that the
closure has been lifted by the President.
 All tourists, residents and establishment owners in the area are also urged
to act within the bounds of the law and to comply with the directives herein
provided for the rehabilitation and restoration of the ecological balance of
the Island which will be for the benefit of all concerned.

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. Besides, executive determinations, such as said factual
bases, are generally final on this Court.[37]

The Court observes that the meat of petitioners' constitutional challenge on

Proclamation No. 475 is the right to travel.

Clearly then, the one crucial question that needs to be preliminarily answered is - does
Proclamation No. 475 constitute an impairment on the right to travel?

The Court answers in the negative.

Proclamation No. 475 does not

pose an actual impairment on
the right to travel

Petitioners claim that Proclamation No. 475 impairs the right to travel based on the
following provisions:

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the

Philippines, by virtue of the powers vested in me by the Constitution and
existing laws, do hereby declare a State of Calamity in the barangays of
Balabag, Manoc-Manoc and Yapak (Island of Boracay) in the Municipality of
Malay, Aklan. In this regard, the temporary closure of the Island as a
tourist destination for six (6) months starting 26 April 2018, or until
25 October 2018, is hereby ordered subject to applicable laws, rules,
regulations and jurisprudence.

xxxx

The Municipality of Malay, Aklan is also hereby directed to ensure that no

tourist will be allowed entry to the island of Boracay until such time
that the closure has been lifted by the President.

xxxx

The activities proposed to be undertaken to rehabilitate Boracay involved inspection,

testing, demolition, relocation, and construction. These could not have been
implemented freely and smoothly with tourists coming in and out of the island not only
because of the possible disruption that they may cause to the works being undertaken,
but primarily because their safety and convenience might be compromised. Also, the
contaminated waters in the island were not just confined to a small manageable area.
The excessive water pollutants were all over Bolabog beach and the numerous illegal
drainpipes connected to and discharging wastewater over it originate from different
parts of the island. Indeed, the activities occasioned by the necessary digging of these
pipes and the isolation of the contaminated beach waters to give way to treatment
could not be done in the presence of tourists. Aside from the dangers that these
contaminated waters pose, hotels, inns, and other accommodations may not be
available as they would all be inspected and checked to determine their compliance
with environmental laws. Moreover, it bears to state that a piece-meal closure of
portions of the island would not suffice since as mentioned, illegal drainpipes extend to
the beach from various parts of Boracay. Also, most areas in the island needed major
structural rectifications because of numerous resorts and tourism facilities which lie
along easement areas, illegally reclaimed wetlands, and of forested areas that were
illegally cleared for construction purposes. Hence, the need to close the island in its
entirety and ban tourists therefrom.

In fine, this case does not actually involve the right to travel in its essential sense
contrary to what petitioners want to portray. 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. This is contrary to the
import of several laws recognized as constituting an impairment on the right to travel
which directly impose restriction on the right, viz.:

[1] The Human Security Act of 2010 or Republic Act (R.A.) No. 9372. The
law restricts the right travel of an individual charged with the crime of
terrorism even though such person is out on bail.

[2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said
law, the Secretary of Foreign Affairs or his authorized consular officer may
refuse the issuance of, restrict the use of, or withdraw, a passport of a
Filipino citizen.

[3] The 'Anti-Trafficking in Persons Act of 2003' or RA 9208. Pursuant to the

provisions thereof, the Bureau of Immigration, in order to manage migration
and curb trafficking in persons, issued Memorandum Order Radjr No. 2011-
011, allowing its Travel Control and Enforcement Unit to 'offload passengers
with fraudulent travel documents, doubtful purpose of travel, including
possible victims of human trafficking' from our ports.

[4] The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No.
8042, as amended by R.A. No. 10022. In enforcement of said law, the
Philippine Overseas Employment Administration (POEA) may refuse to issue
deployment permit[s] to a specific country that effectively prevents our
migrant workers to enter such country.

[5] The Act on Violence Against Women and Children or R.A. No. 9262. The
law restricts movement of an individual against whom the protection order is
intended.
 [6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto,
the Inter-Country Adoption Board may issue rules restrictive of an adoptee's
right to travel 'to protect the Filipino child from abuse, exploitation,
trafficking and/or sale or any other practice in connection with adoption
which is harmful, detrimental, or prejudicial to the child.'[38]

In Philippine Association of Service Exporters, Inc. v. Hon. Drilon,[39] the Court held
that the consequence on the right to travel of the deployment ban implemented by
virtue of Department Order No. 1, Series of 1998 of the Department of Labor and
Employment does not impair the right.

Also significant to note is that the closure of Boracay was only temporary considering
the categorical pronouncement that it was only for a definite period of six months.

Hence, if at all, 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 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.

For obvious reason, there is likewise no more need to determine the existence in this
case of the requirements for a valid impairment of the right to travel.

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

Police power, amongst the three fundamental and inherent powers of the state, is the
most pervasive and comprehensive.[40] "It has been defined as the 'state authority to
enact legislation that may interfere with personal liberty or property in order to
promote general welfare."[41] "As defined, it consists of (1) imposition or restraint upon
liberty or property, (2) in order to foster the common good. It is not capable of exact
definition but has been purposely, veiled in general terms to underscore its all-
comprehensive embrace."[42] The police power "finds no specific Constitutional grant
for the plain reason that it does not owe its origin to the Charter"[43] since "it is inborn
in the very fact of statehood and sovereignty."[44] It is said to be the "inherent and
plenary power of the State which enables it to prohibit all things hurtful to the comfort,
safety, and welfare of the society."[45] Thus, police power constitutes an implied
limitation on the Bill of Rights.[46] After all, "the Bill of Rights itself does not purport to
be an absolute guaranty of individual rights and liberties. 'Even liberty itself, the
greatest of all rights, is not unrestricted license to act according to one's will.' It is
subject to the far more overriding demands and requirements of the greater number."
[47]

"Expansive and extensive as its reach may be, police power is not a force without
limits."[48] "It has to be exercised within bounds – lawful ends through lawful means,
i.e., that the interests of the public generally, as distinguished from that of a particular
class, require its exercise, and that the means employed are reasonably necessary for
the accomplishment of the purpose while not being unduly oppressive upon
individuals."[49]

That the assailed governmental measure in this case is within the scope of police power
cannot be disputed. Verily, the statutes[50] from which the said measure draws
authority and the constitutional provisions[51] 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. The only
question now is whether the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.

The pressing need to implement urgent measures to rehabilitate Boracay is beyond

cavil from the factual milieu that precipitated the President's issuance of Proclamation
No. 475. This necessity is even made more critical and insistent by what the Court said
in Oposa v. Hon. Factoran, Jr.[52] in regard the rights to a balanced and healthful
ecology and to health, which rights are likewise integral concerns in this case. Oposa
warned that unless the rights to a balanced and healthful ecology and to health are
given continuing importance and the State assumes its solemn obligation to preserve
and protect them, the time will come that nothing will be left not only for this
generation but for the generations to come as well.[53] It further taught that the right
to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment.[54]

Against the foregoing backdrop, we now pose this question: 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.[55] 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.

Certainly, 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, testing,
demolition, relocation, and construction. These works could not have easily been done
with tourists present. The rehabilitation works in the first place were not simple,
superficial or mere cosmetic but rather quite complicated, major, and permanent in
character as they were intended to serve as long-term solutions to the problem.[56]
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. Moreover, as part of the
rehabilitation efforts, operations of establishments in Boracay had to be halted in the
course thereof since majority, if not all of them, need to comply with environmental and
regulatory requirements in order to align themselves with the government's goal to
restore Boracay into normalcy and develop its sustainability. Allowing tourists into the
island while it was undergoing necessary rehabilitation would therefore be pointless as
no establishment would cater to their accommodation and other needs. Besides, it
could not be said that Boracay, at the time of the issuance of the questioned
proclamation, was in such a physical state that would meet its purpose of being a
tourist destination. For one, its beach waters could not be said to be totally safe for
swimming. In any case, the closure, to emphasize, was only for a definite period of six
months, i.e., from April 26, 2018 to October 25, 2018. To the mind of the Court, this
period constitutes a reasonable time frame, if not to complete, but to at least put in
place the necessary rehabilitation works to be done in the island. Indeed, the
temporary closure of Boracay, although unprecedented and radical as it may seem, was
reasonably necessary and not unduly oppressive under the circumstances. It was the
most practical and realistic means of ensuring that rehabilitation works in the island are
started and carried out in the most efficacious and expeditious way. Absent a clear
showing of grave abuse of discretion, unreasonableness, arbitrariness or
oppressiveness, the Court will not disturb the executive determination that the closure
of Boracay was necessitated by the foregoing circumstances. As earlier noted,
petitioners totally failed to counter the factual bases of, and justification for the
challenged executive action.

Undoubtedly, 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.

For the above reasons, petitioners' constitutional challenge on Proclamation No. 475
anchored on their perceived impairment of the right to travel must fail.

Petitioners have no vested

rights on their sources of
income as to be entitled to
due process

Petitioners argue that Proclamation No. 475 impinges on their constitutional right to
due process since they were deprived of the corollary right to work and earn a living by
reason of the issuance thereof.

Concededly, "[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."[57] Under
this premise, petitioners claim that they were deprived of due process when their right
to work and earn a living was taken away from them when Boracay was ordered closed
as a tourist destination. 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."[58] 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.[59]

In any case, petitioners, particularly 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. In Southern Luzon Drug Corporation v. Department of Social Welfare and
Development,[60] the Court elucidated on vested rights, as follows:

x x x Vested rights are 'fixed, unalterable, or irrevocable.' More extensively,

they are depicted as follows:

Rights which have so completely and definitely accrued to or

settled in a person that they are not subject to be defeated or
cancelled by the act of any other private person, and which it is
right and equitable that the government should recognize and
protect, as being lawful in themselves, and settled according to
the then current rules of law, and of which the individual could
not be deprived arbitrarily without injustice, or of which he could
not justly be deprived otherwise than by the established methods
of procedure and for the public welfare. x x x 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. x x x 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. x x x[61]

Here, 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. "It is contingent as it only comes 'into
existence on an event or condition which may not happen or be performed until some
other event may prevent their vesting."'[62] Clearly, said petitioners' earnings are
contingent in that, even assuming tourists are still allowed in the island, they will still
earn nothing if no one avails of their services. Certainly, they do not possess any vested
right on their sources of income, and under this context, their claim of lack of due
process collapses. To stress, only rights which have completely and definitely accrued
and settled are entitled protection under the due process clause.
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.

Also clearly untenable is petitioners' claim that they were being made to suffer the
consequences of the environmental transgressions of others. It must be stressed that
the temporary closure of Boracay as a tourist destination and the consequent ban of
tourists into the island were not meant to serve as penalty to violators of environmental
laws. The temporary closure does not erase the environmental violations committed;
hence, the liabilities of the violators remain and only they alone shall suffer the same.
The temporary inconvenience that petitioners or other persons may have experienced
or are experiencing is but the consequence of the police measure intended to attain a
much higher purpose, that is, to protect the environment, the health of the people, and
the general welfare. Indeed, any and all persons may be burdened by measures
intended for the common good or to serve some important governmental interest.[63]

No intrusion into the

autonomy of the concerned
LGUs

The alleged intrusion of the President into the autonomy of the LGUs concerned is
likewise too trivial to merit this Court's consideration. 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.[64] 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. The respective roles of each government agency are particularly
defined and enumerated in Executive Order No. 53[65] and all are in accordance with
their respective mandates. Also, the situation in Boracay can in no wise be
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. This, for one, reasonably takes the issues therein from a level that concerns only
the local officials. 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. Yet still, in recognition of their mandated roles and
involvement in the rehabilitation of Boracay, Proclamation No. 475 directed “[a]ll
departments, agencies and offices, including government-owned or controlled
corporations and affected local government units x x x to implement and execute x
x x the closure [of Boracay] and the appropriate rehabilitation works, in accordance
with pertinent operational plans and directives, including the Boracay Action Plan. "

As a final note, the Court in Metropolitan Manila Development Authority v. Concerned

Residents of Manila Bay,[66] 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." It likewise took the
occasion to state, viz.:

In the light of the ongoing environmental degradation, the Court wishes to

emphasize the extreme necessity for all concerned executive departments
and agencies to immediately act and discharge their respective official duties
and obligations. Indeed, time is of the essence; hence, there is a need to set
timetables for the performance and completion of the tasks, some of them
as defined for them by law and the nature of their respective offices and
mandates.

The importance of the Manila Bay as a sea resource, playground and as a

historical landmark cannot be over-emphasized. It is not yet too late in the
day to restore the Manila Bay to its former splendor and bring back the
plants and sea life that once thrived in its blue waters. But the tasks ahead,
daunting as they may be, could only be accomplished if those mandated,
with the help and cooperation of all civic-minded individuals, would put their
minds to these tasks and take responsibility. This means that the State,
through [the concerned department-agencies], has to take the lead in the
preservation and protection of the Manila Bay.

The era of delays, procrastination, and ad hoc measures is over. [The

concerned department-agencies] must transcend their limitations, real or
imaginary, and buckle down to work before the problem at hand becomes
unmanageable. Thus, we must reiterate that different government agencies
and instrumentalities cannot shirk from their mandates; they must perform
their basic functions in cleaning up and rehabilitating the Manila Bay. x x
x[67]

There is an obvious similarity in Metropolitan Manila Development Authority and in the

present case in that both involve the restoration of key areas in the country which were
once glowing with radiance and vitality but are now in shambles due to abuses and
exploitation. What sets these two cases apart is that in the former, those mandated to
act still needed to be enjoined in order to act. In this case, the bold and urgent action
demanded by the Court in Metropolitan Manila Development Authority is now in the roll
out. Still, the voice of cynicism, naysayers, and procrastinators heard during times of
inaction can still be heard during this time of full action – demonstrating a classic case
of "damn if you do, damn if you don't". Thus, in order for the now staunch commitment
to save the environment not to fade, it behooves upon the courts to be extra cautious
in invalidating government measures meant towards addressing environmental
degradation. Absent any clear showing of constitutional infirmity, arbitrariness or grave
abuse of discretion, these measures must be upheld and even lauded and promoted.
After all, not much time is left for us to remedy the present environmental situation. To
borrow from Oposa, unless the State undertakes its solemn obligation to preserve the
rights to a balanced and healthful ecology and advance the health of the people, "the
day would not be too far when all else would be lost not only for the present
generation, but also for those to come – generations which stand to inherit nothing but
parched earth incapable of sustaining life."[68]

All told, the Court sustains the constitutionality and validity of Proclamation No. 475.

WHEREFORE, the Petition for Prohibition and Mandamus is DISMISSED.

SO ORDERED.

Bersamin (C.J.), Peralta, A. Reyes, Jr., Gesmundo, J. Reyes, Jr., Hernando, and
Carandang, JJ., concur.
Carpio and Perlas-Bernabe, JJ., see separate concurring opinions.
Leonen, J., dissent. See separate opinion.
Jardeleza, J., see concurring and dissenting opinion.
Caguioa, J., dissent. See dissenting opinion.

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on February 12, 2019 a Decision, copy attached herewith, was
rendered by the Supreme Court in the above-entitled case, the original of which was
received by this Office on February 22, 2019 at 1:15 p.m.

Very truly yours,

(SGD.) EDGAR O.
ARICHETA
Clerk of Court

[1] https://www.merriam-webster.com/dictionary/paradise; last visited on January 28,

2019.

[2] Malay, Our Home...Your Destination, http://aklan.gov.ph/tourism/malay/; last

visited on January 28, 2019.

[3] The Department of Tourism's feature on Boracay posted in its website cites that

aside from being a tropical heaven, Boracay also boasts of diverse culinary fare, water
fun activities, beach combing, nightlife, bat caves, and its Kar-Tir Seashell museum;
see http://www.experiencephilippines.org/tourism/destinationstourism/boracay-
department-of-tourism/, last visited on January 28, 2019.

[4] Rollo, p. 5.
[5] Duterte wants to close 'cesspool' Boracay, http://www.pna.gov.ph/articles/1024807;

last visited on January 28, 2019.

[6] Palace: Duterte approves 6-month total closure of Boracay,

https://pcoo.gov.ph/news_releases/palaceduterte-approves-6-month-total-closure-of-
boracay/; last visited on January 28, 2019.

[7] Rollo, p. 9.

[8] The guidelines allegedly provide as follows:

1. No going beyond Jetty Port. Identified tourists will not be allowed into the
island and will be stopped at the Jetty Port in Malay, Aklan.
2. No ID, no entry. Residents/workers/resort owners will be allowed entry into the
island subject to the presentation of identification cards specifying a residence in
Boracay. All government-issued IDs will be recognized. Non-government IDs are
acceptable as long as they are accompanied by a barangay certification of
residency.
3. Swimming for locals only. Generally, swimming shall not be allowed anywhere
on the island. However, residents may be allowed to swim only at Angol Beach in
station 3 from 6 am to 5 pm.
4. One condition for entry. No visitors of Boracay residents shall be allowed entry,
except under emergency situations, and with the clearance of the security
committee composed of DILG representative, police, and local government
officials.
5. Journalists need permission to cover. Media will be allowed entry subject to
prior approval from the Department of Tourism, with a definite duration and
limited movement.
6. No floating structures. No floating structures shall be allowed up to 15
kilometers from the shoreline.
7. Foreign residents to be checked. The Bureau of Immigration will revalidate the
papers of foreigners who have found a home in Boracay.
8. One entry, one exit point. There will only be one transportation point to
Boracay Island. Authorities have yet to decide where.

[9] Rollo, p. 11.

[10] Id. at 28-29.

[11] Id. at 62-102.

[12] Id. at 103-106.

[13] Id. at 96.

[14] Id. at 54-55.

[15] Id. at 111-112.

[16] Id. at 141-201.

[17] Id. at 235-287.

[18] 258 Phil. 479 (1989).

[19] 128 Phil. 473 (1967).

[20] 522 Phil. 705 (2006).

[21] Id. at 763-764.

[22] Vivas v. The Monetary Board of the Bangko Sentral ng Pilipinas, 716 Phil. 132, 145

(2013).

[23] Uy Kiao Eng v. Lee, 624 Phil. 200, 206-207 (2010).

[24] 732 Phil. 1 (2014).

[25] Id. at 121-122.

[26] Id. at 122.

[27] Id.

[28] 465 Phil 860 (2004).

[29] Id. at 889-890.

[30] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646

Phil. 452, 481 (2010).

[31] Funa v. Acting Secretary Agra, 704 Phil. 205, 219-220 (2013).

[32] Jumamil v. Café, 507 Phil. 455, 465 (2005).

[33] Galicto v. H.E. President Aquino III, 683 Phil 141, 171 (2012).

[34] Id.

[35] Anak Mindanao Party-List Group v. Executive Secretary Ermita, 558 Phil. 338, 351

(2007).

[36] Funa v. Chairman Villar, 686 Phil. 571, 585 (2012).

[37] Philippine Association of Service Exporters, Inc. v. Hon. Drilon, 246 Phil. 393, 401

(1988).

[38] Leave Division, Office of the Administrative Services (OAS)-Office of the Court

Administrator (OCA) v. Heusdens, 678 Phil. 328, 339-340 (2011).

[39] Supra note 37.

[40] Gorospe, Rene, B., Constitutional Law, Notes and Readings on the Bill of Rights,

Citizenship and Suffrage, Volume I (2006), p. 9.

[41] Id., citing Edu v. Ericta, 146 Phil. 469 (1970).

[42] Id.

[43] Philippine Association of Service Exporters, Inc. v. Hon. Drilon, supra note 37 at

398.

[44] Id.

[45] Id. at 399.

[46] Id.

[47] Id.

[48] Gorospe, Rene, B., Constitutional Law, Notes and Readings on the Bill of Rights,

Citizenship and Suffrage, Volume I (2006), p. 12.

[49] Id.

[50] RA 10121 and RA 9275 or The Philippine Clean Water Act

[51] CONSTITUTION, Article II, Sections 15 and 16 and Article XII, Section 2.

[52] 296 Phil. 694 (1993).

[53] Id. at 713.

[54] Id.

[55] Rollo, p. 145.

[56] See Executive Order No. 53, CREATING A BORACAY INTER-AGENCY TASK FORCE,

PROVIDING FOR ITS POWERS AND FUNCTIONS AND THOSE OF THE MEMBER-
AGENCIES THEREOF, AND OTHER MEASURES TO REVERSE THE DEGRADATION OF
BORACAY ISLAND, id. at 202-207.

[57] JMM Promotion and Management, Inc. v. Court of Appeals, 329 Phil. 87, 99-100

(1996).

[58] Carlos Superdrug Corporation v. Department of Social Welfare and Development,

553 Phil. 120, 132 (2007).

[59] Id.
[60] G.R. No. 199669, April 25, 2017, 824 SCRA 164.

[61] Id. at 211.

[62] Id. at 212.

[63] Manila Memorial Park, Inc. v. Secretary of the Department of Social Welfare and

Development, 722 Phil. 538, 590 (2013).

[64] Relevant legislative polices of RA 10121 state, viz.:

SECTION 2. Declaration of Policy. - It shall be the policy of the State to:

xxxx

(e) Develop, promote, and implement a comprehensive National Disaster

Risk Reduction and Management Plan (NDRRMP) that aims to strengthen
the capacity of the national government and the local government units
(LGUs), together with partner stakeholders, to build the disaster resilience
of communities, and to institutionalize arrangements and measures for
reducing disaster risks, including projected climate risks, and enhancing
disaster preparedness and response capabilities at all levels;

xxxx

(k) Recognize the local risk patterns across the country and strengthen the
capacity of LGUs for disaster risk reduction and management through
decentralized powers, responsibilities, and resources at the regional and
local levels; [and]

(l) Recognize and strengthen the capacities of LGUs and communities

in mitigating and preparing for, responding to, and recovering from the
impact of disasters;

xxxx

[65] Supra note 56.

[66] 595 Phil. 305 (2008).

[67] Id. at 346-347.

[68] Oposa v. Hon. Factoran, Jr., supra note 52 at 713.

SEPARATE CONCURRING OPINION

CARPIO, J.:
This case involves the constitutionality of Proclamation No. 475,[1] declaring a state of
calamity in Barangays Balabag, Manoc-Manoc and Yapak in 1,032-hectare Boracay
Island and ordering the temporary closure of the island as a tourist destination for six
months, starting 26 April 2018 until 25 October 2018.

I vote to dismiss the petition.

Proclamation No. 475 was issued because of the environmental degradation and
destruction of the ecological balance of Boracay Island, which was aggravated by the
continuing rise of tourist arrivals.[2] Under Section 4[3] of Presidential Decree No. 1586,
[4] the President may declare certain areas in the country as environmentally critical. To

pave the way for the rehabilitation of Boracay Island and prevent further degradation of
its rich ecosystem, the proclamation ordered the temporary closure of the island as a
tourist destination for six months[5] during which period the government would
undertake massive road, drainage, and sewerage construction, as well as require all
establishments to comply with the Clean Water Act, Clean Air Act, Code on Sanitation
of the Philippines, Ecological Solid Waste Management Act of 2000, and other relevant
laws. However, local residents of Boracay Island were not prohibited from
entering or leaving the island during the rehabilitation period as the
prohibition applied only to travelers and tourists.

The rehabilitation of Boracay Island resulted in the closure of almost all of the hotels
because of non-compliance with the Clean Water Act, Clean Air Act, National Building
Code of the Philippines, Code on Sanitation of the Philippines, Ecological Solid Waste
Management Act of 2000, and the Environmental Compliance Certificate requirement.
[6] The Department of Tourism suspended the accreditation of hotels and resorts in

Boracay Island for six months to stop the disposal of wastewater into the seas.[7] Some
establishments have also built illegal structures on Boracay's wetlands and forestlands
which had to be dismantled.[8] Furthermore, some companies were operating without
Environmental Compliance Certificate (ECC), in violation of Presidential Decree No.
1586 which established the Environmental Impact Statement System.[9]

Swimming in the waters of Boracay Island was generally not allowed during the six-
month rehabilitation period.[10] The illegal discharge of untreated wastewater into the
sea and the insufficient sewerage system caused the high concentration of fecal
coliform in some of the beaches in Boracay Island.[11] The extremely high level of
coliform bacteria which reached 47,460 mpn (most probable number) per 100 ml.[12]
of water sample was alarming considering that the safe level for swimming and other
activities is just 1,000 mpn/100ml. of water sample.[13] Thus, the ban on swimming
imposed by the government was justified and necessary considering the high coliform
level in the waters of Boracay Island, which was clearly unsafe for swimming and posed
serious health and sanitation hazards.[14]

Many roads were closed for rehabilitation, widening, and construction, including the
main road network which is the primary access to many establishments in the island.
[15] Not only were the roads widened, sewage pipes were also laid to prevent sewage

from flowing into the beach waters, and drainage pipes were installed to prevent
clogged waterways which caused flooding before the closure.[16] As such, traveling
around Boracay Island was severely restricted even for the local residents. Under
Section 1 of Commonwealth Act No. 548,[17] "[national] roads may be temporarily
closed to any or all classes of traffic by the Director of Public Works or his duly
authorized representative whenever the condition of the road or the traffic thereon
makes such action necessary or advisable in the public interest, or for a specified
period, with the approval of the Secretary of Public Works and Communications."

The rehabilitation of Boracay Island as a consequence of Proclamation No. 475,

declaring a state of calamity in Boracay Island, resulted in: (1) the closure of majority
of the hotels and other business establishments for non-compliance with environmental
laws; (2) the closure of many roads for repair, widening, and installation of drainage
pipes; and (3) the ban on swimming in the beaches of Boracay Island due to the unsafe
level of coliform bacteria.

Given such a situation in Boracay Island, the invocation on behalf of non-residents of

Boracay Island of the right to travel, which includes the right to move freely within the
country,[18] is misplaced. First, the valid closure of roads severely restricted movement
around the island. Second, the closure of hotels and establishments pending
investigation and accreditation left tourists and non-locals with no accommodations.
Third, the valid ban on swimming in Boracay beaches for sanitary and health
considerations made unavailable the main tourist attraction of Boracay Island.

Clearly, the condition of Boracay Island during the six-month rehabilitation period
justified the prohibition on travelers and tourists from entering Boracay Island because
of the physical impediment to traveling around the island resulting from the massive
road, sewerage and drainage construction, the lack of accommodations, and the ban on
swimming and other water recreational activities. Thus, Proclamation No. 475 is a valid
exercise of various existing laws, that is, Presidential Decree No. 1586, Commonwealth
Act No. 548, Clean Water Act of 2004 (Republic Act No. 9275), Clean Air Act of 1999
(Republic Act No. 8749), National Building Code of the Philippines (Republic Act No.
6541), Ecological Solid Waste Management Act of 2000 (Republic Act No. 9003), and
the Code on Sanitation of the Philippines (Presidential Decree No. 856). These are laws
pursuant to the police power of the state. There is no claim that these laws are
unconstitutional. The President, in the exercise of his control over the Executive branch
of government,[19] can directly exercise the functions of subordinate officials tasked to
implement these laws.

Accordingly, I vote to DISMISS the petition.

[1] DECLARING A STATE OF CALAMITY IN THE BARANGAYS OF BALABAG, MANOC-

MANOC AND YAPAK (ISLAND OF BORACAY) IN THE MUNICIPALITY OF MALAY, AKLAN,

AND TEMPORARY CLOSURE OF THE ISLAND AS A TOURIST DESTINATION.

[2] The WHEREAS clauses of Proclamation No. 475 cites the result of the evaluation and

investigation of the Inter-Agency Task Force composed of the DENR, DILG, and DOT,
which revealed, among others, (1) high concentration of fecal coliform in some of the
beaches in Boracay; (2) insufficient sewer and waste management system resulting in
improper disposal of waste products, including discharge of waste water near the
shores; (3) 937 illegal structures constructed on forestlands and wetlands, as well as
102 illegal structures on areas classified as easements.

[3] Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. –

The President of the Philippines may, on his own initiative or upon recommendation of
the National Environmental Protection Council, by proclamation declare certain
projects, undertakings or areas in the country as environmentally critical. No person,
partnership or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an Environmental
Compliance Certificate issued by the President or his duly authorized representative.
For the proper management of said critical project or area, the President may by his
proclamation reorganize such government offices, agencies, institutions, corporations
or instrumentalities including the re-alignment of government personnel, and their
specific functions and responsibilities.

For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare
the proper land or water use pattern for said critical project(s) or area(s); (b) establish
ambient environmental quality standards; (c) develop a program of environmental
enhancement or protective measures against calamitous factors such as earthquake,
floods, water erosion and others, and (d) perform such other functions as may be
directed by the President from time to time.

[4] ESTABLISHING AN ENVIRONMENTAL IMPACT STATEMENT SYSTEM INCLUDING

OTHER ENVIRONMENTAL MANAGEMENT RELATED MEASURES AND FOR OTHER

PURPOSES.

[5] https://news.abs-cbn.com/specials/the-boracay-project (visited 9 November 2018);

https://news.abs-cbn.com/news/05/10/18/duterte-creates-boracay-inter-agency-
rehab-task-force (visited 9 November 2018);
http://www.officialgazette.gov.ph/downloads/2018/05may/20180508-EO-53-RRD-2.pdf
(visited 9 November 2018).

[6] "The Environmental Management Bureau (EMB)-6 has issued 478 notices of

violations to establishments in Boracay Island for violating environmental laws."

https://pia.gov.ph/news/articles/1010563 (visited 12 November 2018); http://visayas.
politics.com.ph/ang-dami-nga-denr-issues-478-violation-notices-to-boracaybusinesses/
(visited 12 November 2018); https://businessmirror.com.ph/new-denr-list-reveals-
more-boracay-businesses-violated-environment-laws/ (visited 12 November 2018).

[7] https://news.abs-cbn.com/news/02/26/18/tourism-dept-to-suspend-accreditation-
of-non-compliantboracay-hotels (visited 9 November 2018).

[8] http://cnnphilippines.com/news/2018/03/02/senate-boracay-probe.html (visited 9

November 2018).

[9] https://businessmirror.com.ph/new-denr-list-reveals-more-boracay-businesses-
violatedenvironment-laws/ (visited 12 November 2018).
[10] https://www.rappler.com/nation/200719-no-total-swimming-fishing-ban-boracay-
residents (visited 16 November 2018).

[11] https://www.bworldonline.com/denr-to-fast-track-approvals-for-boracay-sewage-
treatment-plants/ (visited 12 November 2018); https://businessmirror.com.ph/water-
from-boracay-hidden-pipesfound-positive-for-coliform-bacteria/ (visited 12 November
2018).

[12] https://newsinfo.inquirer.net/979944/environmental-issues-have-been-hounding-
boracay-for-20-years (visited 16 November 2018).
https://www.philstar.com/headlines/2015/02/21/1426419/government-raises-concern-
over-highbacteria-levels-boracay-water (visited 16 November 2018).

[13] Section 6.2.1 of the Implementing Rules and Regulations of Chapter VIII - "Public

Swimming or Bathing Places" of the Code on Sanitation of the Philippines states:

6.2 Natural Bathing Places

6.2.1 The quality of water for natural bodies of water used for swimming,
bathing, or other contact recreation purposes shall be within the standard
set by the Department of Environment and Natural Resources.

a. Inland Waters. - For inland water, total coliform shall not

exceed 1,000 MPN per 100 ml of water sample, fecal coliform
shall not exceed 200 MPN per 100 ml of water sample, and a pH
range of 6.5-8.5.

b. Marine and Estuarine Waters. - For marine water, total coliform

shall not exceed 1,000 MPN per 100 ml of water sample, fecal
coliform shall not exceed 200 MPN per 100 ml of water sample,
and a pH range of 6.0-8.5.

[14] Section 5.2.1 of the Implementing Rules and Regulations of Chapter VIII - "Public

Swimming or Bathing Places" of the Code on Sanitation of the Philippines states:

5.2 Safety Precautions at Public Natural Bathing Places

5.2.1 No public bathing place shall be maintained on a natural body of water

that has been determined and declared by the Department of Health or the
local health office to be unsafe for bathing or may pose to be a menace to
health of the bathers.

[15] https://businessmirror.com.ph/dpwh-fast-tracks-completion-of-boracay-islands-
road-infrastructure/ (visited 9 November 2018);
https://www.rappler.com/nation/210011-photo-boracay-to-open-warzone-like-roads
(visited 12 November 2018).

[16] https://news.mb.com.ph/2018/09/25/dpwh-speeds-up-completion-of-boracay-
main-road/ (visited 12 November 2018); https://news.abs-
cbn.com/focus/multimedia/slideshow/08/16/18/this-is-howboracay-looks-like-then-
and-now (visited 12 November 2018).

[17] AN ACT TO REGULATE AND CONTROL THE USE AND TRAFFIC ON NATIONAL ROADS

AS WELL AS CONSTRUCTIONS ALONG THE SAME, PRESCRIBING PENALTIES FOR THE

VIOLATION THEREOF.

[18] Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, G.R. No.

225442, 8 August 2017, 835 SCRA 350, citing Marcos v. Manglapus, 258 Phil. 479,
497-498 (1989).

[19] Section 17, Article VII, 1987 Constitution.

SEPARATE CONCURRING OPINION

PERLAS-BERNABE, J.:

I concur.

Among other points, I agree with the ponencia that "this case does not actually involve
the right to travel in its essential sense contrary to what petitioners want to portray."[1]
In my view, there can be no violation of the right to travel because, in the first place,
Proclamation No. 475[2] is not an issuance that substantively regulates such right.

To expound, the right to travel has been regarded as integral to personal liberty,[3]
which Blackstone defines as "freedom from restraint of the person."[4] The
guarantee of free movement may be historically traced[5] to the Magna Carta of 1215
which assured the liberty for anyone, except those imprisoned, outlawed, and the
natives of an enemy country, safe and secure entry to and exit from England. It
likewise assured merchants, that they may enter, leave, stay, and move about
England "unharmed and without fear."[6] Much later, or in 1948, the Universal
Declaration of Human Rights (UDHR) recognized everyone's right to freedom of
movement within the borders of each state, as well as the one's right to leave and
return to his country.[7] The guarantee was likewise incorporated in the 1966
International Covenant on Civil and Political Rights,[8] which the Philippines signed in
the same year.[9] This guarantee was incorporated in our fundamental law in the 1973
Constitution,[10] and now appears in the 1987 Constitution.[11]

An examination of local cases wherein the right to travel was involved will support the
premise that the right to travel – if one were to understand the same in its proper
sense – ought to pertain to government regulations that directly affect the individual's
freedom of locomotion or movement. For instance, in Samahan ng mga Progresibong
Kabataan v. Quezon City,[12] the minors' exercise of travel rights was restricted by the
curfew ordinances. In several cases,[13] the accused in a criminal case, especially those
released on bail, were held to be validly prevented from departing from the Philippines.
In Philippine Association of Service Exporters, Inc. v. Drilon,[14] the deployment ban
was imposed on female domestic overseas workers. Further, during medical
emergencies, a person may be isolated or quarantined to prevent the spread of
communicable diseases.[15]

Even the statutes recognized as validly impairing the right to travel have, for its proper
object, a palpably direct restraint on a person's freedom of movement, viz.: (1) in the
Human Security Act,[16] the 1aw restricts the right to travel of an individual charged
with the crime of terrorism even though such person is out on bail; (2) in the Philippine
Passport Act of 1996,[17] the Secretary of Foreign Affairs or his authorized consular
officer may refuse the issuance of, restrict the use of, or withdraw, a passport of a
Filipino citizen; (3) in the Anti-Trafficking in Persons Act of 2003, [18] the Bureau of
Immigration, in order to manage migration and curb trafficking in persons, issued
Memorandum Order RADJR No. 2011-011,[19] allowing its Travel Control and
Enforcement Unit to "offload passengers with fraudulent travel documents, doubtful
purpose of travel, including possible victims of human trafficking" from the Philippine
ports; and (4) in the Inter-Country Adoption Act of 1995,[20] the Inter-Country
Adoption Board may issue rules restrictive of an adoptee's right to travel "to protect
the Filipino child from abuse, exploitation, trafficking, and/or sale or any other practice
in connection with adoption which is harmful, detrimental, or prejudicial to the child."
[21]

In all these instances, the restrictions on the right to travel were imposed on a
person or group of persons,[22] seemingly attaching unto them some form of "ball
and chain" to limit their movement. Clearly, this is not the situation presented in
this case. While the closure of Boracay pursuant to Proclamation No. 475 prohibited
the entry of tourists and non-residents thereto, these people still remained free to
move about in other parts of the country without arbitrary restraint. Thus, whatever
effect such regulation may have on a person's ability to travel to such a specific place is
merely incidental in nature and accordingly, is conceptually remote from the right's
proper sense. To my mind, Proclamation No. 475 is more akin to government
regulations that amount to the "cordoning-off" of areas ravaged by flood, fire, or other
calamities, where access by people thereto may indeed be prohibited pursuant to
considerations of safety and general welfare based on circumstantial exigencies. Thus,
as the right to travel is not the correct vantage point to resolve this case, there is no
need to determine whether or not an explicit statutory enactment exists to justify the
impairment of said right as required under Section 6, Article III of the 1987
Constitution.[23]

Lest it be misunderstood, the extrication of this case from a "right to travel analysis"
does not necessarily mean that the President is, by his sole accord, both authorized
and justified in issuing Proclamation No. 475.
Fundamentally speaking, the President is the Chief of the Executive Department whose
main task is to faithfully execute the laws. In its simple sense, his duty is not to make
law, but rather, implement the law. Proclamation No. 475 is not law, but rather, an
executive issuance which derives statutory imprimatur from existing laws and hence,
has the "force and effect" of law. As its titular heading denotes, Proclamation No. 475 is
a declaration of a state of calamity in the barangays of Balabag, Manoc-Manoc, and
Yapak (Island of Boracay) in the Municipality of Malay, Aldan. In order to address the
situation declared thereunder, it was necessary for the Executive to effect "expeditious
rehabilitation," and to implement this objective, the President had to direct the area's
temporary closure.

To be sure, insofar as this case is concerned, the power of the President to declare a
state of calamity over a particular locality may be sourced from the Administrative Code
of 1987[24] in relation to the Philippine Disaster Risk Reduction and Management Act of
2010.[25] Based on these laws, the President, pursuant to the recommendation of the
National Disaster Risk Reduction and Management Council (NDRRMC), is authorized to
"declare a state of calamity[26] in areas extensively damaged," as well as to approve
"proposals to restore normalcy in the affected areas."[27] On this basis, the NDRRMC
recommended to the President not only the declaration of a state of calamity in Boracay
but also, as a means to restore normalcy therein, the "temporary closure of the Island
as a tourist destination" for the purpose of assisting the government in the "expeditious
rehabilitation" of the same.[28] Thus, as an off-shoot of the declaration of a state of
calamity, and acting upon the recommendation of the NDRRMC, the President found it
necessary to decree the temporary closure of the affected areas if only to ensure the
Island's proper rehabilitation.

While it appears that the above-cited statutes do not spell out in "black and-white" the
President's power to temporarily close-off an area, it is my opinion that a logical
complement to the Executive's power to faithfully execute the laws is the authority to
perform all necessary and incidental acts that are reasonably germane to the statutory
objective that the President is, after all, tasked to execute. What comes to mind is the
doctrine of necessary implication which evokes that "[e]very statute is understood, by
implication, to contain all such provisions as may be necessary to effectuate its object
and purpose, or to make effective rights, powers, privileges or jurisdiction which it
grants, including all such collateral and subsidiary consequences as may be fairly and
logically inferred from its terms. Ex necessitate legis. And every statutory grant of
power, right or privilege is deemed to include all incidental power, right or privilege."
[29] This principle, in its general sense, holds true in this case. By and large, I find it

unreasonable that a President who declares a state of calamity, and who has been
further prompted by a specialized government agency created for disaster operations
pursuant to existing laws to effect a viable plan of action is nonetheless impotent to
pursue the necessary steps to effect a viable plan of action. Surely, the President must
be given reasonable leeway to address calamitous situations, else he be reduced to a
mere mouthpiece of doom.

At this juncture, it is apt to state that Proclamation No. 475 explicitly recognizes in its
"whereas clauses" the State's constitutional duty to protect and advance the rights to
health and to a balanced and healthful ecology,[30] which duty has been translated in
numerous legislative enactments, such as the Philippine Clean Water Act of 2004,[31]
and as mentioned, the Philippine Disaster Risk Reduction and Management Act of 2010,
as well as the Administrative Code of 1987. The Philippine Clean Water Act of 2004
authorizes the Department of Environment and Natural Resources (DENR) to undertake
emergency clean-up operations[32] to counter water pollution. As earlier mentioned,
the Philippine Disaster Risk Reduction and Management Act of 2010 empowers the
NDRRMC to recommend the declaration of a state of calamity in areas extensively
damaged by either natural or human-induced hazards such as environment
degradation, as well as proposals to restore normalcy in the affected areas, such as
through rehabilitation[33] or the rebuilding of damaged infrastructures. Further, the
Administrative Code of 1987 grants the DENR the power to "exercise supervision and
control over [alienable public lands],"[34] such as Boracay, and the Department of
Interior and Local Government the authority to implement programs "to meet national
or local emergencies arising from natural or man-made disasters,"[35] such as
environmental destruction.

Ultimately, the agglomeration of the above-stated laws reveals that the Executive
Department has sufficient statutory authority to clean up the Island. Since the
Constitution vests all executive power in the President, and on this score, grants him
the power of control over all executive departments, he can, within the bounds of law,
integrate and take on the above-stated functions, and in the exercise of which, issue a
directive to implement an environmental rehabilitation program as recommended by
the relevant state agency. At the risk of sounding repetitive, the temporary closure of
the Island to tourists was necessary to effectively execute Boracay's rehabilitation
program pursuant to a declaration of a state of calamity. Therefore, the President had
sufficient authority from both the Constitution and statutes to issue Proclamation No.
475. That being said, and as a point of clarification, I find it unnecessary to situate such
authority in his unstated residual powers.[36]

Having discussed the President's authority, the final question to be traversed is whether
or not there was ample justification for the issuance of Proclamation No. 475.

As previously mentioned, this case should not be assessed against the parameters of
the right to travel. As Proclamation No. 475 constitutes a restriction not against a
person's freedom of movement, but rather, a "place based" regulation, I deem it
appropriate to instead examine the issuance's validity under the lens of petitioners'
right to property under Section 1, Article III of the 1987 Constitution. After all, this
approach specifically corresponds to petitioners' line of argumentation. In particular, as
found in the petition, petitioners Mark Anthony V. Zabal (Zabal) and Thiting Estoso
Jacosalem (Jacosalem) assail the validity of Proclamation No. 475 on the ground that it
violated their right as persons earning a living in the Boracay Island. As alleged, Zabal
earns a living by making sandcastles while Jacosalem works as a driver for tourists.[37]
Accordingly, they submit that the exclusion of tourists from the Island drastically
affected their trade or livelihood.[38]

Under the auspices of Section 1, Article III of the 1987 Constitution, protected property
includes the right to work and the right to earn a living.[39] The purpose of the due
process guaranty is "to prevent arbitrary governmental encroachment against the life,
liberty, and property of individuals."[40] While the right to property is sheltered by due
process provision, it is by no means absolute as it must yield to the general welfare.[41]
Thus, the State may deprive persons of property rights provided that the means
employed are reasonably necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals.[42]

In this case, although the exclusion of tourists from the Island drastically affected the
trade or livelihood of those reliant on them, including petitioners, I submit that the
government had a legitimate State interest in rehabilitating the affected localities of
Boracay given the Island's current critical state. Findings of various government
agencies in the Island reveal its precarious environmental condition, to wit: (a) high
concentration of fecal coliform due to improper sewage infrastructure and sewer waste
management system; (b) dirty water resulting in the degradation of coral reefs and
coral cover; (c) improper solid waste management; (d) destruction of natural habitats
in the island; (e) beach erosion caused by illegal extraction of sand along the beach; (f)
illegal structures along the foreshore; and (g) unauthorized discharge of untreated
waste water near the shore.[43] Notably, these environmental problems were found to
have been aggravated by "tourist influx."[44]

To effectively remedy the Island's environmental woes, "expeditious rehabilitation"

thereof became crucial, and in line therewith, the entry of tourists became necessary to
suspend. As aptly rationalized in the ponencia:

Certainly, 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, testing, demolition, relocation, and
construction. These works could not have easily been done with
tourists present. The rehabilitation works in the first place were not
simple, superficial or mere cosmetic but rather quite complicated,
major, and permanent in character as they were intended to serve
as long term solutions to the problem. x x x Moreover, as part of the
rehabilitation efforts, operations of establishments in Boracay had to be
halted in the course thereof since majority, if not all of them, need to comply
with environmental and regulatory requirements in order to align
themselves with the government's goal to restore Boracay into normalcy and
develop its sustainability. Allowing tourists into the island while it was
undergoing necessary rehabilitation would therefore be pointless as
no establishment would cater to their accommodation and other
needs. Besides, it could not be said that Boracay, at the time of the
issuance of the questioned proclamation, was in such a physical state that
would meet its purpose of being a tourist destination. For one, its beach
waters could not be said to be totally safe for swimming. x x x Indeed, the
temporary closure of Boracay, although unprecedented and radical as it may
seem, was reasonably necessary and not unduly oppressive under the
circumstances. It was the most practical and realistic means of
ensuring that rehabilitation works in the island are started and
 carried out in the most efficacious and expeditious way.[45]
(Emphases supplied)

Moreover, the limited six (6)-month period shows that the closure was not unduly
oppressive upon individuals, and was put in place only to implement the desired State
objective. Therefore, all things considered, Proclamation No. 475 cannot be said to
have been issued with grave abuse of discretion, and as such, remains constitutional.

Accordingly, I vote to DISMISS the petition.

[1] Ponencia, p. 20.

[2] Entitled "DECLARING A STATE OF CALAMITY IN THE BARANGAYS OF BALABAG,

MANOC-MANOC AND YAPAK (ISLAND OF BORACAY) IN THE MUNICIPALITY OF MALAY,

AKLAN, AND TEMPORARY CLOSURE OF THE ISLAND AS A TOURIST DESTINATION,"
signed on April 26, 2018.

[3] See McAdam, Jane "An Intellectual History of Freedom of Movement in International

Law: The Right to Leave as a Personal Liberty." Melbourne Journal of International Law,
Vol. 12 (2011), p. 6.

[4] Shattuck, Charles E. "The True Meaning of the Term 'Liberty' in Those Clauses in the

Federal and State Constitutions Which Protect 'Life, Liberty, and Property." Harvard Law
Review, Vol. 4, No.8 (1891), p. 377; citing William Blackstone, "Absolute Right of
Individuals"; emphasis supplied. < www.jstor.org/stable/1322046 > (visited February
12, 2019).

[5] See Gould, William B. "Right to Travel and National Security," 1961 Wash. U. L. Q.

334 (1961). < http://openscholarship.wustl.edu/law_lawreview/vol1961/iss4/2 >

(visited February 12, 2019).

[6] See English translation of the Magna Carta of 1215 < https://www.bl.uk/magna-

carta/articles/magna carta-english-translation > (visited February 12, 2019).

[7] Adopted on December 10, 1948. <

https://www.ohchr.org/EN/UDHR/Documents/UDHRTranslations/eng.pdf. > (visited
February 12, 2019). Article 13 of the UDHR provides:

Article 13.

1. Everyone has the right to freedom of movement and residence within the
borders of each State.
2. Everyone has the right to leave any country, including his own, and to
return to his country.

[8] Adopted and opened for signature, ratification and accession by General Assembly

resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in
accordance with Article 49. <
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx > (February 12, 2019).
Article 12, Part III of the 1966 International Covenant on Civil and Political Rights
states:

Article 12.

1. Everyone lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except
those which are provided by law, are necessary to protect national security,
public order (ordre public), public health or morals or the rights and
freedoms of others, and are consistent with the other rights recognized in
the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.

[9] The Philippines signed on December 19. 1966. <

https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280004bf5&clang=_en
> (February 12, 2019).

[10] Section 5, Article IV of the 1973 CONSTITUTION provides:

Section 5. The liberty of abode and of travel shall not be impaired except
upon lawful order of the court, or when necessary in the interest of national
security, public safety, or public health.

[11] See Section 6, Article III of the 1987 CONSTITUTION.

[12] G.R. No. 225442, August 8, 2017, 835 SCRA 350.

[13] See Manotoc, Jr. v. Court of Appeals, 226 Phil. 75 ( 1986), Silverio v. Court of

Appeals, 273 Phil. 128 (1991). In Marcos v. Sandiganbayan (317 Phil. 149, 167
[1995]), the Court stated that "a person's right to travel is subject to the usual
constraints imposed by the very necessity of safeguarding the system of justice." See
also Lee v. The State (474 S.E.2d 281 [1996]), wherein the Court of Appeals of Georgia
held that an arrest restrains a person's liberty to come and go as he pleases.

[14] See 246 Phil. 393 (1988).

[15] See Internal Health Regulations of the World Health Organization, 3rd Edition

(2005), pp. 23-24 <

https://apps.who.int/iris/bitstream/handle/10665/246107/9789241580496-
eng.pdf;jsessionid=7B5FCF4B030035B953CDCDEE7F92D6EC?sequence=1 > (February
12, 2019).

[16] Republic Act No. (RA) 9372, entitled "AN ACT TO SECURE THE STATE AND

PROTECT OUR PEOPLE FROM TERRORISM," approved on March 6, 2007.

[17] RA 8239, approved on November 22, 1996.

[18] RA 9208, entitled "AN ACT TO INSTITUTE POLICIES TO ELIMINATE TRAFFICKING

IN PERSONS ESPECIALLY WOMEN AND CHILDREN, ESTABLISHING THE NECESSARY

INSTITUTIONAL MECHANISMS FOR THE PROTECTION AND SUPPORT OF TRAFFICKED
PERSONS, PROVIDING PENALTIES FOR ITS VIOLATIONS, AND FOR OTHER PURPOSES,"
approved on May 26, 2003.

[19] Entitled "STRENGTHENING THE TRAVEL CONTROL AND ENFORCEMENT UNIT

(TCEU) UNDER AIRPORT OPERATIONS DIVISION (AOD) AND DEFINING THE DUTIES
AND FUNCTIONS THEREOF" dated June 30, 2011.

[20] RA 8043, entitled "AN ACT ESTABLISHING THE RULES TO GOVERN INTER-

COUNTRY ADOPTION OF FILIPINO CHILDREN, AND FOR OTHER PURPOSES," approved

on June 7, 1995.

[21]See Leave Division, Office of Administrative Services, Office of the Court

Administrator v. Heusdens, 678 Phil. 328, 339-340 (2011 ).

[22] See also the United Nations Convention relating to the Status of Refugees, adopted

in 1951 and entered into force on 22 April 1954, which stresses refugees' freedom of
movement, to wit:

Article 26
Freedom of Movement

Each Contracting State shall accord to refugees lawfully in its territory the
right to choose their place of residence to move freely within its territory,
subject to any regulations applicable to aliens generally in the same
circumstances.

[23] See Genuino v. De Lima (G.R. Nos. 197930, 199034, and 199046, April 17, 2018)

in relation to Section 6, Article III of the 1987 Constitution.

[24] Executive Order No. 292, entitled "INSTITUTING THE ADMINISTRATIVE CODE OF

1987" (August 3, 1988). The President's ordinance power is explicitly stated in Section
4, Chapter 2, Title I, Book III of the Administrative Code of 1987, to wit:

Section 4. Proclamations. – Acts of the President fixing a date or declaring a

status or condition of public moment or interest, upon the existence of which
the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive
order. (Underscoring supplied)

[25] RA 10121, entitled "AN ACT STRENGTHENING THE PHILIPPINE DISASTER RISK

REDUCTION AND MANAGEMENT SYSTEM, PROVIDING FOR THE NATIONAL DISASTER

RISK REDUCTION AND MANAGEMENT FRAMEWORK AND INSTITUTIONALIZING THE
NATIONAL DISASTER RISK REDUCTION AND MANAGEMENT PLAN, APPROPRIATING
FUNDS THEREFOR AND FOR OTHER PURPOSES," May 27, 2010.

[26] Section 2 (II) of RA10121 defines "State of Calamity" as "a condition involving

mass casualty and/or major damages to property, disruption of means of livelihoods,

roads and normal way of life of people in the affected areas as a result of the
occurrence of natural or human-induced hazard."

[27] See Section 6 (c) of RA 10121 which states:

Section 6. Powers and Functions of the NDRRMC. x x x

xxxx
(c) x x x recommend to the President the declaration of a state of calamity
in areas extensively damaged; and submit proposals to restore normalcy
in the affected areas, to include calamity fund allocation[.] (Emphasis and
underscoring supplied)

[28] The last whereas clause of Proclamation No. 475 reads:

WHEREAS, pursuant to [RA 10121] x x x, the [NDRRMC] has recommended

the declaration of a State of Calamity in the Island of Boracay and the
temporary closure of the Island as a tourist destination to ensure public
safety and public health, and to assist the government in its expeditious
rehabilitation, as well as in addressing the evolving socioeconomic needs of
the affected communities[.] (Underscoring supplied)

[29] See Robustum Agricultural Corporation v. Department of Agrarian Reform and Land

Bank of the Philippines, G.R. No. 221484, November 19, 2018.

[30] In Oposa v. Factoran, Jr. (G.R. No. 101083, July 30, 1993, 224 SCRA 792, 804-

805), the Court held that "[w]hile the right to a balanced and healthful ecology is to be
found under the Declaration of Principles and State Policies and not under the Bill of
Rights, it does not follow that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation —
aptly and fittingly stressed by the petitioners — the advancement of which may even be
said to predate all governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are assumed to exist from
the inception of humankind." The Court also exclaimed that the right to a balanced and
healthful ecology "unites with the right to health."

[31] RA 9275, entitled "AN ACT PROVIDING FOR A COMPREHENSIVE WATER QUALITY

MANAGEMENT AND FOR OTHER PURPOSES," approved on March 22, 2004.

[32] Section 16, Article 3 of RA 9275 reads:

Section 16. Clean-Up Operations. – x x x Provided. That in the event

emergency clean-up operations are necessary x x x the Department, in
coordination with other government agencies concerned, shall conduct
containment, removal and clean-up operations. x x x. (Emphasis
supplied)

[33] Section 3 (ee) of RA 10121 defines "Rehabilitation" as "measures that ensure the

ability of affected communities/areas to restore their normal level of functioning by

rebuilding livelihood and damaged infrastructures and increasing the communities'
organizational capacity."

[34] See Section 4 (4), Chapter I, Title XIV, Book IV of the Administrative Code of 1987.

[35] See Section 3 (5), Chapter I, Title XII, Book IV of the Administrative Code of 1987.

[36] In response to the discussions in Justice Alfredo Benjamin S. Caguioa's Dissenting

Opinion, pp. 17-27.

[37] See Petition, p. 3.

[38] See id. at 20 and 22.

[39] See Senior Associate Justice Antonio T. Carpio's Separate Concurring Opinion in

Serrano v. Gallant Maritime Services, Inc., 601 Phil. 245, 307 (2009).

[40] White Light Corporation v. City of Manila, 596 Phil. 444, 461 (2009).

[41] See Carlos Superdrug Corporation v. Department of Social Welfare and

Development, 553 Phil. 120, 132 (2007).

[42] In Social Justice Society v. Atienza, Jr. (568 Phil. 658, 702 [ 2008]), the Court held

that the State "may be considered as having properly exercised [its] police power only
if the following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require its exercise and (2) the means
employed are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals. In short, there must be a concurrence
of a lawful subject and a lawful method." (Emphasis supplied)

[43] See 4th-7th whereas clauses of Proclamation No. 475.

[44] See 8th and 9th whereas clauses of Proclamation No. 475.

[45] Ponencia, pp. 23-24.

DISSENTING OPINION

We can save ourselves, but only

if we let go of the myth of
dominance and mastery and
learn to work with nature.

Naomi Klein
 The primary threat to nature
and people today comes from
centralizing and monopolizing
power and control. Not until
diversity is made the logic of
production will there be a
chance for sustainability, justice
and peace. Cultivating and
conserving diversity is no luxury
in our times: it is a survival
imperative.

Vandana Shiva

LEONEN, J.:

With respect to my esteemed colleagues, I dissent.

Proclamation No. 475, s. 2018 (or the Proclamation) is unconstitutional, as it is an

impermissible exercise of police power.

It violates the right to life and liberty properly invoked by petitioners without due
process of law. The Proclamation imposes a closure and a deprivation of the livelihood
of those who have not been shown to have caused the high levels of fecal coliform and
other human made incursions into Boracay's ecology which invited President Rodrigo
Duterte's drastic actions. The specific actions and programs to be undertaken during
the closure of the entire island, so as to properly advise the residents, workers, and
others interested, are not clearly stated. The six (6)-month duration of the closure is
arbitrary. The state of calamity will persist even after the closure expires. The lifting of
the declaration of the state of calamity is not preceded by any discernible standard. The
Department of the Interior and Local Government "Guidelines" (DILG Guidelines) for
the closure were issued prior to the promulgation of the Proclamation. It is inconsistent
with the latter, containing provisions with serious constitutional implications.

The Proclamation is unduly vague. It is unconstitutionally broad.

Proclamation No. 475 is contrary to the very statutes it allegedly implements, Republic
Acts No. 10121[1] and 9275.[2] The ecological problem in Boracay is not the calamity
envisioned in Republic Act No. 10121 or the Philippine Disaster Risk Reduction and
Management Act of 2010. By exercising control rather than merely supervision, the
Presidential exercise violates the constitutionally protected principle of local autonomy.
Contrary to the Majority's view, such infringement is neither incidental nor marginal.

Assuming that a state of calamity was properly declared, the Proclamation upends the
framework of locally-led remediation and rehabilitation efforts mandated by the
statutes. By declaring that only the President can lift the declaration, the Proclamation
violates Republic Act No. 10121.
Human induced ecological disasters need to be addressed deliberately, systematically,
structurally and with all institutions of government actively engaging public
participation. There are laws already in place that could have been properly enforced.
The right intentions however must always be accompanied by the right and legal
means. The Majority's tolerance for the dramatic and drastic actions of the Chief
Executive violates the rule of law and undermines constitutional democracy.

Considering the many calamities our society has to face, upholding the framework
contained in Proclamation No. 475 invites a regime that is borderline authoritarian.

The Petition raises questions relating to petitioners' right to travel and right to due
process. I join Associate Justice Alfredo Benjamin Caguioa's view that the right to travel
has been violated especially in light of the most recent unanimous decision of this Court
in Genuino v De Lima.[3] Fundamentally, however, I vote to grant the Petition on due
process grounds.

The basic rights asserted by petitioners are acknowledged in Article III, Section 1 of the
Constitution:

SECTION 1. No person shall be deprived of life, liberty or property without

due process of law[.]

The due process clause is written as a proscription.[4] It implies a sphere of individual

autonomy that is constitutionally protected. As early as 1890, in the seminal work of
Louis D. Brandeis and Samuel Warren, this sphere was referred to as the "right to be
left alone" from interference by the State. Reviewing its evolution in common law:

That the individual shall have full protection in person and in property is a
principle as old as the common law; but it has been found necessary from
time to time to define anew the exact nature and extent of such protection.
Political, social and economic changes entail the recognition of new rights,
and the common law, in its eternal youth, grows to meet the demands of
society. Thus, in very early times, the law gave a remedy only for physical
interference with life and property, for trespasses vi et armis. Then the
"right to life" served only to protect the subject from battery in its various
forms; liberty meant freedom from actual restraint; and the right to
property secured to the individual his lands and his cattle. Later, there came
a recognition of man's spiritual nature, of his feelings and his intellect.
Gradually the scope of these legal rights broadened; and now the right to
life has come to mean the right to enjoy life,—the right to be let alone; the
right to liberty secures the exercise of extensive civil privileges; and the
term "property" has grown to comprise every form of possession—
intangible, as well as tangible.

Thus, with the recognition of the legal value of sensations, the protection
against actual bodily injury was extended to prohibit mere attempts to do
such injury; that is, the putting another in fear of such injury. From the
action of battery grew that of assault. Much later there came a qualified
 protection of the individual against offensive noises and odors, against dust
and smoke and excessive vibration. The law of nuisance was developed. So
regard for human emotions soon extended the scope of personal immunity
beyond the body of the individual. His reputation, the standing among his
fellow-men, was considered, and the law of slander and libel arose. Man's
family relations became a part of the legal conception of his life, and the
alienation of a wife's affections was held remediable. Occasionally the law
halted,—as in its refusal to recognize the intrusion by seduction upon the
honor of the family. But even here the demands of society were met. A
mean fiction, the action per quod servitium amisit, was resorted to, and by
allowing damages for injury to the parents' feelings, an adequate remedy
was oridinarily afforded. Similar to the expansion of the right to life was the
growth of the legal conception of property. From corporeal property arose
the incorporeal rights issuing out of it; and then there opened the wide
realm of intangible property, in the products and processes of the mind, as
works of literature and art, goodwill, trade secrets, and trademarks.

This development of the law was inevitable.[5] (Citations omitted)

The structure of the due process clause and the primordial value it conceals do not limit
protection of life only to one's corporeal existence.[6] Liberty is more than just physical
restraint. Even property can be incorporeal.[7]

In Secretary of National Defense et al. v. Manalo et al.:[8]

While the right to life under Article III, Section 1 guarantees essentially the
right to be alive—upon which the enjoyment of all other rights is
preconditioned—the right to security of person is a guarantee of the secure
quality of this life, viz.: "The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably violated by a
powerful ruler. Rather, it is a life lived with the assurance that the
government he established and consented to, will protect the security of his
person and property. The ideal of security in life and property . . . pervades
the whole history of man. It touches every aspect of man's existence." In a
broad sense, the right to security of person "emanates in a person's legal
and uninterrupted enjoyment of his life, his limbs, his body, his health, and
his reputation. It includes the right to exist, and the enjoyment of life while
existing, and it is invaded not only by a deprivation of life but also of those
things which are necessary to the enjoyment of life according to the nature,
temperament and lawful desires of the individual.[9] (Citations omitted)

City of Manila v. Laguio, Jr.[10] reiterated the broad conception of the right to life and
liberty:

[T]he right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the faculties with which he has been endowed by his Creator,
 subject only to such restraint as are necessary for the common welfare.[11]
(Emphasis supplied, citation omitted)

The rights to life and liberty are inextricably woven. Life is nothing without liberties.
Without a full life, the fullest of liberties protected by our constitutional order will not
happen. Again, in City of Manila:

While the Court has not attempted to define with exactness the liberty . . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes
not merely freedom from bodily restraint but also the right of the individual
to contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and generally
to enjoy those privileges long recognized . . . as essential to the orderly
pursuit of happiness by free men. In a Constitution for a free people, there
can be no doubt that the meaning of "liberty" must be broad indeed.[12]
(Emphasis supplied)

Thereafter:

These matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and autonomy,
are central to the liberty protected by the Fourteenth Amendment. At the
heart of liberty is the right to define one's own concept of existence, of
meaning, of universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood where they formed
under compulsion of the State. [13]

Likewise, in my Concurring Opinion in Spark v Quezon City:[14]

Speaking of life and its protection does not merely entail ensuring biological
subsistence. It is not just a proscription against killing. Likewise, speaking of
liberty and its protection does not merely involve a lack of physical restraint.
The objects of the constitutional protection of due process are better
understood dynamically and from a frame of consummate human dignity.
They are likewise better understood integrally, operating in a synergistic
frame that serves to secure a person's integrity.

"Life, liberty and property" is akin to the United Nations' formulation of "life,
liberty, and security of person" and the American formulation of "life, liberty
and the pursuit of happiness." As the Declaration of Independence
postulates, they are "unalienable rights" for which "[g]overnments are
instituted among men" in order that they may be secured. Securing them
denotes pursuing and obtaining them, as much as it denotes preserving
them. The formulation is, thus, an aspirational declaration, not merely
operating on factual givens but enabling the pursuit of ideals.

"Life," then, is more appropriately understood as the fullness of human

potential: not merely organic, physiological existence, but consummate self-
actualization, enabled and effected not only by freedom from bodily restraint
 but by facilitating an empowering existence. "Life and liberty," placed in the
context of a constitutional aspiration, it then becomes the duty of the
government to facilitate this empowering existence. This is not an
inventively novel understanding but one that has been at the bedrock of our
social and political conceptions. As Justice George Malcolm, speaking for this
Court in 1919, articulated:

Civil liberty may be said to mean that measure of freedom which

may be enjoyed in a civilized community, consistently with the
peaceful enjoyment of like freedom in others. The right to liberty
guaranteed by the Constitution includes the right to exist and the
right to be free from arbitrary personal restraint or servitude. The
term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace
the right of man to enjoy the faculties with which he has been
endowed by his Creator, subject only to such restraints as are
necessary for the common welfare. As enunciated in a long array
of authorities including epoch-making decisions of the United
States Supreme Court, liberty includes the right of the citizen to
be free to use his faculties in lawful ways; to live and work where
he will; to earn his livelihood by any lawful calling; to pursue any
avocation, and for that purpose, to enter into all contracts which
may be proper, necessary, and essential to his carrying out these
purposes to a successful conclusion. The chief elements of the
guaranty are the right to contract, the right to choose one's
employment, the right to labor, and the right of locomotion.

It is in this sense that the constitutional listing of the objects of due process
protection admits amorphous bounds. The constitutional protection of life
and liberty encompasses a penumbra of cognate rights that is not fixed but
evolves — expanding liberty — alongside the contemporaneous reality in
which the Constitution operates. People v. Hernandez illustrated how the
right to liberty is multi-faceted and is not limited to its initial formulation in
the due process clause:

[T]he preservation of liberty is such a major preoccupation of our

political system that, not satisfied with guaranteeing its
enjoyment in the very first paragraph of section (1) of the Bill of
Rights, the framers of our Constitution devoted paragraphs (3),
(4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17),
(18), and (21) of said section (1) to the protection of several
aspects of freedom.[15] (Citations omitted)

Petitioners assert that due process covers the right to livelihood, to work and earn a
living.[16] The pleadings were brought by a sandcastle builder, a driver, and a non-
resident. The first two (2) are informal workers who have no economic resources other
than their ability to provide their services. The last petitioner is a citizen claiming his
right, as a Filipino, to enjoy the natural beauty of his country—his right to travel.
The majority unfortunately canisters this right as falling under the right to property.
The argument is that since petitioners have no vested rights on their sources of
income, they are not entitled to due process. Even if tourists were still allowed in the
island, they earn nothing if no one avails of their services. Thus, since petitioners'
earnings are contingent and merely inchoate, the right to property does not yet exist.

I disagree.

The right invoked is not merely the right to property. The right to livelihood falls within
the spectrum of the almost inviolable right to life and liberty. The ability to answer a
calling, evolve, and create a better version of oneself, in the process of serving others,
is a quintessential part of one's life. The right to life is not a mere corporeal existence,
but includes one's choice of occupation. This is as important as to those who belong to
the informal sector. It is an aspect of social justice that their right to be able to earn a
livelihood should be protected by our Constitution.

In the hierarchy of rights, the right to life and the right to liberty sit higher than the
right to property. This is also the import of Article II, Section 11 of the Constitution
which provides:

SECTION 11. The State values the dignity of every human person and
guarantees full respect for human rights.

We recognize the primacy of human rights over property rights because these rights
are "delicate and vulnerable[.]" They are so precious in our society, such that the threat
of sanctions may deter their exercise almost as strongly as the actual application of
sanctions. They "need breathing space to survive"; thus, government regulation is
allowable only with "narrow specificity."[17]

In contrast, property rights may be readily qualified as evidenced by the many rules
and laws that have been enacted on property ownership and possession. Article XII,
Section 6 of the Constitution qualifies the right to property:

SECTION 6. The use of property bears as social function, and all economic
agents shall contribute to the common good. Individuals and private groups,
including corporations, cooperatives, and similar collective organizations,
shall have the right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice and to
intervene when the common good so demands.

As early as in Ermita-Malate Hotel and Motel Operators Association v. City of Manila,[18]

this Court already emphasized that if the liberty involved were "freedom of the mind or
the person, the standard for the validity of governmental acts is much more rigorous
and exacting, but where the liberty curtailed affects at the most rights of property, the
permissible scope of regulatory measures is wider."[19]

We are not confronted with a situation where the government simply regulates one's
occupation. Here, the shutdown contemplated in Proclamation No. 475 is complete. The
total deprivation of their right to exercise their occupation was curtailed.
For those who have a very regular and lucrative source of income, a period of six (6)
months may not be a long time. However, to those within the informal sector, losing
their jobs even for a day can spell disaster not only for themselves, but also for their
families. Not only do they have legal standing to challenge the Proclamation, but they
also do so invoking one (1) of the most primordial of our fundamental rights.

The Proclamation deprives them of their livelihood not for a day, for a week, or for even
a month, but for six (6) months. The Proclamation itself— or any law that is
purportedly meant to have authorized the issuance of such proclamation—does not
provide a credible means of compensation for them. It does not mention any remedial
measures for those whose rights will be affected. It is not only police power that exists.
Fundamental rights vested by the Constitution could only be considered collateral
damage undeserving of any form of redress.

Parenthetically, even if the characterization of their plea belongs to the right to

property, Southern Luzon Drug Corporation v. Department of Social Welfare and
Development,[20] is not on point.

In Southern Luzon Drug Corporation, we dealt with the question as to whether the shift
in tax treatment of the 20% discount given to senior citizens and persons with disability
was a valid exercise of police power. The case did not involve the livelihood of
individuals; rather, it involved the profits of an ongoing business. Furthermore, the
businesses affected by the senior citizen's discount were not suspended. The case only
concerned itself on the proper way of computing their taxes for incomes they have not
yet received.

There is a fundamental difference in treatment between a business and human labor

under our Constitution. Human labor is given more protection. This is found in Article
XIII, Section 3 of the Constitution:

SECTION 3. The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of
employment opportunities for all.

Here, what happened was not a mere regulation of a business. It was a closure of an
entire island that ceased to make any of the means to a livelihood known to them
possible.

It is unfortunate that the Majority made judicial findings accepting the government's
argument that petitioners were free to move and practice their profession elsewhere.
[21] This was without basis.

Not all informal workers are mobile simply because not all of them have financial
resources to move from one (1) place to another. Not all of them have multiple skills
that would allow them the flexibility to be employed in another line of work immediately
when their current consistent source of income stops. Precisely, they become part of
the informal sector because through their circumstances, they have been unable to
evolve to more marketable skills. To nonchalantly assume that they can find other jobs
should not be an acceptable judicial approach, as that may trivialize the rights they
assert. It is an unfortunate—though perhaps unintended—display of our lack of
compassion for the plight of petitioners.

Certainly, this is not the judicial approach sanctioned by our Constitution. Article II,
Sections 9 and 10 of the Constitution call attention to sensitivity to social justice, thus:

SECTION 9. The State shall promote a just and dynamic social order that
will ensure the prosperity and independence of the nation and free the
people from poverty through policies that provide adequate social services,
promote full employment, a rising standard of living, and an improved
quality of life for all.

SECTION 10. The State shall promote social justice in all phases of national
development.

Together, these constitutional provisions provide that social justice cannot be achieved
through an overgeneralized understanding of labor. The informal sector, represented by
petitioners, does not have the same mobility of other workers who have more skills.
They do not also have the same mobility as the businesses that filed the petition in
Southern Luzon Drug Corporation.[22]

Undoubtedly, here, the total negation of petitioners' opportunity to do their livelihood

was a deprivation of their right to life and liberty. Definitely, they had standing to sue.

II

The breadth of the constitutional protection of life and liberty may continue to evolve
with contemporary realities. However, the textual basis in the Constitution is fixed: any
intrusion must be with due process of law.

Jurisprudence evolved three (3) levels of due process analysis.

In Ermita Malate Hotel and Motel Operators Association,[23] where the validity of an
ordinance was upheld, this Court reasoned that the ordinance was a police power
measure aimed at safeguarding public morals, and thus, is immune from imputation of
nullity:

To hold otherwise would be to unduly restrict and narrow the scope of police
power which has been properly characterized as the most essential, insistent
and the least limitable of powers, extending as it does "to all the great
public needs." It would be, to paraphrase another leading decision, to
destroy the very purpose of the state if it could be deprived or allowed itself
to be deprived of its competence to promote public health, public morals,
public safety and the general welfare. Negatively put, police power is "that
inherent and plenary power in the State which enables it to prohibit all that
is hurtful to the comfort, safety, and welfare of society."[24] (Emphasis
supplied)

In that case, the Court viewed due process as merely requiring that the challenged
action "must not outrun the bounds of reasons and result in sheer oppression. Due
process is thus hostile to any official action marred by lack of reasonableness. Correctly
has it been identified as freedom from arbitrariness. It is the embodiment of the
sporting idea of fair play."[25]

Decades later, in City of Manila,[26] an ordinance that prohibited persons and

corporations from contracting and engaging in any business providing certain forms of
amusement, entertainment, services, and facilities, where women were used as tools in
entertainment, was struck down as unconstitutional because it affected the moral
welfare of the community. This Court clearly defined the test of a valid ordinance:

[I]t must not only be within the corporate powers of the local government
unit to enact and must be passed according to the procedure prescribed by
law, it must also conform to the following substantive requirements: (1)
must not contravene the Constitution or any statute; (2) must not be unfair
or oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent with
public policy; and (6) must not be unreasonable.[27]

Only a few years later, in White Light Corporation v. City of Manila,[28] this Court
elaborated:

The general test of the validity of an ordinance on substantive due process

grounds is best tested when assessed with the evolved footnote 4 test laid
down by the U.S. Supreme Court in U.S. v. Carolene Products. Footnote 4 of
the Carolene Products case acknowledged that the judiciary would defer to
the legislature unless there is a discrimination against a "discrete and
insular" minority or infringement of a "fundamental right". Consequently,
two standards of judicial review were established: strict scrutiny for laws
dealing with freedom of the mind or restricting the political process, and the
rational basis standard of review for economic legislation.

A third standard, denominated as heightened or immediate scrutiny, was

later adopted by the U.S. Supreme Court for evaluating classifications based
on gender and legitimacy. Immediate scrutiny was adopted by the U.S.
Supreme Court in Craig, after the Court declined to do so in Reed v. Reed.
While the test may have first been articulated in equal protection analysis, it
has in the United States since been applied in all substantive due process
cases as well.

We ourselves have often applied the rational basis test mainly in analysis of
equal protection challenges. Using the rational basis examination, laws or
ordinances are upheld if they rationally further a legitimate governmental
interest. Under intermediate review, governmental interest is extensively
examined and the availability of less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to

the standard for determining the quality and the amount of governmental
interest brought to justify the regulation of fundamental freedoms. Strict
 scrutiny is used today to test the validity of laws dealing with the regulation
of speech, gender, or race as well as other fundamental rights as expansion
from its earlier applications to equal protection. The United States Supreme
Court has expanded the scope of strict scrutiny to protect fundamental
rights such as suffrage, judicial access and interstate travel.[29] (Citations
omitted)

Recently, in Fernando, et al. v. St. Scholastica's College, et al.,[30] we again discussed

the three (3) levels of tests employed when there is a breach of a fundamental right.

In Spark v. Quezon City,[31] I reviewed in a Concurring Opinion the extent of the three
(3) modes of due process review:

An appraisal of due process and equal protection challenges against

government regulation must admit that the gravity of interests invoked by
the government and the personal liberties or classification affected are not
uniform. Hence, the three (3) levels of analysis that demand careful
calibration: the rational basis test, intermediate review, and strict scrutiny.
Each level is typified by the dual considerations of: first, the interest invoked
by the government; and second, the means employed to achieve that
interest.

The rational basis test requires only that there be a legitimate government
interest and that there is a reasonable connection between it and the means
employed to achieve it.

Intermediate review requires an important government interest. Here, it

would suffice if government is able to demonstrate substantial connection
between its interest and the means it employs. In accordance with White
Light, "the availability of less restrictive measures [must have been]
considered." This demands a conscientious effort at devising the least
restrictive means for attaining its avowed interest. It is enough that the
means employed is conceptually the least restrictive mechanism that the
government may apply.

Strict scrutiny applies when what is at stake are fundamental freedoms or

what is involved are suspect classifications. It requires that there be a
compelling state interest and that the means employed to effect it are
narrowly-tailored, actually — not only conceptually — being the least
restrictive means for effecting the invoked interest. Here, it does not suffice
that the government contemplated on the means available to it. Rather, it
must show an active effort at demonstrating the inefficacy of all possible
alternatives. Here, it is required to not only explore all possible avenues but
to even debunk the viability of alternatives so as to ensure that its chosen
course of action is the sole effective means. To the extent practicable, this
must be supported by sound data gathering mechanisms.

Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas

further explained:
 Under most circumstances, the Court will exercise judicial
restraint in deciding questions of constitutionality, recognizing the
broad discretion given to Congress in exercising its legislative
power. Judicial scrutiny would be based on the "rational basis"
test, and the legislative discretion would be given deferential
treatment.

But if the challenge to the statute is premised on the denial of a

fundamental right, or the perpetuation of prejudice against
persons favored by the Constitution with special protection,
judicial scrutiny ought to be more strict. A weak and watered
down view would call for the abdication of this Court's solemn
duty to strike down any law repugnant to the Constitution and
the rights it enshrines. This is true whether the actor committing
the unconstitutional act is a private person or the government
itself or one of its instrumentalities. Oppressive acts will be struck
down regardless of the character or nature of the actor.

Cases involving strict scrutiny innately favor the preservation of fundamental

rights and the non-discrimination of protected classes. Thus, in these cases,
the burden falls upon the government to prove that it was impelled by a
compelling state interest and that there is actually no other less restrictive
mechanism for realizing the interest that it invokes:

Applying strict scrutiny, the focus is on the presence of compelling, rather

than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest, and the burden befalls upon
the State to prove the same.[32] (Emphasis in the original, citations omitted)

The Constitution mandates more sensitivity towards several classes and identities found
within our society. Social justice at all levels of governances is an overarching state
policy. This envisions a dynamic social order that will ensure prosperity and "free the
people from poverty"[33] through policies which "provide adequate social services,
promote full employment, a rising standard of living, and an improved quality of life for
all."[34] Our fundamental law "values the dignity of every human person and
guarantees full respect for human rights."[35] Women, the youth, indigenous peoples,
farmers and farmworkers, labor in general enjoy significant protection.

These provisions are not merely sardonic normative ornaments. Those who find
themselves at the margins of society—through the operation of an oppressive political
economy, or the stereotypes of contemporary culture, or as residues of our colonial
past—deserve more judicial sensitivity. With respect to the due process clause, it
means that when the everyday livelihood of those found within our informal sector are
affected, an invocation of their fundamental right at least deserves a stricter judicial
scrutiny. Unfortunately, the Majority Opinion failed to do so.

III

Even with the lowest level of scrutiny—the reasonability of the means to achieve a
legitimate purpose test—the Proclamation should have failed judicial review for three
(3) basic reasons. First, the coercive remedial measures contained in the Proclamation
was so broad as to affect those who are innocent bystanders or those who are
compliant with the law. Second, the Proclamation is vague and contradicts at least the
DILG Guidelines and existing statutes; namely, our Civil Code and Republic Act No.
9275. Third, the Proclamation is not justified and is contradictory to Republic Act No.
10121.

This Court has, on many occasions struck down executive actions when it tends to
unreasonably affect the rights of innocent third parties, who should not have been
otherwise subjected to coercive measures.

White Light Corporation,[36] dealt with an ordinance that prohibited wash-up rates
within the territory of the local government unit. It appeared that its intentions were to
deprive the use of hotels and motels from commercial sex workers and those engaged
in illicit affairs.

This Court, however, without going into the legitimacy of the objective of the measure,
still nullified the ordinance. Other individuals, such as spouses or travelers or others
who simply need a place to nap or shower, would also likely benefit from the short
periods of accommodation that would charge the wash-up rates. This Court declared
that "individual rights may be adversely affected only to the extent that may be
required by the legitimate demands of public interest or public welfare."[37]

Proclamation No. 475 acknowledges that innocent parties and those who are compliant
with existing laws will be affected. In its preambular clauses the government
acknowledges:

WHEREAS, the investigations and validation undertaken revealed that:

....

b. Most commercial establishments and residences are not

connected to the sewerage infrastructure of Boracay
Island, and waste products are not being disposed
through the proper sewerage infrastructures in violation
of environmental law, rules, and regulations;

c. Only 14 out of 51 establishments near the shores of

Boracay Island are compliant with the provisions of
Republic Act (RA) No. 9275 or the Philippine Clean
Water Act of 2004;

....

e. Solid waste within Boracay Island is at a generation

rate of 90 to 115 tons per day, while the hauling
capacity of the local government is only 30 tons per
day, hence leaving approximately 85 tons of waste in
the Island daily;
 ....

g. Only four (4) out of nine (9) wetlands in Boracay Island

remain due to illegal encroachment of structures,
including 937 identified illegal structures constructed on
forestlands and wetlands, as well as 102 illegal
structures on areas already classified as easements,
and the disappearance of the wetlands, which act as
natural catchments, enhances flooding in the area[.][38]

There are commercial establishments and residential areas connected to the sewage
infrastructure. There are at least 14 establishments who comply with Republic Act No.
9275 or the Philippine Clean Water Act of 2004. There are wetlands that are not
affected by illegal structures. There are residents and commercial establishments
whose garbage are collected properly. More importantly, petitioners are not shown to
have contributed to the formation of fecal coliform in the targeted beaches of Boracay.

Similar to the situation in White Light Corporation,[39] the coercive remedial measures
are too broad that it affects those who may not be responsible for the evil sought to be
addressed.

IV

Secondly, the Proclamation does not pass due process scrutiny because it is vague that
it does not adequately provide notice to all those affected as to what the Chief
Executive, through his various departments, intend to do and how the rights of those
encompassed within its broad sweep will be affected. Worse, the deployment of a
massive contingent of law enforcers and the curtailment of freedom of the press may
have served to stifle questions as to the specific contours of the actions of government
to address the ecological situation in the island.

We review the chronological context of the government's actions as contained in the

pleadings. Apparently, the closure was effected even before the Proclamation was
promulgated through DILG Guidelines.

Sometime in February last year, President Duterte, in one of his speeches, described
Boracay as a "cesspool" and ordered the Department of Environment and Natural
Resources to clean up the island.[40] On March 6, 2018, he announced that he would
be placing Boracay under a state of calamity. He warned the courts not to interfere or
issue Temporary Restraining Orders and threatened to charge the local officials of
Boracay with sedition if they were to resist.[41]

On April 4, 2018, during a cabinet meeting, he approved the total closure of the island
for six (6) months, beginning April 26, 2018. The day after, Spokesperson Harry L.
Roque confirmed the rumors that Boracay was indeed being closed on the basis of
police power.[42]
On their websites, publications Rappler and ABS-CBN reported that the Department of
Interior and Local Government issued guidelines for the closure,[43] and that 630 police
and military personnel have been deployed on the island.[44]

The DILG Guidelines provide:

1. No going beyond Jetty Port. Identified tourists will not be allowed into the
island and will be stopped at the Jetty Port in Malay, Aklan.
2. No ID, no entry. Residents/workers/resort owners will be allowed entry into the
island subject to the presentation of identification cards specifying a residence in
Boracay. All government-issued IDs will be recognized. Non-government IDs are
acceptable as long as they are accompanied by a barangay certification of
residency.
3. Swimming for locals only. Generally, swimming shall not be allowed anywhere
on the island. However, residents may be allowed to swim only at Angol Beach in
station 3 from 6 am to 5pm.
4. One condition for entry. No visitors of Boracay residents shall be allowed entry,
except under emergency situations, and with the clearance of the security
committee composed of DILG representative, police, and local government
officials.
5. Journalists need permission to cover. Media will be allowed entry subject to
prior approval from the Department of Tourism, with a definite duration and
limited movement.
6. No floating structures. No floating structures shall be allowed up to 15
kilometers from the shoreline.
7. Foreign residents to be checked. The Bureau of Immigration will revalidate the
papers of foreigners who have found a home in Boracay.
8. One entry, one exit point. There will only be one transportation point to
Boracay Island. Authorities have yet to decide where.[45] (Emphasis in the
original)

On April 24, 2018, petitioners came to this Court. They are a sandcastle builder, a
driver and a non-resident who visits the island.

Two (2) days later, President Duterte issued Proclamation No. 475 and the shutdown of
the entire island commenced.

After being able to access the Proclamation, Petitioners filed a Supplemental Petition on
May 10, 2018.

The DILG Guidelines are rudimentary and merely provide who may enter the island and
how they are to do so. On the other hand, the Proclamation provides for the
implementation of "urgent measures," the designation by Department of Environment
and Natural Resources of water bodies where specific pollutants have exceeded the
water quality levels, and powers to take "measures" to improve the water quality.

The DILG Guidelines, as reported, mention "identified tourists", limit swimming only to
"residents" to areas which are free from malevolent bacteria. It does not allow
swimming for workers of establishments or the members of law enforcement
contingent sent to the island. It also curtails visitation of residents. The DILG Guidelines
also require media to register without any guidance as to the basis for allowing or
rejecting coverage, seriously raising issues regarding whether freedom of expression
and/or the press has been abridged.

While none of the provisions in the DILG Guidelines are contained specifically in
Proclamation No. 475, the latter does not specifically repeal the former.

The programs and activities that the Proclamation puts into effect are unclear. There
are no provisions to alleviate those whose rights will be affected and the remedies that
will be available to those aggrieved. More than any reasonable piece of legislation, it
only seems to grant amorphous powers to the President.

The Proclamation provides:

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the

Philippines, by virtue of the powers vested in me by the Constitution and
existing laws, do hereby declare a State of Calamity in the barangays of
Balabag, Manoc-Manoc and Yapak (Island of Boracay) in the Municipality of
Malay, Aklan. In this regard, the temporary closure of the Island as a tourist
destination for six (6) months starting 26 April 2018, or until 25 October
2018, is hereby ordered, subject to applicable laws, rules, regulations and
jurisprudence.

Concerned government agencies shall, as may be necessary or appropriate,

undertake the remedial measures during a State of Calamity as provided in
RA No. 10121 and other applicable laws, rules and regulations, such as
control of the prices of basic goods and commodities for the affected areas,
employment of negotiated procurement and utilization of appropriate funds,
including the National Disaster Risk Reduction and Management Fund, for
relief and rehabilitation efforts in the area. All departments and other
concerned government agencies are also hereby directed to coordinate with
and provide or augment the basic services and facilities of affected local
government units, if necessary.

The State of Calamity in the Island of Boracay shall remain in force and
effect until lifted by the President, notwithstanding the lapse of the six-
month closure period.

All departments, agencies and offices, including government-owned or

controlled corporations and affected local government units are hereby
directed to implement and execute the abovementioned closure and the
appropriate rehabilitation works, in accordance with pertinent operational
plans and directives, including the Boracay Action Plan.

The Philippine National Police, the Philippine Coast Guard and other law
enforcement agencies, with the support of the Armed Forces of the
Philippines, are hereby directed to act with restraint and within the bounds
of the law in the strict implementation of the closure of the Island and
ensuring peace and order in the area.
 The Municipality of Malay, Aklan is also hereby directed to ensure that no
tourist will be allowed entry to the Island of Boracay until such time that the
closure has been lifted by the President.

All tourists, residents and establishment owners in the area are also urged
to act within the bounds of the law and to comply with the directives herein
provided for the rehabilitation and restoration of the ecological balance of
the Island which will be for the benefit of all concerned.[46] (Emphasis in the
original)

The enacting clause declares a temporary closure of the island for six (6) months yet
the third clause provides that the state of calamity is open ended and without a time
limit. Nothing in the Proclamation justifies the period of six (6) months for the closure.
The second paragraph after the enacting clause also suggests that the temporary
closure may be extended because the state of calamity is indefinite. Thus:

The State of Calamity in the Island of Boracay shall remain in force and
effect until lifted by the President, notwithstanding the lapse of the six-
month closure period.[47]

The first paragraph after the enacting clause mentions general remedial measures to be
done by the Executive. All government agencies are mandated to assist in the yet to be
publicly declared programs and activities during the closure.

The third paragraph after the enacting clause only refers to "the appropriate
rehabilitation works, in accordance with pertinent operational plans and directives,
including the Boracay Action Plan." None of these plans however were attached to the
proclamation and none were presented here by the Office of the Solicitor General on
behalf of the government.

The fourth paragraph after the enacting clause refers to a policy of restraint for law
enforcement agencies. The fifth paragraph after the enacting clause refers to the ban
for tourists to sojourn into the island without providing for the reasons why all tourists
shall be banned. It also does not contain the standard for restrictions, if any, for
tourism should the island be partially opened.

The sixth paragraph after the enacting clause is addressed to the residents and owners
to comply with the directives for the rehabilitation of the island. Those aggrieved are
not provided with a procedure for raising their claims to their livelihood and properties.
There is no process to address any objections to the hidden projects or activities that
are not mentioned in the Proclamation.

Proclamation No. 475 is eerily similar to the vagueness of the Martial Law Proclamation
in the recent case of Lagman v Medialdea.[48] We recall our discussion on void-for-
vagueness:

The doctrine of void for vagueness is a ground for invalidating a statute or a

governmental regulation for being vague. The doctrine requires that a
statute be sufficiently explicit as to inform those who are subject to it what
conduct on their part will render them liable to its penalties. In Southern
Hemisphere v. Anti-Terrorism Council:

A statute or act suffers from the defect of vagueness when it

lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ as to its
application. It is repugnant to the Constitution in two respects:
(1) it violates due process for failure to accord persons, especially
the parties targeted by it, fair notice of the conduct to avoid; and
(2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government
muscle.

In People of the Philippines v. Piedra, the Court explained that the rationale
behind the doctrine is to give a person of ordinary intelligence a fair notice
that his or her contemplated conduct is forbidden by the statute or the
regulation. Thus, a statute must be declared void and unconstitutional when
it is so indefinite that it encourages arbitrary and erratic arrests and
convictions.

In Estrada v. Sandiganbayan, the Court limited the application of the

doctrine in cases where the statute is "utterly vague on its face, i.e. that
which cannot be clarified by a saving clause or construction." Thus, when a
statute or act lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ in its application,
the doctrine may be invoked:

Hence, it cannot plausibly be contended that the law does not

give a fair warning and sufficient notice of what it seeks to
penalize. Under the circumstances, petitioner's reliance on the
"void-for-vagueness" doctrine is manifestly misplaced. The
doctrine has been formulated in various ways, but is most
commonly stated to the effect that a statute establishing a
criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand
what conduct is prohibited by the statute. It can only be invoked
against that specie of legislation that is utterly vague on its face,
i.e., that which cannot be clarified either by a saving clause or by
construction.

A statute or act may be said to be vague when it lacks

comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. In
such instance, the statute is repugnant to the Constitution in two
(2) respects — it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled discretion
in carrying out its provisions and becomes an arbitrary flexing of
the Government muscle. But the doctrine does not apply as
against legislations that are merely couched in imprecise
 language but which nonetheless specify a standard though
defectively phrased; or to those that are apparently ambiguous
yet fairly applicable to certain types of activities. The first may be
"saved" by proper construction, while no challenge may be
mounted as against the second whenever directed against such
activities. With more reason, the doctrine cannot be invoked
where the assailed statute is clear and free from ambiguity, as in
this case.

In Southern Hemisphere Engagement Network, Inc. v. AntiTerrorism

Council, the Court clarified that the void for vagueness doctrine may only be
invoked in as-applied cases. The Court explained:

While Estrada did not apply the overbreadth doctrine, it did not
preclude the operation of the vagueness test on the Anti-Plunder
Law as applied to the therein petitioner, finding, however, that
there was no basis to review the law "on its face and in its
entirety." It stressed that "statutes found vague as a matter of
due process typically are invalidated only 'as applied' to a
particular defendant."

However, in Disini v. Secretary of Justice, the Court extended the application

of the doctrine even to facial challenges, ruling that "when a penal statute
encroaches upon the freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable." Thus, by this pronouncement the
void for vagueness doctrine may also now be invoked in facial challenges as
long as what it involved is freedom of speech.

On the other hand, the void for overbreadth doctrine applies when the
statute or the act "offends the constitutional principle that a governmental
purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms."

In Adiong v. Commission on Elections, the Court applied the doctrine in

relation to the Due Process Clause of the Constitution. Thus, in Adiong, the
Commission on Elections issued a Resolution prohibiting the posting of
decals and stickers not more than eight and one-half (8 ½) inches in width
and fourteen (14) inches in length in any place, including mobile places
whether public or private except in areas designated by the COMELEC. The
Court characterized the regulation as void for being "so broad," thus:

Verily, the restriction as to where the decals and stickers should

be posted is so broad that it encompasses even the citizen's
private property, which in this case is a privately-owned vehicle.
In consequence of this prohibition, another cardinal rule
prescribed by the Constitution would be violated. Section 1,
Article III of the Bill of Rights provides "that no person shall be
deprived of his property without due process of law."
 Property is more than the mere thing which a person owns, it
includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential
attributes.

Property is more than the mere thing which a person owns. It is

elementary that it includes the right to acquire, use, and dispose
of it. The Constitution protects these essential attributes of
property. . . Property consists of the free use, enjoyment, and
disposal of a person's acquisitions without control or diminution
save by the law of the land.

In Southern Hemisphere Engagement Network, Inc. v. AntiTerrorism

Council, the Court held that the application of the overbreadth doctrine is
limited only to free speech cases due to the rationale of a facial challenge.
The Court explained:

By its nature, the overbreadth doctrine has to necessarily apply a

facial type of invalidation in order to plot areas of protected
speech, inevitably almost always under situations not before the
court, that are impermissibly swept by the substantially
overbroad regulation. Otherwise stated, a statute cannot be
properly analyzed for being substantially overbroad if the court
confines itself only to facts as applied to the litigants.

The Court ruled that as regards the application of the overbreadth doctrine,
it is limited only to "a facial kind of challenge and, owing to the given
rationale of a facial challenge, applicable only to free speech cases."

The Court's pronouncements in Disini v. Secretary of Justice is also premised

on the same tenor. Thus, it held:

Also, the charge of invalidity of this section based on the

overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like
speech. Clearly, what this section regulates are specific actions:
the acquisition, use, misuse or deletion of personal identifying
data of another. There is no fundamental right to acquire
another's personal data.
....

But this rule admits of exceptions. A petitioner may for instance

mount a "facial" challenge to the constitutionality of a statute
even if he claims no violation of his own rights under the assailed
statute where it involves free speech on grounds of overbreadth
or vagueness of the statute. The rationale for this exception is to
counter the "chilling effect" on protected speech that comes from
statutes violating free speech. A person who does not know
whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to
 avoid being charged of a crime. The overbroad or vague law thus
chills him into silence.

It is true that in his Dissenting Opinion in Estrada v. Sandiganbayan, Justice

V.V. Mendoza expressed the view that "the overbreadth and vagueness
doctrines then have special application only to free speech cases. They are
inapt for testing the validity of penal statutes."

However, the Court already clarified in Southern Hemisphere Engagement

Network, Inc., v. Anti-Terrorism Council, that the primary criterion in the
application of the doctrine is not whether the case is a freedom of speech
case, but rather, whether the case involves an as-applied or a facial
challenge. The Court clarified:

The confusion apparently stems from the interlocking relation of

the overbreadth and vagueness doctrines as grounds for a facial
or as-applied challenge against a penal statute (under a claim of
violation of due process of law) or a speech regulation (under a
claim of abridgement of the freedom of speech and cognate
rights).

To be sure, the doctrine of vagueness and the doctrine of

overbreadth do not operate on the same plane.

....

The allowance of a facial challenge in free speech cases is

justified by the aim to avert the chilling effect on protected
speech, the exercise of which should not at all times be abridged.
As reflected earlier, this rationale is inapplicable to plain penal
statutes that generally bear an in terrorem effect in deterring
socially harmful conduct. In fact, the legislature may even forbid
and penalize acts formerly considered innocent and lawful, so
long as it refrains from diminishing or dissuading the exercise of
constitutionally protected rights.

The Court then concluded that due to the rationale of a facial challenge, the
overbreadth doctrine is applicable only to free speech cases. Thus:

By its nature, the overbreadth doctrine has to necessarily apply a

facial type of invalidation in order to plot areas of protected
speech, inevitably almost always under situations not before the
court, that are impermissibly swept by the substantially
overbroad regulation. Otherwise stated, a statute cannot be
properly analyzed for being substantially overbroad if the court
confines itself only to facts as applied to the litigants.

....

In restricting the overbreadth doctrine to free speech claims, the

Court, in at least two cases, observed that the US Supreme Court
 has not recognized an overbreadth doctrine outside the limited
context of the First Amendment, and that claims of facial
overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words. In
Virginia v. Hicks, it was held that rarely, if ever, will an
overbreadth challenge succeed against a law or regulation that is
not specifically addressed to speech or speech-related conduct.
Attacks on overly broad statutes are justified by the
"transcendent value to all society of constitutionally protected
expression."

As regards the application of the void for vagueness doctrine, the Court held
that vagueness challenges must be examined in light of the specific facts of
the case and not with regard to the statute's facial validity. Notably, the case
need not be a freedom of speech case as the Court cited previous cases
where the doctrine was applied:

In this jurisdiction, the void-for-vagueness doctrine asserted

under the due process clause has been utilized in examining the
constitutionality of criminal statutes. In at least three cases, the
Court brought the doctrine into play in analyzing an ordinance
penalizing the non-payment of municipal tax on fishponds, the
crime of illegal recruitment punishable under Article 132 (b) of
the Labor Code, and the vagrancy provision under Article 202 (2)
of the Revised Penal Code. Notably, the petitioners in these three
cases, similar to those in the two Romualdez and Estrada cases,
were actually charged with the therein assailed penal statute,
unlike in the present case.

From these pronouncements, it is clear that what is relevant in the

application of the void-for-vagueness doctrine is not whether it is a freedom
of speech case, but rather whether it violates the Due Process Clause of the
Constitution for failure to accord persons a fair notice of which conduct to
avoid; and whether it leaves law enforcers unbridled discretion in carrying
out their functions.[49] (Emphasis in the original, citations omitted)

The inability of the Proclamation to provide fair notice and "whether it leaves law
enforcers unbridled discretion in carrying out their function"[50] is readily demonstrated
by the contradiction in the provisions of the Proclamation with existing laws.

The Civil Code acknowledges the concept of nuisance, thus:

ARTICLE 694. A nuisance is any act, omission, establishment, business,

condition of property, or anything else which:

(1) Injures or endangers the health or safety of others; or

(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
 (4) Obstructs or interferes with the free passage of any public
highway or street, or any body of water; or
(5) Hinders or impairs the use of property.

ARTICLE 695. Nuisance is either public or private. A public nuisance affects a

community or neighborhood or any considerable number of persons,
although the extent of the annoyance, danger or damage upon individuals
may be unequal. A private nuisance is one that is not included in the
foregoing definition.

The responsibility to abate a nuisance lies with the owner or possessor of a property:

ARTICLE 696. Every successive owner or possessor of property who fails or

refuses to abate a nuisance in that property started by a former owner or
possessor is liable therefor in the same manner as the one who created it.

ARTICLE 697. The abatement of a nuisance does not preclude the right of
any person injured to recover damages for its past existence.[51]

Being a public nuisance, the remedy for the discharge of coliform within private
properties or properties possessed by private persons are:

ARTICLE 699. The remedies against a public nuisance are:

(1) A prosecution under the Penal Code or any local ordinance: or

(2) A civil action; or
(3) Abatement, without judicial proceedings.[52]

Abatement of a public nuisance is provided, thus:

ARTICLE 698. Lapse of time cannot legalize any nuisance, whether public or
private.

ARTICLE 700. The district health officer shall take care that one or all of the
remedies against a public nuisance are availed of.

ARTICLE 701. If a civil action is brought by reason of the maintenance of a

public nuisance, such action shall be commenced by the city or municipal
mayor.

ARTICLE 702. The district health officer shall determine whether or not
abatement, without judicial proceedings, is the best remedy against a public
nuisance.

ARTICLE 703. A private person may file an action on account of a public

nuisance, if it is specially injurious to himself.

ARTICLE 704. Any private person may abate a public nuisance which is
specially injurious to him by removing, or if necessary, by destroying the
thing which constitutes the same, without committing a breach of the peace,
or doing unnecessary injury. But it is necessary:
 (1) That demand be first made upon the owner or possessor of
the property to abate the nuisance;

(2) That such demand has been rejected;

(3) That the abatement be approved by the district health officer

and executed with the assistance of the local police; and

(4) That the value of the destruction does not exceed three
thousand pesos.[53]

Nothing in the Proclamation relates to or is in accordance with these statutory

procedures and standards of the Civil Code.

Significantly, the Proclamation also contravenes Republic Act No. 9275 or the Philippine
Clean Water Act of 2004.

Section 6 of the Philippine Clean Water Act of 2004 provides a systematic procedure for
the management of water bodies which are heavily polluted or referred to as "non-
attainment areas.'' Thus:

SECTION 6. Management of Non-attainment Areas. — The Department shall

designate water bodies, or portions thereof, where specific pollutants from
either natural or man-made source have already exceeded water quality
guidelines as non-attainment areas for the exceeded pollutants. It shall
prepare and implement a program that will not allow new sources of
exceeded water pollutant in non-attainment areas without a corresponding
reduction in discharges from existing sources: Provided, That if the pollutant
is naturally occurring, e.g. naturally high boron and other elements in
geothermal areas, discharge of such pollutant may be allowed: Provided,
further, That the effluent concentration of discharge shall not exceed the
naturally occurring level of such pollutant in the area: Provided, finally, That
the effluent concentration and volume of discharge shall not adversely affect
water supply, public health and ecological protection.

The Department shall, in coordination with NWRB, Department of Health

(DOH), Department of Agriculture (DA), governing board and other
concerned government agencies and private sectors shall take such
measures as may be necessary to upgrade the quality of such water in non-
attainment areas to meet the standards under which it has been classified.

Upgrading of water quality shall likewise include undertakings which shall

improve the water quality of a water body to a classification that will meet
its projected or potential use.

The LGUs shall prepare and implement contingency plans and other
measures including relocation, whenever necessary, for the protection of
health and welfare of the residents within potentially affected areas.

Complementing these procedures to identify heavily polluted waters, and therefore

considered non-attainment areas, are the enforcement mechanisms in the law. Should
clean-up of the waters become necessary, Section 16 of Republic Act No. 9275 will
apply, thus:

SECTION 16. Clean-Up Operations. — Notwithstanding the provisions of

Sections 15 and 26 hereof, any person who causes pollution in or pollutes
water bodies in excess of the applicable and prevailing standards shall be
responsible to contain, remove and clean-up any pollution incident at his
own expense to the extent that the same water bodies have been rendered
unfit for utilization and beneficial use: Provided, That in the event
emergency clean-up operations are necessary and the polluter fails to
immediately undertake the same, the Department, in coordination with
other government agencies concerned, shall conduct containment, removal
and clean-up operations. Expenses incurred in said operations shall be
reimbursed by the persons found to have caused such pollution upon proper
administrative determination in accordance with this Act. Reimbursements of
the cost incurred shall be made to the Water Quality Management Fund or to
such other funds where said disbursements were sourced.

This applies to the containment, removal, and clean-up operations for the body of
water that is polluted. To prevent further discharge from a private source, Section 27 of
Republic Act No. 9275 prohibits:

SECTION 27. Prohibited Acts. — The following acts are hereby prohibited:

a) Discharging, depositing or causing to be deposited

material of any kind directly or indirectly into the water
bodies or along the margins of any surface water,
where, the same shall be liable to be washed into such
surface water, either by tide action or by storm, floods
or otherwise, which could cause water pollution or
impede natural flow in the water body;

....

e) Unauthorized transport or dumping into sea waters of

sewage sludge or solid waste as defined under
Republic Act No. 9003;

....

g) Operate facilities that discharge or allow to seep,

willfully or through gross negligence, prohibited
chemicals, substances or pollutants listed under
Republic Act No. 6969, into water bodies or wherein
the same shall be liable to be washed into such
surface, ground, coastal, and marine water;

h) Undertaking activities or development and expansion

of projects, or operating wastewater/sewerage
 facilities in violation of Presidential Decree No. 1586
and its implementing rules and regulations;

i) Discharging regulated water pollutants without the

valid required discharge permit pursuant to this Act or
after the permit was revoked or any violation of any
condition therein;

j) Noncompliance of the LGU with the Water Quality

Framework and Management Area Action Plan. In such
a case, sanctions shall be imposed on the local
government officials concerned;

k) Refusal to allow entry, inspection and monitoring by

the Department in accordance with this Act;

l) Refusal to allow access by the Department to relevant

reports and records in accordance with this Act;

m) Refusal or failure to submit reports whenever required

by the Department in accordance with this Act;

....

o) Directly using booster pumps in the distribution

system or tampering with the water supply in such a
way as to alter or impair the water quality.

Section 28 of the same law provides further enforcement mechanisms:

SECTION 28. Fines, Damages and Penalties. — Unless otherwise provided

herein, any person who commits any of the prohibited acts provided in the
immediately preceding section or violates any of the provision of this Act or
its implementing rules and regulations, shall be fined by the Secretary, upon
the recommendation of the PAB in the amount of not less than Ten thousand
pesos (P10,000.00) nor more than Two hundred thousand pesos
(P200,000.00) for every day of violation. The fines herein prescribed shall be
increased by ten percent (10%) every two (2) years to compensate for
inflation and to maintain the deterrent function of such fines: Provided, That
the Secretary, upon recommendation of the PAB may order the closure,
suspension of development or construction, or cessation of operations or,
where appropriate disconnection of water supply, until such time that proper
environmental safeguards are put in place and/or compliance with this Act
or its rules and regulations are undertaken. This paragraph shall be without
prejudice to the issuance of an ex parte order for such closure, suspension
of development or construction, or cessation of operations during the
pendency of the case.
 Failure to undertake clean-up operations, willfully, or through gross
negligence, shall be punished by imprisonment of not less than two (2)
years and not more than four (4) years and a fine not less than Fifty
thousand pesos (P50,000.00) and not more than One hundred thousand
pesos (P100,000.00) per day for each day of violation. Such failure or
refusal which results in serious injury or loss of life and/or irreversible water
contamination of surface, ground, coastal and marine water shall be
punished with imprisonment of not less than six (6) years and one (1) day
and not more than twelve (12) years, and a fine of Five hundred thousand
pesos (P500,000.00) per day for each day during which the omission and/or
contamination continues.

In case of gross violation of this Act, the PAB shall issue a resolution
recommending that the proper government agencies tile criminal charges
against the violators. (Emphasis supplied)

The Department of Environment and Natural Resources is only authorized by the Clean
Water Act to order closures of operations when recommended by the Pollution
Adjudicatory Board, or when the latter files an ex parte order before a court.

It is the Pollution Adjudicatory Board, not the President or the Department of

Environment and Natural Resources, that has specific jurisdiction over the Clean Water
Act:[54]

RULE III

Jurisdiction and Authority of the Board

SECTION 1. JURISDICTION OF THE BOARD

....

B. Specific Jurisdiction. — Notwithstanding the general jurisdiction of the

Board over adjudication of pollution cases, and all matters related thereto,
the Board has specific jurisdiction, over the following cases:

....

2. Clean Water Act (RA 9275)

The PAB has the exclusive and original jurisdiction with respect to
adjudication of pollution cases based on exceedance of the DENR Effluent
Standards and other acts defined as prohibited under Section 27 of R.A.
9275. (Emphasis supplied)

Should it be necessary, the issuance of Cease and Desist Orders are provided in the
Pollution Adjudication Board Resolution No. 001-10 or the Revised Rules of Procedure of
the Pollution Adjudicatory Board, thus:

RULE X

Orders, Resolutions and Decisions

SECTION 1. Cease and Desist Order. — Whenever the Board finds prima
facie evidence that the emission or discharge of pollutants constitutes an
immediate threat to life, public health, safety or welfare, or to animal or
plant life, or exceeds the allowable DENR Standards, it may issue or
recommend to the DENR Secretary an ex-parte order directing the
discontinuance of the same or the temporary suspension or cessation of
operation of the establishment or person generating such pollutants, without
need of a prior public hearing.

The Cease and Desist Order (CDO) shall be immediately executory and shall
remain in force and effect until modified or lifted by the Board or the DENR
Secretary.

The Board or the DENR Secretary may also direct the Regional Office to
revoke, suspend or modify any permit to operate a pollution control facility
or any clearance whenever such is necessary to prevent or abate the
pollution.

SECTION 2. Cease and Desist Order against Whom Issued. — A CDO shall
be issued against the respondent for the purpose of directing it to
immediately stop or refrain from doing or conducting an act, or continuing a
particular activity or course of action in violation of environmental laws, such
as, but not limited to, the operation of a particular machine, equipment,
process or activity, or doing a particular act expressly prohibited by law.

....

SECTION 4. Board Action on Interim Cease and Desist Order. — Where an

interim CDO effective for seven (7) days has been issued by the Regional
Director, the Board shall issue a Cease and Desist Order or recommend to
the Secretary the issuance of a CDO, pursuant to the provisions of the
applicable law.

SECTION 5. Remedy of Respondent. — The respondent may contest the

order by filing with the Board a motion to lift the CDO, with proof of service
of copies thereof on the Regional Office and the parties concerned.

The Board shall direct the Regional Office which has jurisdiction over the
case and the parties concerned to file their comment to the motion within
five (5) days from receipt thereof, copy-furnished the respondent.
Thereafter, the motion shall be set for hearing or calendared for the Board's
deliberation. The filing of such motion shall not stay the enforcement and
execution of the CDO.

SECTION 6. Implementation of Cease and Desist Order. — The Regional

Director or his duly authorized representative, in coordination with the
Regional Executive Director (RED) shall implement or cause the
implementation of the Cease and Desist Order no later than seventy-two
(72) hours from receipt thereof. He shall submit to the Board a report within
forty-eight (48) hours after the completion of the implementation, stating
therein the actions taken. Should the Cease and Desist Order be
implemented beyond seventy-two (72) hours or cannot be implemented, the
Regional Director shall submit a written report to the Board stating therein
the causes of delay or failure to execute the same.

The implementing team shall be designated by the Regional Director.

In the implementation of Cease and Desist Orders, the Regional Director

shall observe the following guidelines:

1. Upon issuance or receipt of the CDO by the Board, the EMB Regional
Director or his duly authorized representative shall inform the local
government unit (province/municipality/city) concerned regarding the
implementation thereof by furnishing it with copies of the Orders received
from the Board;

2. Upon arrival at the respondent's premises, the implementing team shall

present proper identification as well as its mission Order duly signed by the
EMB Regional Director;

3. The head of the implementing team shall serve the CDO on the Managing
Head and the Pollution Control Officer, or in their absence to any person in
charge, by thoroughly explaining to them the contents thereof;

4. The team shall proceed with the execution of the CDO by padlocking and
sealing the source responsible for generating the effluent or emission, and
thereafter requesting the Managing Head and the Pollution Control Officer to
affix their signatures to the duplicate copy of the CDO as proof of service;

5. Should there be refusal on the part of the respondent to have the CDO
implemented, the head of the implementing team shall report such incident
to the EMB Regional Director, without prejudice to such respondent being
declared in contempt and other criminal liability under relevant laws;

6. The Regional Director, whenever it is deemed necessary, may seek the

assistance of the Local Government Units (LGUs) and/or Philippine National
Police (PNP) through its PNP Regional Director. The written communication
shall state the urgency of having the CDO implemented within the seventy-
two (72) hour period as prescribed in the existing Rules;

7. The LGUs and/or the PNP together with the same implementing team may
break into respondent's premises for the purpose of implementing the CDO
in accordance with number four (4) above; and

8. Upon serving of the CDO, the Regional Office shall document the same by
taking of photographs and/or videos and thereafter advising respondent that
removing or breaking the padlocks and seals constitutes is a criminal offense
punishable by existing environmental laws, rules and regulations without
prejudice to such respondent being declared in contempt and other liability
under relevant laws.

SECTION 7. Show Cause Order. — Instead of issuing a CDO, the Board may
opt to direct respondent to Show Cause why no CDO should be issued
 against it, subject to these criteria:

1. The results of a series of effluent samplings shows a marked decrease in

the values of the relevant parameters; or

2. The values of the relevant parameters are not far from the DENR
Standards.

These statutory framework and mechanisms are absent in the Proclamation.

Recalling the enabling clause of the Proclamation:

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines,

by virtue of the powers vested in me by the Constitution and existing laws,
do hereby declare a State of Calamity in the barangays of Balabag, Manoc-
Manoc and Yapak (Island of Boracay) in the Municipality of Malay, Aklan. In
this regard, the temporary closure of the Island as a tourist destination for
six (6) months starting 26 April 2018, or until 25 October 2018, is hereby
ordered, subject to applicable laws, rules, regulations and jurisprudence.

Concerned government agencies shall, as may be necessary or appropriate,

undertake the remedial measures during a State of Calamity as provided in
RA No. 10121 and other applicable laws, rules and regulations, such as
control of the prices of basic goods and commodities for the affected areas,
employment of negotiated procurement and utilization of appropriate funds,
including the National Disaster Risk Reduction and Management Fund, for
relief and rehabilitation efforts in the area. All departments and other
concerned government agencies are also hereby directed to coordinate with
and provide or augment the basic services and facilities of affected local
government units, if necessary.

....

All departments, agencies and offices, including governmentowned or

controlled corporations and affected local government units are hereby
directed to implement and execute the abovementioned closure and the
appropriate rehabilitation works, in accordance with pertinent operational
plans and directives, including the Boracay Action Plan.

....

The Municipality of Malay, Aklan is also hereby directed to ensure that no

tourist will be allowed entry to the Island of Boracay until such time that the
closure has been lifted by the President.

All tourists, residents and establishment owners in the area are also urged
to act within the bounds of the law and to comply with the directives herein
provided for the rehabilitation and restoration of the ecological balance of
the Island which will be for the benefit of all concerned.

The Proclamation makes two (2) basic and broad sets of directives to all agencies.
The first set relates to prices of basic goods, employment of procurement, and
disbursement of funds, and for relief and rehabilitation. This is contained in the first
paragraph after the enabling clause, thus:

All departments and other concerned government agencies are also hereby
directed to coordinate with and provide or augment the basic services and
facilities of affected local government units, if any.

The second set of directives relate to "appropriate rehabilitation works" where the
primacy of "pertinent action plans and directives," including a "Boracay Action Plan,"
not appended to the Proclamation, is mentioned. Thus:

All departments, agencies and offices, including government owned or

controlled corporations and affected local government units are hereby
directed to implement and execute the abovementioned closure and the
appropriate rehabilitation works, in accordance with pertinent operational
plans and directives, including the Boracay Action Plan.

The Proclamation completely negates the framework of enforcement and

implementation of Republic Act No. 9275.

The form of the Presidential action contributes to its vagueness.

Executive Order No. 292 or the Administrative Code makes a clear distinction between
an Executive Order and a Proclamation, thus:

SECTION 2. Executive Orders. — Acts of the President providing for rules of

a general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.

....

SECTION 4. Proclamations. — Acts of the President fixing a date or declaring

a status or condition of public moment or interest, upon the existence of
which the operation of a specific law or regulation is made to depend, shall
be promulgated in proclamations which shall have the force of an executive
order.

The Presidential action is in the form of a Proclamation, which appears to state a

"status or condition," namely a "state of calamity," intending to signal the operation of
Republic Act No. 10121 or Republic Act No. 9275.[55] However, as demonstrated, the
provisions of the Proclamation amends the framework and implementation of the Civil
Code and the Clean Water Act.

VI

Thirdly, the Proclamation transgresses due process of law in that it is not based on
Republic Act No. 10121.

The majority finds that Proclamation No. 475 is in the nature of a valid police power
measure. It defined police power as the "state authority to enact legislation that may
interfere with personal liberty or property in order to promote general welfare."[56]
Police power does not need to be supported by the Constitution since "it is inborn in the
very fact of statehood and sovereignty."[57]

A valid exercise of police power by the President requires that it be exercised within the
framework of both the Constitution and statutes.

In David v. Arroyo,[58] this Court invalidated Presidential Decree No. 1017 insofar as
the president is granted authority to promulgate "decrees." Legislative power is vested
solely in the legislature. Our Constitution provides:

Article VI

The Legislative Department

SECTION 1. The legislative power shall be vested in the Congress of the

Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative and
referendum.

To determine whether there is a valid delegation of legislative power, it must pass the
completeness test and the sufficient standard test. The first test requires that the law
must be complete in all its terms and conditions when it leaves the legislature, so much
so that when it reaches the delegate, the only thing left is to enforce the law. The
second test requires adequate guidelines in law to provide the boundaries of the
delegate's authority.[59]

These tests ensure that the delegate does not step into the shoes of the legislature and
exercise legislative power.[60] In Belgica v. Ochoa,[61] this Court reminded the parties
that "the powers of the government must be divided to avoid concentration of these
powers in any one branch, the division, it is hoped, would avoid any single branch from
lording its power over the other branches of the citizenry."[62]

The majority, accepting the premise of respondents, cites Republic Act No. 10121[63] as
statutory basis for the validity of Proclamation No. 475. Such reliance is erroneous.

Republic Act No. 1 0121 defines state of calamity as:

SECTION 3. Definition of Terms. — For purposes of this Act, the following

shall refer to:

....

(ll) "State of Calamity"—a condition involving mass

casualty and/or major damages to property, disruption
of means of livelihoods, roads and normal way of life
of people in the affected areas as a result of the
occurrence of natural or human-induced hazard.
(Emphasis supplied)

Not all man-made intrusions and pollution into our environment justify as severe an
intervention as the "state of calamity envisioned in Republic Act 10121. The
environmental disaster must (a) be of such gravity, (b) its cause so known that (c) the
response required under that law IS necessary.

The imminence of mass casualty or major damage to property or disruption of the

means of livelihoods and the normal life of the people must be demonstrated. Any
action of human beings may cause the unintended consequences of affecting whole
communities. The profligate use of plastics is affecting our oceans and endangering our
fish stock. The pervasiveness of livestock and the demand for meat may be causing the
release of inordinate amounts of carbon and methane causing climate change. The
release of anthropogenic gases and other human activities causing climate change have
resulted in scientists warning that the "sixth mass extinction event" for our planet may
be underway.[64]

Yet, not all of this evolving disasters—as the disaster involving fecal coliform in the
beaches of Boracay—would be the state of calamity envisioned by Republic Act No.
10121. Rather, the problem of coliform formation may be due to many other factors
that should be addressed by our building codes, sanitation codes, and other
environmental laws. Each of these laws provide the means of redress as well as the
process of weeding out the source of the disasters. Furthermore, in situations where
the violations are rampant, the government may also want to invoke our anti-
corruption laws to weed out the causes at its roots.

The nature of the calamity envisioned by Republic Act No. 10121 can be further
discerned not only from the nature of the acts prohibited. Section 19 of the law
provides:

SECTION 19. Prohibited Acts. — Any person, group or corporation who

commits any of the following prohibited acts shall be held liable and be
subjected to the penalties as prescribed in Section 20 of this Act:

(a) Dereliction of duties which leads to destruction, loss

of lives, critical damage of facilities and misuse of
funds;

(b) Preventing the entry and distribution of relief goods in

disasterstricken areas, including appropriate
technology, tools, equipment, accessories, disaster
teams/experts;

(c) Buying, for consumption or resale, from disaster relief

agencies any relief goods, equipment or other aid
commodities which are intended for distribution to
disaster affected communities;

(d) Buying, for consumption or resale, from the recipient

disaster affected persons any relief goods, equipment
or other aid commodities received by them;

(e) Selling of relief goods, equipment or other aid

 commodities which are intended for distribution to
disaster victims;

(f) Forcibly seizing relief goods, equipment or other aid

commodities intended for or consigned to a specific
group of victims or relief agency;

(g) Diverting or misdelivery of relief goods, equipment or

other aid commodities to persons other than the
rightful recipient or consignee;

(h) Accepting, possessing, using or disposing relief goods,

equipment or other aid commodities not intended for
nor consigned to him/her;

(i) Misrepresenting the source of relief goods, equipment

or other aid commodities by:

(1) Either covering, replacing or defacing the labels of

the containers to make it appear that the goods,
equipment or other aid commodities came from
another agency or persons;

(2) Repacking the goods, equipment or other aid

commodities into containers with different
markings to make it appear that the goods, came
from another agency or persons or was released
upon the instance of a particular agency or
persons;

(3) Making false verbal claim that the goods,

equipment or other aid commodity in its
untampered original containers actually came
from another agency or persons or was released
upon the instance of a particular agency or
persons;

(j) Substituting or replacing relief goods, equipment or

other aid commodities with the same items or
inferior/cheaper quality;

(k) Illegal solicitations by persons or organizations

representing others as defined in the standards and
guidelines set by the NDRRMC;

(l) Deliberate use of false or inflated data in support of

the request for funding, relief goods, equipment or
 other aid commodities for emergency assistance or
livelihood projects; and

(m) Tampering with or stealing hazard monitoring and

disaster preparedness equipment and paraphernalia.

The nature of the contingency for the state of calamity envisioned in Republic Act No.
10121 is such that casualties have actually been suffered and property actually
damaged. This may take the form of typhoons, tsunamis, or earthquakes where
government's relief is needed. It does not include human induced ecological disasters
like the formation of fecal coliform on our beaches, which requires a more systematic,
deliberate, structural, and institutional approach.

VII

The express and implied powers contained in the Proclamation exceeds that which is
granted by Republic Act No. 10121.

Section 17 of that law contains a listing of the competences that may be exercised
during states of calamities:

SECTION 17. Remedial Measures. — The declaration of a state of calamity

shall make mandatory the immediate undertaking of the following remedial
measures by the member-agencies concerned as defined in this Act:

(a) Imposition of price ceiling on basic necessities and

prime commodities by the President upon the
recommendation of the implementing agency as
provided for under Republic Act No. 7581, otherwise
known as the "Price Act", or the National Price
Coordinating Council;

(b) Monitoring, prevention and control by the Local Price

Coordination Council of overpricing/profiteering and
hoarding of prime commodities, medicines and
petroleum products;

(c) Programming/reprogramming of funds for the repair

and safety upgrading of public infrastructures and
facilities; and

(d) Granting of no-interest loans by government financing

or lending institutions to the most affected section of
the population through their cooperatives or people's
organizations.

The law expands the power of the executive branch during emergencies. In passing
Republic Act No. 10121, the legislature did not contemplate allowing the President to
exercise any and all powers amounting to a suspension of existing legislation. Precisely,
Republic Act No. 10121 is the legislation that limits that expansion of executive powers
during that emergency.

The acknowledgement of the possible abuse of the executive's power to declare a state
of calamity and to exercise powers not contemplated in the law is seen with two (2)
salient features of the law. First, the declaration of a state of calamity may not be done
without a recommendation. Section 16 provides:

SECTION 16. Declaration of State of Calamity. — The National Council shall

recommend to the President of the Philippines the declaration of a cluster of
barangays, municipalities, cities, provinces, and regions under a state of
calamity, and the lifting thereof, based on the criteria set by the National
Council. The President's declaration may warrant international humanitarian
assistance as deemed necessary.

The declaration and lifting of the state of calamity may also be issued by the
local sanggunian, upon the recommendation of the LDRRMC, based on the
results of the damage assessment and needs analysis.

Second, the limited powers granted in Section 17 of Republic Act No. 10121 is also
implied in other provisions, which guard against the possibility for abuse. The law
contains both active Congressional Oversight as well as a sunset provision:

SECTION 26. Congressional Oversight Committee. — There is hereby

created a Congressional Oversight Committee to monitor and oversee the
implementation of the provisions of this Act. The Committee shall be
composed of six (6) members from the Senate and six (6) members from
the House of Representatives with the Chairpersons of the Committees on
National Defense and Security of both the Senate and the House of
Representatives as joint Chairpersons of this Committee. The five (5) other
members from each Chamber are to be designated by the Senate President
and the Speaker of the House of Representatives, respectively. The minority
shall be entitled to pro rata representation but shall have at least two (2)
representatives from each Chamber.

SECTION 27. Sunset Review. — Within five (5) years after the effectivity of
this Act, or as the need arises, the Congressional Oversight Committee shall
conduct a sunset review. For purposes of this Act, the term "sunset review"
shall mean a systematic evaluation by the Congressional Oversight
Committee of the accomplishments and impact of this Act, as well as the
performance and organizational structure of its implementing agencies, for
purposes of determining remedial legislation.

The provisions in statutes should not be read in isolation from the purpose of the
legislation and in light of its other provisions. The grant of power given to the president
when a state of calamity is declared should thus be read in a limited fashion. Expressio
unius est exclusio alterius.

Definitely, a total closure of an entire island is not contemplated in the law invoked by
Proclamation No. 475.
 VIII

More disturbingly, the Proclamation's violations of specific provisions contained in

Republic Act No. 10121 patently shows that the latter cannot be the statutory basis for
the exercise of executive power.

The period of the state of calamity provided in Proclamation No. 475 contravenes
Republic Act No. 10121. In the Proclamation, it is made dependent exclusively on the
President.

Proclamation No. 475 provides:

The State of Calamity in the Island of Boracay shall remain in force and
effect until lifted by the President, notwithstanding the lapse of the six-
month closure period. (Emphasis supplied)

However, in Republic Act No. 10121, the period is conditioned on several factors. Thus:

SECTION 16. Declaration of State of Calamity. — The National Council shall

recommend to the President of the Philippines the declaration of a cluster of
barangays, municipalities, cities, provinces, and regions under a state of
calamity, and the lifting thereof, based on the criteria set by the National
Council. The President's declaration may warrant international humanitarian
assistance as deemed necessary.

The declaration and lifting of the state of calamity may also be issued by the
local sanggunian, upon the recommendation of the LDRRMC, based on the
results of the damage assessment and needs analysis. (Emphasis supplied)

Executive issuances cannot amend statutes under which they are issued. It is clear in
Proclamation No. 475 that it only grants the President the power to lift the state of
calamity. The power of the President to lift the state of calamity is not qualified in the
Proclamation, and neither is there a standard. Likewise, it does not mention any other
authority that can lift the state of calamity. Incidentally, there is also no standard for
the six (6)-month closure of the island.

However, Republic Act No. 10121, under which the Proclamation claims authority,
allows the Municipal Sanggunian, upon the recommendation of its Local Disaster Risk
Reduction and Management Council, to lift the state of calamity based on a "damage
assessment and needs analysis."[65]

The Proclamation and the law are clearly contradictory.

IX

Moreover, the Proclamation transgresses both the Constitution's grant and the statutory
elaboration of local autonomy.

The majority admits the intrusion of the President into the autonomy of the local
government units, but finds it too trivial to warrant any consideration from this Court.
[66]
I cannot agree.

Article X, Section 2 of the Constitution grants local autonomy to all territorial and
political subdivisions. Section 4 of the same article provides that the president's power
over local government units is merely of general supervision and excludes control:

ARTICLE X

Local Government

General Provisions

SECTION 2. The territorial and political subdivisions shall enjoy local

autonomy.

....

SECTION 4. The President of the Philippines shall exercise general

supervision over local governments. Provinces with respect to component
cities and municipalities, and cities and municipalities with respect to
component barangays shall ensure that the acts of their component units
are within the scope of their prescribed powers and functions.

In issuing Proclamation No. 475, the President exercised control over the local
government units. The Proclamation orders affected local government units to
implement and execute the closure. This is definitely a measure of control, not mere
supervision.

The distinction between supervision and control of local government units is settled in
jurisprudence.

In Pimentel v. Aguirre,[67] this Court clarified the connection between supervision and
control. The Constitution provides a president only with the power of supervision and
not control over local government units. This power enables him or her to see to it that
local government officials perform tasks within the bounds of law. He or she may not
impair or infringe upon the power given to local government units by law.

This Court differentiated the powers of control and supervision in Drilon v. Lim.[68] The
power of control is the power to lay rules in the performance of an act. This power
includes the ability to order the act done and redone, while supervisory power only
necessitates that rules are followed. Under the power of supervision, there is no
discretion to alter the rules. In short, supervisory power entails that rules are observed
and nothing more.

In Taule v. Santos [69]we ruled that the Chief Executive's power over local
governments was merely that of checking whether the officials were performing their
duties within the bounds of law.

In Province of Batangas v. Romulo,[70] then President Joseph Ejercito Estrada

(President Estrada) issued Executive Order No. 48 entitled, "Establishing a Program for
Devolution Adjustment and Equalization." The program was established to facilitate the
process of enhancing the capacities of local government units in the discharge of the
functions and services devolved to them by the national government agencies
concerned under the Local Government Code.

The Oversight Committee under Executive Secretary Ronaldo Zamora passed

resolutions, which were approved by President Estrada on October 6, 1999. The
guidelines formulated by the Oversight Committee required local government units to
identify the projects eligible for funding under the Local Government Service
Equalization Fund, and submit them to the Department of Interior and Local
Government for appraisal. Then, the Oversight Committee serves notice to the
Department of Budget and Management for the subsequent release of the funds.

This Court struck down the resolutions as infringing on the fiscal autonomy of local
government units as provided in the Constitution:

Article II
Declaration of Principles and State Policies

....

SECTION 25. The State shall ensure the autonomy of local governments.

An entire article of the Constitution has been devoted to guaranteeing and promoting
the autonomy of local government units. Article X, Section 2 of the Constitution
reiterates the State policy in this wise:

SECTION 2. The territorial and political subdivisions shall enjoy local

autonomy.

Consistent with the principle of local autonomy, the Constitution confines the
President's power over local government units to that of general supervision. This
provision has been interpreted to exclude the power of control. The distinction between
the two (2) powers was enunciated in Drilon v. Lim:

An officer in control lays down the rules in the doing of an act. If they are
not followed, he may, in his discretion, order the act undone or re-done by
his subordinate or he may even decide to do it himself. Supervision does not
cover such authority. The supervisor or superintendent merely sees to it that
the rules are followed, but he himself does not lay down such rules, nor does
he have the discretion to modify or replace them. If the rules are not
observed, he may order the work done or re-done but only to conform to
the prescribed rules. He may not prescribe his own manner for doing the
act. He has no judgment on this matter except to see to it that the rules are
followed.[71]

The Local Government Code of 1991 was enacted to flesh out the mandate of the
Constitution. The State policy on local autonomy is amplified in Section 2, thus:

SECTION 2. Declaration of Policy. — (a) It is hereby declared the policy of

the State that the territorial and political subdivisions of the State shall
enjoy genuine and meaningful local autonomy to enable them to attain their
 fullest development as self-reliant communities and make them more
effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local government
structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities,
and resources. The process of decentralization shall proceed from the
National Government to the local government units.

In National Liga ng mga Barangay v. Paredes,[72] the Department of Interior and Local
Government was appointed as interim caretaker to administer and manage the affairs
of the Liga ng mga Barangay in giving remedy to alleged violations made by its
incumbent officer in the conduct of their elections. It issued memorandum circulars that
alter, modify, nullify, or set aside the actions of the Liga ng mga Barangay.

This Court ruled:

These acts of the DILG went beyond the sphere of general supervision and
constituted direct interference with the political affairs, not only of the Liga,
but more importantly, of the barangay as an institution. The election of Liga
officers is part of the Liga's internal organization, for which the latter has
already provided guidelines. In succession, the DILG assumed stewardship
and jurisdiction over the Liga affairs, issued supplemental guidelines for the
election, and nullified the effects of the Liga-conducted elections. Clearly,
what the DILG wielded was the power of control which even the President
does not have.

Furthermore, the DILG assumed control when it appointed respondent Rayos

as president of the Liga-Caloocan Chapter prior to the newly scheduled
general Liga elections, although petitioner David's term had not yet expired.
The DILG substituted its choice, who was Rayos, over the choice of majority
of the punong barangay of Caloocan, who was the incumbent President,
petitioner David. The latter was elected and had in fact been sitting as an
ex-officio member of the sangguniang panlungsod in accordance with the
Liga Constitution and By-Laws. Yet, the DILG extended the appointment to
respondent Rayos although it was aware that the position was the subject of
a quo warranto proceeding instituted by Rayos himself, thereby preempting
the outcome of that case. It was bad enough that the DILG assumed the
power of control, it was worse when it made use of the power with evident
bias and partiality.

As the entity exercising supervision over the Liga ng mga Barangay, the
DILG's authority over the Liga is limited to seeing to it that the rules are
followed, but it cannot lay down such rules itself, nor does it have the
discretion to modify or replace them. In this particular case, the most that
the DILG could do was review the acts of the incumbent officers of the Liga
in the conduct of the elections to determine if they committed any violation
of the Liga's Constitution and By-laws and its implementing rules. If the
National Liga Board and its officers had violated Liga rules, the DILG should
have ordered the Liga to conduct another election in accordance with the
Liga's own rules, but not in obeisance to DILG dictated guidelines. Neither
 had the DILG the authority to remove the incumbent officers of the Liga and
replace them, even temporarily, with unelected Liga officers.

Like the local government units, the Liga ng mga Barangay is not subject to
control by the Chief Executive or his alter ego.[73]

Supervisory power has been defined as "the power of mere oversight over an inferior
body; it does not include any restraining authority over such body."[74]

The relationship between the President and local governments is a constitutional

matter. Constitutional relationships are never trivial nor should it be trivialized.

Significantly, the Proclamation is even contrary to the law that it alleges to implement.
It totally misunderstands the statutory approach for disaster risk and reduction
management. Section 2 of Republic Act No. 10121 provides:

SECTION 2. Declaration of Policy. — It shall be the policy of the State to:

(a) Uphold the people's constitutional rights to life and

property by addressing the root causes of
vulnerabilities to disasters, strengthening the
country's institutional capacity for disaster risk
reduction and management and building the
resilience of local communities to disasters including
climate change impacts;

(b) Adhere to and adopt the universal norms, principles,

and standards of humanitarian assistance and the
global effort on risk reduction as concrete expression
of the country's commitment to overcome human
sufferings due to recurring disasters;

(c) Incorporate internationally accepted principles of

disaster risk management in the creation and
implementation of national, regional and local
sustainable development and poverty reduction
strategies, policies, plans and budgets;

(d) Adopt a disaster risk reduction and management

approach that is holistic, comprehensive, integrated,
and proactive in lessening the socioeconomic and
environmental impacts of disasters including climate
change, and promote the involvement and
participation of all sectors and all stakeholders
concerned, at all levels, especially the local
community;

(e) Develop, promote, and implement a comprehensive

 National Disaster Risk Reduction and Management
Plan (NDRRMP) that aims to strengthen the capacity
of the national government and the local government
units (LGUs), together with partner stakeholders, to
build the disaster resilience of communities, and to
institutionalize arrangements and measures for
reducing disaster risks, including projected climate
risks, and enhancing disaster preparedness and
response capabilities at all levels;

(f) Adopt and implement a coherent, comprehensive,

integrated, efficient and responsive disaster risk
reduction program incorporated in the development
plan at various levels of government adhering to the
principles of good governance such as transparency
and accountability within the context of poverty
alleviation and environmental protection;

(g) Mainstream disaster risk reduction and climate

change in development processes such as policy
formulation, socioeconomic development planning,
budgeting, and governance, particularly in the areas
of environment, agriculture, water, energy, health,
education, poverty reduction, land-use and urban
planning, and public infrastructure and housing,
among others;

(h) Institutionalize the policies, structures, coordination

mechanisms and programs with continuing budget
appropriation on disaster risk reduction from national
down to local levels towards building a disaster-
resilient nation and communities;

(i) Mainstream disaster risk reduction into the peace

process and conflict resolution approaches in order to
minimize loss of lives and damage to property, and
ensure that communities in conflict zones can
immediately go back to their normal lives during
periods of intermittent conflicts;

(j) Ensure that disaster risk reduction and climate

change measures are gender responsive, sensitive to
indigenous knowledge systems, and respectful of
human rights;

(k) Recognize the local risk patterns across the country

and strengthen the capacity of LGUs for disaster risk
reduction and management through decentralized
 powers, responsibilities, and resources at the regional
and local levels;

(l) Recognize and strengthen the capacities of LGUs and

communities in mitigating and preparing for,
responding to, and recovering from the impact of
disaster's;

(m) Engage the participation of civil society organizations

(CSOs), the private sector and volunteers in the
government's disaster risk reduction programs
towards complementation of resources and effective
delivery of services to the citizenry;

(n) Develop and strengthen the capacities of vulnerable

and marginalized groups to mitigate, prepare for,
respond to, and recover from the effects of disasters;

(o) Enhance and implement a program where

humanitarian aid workers, communities, health
professionals, government aid agencies, donors, and
the media are educated and trained on how they can
actively support breastfeeding before and during a
disaster and/or an emergency; and

(p) Provide maximum care, assistance and services to

individuals and families affected by disaster,
implement emergency rehabilitation projects to lessen
the impact of disaster, and facilitate resumption of
normal social and economic activities.

The President cannot take over what has been statutorily granted to local governments
units. To allow him to do so would be to violate his oath of office under Article VII,
Section 5 of the Constitution.[75]

Republic Act No. 10121 itself creates a whole structure to address preparation and
management of the kinds of disasters envisioned in that law. Thus:

SECTION 6. Powers and Functions of the NDRRMC. — The National Council,

being empowered with policy-making, coordination, integration, supervision,
monitoring and evaluation functions, shall have the following
responsibilities:

(a) Develop a NDRRMF which shall provide for a

comprehensive, all-hazards, multi-sectoral, inter-
agency and community-based approach to disaster
risk reduction and management. The Framework shall
serve as the principal guide to disaster risk reduction
and management efforts in the country and shall be
 reviewed on a five (5)-year interval, or as may be
deemed necessary, in order to ensure its relevance to
the times;

(b) Ensure that the NDRRMP is consistent with the

NDRRMF;

(c) Advise the President on the status of disaster

preparedness, prevention, mitigation, response and
rehabilitation operations being undertaken by the
government, CSOs, private sector, and volunteers;
recommend to the President the declaration of a state
of calamity in areas extensively damaged; and submit
proposals to restore normalcy in the affected areas,
to include calamity fund allocation;

(d) Ensure a multi-stakeholder participation in the

development, updating, and sharing of a Disaster Risk
Reduction and Management Information System and
Geographic Information System-based national risk
map as policy, planning and decision-making tools;

(e) Establish a national early warning and emergency

alert system to provide accurate and timely advice to
national or local emergency response organizations
and to the general public through diverse mass media
to include digital and analog broadcast, cable,
satellite television and radio, wireless
communications, and landline communications;

(f) Develop appropriate risk transfer mechanisms that

shall guarantee social and economic protection and
increase resiliency in the face of disaster;

(g) Monitor the development and enforcement by

agencies and organizations of the various laws,
guidelines, codes or technical standards required by
this Act;

(h) Manage and mobilize resources for disaster risk

reduction and management including the National
Disaster Risk Reduction and Management Fund;

(i) Monitor and provide the necessary guidelines and

procedures on the Local Disaster Risk Reduction and
Management Fund (LDRRMF) releases as well as
utilization, accounting and auditing thereof;
(j) Develop assessment tools on the existing and
potential hazards and risks brought about by climate
change to vulnerable areas and ecosystems in
coordination with the Climate Change Commission;

(k) Develop vertical and horizontal coordination

mechanisms for a more coherent implementation of
disaster risk reduction and management policies and
programs by sectoral agencies and LGUs;

(l) Formulate a national institutional capability building

program for disaster risk reduction and management
to address the specific weaknesses of various
government agencies and LGUs, based on the results
of a biennial baseline assessment and studies;

(m) Formulate, hannonize, and translate into policies a

national agenda for research and technology
development on disaster risk reduction and
management;

(n) In coordination with the Climate Change Commission,

formulate and implement a framework for climate
change adaptation and disaster risk reduction and
management from which all policies, programs, and
projects shall be based;

(o) Constitute a technical management group composed

of representatives of the abovementioned
departments, offices, and organizations, that shall
coordinate and meet as often as necessary to
effectively manage and sustain national efforts on
disaster risk reduction and management;

(p) Task the OCD to conduct periodic assessment and

performance monitoring of the member-agencies of
the NDRRMC, and the Regional Disaster Risk
Reduction and Management Councils (RDRRMCs), as
defined in the NDRRMP; and

(q) Coordinate or oversee the implementation of the

country's obligations with disaster management
treaties to which it is a party and see to it that the
country's disaster management treaty obligations be
incorporated in its disaster risk reduction and
management frameworks, policies, plans, programs
and projects.
SECTION 7. Authority of the NDRRMC Chairperson. — The Chairperson of
the NDRRMC may call upon other instrumentalities or entities of the
government and nongovernment and civic organizations for assistance in
terms of the use of their facilities and resources for the protection and
preservation of life and properties in the whole range of disaster risk
reduction and management. This authority includes the power to call on the
reserve force as defined in Republic Act No. 7077 to assist in relief and
rescue during disasters or calamities.

SECTION 8. The Office of Civil Defense. — The Office of Civil Defense (OCD)
shall have the primary mission of administering a comprehensive national
civil defense and disaster risk reduction and management program by
providing leadership in the continuous development of strategic and
systematic approaches as well as measures to reduce the vulnerabilities and
risks to hazards and manage the consequences of disasters.

The Administrator of the OCD shall also serve as Executive Director of the
National Council and, as such, shall have the same duties and privileges of a
department undersecretary. All appointees shall be universally
acknowledged experts in the field of disaster preparedness and management
and of proven honesty and integrity. The National Council shall utilize the
services and facilities of the OCD as the secretariat of the National Council.

SECTION 9. Powers and Functions of the OCD. — The OCD shall have the
following powers and functions:

(a) Advise the National Council on matters relating to

disaster risk reduction and management consistent
with the policies and scope as defined in this Act;

(b) Formulate and implement the NDRRMP and ensure

that the physical framework, social, economic and
environmental plans of communities, cities,
municipalities and provinces are consistent with such
plan. The National Council shall approve then DRRMP;

(c) Identify, assess and prioritize hazards and risks in

consultation with key stakeholders;

(d) Develop and ensure the implementation of national

standards in carrying out disaster risk reduction
programs including preparedness, mitigation,
prevention, response and rehabilitation works, from
data collection and analysis, planning,
implementation, monitoring and evaluation;

(e) Review and evaluate the Local Disaster Risk

Reduction and Management Plans (LDRRMPs) to
facilitate the integration of disaster risk reduction
 measures into the local Comprehensive Development
Plan (CDP) and Comprehensive Land-Use Plan
(CLUP);

(f) Ensure that the LGUs, through the Local Disaster Risk
Reduction and Management Offices (LDRRMOs) are
properly informed and adhere to the national
standards and programs;

(g) Formulate standard operating procedures for the

deployment of rapid assessment teams, information
sharing among different government agencies, and
coordination before and after disasters at all levels;

(h) Establish standard operating procedures on the

communication system among provincial, city,
municipal, and barangay disaster risk reduction and
management councils, for purposes of warning and
alerting them and for gathering information on
disaster areas before, during and after disasters;

(i) Establish Disaster Risk Reduction and Management

Training Institutes in such suitable location as may be
deemed appropriate to train public and private
individuals, both local and national, in such subject as
disaster risk reduction and management among
others. The Institute shall consolidate and prepare
training materials and publications of disaster risk
reduction and management books and manuals to
assist disaster risk reduction and management
workers in the planning and implementation of this
program and projects.

The Institute shall conduct research programs to

upgrade knowledge and skills and document best
practices on disaster risk reduction and management.

The Institute is also mandated to conduct periodic

awareness and education programs to accommodate
new elective officials and members of the LDRRMCs;

(j) Ensure that all disaster risk reduction programs,

projects and activities requiring regional and
international support shall be in accordance with duly
established national policies and aligned with
international agreements;

(k) Ensure that government agencies and LGUs give top

 priority and take adequate and appropriate measures
in disaster risk reduction and management;

(l) Create an enabling environment for substantial and

sustainable participation of CSOs, private groups,
volunteers and communities, and recognize their
contributions in the government's disaster risk
reduction efforts;

(m) Conduct early recovery and post-disaster needs

assessment institutionalizing gender analysis as part
of it;

(n) Establish an operating facility to be known as the

National Disaster Risk Reduction and Management
Operations Center (NDRRMOC) that shall be operated
and staffed on a twenty-four (24) hour basis;

(o) Prepare the criteria and procedure for the enlistment

of accredited community disaster volunteers (ACDVs).
It shall include a manual of operations for the
volunteers which shall be developed by the OCD in
consultation with various stakeholders;

(p) Provide advice and technical assistance and assist in

mobilizing necessary resources to increase the overall
capacity of LGUs, specifically the low income and in
high-risk areas;

(q) Create the necessary offices to perform its mandate

as provided under this Act; and

(r) Perform such other functions as may be necessary for

effective operations and implementation of this Act.

SECTION 10. Disaster Risk Reduction and Management Organization at the

Regional Level. — The current Regional Disaster Coordinating Councils shall
henceforth be known as the Regional Disaster Risk Reduction and
Management Councils (RDRRMCs) which shall coordinate, integrate,
supervise, and evaluate the activities of the LDRRMCs. The RDRRMC shall be
responsible in ensuring disaster sensitive regional development plans, and in
case of emergencies shall convene the different regional line agencies and
concerned institutions and authorities.

The RDRRMCs shall establish an operating facility to be known as the

Regional Disaster Risk Reduction and Management Operations Center
(RDRRMOC) whenever necessary.
The civil defense officers of the OCD who are or may be designated as
Regional Directors of the OCD shall serve as chairpersons of the RDRRMCs.
Its Vice Chairpersons shall be the Regional Directors of the DSWD, the DILG,
the DOST, and the NEDA. In the case of the Autonomous Region in Muslim
Mindanao (ARMM), the Regional Governor shall be the RDRRMC Chairperson.
The existing regional offices of the OCD shall serve as secretariat of the
RDRRMCs. The RDRRMCs shall be composed of the executives of regional
offices and field stations at the regional level of the government agencies.

SECTION 11. Organization at the Local Government Level. — The existing

Provincial, City, and Municipal Disaster Coordinating Councils shall
henceforth be known as the Provincial, City, and Municipal Disaster Risk
Reduction and Management Councils. The Barangay Disaster Coordinating
Councils shall cease to exist and its powers and functions shall henceforth be
assumed by the existing Barangay Development Councils (BDCs) which shall
serve as the LDRRMCs in every barangay.

(a) Composition: The LDRRMC shall be composed of, but

not limited to, the following:
(1) The Local Chief Executives, Chairperson;
(2) The Local Planning and Development Officer,
member;
(3) The Head of the LDRRMO, member;
(4) The Head of the Local Social Welfare and
Development Office, member;
(5) The Head of the Local Health Office, member;
(6) The Head of the Local Agriculture Office,
member;
(7) The Head of the Gender and Development Office,
member;
(8) The Head of the Local Engineering Office,
member;
(9) The Head of the Local Veterinary Office, member;
(10) The Head of the Local Budget Office, member;
(11) The Division Head/Superintendent of Schools of
the DepED, member;
(12) The highest-ranking officer of the Armed Forces of
the Philippines (AFP) assigned in the area,
member;
(13) The Provincial Director/City/Municipal Chief of the
Philippine National Police (PNP), member;
(14) The Provincial Director/City/Municipal Fire
Marshall of the Bureau of Fire Protection (BFP),
member;
(15) The President of the Association of Barangay
Captains (ABC), member;
(16) The Philippine National Red Cross (PNRC),
 member;
(17) Four (4) accredited CSOs, members; and
(18) (1) private sector representative, member.

(b) The LDRRMCs shall have the following functions:

(1) Approve, monitor and evaluate the

implementation of the LDRRMPs and regularly
review and test the plan consistent with other
national and local planning programs;

(2) Ensure the integration of disaster risk reduction

and climate change adaptation into local
development plans, programs and budgets as a
strategy in sustainable development and poverty
reduction;

(3) Recommend the implementation of forced or

preemptive evacuation of local residents, if
necessary; and

(4) Convene the local council once every three (3)

months or as necessary.

SECTION 12. Local Disaster Risk Reduction and Management Office

(LDRRMO). — (a) There shall be established an LDRRMO in every province,
city and municipality, and a Barangay Disaster Risk Reduction and
Management Committee (BDRRMC) in every barangay which shall be
responsible for setting the direction, development, implementation and
coordination of disaster risk management programs within their territorial
jurisdiction.

(b) The LDRRMO shall be under the office of the governor,

city or municipal mayor, and the punong barangay in
case of the BDRRMC. The LDRRMOs shall be initially
organized and composed of a DRRMO to be assisted
by three (3) staff responsible for: (1) administration
and training; (2) research and planning; and (3)
operations and warning. The LDRRMOs and the
BDRRMCs shall organize, train and directly supervise
the local emergency response teams and the ACDVs.

(c) The provincial, city and municipal DRRMOs or

BDRRMCs shall perform the following functions with
impartiality given the emerging challenges brought by
disasters of our times:

(1) Design, program, and coordinate disaster risk

 reduction and management activities consistent
with the National Council's standards and
guidelines;

(2) Facilitate and support risk assessments and

contingency planning activities at the local level;

(3) Consolidate local disaster risk information which

includes natural hazards, vulnerabilities, and
climate change risks, and maintain a local risk
map;

(4) Organize and conduct training, orientation, and

knowledge management activities on disaster risk
reduction and management at the local level;

(5) Operate a multi-hazard early warning system,

linked to disaster risk reduction to provide
accurate and timely advice to national or local
emergency response organizations and to the
general public, through diverse mass media,
particularly radio, landline communications, and
technologies for communication within rural
communities;

(6) Formulate and implement a comprehensive and

integrated LDRRMP in accordance with the
national, regional and provincial framework, and
policies on disaster risk reduction in close
coordination with the local development councils
(LDCs);

(7) Prepare and submit to the local sanggunian

through the LDRRMC and the LDC the annual
LDRRMO Plan and budget, the proposed
programming of the LDRRMF, other dedicated
disaster risk reduction and management
resources, and other regular funding source/s and
budgetary support of the LDRRMO/BDRRMC;

(8) Conduct continuous disaster monitoring and

mobilize instrumentalities and entities of the
LGUs, CSOs, private groups and organized
volunteers, to utilize their facilities and resources
for the protection and preservation of life and
properties during emergencies in accordance with
existing policies and procedures;
(9) Identify, assess and manage the hazards,
vulnerabilities and risks that may occur in their
locality;

(10) Disseminate information and raise public

awareness about those hazards, vulnerabilities
and risks, their nature, effects, early warning
signs and counter-measures;

(11) Identify and implement cost-effective risk

reduction measures/strategies;

(12) Maintain a database of human resource,

equipment, directories, and location of critical
infrastructures and their capacities such as
hospitals and evacuation centers;

(13) Develop, strengthen and operationalize

mechanisms for partnership or networking with
the private sector, CSOs, and volunteer groups;

(14) Take all necessary steps on a continuing basis to

maintain, provide, or arrange the provision of, or
to otherwise make available, suitably-trained and
competent personnel for effective civil defense
and disaster risk reduction and management in its
area;

(15) Organize, train, equip and supervise the local

emergency response teams and the ACDVs,
ensuring that humanitarian aid workers are
equipped with basic skills to assist mothers to
breastfeed;

(16) Respond to and manage the adverse effects of

emergencies and carry out recovery activities in
the affected area, ensuring that there is an
efficient mechanism for immediate delivery of
food, shelter and medical supplies for women and
children, endeavor to create a special place where
internally-displaced mothers can find help with
breastfeeding, feed and care for their babies and
give support to each other;

(17) Within its area, promote and raise public

awareness of and compliance with this Act and
legislative provisions relevant to the purpose of
this Act;
 (18) Serve as the secretariat and executive arm of the
LDRRMC;

(19) Coordinate other disaster risk reduction and

management activities;

(20) Establish linkage/network with other LGUs for

disaster risk reduction and emergency response
purposes;

(21) Recommend through the LDRRMC the enactment

of local ordinances consistent with the
requirements of this Act;

(22) Implement policies, approved plans and programs

of the LDRRMC consistent with the policies and
guidelines laid down in this Act;

(23) Establish a Provincial/City/Municipal/Barangay

Disaster Risk Reduction and Management
Operations Center;

(24) Prepare and submit, through the LDRRMC and the

LDC, the report on the utilization of the LDRRMF
and other dedicated disaster risk reduction and
management resources to the local Commission
on Audit (COA), copy furnished the regional
director of the OCD and the Local Government
Operations Officer of the DILG; and

(25) Act on other matters that may be authorized by

the LDRRMC.

(d) The BDRRMC shall be a regular committee of the

existing BDC and shall be subject thereto. The punong
barangay shall facilitate and ensure the participation of
at least two (2) CSO representatives from existing and
active community-based people's organizations
representing the most vulnerable and marginalized
groups in the barangay.

The Proclamation, even as it claims to be based on this law, inexplicably undermines

this structure.

The law tasks the local government units to lead in meeting disasters. Thus, in Section
2 of Republic Act No. 10121:
 (l) Recognize and strengthen the capacities of LGUs and
communities in mitigating and preparing for, responding to, and
recovering from the impact of disaster's;

(m) Engage the participation of civil society organizations (CSOs),

the private sector and volunteers in the government's disaster
risk reduction programs towards complementation of resources
and effective delivery of services to the citizenry;

(n) Develop and strengthen the capacities of vulnerable and

marginalized groups to mitigate, prepare for, respond to, and
recover from the effects of disasters;

Furthermore, in Section 15:

SECTION 15. Coordination During Emergencies. — The LDRRMCs shall

take the lead in preparing for, responding to, and recovering from
the effects of any disaster based on the following criteria:

(a) The BDC, if a barangay is affected;

(b) The city/municipal DRRMCs, if two (2) or more

barangays are affected;

(c) The provincial DRRMC, if two (2) or more

cities/municipalities are affected;

(d) The regional DRRMC, if two (2) or more provinces are

affected; an

(e) The NDRRMC, if two (2) or more regions are affected.

The NDRRMC and intermediary LDRRMCs shall always act as support to

LGUs which have the primary responsibility as first disaster responders.
Private sector and civil society groups shall work in accordance with the
coordination mechanism and policies set by the NDRRMC and concerned
LDRRMCs. (Emphasis supplied)

Even if we assume that the Proclamation was a valid exercise of police power, only the
Municipality of Malay, Aldan has been directly affected by the calamity. This means
that, statutorily, the Municipality's Local Disaster Risk Reduction and Management
Council should take charge. Yet, the Proclamation reduces the local government unit
into a minor player in the rehabilitation of the island.

Being contrary to the very law it alleges to be its framework, Proclamation No. 475 is
not a valid exercise of police power.

XI
The situation in Boracay is not the only ecological disaster that we face as a nation. The
majority creates a dangerous precedent.

For instance, climate change is an urgent and serious calamity faced by the entire
world. Our climate is changing faster now than at any point in history.[76] We have
been experiencing a tremendous increase in carbon dioxide in the air, melting icecaps,
a consequent rise in sea levels, frigid cold, and extreme heat. Scientists have attributed
this to human activity. The rapid rise in our temperatures only started in 1880, during
the second industrial revolution, and most of the warming occurred in the last 35 years.

Scientists at the Intergovernmental Panel on Climate Change are urging the world to
keep global warming to a maximum of 1.5 degrees Celsius (1.5 °C) for the next 12
years. We are currently one degree Celsius (1 °C) warmer than preindustrial levels.
This change is the reason for the hurricanes in the United States, drought in Cape
Town, and forest fires in the Arctic. Half a degree more than the 1.5 °C target will
worsen droughts, floods, and extreme weather conditions. Coral reefs may disappear
completely. Polar ice caps will melt, causing our sea levels to rise.[77] Heat waves will
be more intense. Cold spells will be a lot worse; consequently, plant, insect, and animal
species will disappear, and human lives will suffer.[78] Countries such as ours without
financial and other resources at our disposal will suffer more.

We need to address this situation perhaps more urgently than the fecal coliform
formation in our tourist areas.

Yet, these urgent anthropogenic crises cannot be solved by indulging our impatience.
Rather, solutions will require both better governance and democratic participation.

Instead of relying on the beguiling pragmatism of a strongman, we should, now more

than ever, have the humility to harness our abilities as humans to consult, deliberate,
and act together. We should be aware that short-term solutions, which produce short-
term effects, may mask the true problems and abuse those who live in our society's
margins.

The growth of fecal coliform may be arrested with a drastic and draconian clean-up.
Clearly, without addressing its true causes, the ecological remedy will be temporary.
The costs may be too high if such temporary relief is purchased with the suspension of
the rights of those affected—especially the informal and marginal workers on the island
—with a legal precedent that does not take the long view. That is why our
environmental laws are permanent statutes, and states of calamity are only temporary
and declared under very limiting conditions.

Many of our tourist areas may have become what economists call as open access areas.
These areas are subject to what Garett Hardin, an American ecologist and philosopher,
more than four (4) decades ago called the "tragedy of the commons."[79] In this
situation, businesses, residents, and tourists cannot see beyond the short-term
enjoyment of the resource while well aware of the degradation that others will cause.
The solution to such a tragedy is a more accountable enforcement of the rules for the
enjoyment of the environment and the evolution of a stronger community. To assure
the existence of a true common property regime, everyone involved must do what is
expected of them.
The legitimation of the closure of Boracay through the Proclamation at issue here easily
opens the slippery slope for ecological authoritarianism.

Boracay, originally home to the Ati, was discovered as a pristine island. It attracted
migrants, allowed them to establish abodes, and claim ownership. Then, a catena of
administrations promoted it as a tourist attraction, compelling its residents to adjust
their lives accordingly. Businesses flourished without an understanding of Boracay's
ecology's carrying capacity.

Worse, unscrupulous individuals created profits purchased through illicit collusion with
those who should have regulated where they built, how they built, how they dealt with
their sewage, where they would get their water. Boracay was destroyed by the
shortsightedness of some of the public officials in charge and the unbelievable
ignorance of the establishments that profited from what should have been the
sustainability of their ecology.

Boracay is victim to the callousness driven by short-term profits and insatiable greed. It
is increasingly vulnerable because of the growing absence of a genuine community on
the island.

This Court should assure those who are affected that it will offer a genuine reflection of
the constitutional order, under which it seeks to find pragmatic yet longer lasting
solutions to our problems. This Court is the forum where we can assure an ordinary
sandcastle builder, a driver, or an informal worker on the island that we all can be an
active part of the solution, as envisioned by our democracy.

I regret that the liberality of the majority in not seeing the constitutional and statutory
violations of the Proclamation, and the actions it spawned, will undermine this
constitutional order.

Authoritarian solutions based on fear are ironically weak. We still are a constitutional
order that will become stronger with a democracy participated in by enlightened
citizens. Ours is not, and should never be, a legal order ruled by diktat.

For these reasons, I dissent.

ACCORDINGLY, I vote to GRANT the Petition.

[1] Rep. Act No. 10121 (2010), Philippine Disaster Risk Reduction and Management Act

of 2010.

[2] Rep. Act No. 9275 (2004), Philippine Clean Water Act of 2004.

[3] G.R. No. 197930, April 17, 2018, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?

file=/jurisprudence/2018/april2018/197930.pdf > [Per J. Reyes, Jr., En Banc].

[4] See J. Leonen, Separate Concurring Opinion in Subido Pagente Certeza and

Mendoza Law Offices v. Court of Appeals et al., 802 Phil. 314 (2016) [Per J. Perez, En
Banc].
[5] Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REv 193-

195 (1890). See also Irwin R. Kramer, The Birth of Privacy Law: A Century Since
Warren & Brandeis, 39 CATH. U.L. REV. 703 (1990).

[6] Secretary of National Defense, et al. v. Manalo, et al., 589 Phil. 1 (2008) [Per Puno

C.J., En Banc]. >See also J. Leonen, Separate Opinion in International Service for the
Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia
(Philippines), 774 Phil. 508 (2015) [Per J. Villarama, Jr. En Banc].

[7] See CIVIL CODE, arts. 415 (10), 417, 519, 520, 521, 613, 721, and 722.

[8] Secretary of National Defense, et al. v. Manalo, et al., 589 Phil. 1 (2008) [Per Puno

C.J., En Banc].

[9] Id. at 50.

[10] 495 Phil. 289 (2005) [Per J. Tinga, En Banc].

[11] Id. at 316-317.

[12] Id. at 317 citing Roth v. Board of Regents, 408 U.S. 572 (1972).

[13] Id. citing Lawrence v. Texas, 539 U.S. 558 (2003).

[14] G.R. No. 225442, August 8, 2017, 835 SCRA 350 [Per J. Perlas-Bernabe, En Banc].

[15] See J. Leonen, Concurring Opinion in Samahan ng mga Progresibong Kabataan

(SPARK) et al., v. Quezon City et al., G.R. No. 225442, August 8, 2017, 835 SCRA 350,
445-447 [Per J. Perlas-Bernabe, En Banc].

[16] Rollo, p. 22.

[17] Philippine Blooming Employees Organization v. Philippine Blooming Mills, 151-A

Phil. 656, 676 (1973) [Per J. Makasiar, En Banc].

[18] 127 Phil. 306 (1967) [Per J. Fernando, En Banc].

[19] Id. at 324.

[20] G.R. No. 199669, April 25, 2017, 824 SCRA 164 [Per J. Reyes, En Banc].

[21] Ponencia, p. 24.

[22] G.R. No. 199669, April 25, 2017, 824 SCRA 164 [Per J. Reyes, En Banc].

[23] 127 Phil. 306 (1967) [Per J. Fernando, En Banc].

[24] Id. at 316.

[25] Id. at 319.

[26] 495 Phil. 289 (2005) [Per J. Tinga, En Banc].

[27] Id. at 307-308.

[28] 596 Phil. 444 (2009) [Per J. Tinga, En Banc].

[29] Id. at 462-463.

[30] 706 Phil. 138 (2013) [Per J. Mendoza, En Banc].

[31] G.R. No. 225442, August 8, 2017, 835 SCRA 350 [Per J. Perlas-Bernabe, En Banc].

[32] See J. Leonen, Concurring Opinion in Samahan ng mg Progresibong Kabataan

(SPARK) et al., v. Quezon City et al., G.R. No. 225442 835 SCRA 350, 451-453 (2017)
[Per J. Perlas-Bernabe, En Banc].

[33] CONST. Art. II, sec. 9.

[34] CONST. Art. II, sec. 9.

[35] CONST. Art. II, sec. 11.

[36] 596 Phil. 444 2009 [Per J. Tinga, En Banc].

[37] Id. at 469.

[38] Proc. No. 475 (2018), Whereas clauses.

[39] 596 Phil. 444 (2009) [Per J. Tinga, En Banc].

[40] Duterte slams Boracay as 'cesspool,' threatens to shut down island, ABS-CBN

NEWS, February 10, 2018, < https://news.abs-cbn.com/news/02/10/18/duterte-slams-

boracay-as-cesspool-threatens-to-shut down-island > (last accessed February 14,
2019).

[41] Pia Ranada, Duterte to declare state of calamity in Boracay, warns courts not to

interfere, RAPPLER, March 6, 2018, < https://www.rappler.com/nation/197573-duterte-

boracay-state-calamity-courts interfere> (last accessed February 14, 2019).

[42] Nestor Corrales, Duterte approves 6-month closure of Boracay, starting April 26,

INQUIRER.NET, April 4, 2018, < https://newsinfo.inquirer.net/980185/boracay-closure-

rodrigo-duterte > (last accessed February 14, 2019).

[43] See Rambo Talabong, LIST: New Boracay rules during 6-month closure, RAPPLER,

April 12, 2018, < https://www.rappler.com/nation/200122-list-new-rules-boracay-

closure > (last accessed February 14, 2019); see also Dharel Placido, No visitors, no
tourists: DILG releases Boracay rules during 6-month closure, ABS-CBN NEWS, April
17, 2018, < https://news.abs-cbn.com/news/04/17118/no-visitors-notourists-dilg-
releases-boracay-rules-during-6-month-closure > (last accessed February 14, 2019).
[44] Boy Ryan Zabal, Police deployed in Boracay enough to stop crimes, lootings - PNP,

RAPPLER, May 1, 2018, < https://www.rappler.com/nation/201475-police-boracay-

enough-stop-crimes-looting > (last accessed February 14, 2019).

[45] Rambo Talabong, LIST: New Boracay rules during 6-month closure, RAPPLER, April

12, 2018, < https://www.rappler.com/nation/200122-list-new-rules-boracay-c1osure >

(last accessed February 14, 2019); see also Dharel Placido, No visitors, no tourists:
DILG releases Boracay rules during 6-month closure, ABS-CBN NEWS, April 17, 2018,
< https://news.abs-cbn.com/news/04/17/18/no-visitors-no tourists-dilg-releases-
boracay-rules-during-6-month-closure > (last accessed February 14, 2019).

[46] Proc. No. 475 (2018).

[47] Proc. No. 475 (2018).

[48] G.R. Nos. 231658, 231771 & 231774, July 4, 2017 [Per J. Del Castillo, En Banc].

[49] J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. No. 231658, July 4,

2017, 829 SCRA 1, 531-538 [Per J. Del Castillo, En Banc].

[50] Id.

[51] CIVIL CODE, arts. 696 and 697.

[52] CIVIL CODE, art. 699.

[53] CIVIL CODE, arts. 698, 700, 701, 702, 703 and 704.

[54] PAB Reso. No. 001-10 (June 29, 2010), Rule I, sec. 2 and Rule III, sec. 1 (B) (2),

Revised Rules of the Pollution Adjudicatory Board on Pleading, Practice and Procedure
in Pollution Cases.

[55] See Proc. No. 475.

[56] Ponencia, p. 21. citing Edu v. Ericta, 146 Phil. 469 (1970) [Per J. Fernando, En

Banc].

[57] Id. citing Philippine Association of Service Exporters, Inc. v. Hon. Drilon, 246 Phil.

393, 398 (1988) [Per J. Sarmiento, En Banc].

[58] 522 Phil. 705 (2006) [Per J. Sandoval-Guitierrez, En Banc].

[59] Eastern Shipping Lines v. POEA et al., 248 Phil. 762, 772 (1988) [Per J. Cruz, First

Divison].

[60] Id.

[61] 721 Phil. 416 (2013) [Per J. Pelas-Bernabe, En Banc].

[62] Id. at 534.

[63] An Act Strengthening the Philippine Disaster Risk Reduction and Management

System, Providing for the National Disaster Risk Reduction and Management
Framework and Institutionalizing the National Disaster Risk Reduction and Management
Plan, Appropriating Funds Therefor and for Other Purposes.

[64] Damian, Carrington, Earth's sixth mass extinction event under way, scientists

warn, THE GUARDIAN, July 10, 2017, available at <

https://www.theguardian.com/environment/2017/jul/10/earths-sixth-mass-extinction-
event-already-underway-scientists-warn?CMP=share_btn_tw > (last visited on
February 12, 2019).

[65] Rep. Act No. 10121 (2010), sec. 16.

[66] Ponencia, p. 26.

[67] 391 Phil. 84 (2000) [Per J. Panganiban, En Banc].

[68] 305 Phil. 146 (1994) [J. Cruz, En Banc].

[69] 277 Phil. 584 (1991) [J. Gancayco, En Banc].

[70] 473 Phil. 806 (2004) [Per J. Callejo Sr., En Banc].

[71] Id. at 152.

[72] 482 Phil. 331 (2004) [Per J. Tinga, En Banc].

[73] Id. at 358-359.

[74] Taule v. Santos, 277 Phil. 584, 598 (1991) [J. Gancayco, En Banc].

[75] CONST., art. VII, Sec. 5 provides: Before they enter on the execution of their

office, the President, the Vice-President, or the acting President shall take the following
oath or affirmation: I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice-President or Acting President) of
the Philippines, preserve and defend its Constitution, execute its laws, do justice to
every man, and consecrate myself to the service of the Nation. So help me God. (In
case of affirmation, last sentence will be omitted.)

[76] Understand Climate Change, available at < https://www.globalchange.gov/climate-

change > (last visited on February 12, 2019).

[77] Jonathan Watts, We have 12 years to limit climate change catastrophe, warns UN,

THE GUARDIAN, available at <

https://www.theguardian.com/environment/2018/oct/08/global-warming-must-not-
exceed-15c-warns-landmark-un-report > (last visited on February 12, 2019).

[78] Global Climate Change, available at < https://climate.nasa.gov/ > (last visited on

February 12, 2019).

[79] Garett Hardin, The Tragedy of the Commons, 162 Science 1243-1248 (1968),

available at <
http://pages.mtu.edu/~asmayer/rural_sustain/governance/Hardin%201968.pdf > (last
visited on February 12, 2019).

CONCURRING AND DISSENTING OPINION

JARDELEZA, J.:

The following are the basic facts of the case:

On April 26, 2018, President Rodrigo R. Duterte issued Proclamation No. 475 declaring
a state of calamity in the Island of Boracay in Malay, Aklan, and ordered the closure of
the island as a tourist destination for six months, or until October 25, 2018. Petitioners
Mark Anthony Zabal (Zabal), Thiting Estoso Jacosalem (Jacosalem), and Odon S.
Bandiola (Bandiola) filed this special civil action for prohibition and mandamus (with
application for temporary restraining order, preliminary injunction and/or status quo
ante order) seeking to, among others, enjoin the implementation of Proclamation No.
475 and compel public respondents to allow the entry of both tourists and residents
into Boracay Island.

Before going into the substance of the issues raised in the petition, I note that
petitioners sought direct recourse with this Court on the ground, among others, that "
[t]here are no factual issues raised in this case, only questions of law x x x."[1] Indeed,
this Court exercises original jurisdiction over petitions for prohibition and mandamus
concurrently with the Court of Appeals (CA) and the Regional Trial Courts (RTCs).[2]
The doctrine of hierarchy of courts, however, dictates that such actions first be filed
before the trial courts. Save for the specific instance provided under the Constitution,[3]
this Court is not a trier of facts.[4] Its original jurisdiction cannot be invoked to resolve
issues which are inextricably connected with underlying questions of fact.

This Court is a court of last resort, and must so remain if it is to satisfactorily

perform the functions assigned to it by the Constitution.[5] Direct recourse to
this Court may, as petitioners correctly suggest, be allowed only to resolve
questions which do not require the prior adjudication of factual issues. It is
thus on this basis that I will examine and resolve the present petition.

Petitioners challenge the legality of Proclamation No. 475[6] insofar as it ordered the
closure of Boracay Island on the following grounds: (1) it is an invalid exercise by the
President of legislative power; (2) it violates the right to travel insofar as it seeks to
restrict the entry of tourists and non-residents into the island; (3) it operates to deprive
persons working in the island of their means of livelihood without due process of law;
and (4) it violates the principle of local autonomy insofar as affected local government
units are ordered to implement the closure.[7]

My examination of the issues raised and arguments offered by petitioners shows that,
of the four principal issues raised against the constitutionality of Proclamation No. 475,
only the first issue poses a question the complete resolution of which does not involve
underlying questions of fact. On the other hand, and as I shall later demonstrate, the
three remaining issues involve underlying questions of fact which cannot be resolved by
this Court at the first instance.

Petitioners claim that Proclamation No. 475 is an invalid exercise by the President of
legislative power.[8] According to petitioners, access to Boracay can be validly restricted
(as part of the right to travel) only through the exercise of police power, that is, by law.
They maintain that no such law exists; thus, the President, by restricting and
altogether prohibiting entry to Boracay Island, has arrogated unto himself legislative
powers rightfully belonging to the Congress.[9]

The primary legal question therefore is whether there is a law which allows for a
restriction on the right to travel to Boracay. If the Court finds that there is none, then
this litigation should end with the grant of the petition. If, however, the Court finds that
such a law exists, it must then determine whether there was a valid delegation to the
President of the power to restrict travel.

I find that the President has the authority, under Republic Act No. (RA) 10121,[10] to
issue the challenged Proclamation as an exercise of his power of subordinate
legislation.

First, the text of the Proclamation clearly counts RA 10121 among its legal bases for
the temporary closure of Boracay Island. I quote:

WHEREAS, pursuant to RA No. 10121, or the Philippine Disaster Risk

Reduction and Management Act of 2010, the National Disaster Risk
Reduction and Management Council has recommended the declaration of
a State of Calamity in the Island of Boracay and the temporary
closure of the Island as a tourist destination to ensure public safety
and public health, and to assist the government in its expeditious
rehabilitation, as well as in addressing the evolving socio-economic needs of
affected communities;

x x x x[11]

Second, RA 10121 allows for a restriction on the right to travel under certain
circumstances.

The expressed legislative intention in RA 10121 was "for the development of policies
and plans and the implementation of actions and measures pertaining to all
aspects of disaster risk reduction and management."[12] Disaster risk reduction
and management was, in turn, defined under Section 3(o) as follows:
 (o) "Disaster Risk Reduction and Management" - the systematic process
of using administrative directives, organizations, and operational
skills and capacities to implement strategies, policies and improved
coping capacities in order to lessen the adverse impacts of hazards
and the possibility of disaster. Prospective disaster risk reduction and
management refers to risk reduction and management activities that
address and seek to avoid the development of new or increased disaster
risks, especially if risk reduction policies are not put in place.[13]

Disaster risk reduction and management measures can run the gamut from disaster
prevention to disaster mitigation, disaster preparedness, and disaster response, all of
which are also defined under RA 10121 as follows:

Sec. 3. Definition of Terms. - For purposes of this Act, the following shall
refer to:

xxxx

(h) "Disaster" - a serious disruption of the functioning of a community or a

society involving widespread human, material, economic or
environmental losses and impacts, which exceeds the ability of the
affected community or society to cope using its own resources. Disasters are
often described as a result of the combination of: the exposure to a hazard;
the conditions of vulnerability that are present: and insufficient capacity or
measures to reduce or cope with the potential negative consequences.
Disaster impacts may include loss of life, injury, disease and other negative
effects on human, physical, mental and social well-being, together with
damage to property, destruction of assets, loss of services, social and
economic disruption and environmental degradation.

(i) "Disaster Mitigation" - the lessening or limitation of the adverse impacts

of hazards and related disasters. Mitigation measures encompass
engineering techniques and hazard-resistant construction as well as
improved environmental policies and public awareness.

(j) "Disaster Preparedness" - the knowledge and capacities developed by

governments, professional response and recovery organizations,
communities and individuals to effectively anticipate, respond to, and
recover from, the impacts of likely, imminent or current hazard
events or conditions. Preparedness action is carried out within the context
of disaster risk reduction and management and aims to build the capacities
needed to efficiently manage all types of emergencies and achieve orderly
transitions from response to sustained recovery. Preparedness is based
on a sound analysis of disaster risk and good linkages with early
warning systems, and includes such activities as contingency
planning, stockpiling of equipment and supplies, the development of
arrangements for coordination, evacuation and public information,
and associated training and field exercises. These must be supported
by formal institutional, legal and budgetary capacities.
 (k) "Disaster Prevention" - the outright avoidance of adverse impacts of
hazards and related disasters. It expresses the concept and intention to
completely avoid potential adverse impacts through action taken in
advance such as construction of dams or embankments that eliminate flood
risks, land-use regulations that do not permit any settlement in high-
risk zones, and seismic engineering designs that ensure the survival and
function of a critical building in any likely earthquake.

(l) "Disaster Response" - the provision of emergency services and public

assistance during or immediately after a disaster in order to save lives,
reduce health impacts, ensure public safety and meet the basic
subsistence needs of the people affected. Disaster response is
predominantly focused on immediate and short-term needs and is
sometimes called "disaster relief."

x x x x[14]

Thus, within the range of disaster risk reduction and management measures can be
found forced or preemptive evacuation and prohibitions against settlement in
high-risk zones, both of which necessarily implicate some restriction on a person's
liberty of movement to ensure public safety.

Third, in obvious recognition of its inability to "cope directly with the myriad problems"
[15] attending the matter, the Congress created administrative agencies, such as the

National Disaster Risk Reduction and Management Council (NDRRMC) and the Local
Disaster Risk Reduction and Management Councils (LDRRMCs), to help implement the
legislative policy of disaster risk reduction and management under RA 10121.

Under the law, the NDRRMC, for example, was tasked to, among others, develop a
national disaster risk reduction and management framework (NDRRMF), which shall
serve as "the principal guide to disaster risk reduction and management efforts in the
country,"[16] advise the President on the status of disaster preparedness, recommend
the declaration (and lifting) by the President of a state of calamity in certain areas, and
submit proposals to restore normalcy in affected areas.[17] Under Section 25, it was
also expressly tasked to come up with "the necessary rules and regulations for the
effective implementation of [the] Act."

These, to me, are evidence of a general grant of quasi-legislative power, or the power
of subordinate legislation, in favor of the implementing agencies. With this power,
administrative bodies may implement the broad policies laid down in a statute by
"filling in" the details which the Congress may not have the opportunity or competence
to provide.[18] In Abakada Guro Party List v. Purisima,[19] this Court explained:

Congress has two options when enacting legislation to define national policy
within the broad horizons of its legislative competence. It can itself
formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with
those standards. In the latter case, the law must be complete in all its
essential terms and conditions when it leaves the hands of the legislature.
 Thus, what is left for the executive branch or the concerned administrative
agency when it formulates rules and regulations implementing the law is to
fill up details (supplementary rule-making) or ascertain facts necessary to
bring the law into actual operation (contingent rule-making).[20] (Citations
omitted.)

This results in delegated legislation[21] which, to be valid, should not only be germane
to the objects and purposes of the law; it must also conform to (and not contradict) the
standards prescribed by the law.[22]

Pursuant to the broad authority given to them, the NDRRMC and the President,
following standards provided under the law, thus sought to fill in the details on how the
provisions of RA 10121 may be enforced, including, but not limited to, identification of:
the conditions that must exist before a state of calamity can be declared; the effects of
a declaration of a state of calamity;[23] the length of time the state of calamity will be
enforced; the formulation and implementation of evacuation plans, including the
guidelines on when, where, how, and who will be evacuated; the agency who will
implement the evacuation plan; and other details.

Fourth, Proclamation No. 475 is a valid exercise of the power of subordinate legislation.

Here, after consideration of the conditions existing in the Island of Boracay,[24] the
President, upon recommendation of the NDRRMC, decided to place the island under a
State of Calamity.[25] This is a power expressly lodged in the President under Section
16, which reads:

Sec. 16. Declaration of State of Calamity. - The National Council shall

recommend to the President of the Philippines the declaration of a cluster of
barangays, municipalities, cities, provinces, and regions under a state of
calamity, and the lifting thereof, based on the criteria set by the National
Council. The President's declaration may warrant international humanitarian
assistance as deemed necessary.

The declaration and lifting of the state of calamity may also be issued by the
local sanggunian, upon the recommendation of the LDRRMC, based on the
results of the damage assessment and needs analysis.

As set forth in Proclamation No. 475 itself, the conditions in the island were such that it
became "necessary to implement urgent measures to address x x x human-induced
hazards, to protect and promote the health and well-being of its residents, workers and
tourists, and to rehabilitate the Island in order to ensure the sustainability of the area
and prevent further degradation of its rich ecosystem."[26] I thus find that the avowed
purpose of the Proclamation, which is "to ensure public safety and public health, and to
assist the government in its expeditious rehabilitation," is unarguably germane to the
object and purpose of RA 10121, which is disaster risk reduction and management.

In The Conference of Maritime Manning Agencies, Inc. v. Philippine Overseas

Employment Administration,[27] this Court, speaking through former Chief Justice
Hilario Davide, Jr., noted that the following have been held sufficient standards for
purposes of subordinate legislation: "public welfare," "necessary in the interest of law
and order," "public interest," "justice and equity," "public convenience and welfare,"
"justice and equity and substantial merits of the case," "simplicity, economy and
efficiency," and "national interest."[28] I find that the challenged action of the President
conforms with the standards under RA 10121, which include public safety, public
health, and disaster mitigation, among others.

Fifth, in carrying RA 10121 into effect, the implementing agencies have consistently
interpreted their power to "evacuate"[29] to necessarily include the power to restrict
entry into a particular place.[30] This is evident in the alarm measures and systems of a
number of government instrumentalities.

In the case of impending or actual volcanic eruptions, the Philippine Institute of

Volcanology and Seismology (PHIVOLCS) has established alert levels in its monitoring
of active volcanoes in the country. Each level has its own set of criteria and
recommended course of action to be taken, including prohibiting entry into and
expanding the danger zones.[31] Likewise, depending on the declared alert level, the
NDRRMC, through its local counterparts, enforces forced evacuations and prohibits
entry and farming in localities found within the danger zones.[32]

In cases of tropical cyclones or typhoons, the Philippine Atmospheric, Geophysical and

Astronomical Services Administration (PAGASA) uses public storm warning signals to
describe the existing meteorological condition and impact of the winds. Each signal also
indicates the precautionary measures which must be undertaken and what the affected
areas must do. For public storm warning signals 3 and 4, evacuation and cancellation of
all travel and outdoor activities are advised.[33]

Similarly, to mitigate the effects of flooding during heavy rains, Marikina City employs a
three-stage alarm level system for the Marikina River, based on the depth of water in
the river below the Sto. Niño Bridge:

Alarm Level 1 (1 minute continuous airing), when the water is 15 meters above
sea level, means "prepare."
Alarm Level 2 (2 minutes intermittent airing), when the water is 16 meters above
sea level, means "evacuate."
Alarm Level 3 (5 minute continuous airing), when the water is 18 meters above
sea level, means "forced evacuation."[34]

When the river's water level rises, the local Disaster Risk Reduction and Management
office uses a siren to alert surrounding communities of the current alarm level.[35]

This contemporaneous construction by the NDRRMC, the different LDRRMCs, and local
government units, as well as the other agencies tasked to implement the provisions of
RA 10121, of their powers ordinarily controls the construction of the courts:

The rationale for this rule relates not only to the emergence of the
multifarious needs of a modern or modernizing society and the
establishment of diverse administrative agencies for addressing and
satisfying those needs; it also relates to the accumulation of experience and
 growth of specialized capabilities by the administrative agency charged with
implementing a particular statute. In Asturias Sugar Central, Inc. v.
Commissioner of Customs, the Court stressed that executive officials are
presumed to have familiarized themselves with all the considerations
pertinent to the meaning and purpose of the law, and to have formed an
independent, conscientious and competent expert opinion thereon. The
courts give much weight to the government agency or officials charged with
the implementation of the law, their competence, expertness, experience
and informed judgment, and the fact that they frequently are drafters of the
law they interpret.[36]

Sixth, administrative regulations and policies enacted by administrative bodies to

interpret the law which they are entrusted to enforce have the force of law and enjoy a
presumption of regularity.

In Español v. Chairman, Philippine Veterans Administration,[37] this Court held that the
Philippine Veterans Administration's (PVA) policy—which withheld the payment of
pension to beneficiaries of veterans who are already receiving pension from United
States (U.S.) Veterans Administration—has in its favor a presumption of validity. Thus,
the Court ruled that it was only when this administrative policy was declared invalid can
petitioner be said to have a cause of action to compel the PVA to pay her monthly
pension.[38]

In Rizal Empire Insurance Group v. NLRC,[39] petitioner's appeal was dismissed for
failure to follow the "no extension policy" set forth under the Rules of the National
Labor Relations Commission. According to the Court, it is an elementary rule in
administrative law that administrative regulations and policies, enacted by
administrative bodies to interpret the law which they are entrusted to enforce, have the
force of law and are entitled to great respect.[40]

More recently, in the case of Alfonso v. Land Bank of the Philippines,[41] this Court held
that the formulas for the computation of just compensation, being an administrative
regulation issued by the Department of Agrarian Reform pursuant to its rule-making
and subordinate legislation power, have the force and effect of law. "Unless declared
invalid in a case where its validity is directly put in issue, courts must consider their use
and application.”[42]

Even in the U.S., the government agency's own reading of a statute which it is charged
with administering is given deference. In Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc.,[43] the U.S. Supreme Court employed a two-step test in
determining what standard of review should be applied in assessing the government
agency's interpretation and gave deference to the latter's interpretation:

When a court reviews an agency's construction of the statute which it

administers, it is confronted with two questions. First, always, is the
question whether Congress has directly spoken to the precise question at
issue. If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the court determines Congress
 has not directly addressed the precise question at issue, the court does not
simply impose its own construction on the statute, as would be necessary in
the absence of an administrative interpretation. Rather, if the statute is
silent or ambiguous with respect to the specific issue, the question for the
court is whether the agency's answer is based on a permissible construction
of the statute.[44]

Finally, since the law's enactment in 2010, there has been no attempt on the part of
Congress to correct or reverse the consistent contemporaneous construction of the law
by the different agencies implementing RA 10121. This is especially noteworthy
considering the existence of a Congressional Oversight Committee, composed of
members from both its Houses, which was created precisely to "monitor and oversee
the implementation of [RA 10121]"[45] and evaluate, among others, the performance of
the law's implementing agencies.[46] That this Committee has not taken steps to
correct, revise, or repeal the agencies' contemporaneous construction of RA 10121's
provisions further buttresses the view that the construction given by the different
administrative agencies conforms to the standards and the interpretation intended by
the Legislature.

In sum, I find that the President has the authority, under RA 10121, to issue the
challenged Proclamation as a valid exercise of his power of subordinate legislation. With
this, I vote to DISMISS the petition. The Court should decline to resolve the remaining
questions raised in the petition as, and which I shall hereafter discuss, they
unavoidably involve questions of fact which this Court cannot entertain and resolve.

II

Petitioners' next two remaining arguments revolve around Proclamation No. 475's
alleged violation of their fundamental rights to travel and due process of law. While
petitioners claim that these arguments pose questions of law, I find that they actually
raise and involve underlying questions of fact.

Indeed, the rights to travel and due process of law are rights explicitly guaranteed
under the Bill of Rights. These rights, while fundamental, are not absolute.

Section 6, Article III of the Constitution itself provides for three instances when the
right to travel may be validly impaired:

Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may
be provided by law.[47]

Even prior to the Constitution, this Court, in the 1919 case of Rubi v. Provincial Board
of Mindoro,[48] has held that there is no absolute freedom of locomotion. The right of
the individual is necessarily subject to reasonable restraint for the common good, in the
interest of the public health or public order and safety. In Leave Division, Office of
Administrative Services-Office of the Court Administrator (OCA) v. Heusdens,[49] which
involved an administrative case against a court employee for failure to secure authority
to travel abroad in violation of OCA Circular No. 49-2003, the Court took occasion to
identify the various constitutional, statutory, and inherent limitations regulating the
right to travel.

This was reiterated in Genuino v. De Lima,[50] where this Court invalidated Department
of Justice Circular No. 41—which purported to restrict the right to travel through the
issuance of hold departure and watchlist orders—for lack of legal basis.[51]

In the United States, the U.S. Supreme Court, in the case of Zemel v. Rusk,[52]
identified circumstances which may justify the restriction on the right to travel: (1)
areas ravaged by flood, fire, or pestilence can be quarantined when it can be
demonstrated that unlimited travel to the area would directly and materially interfere
with the safety and welfare of the area or the Nation as a whole; and (2) weightiest
considerations of national security. Likewise, the case of Alexander v. City of Gretna[53]
emphasized that compelling safety and welfare reasons, the preservation of order and
safety, and health concerns can serve to justify an intrusion on the fundamental right to
interstate travel. In State v. Wright[54] and later, in Sim v. State Parks & Recreation,
[55] the Washington Supreme Court upheld the State Parks & Recreation Commission's

authority, at reasonable times, at reasonable places, and for reasonable reasons,

consistent with public safety and recreational activities, to temporarily close ocean
beach highways to motor vehicular traffic.

Similarly, the right of a person to his labor is deemed to be property within the
meaning of constitutional guarantees, that is, he cannot be deprived of his means of
livelihood, a property right, without due process of law.[56] Nevertheless, this property
right, not unlike the right to travel, is not absolute. It may be restrained or burdened,
through the exercise of police power, to secure the general comfort, health, and
prosperity of the State.[57] To justify such interference, two requisites must concur: (a)
the interests of the public generally, as distinguished from those of a particular class,
require the interference of the State; and (b) the means employed are reasonably
necessary to the attainment of the object sought to be accomplished and not unduly
oppressive upon individuals. In other words, the proper exercise of the police power
requires the concurrence of a lawful subject and a lawful method.[58]

Having established that the rights to travel and due process are not absolute, as they
can in fact be validly subject to restrictions under certain specified circumstances, it
seems to me that petitioners' issues against Proclamation No. 475 respecting their
rights to travel and due process hinge not so much on whether said Proclamation
imposes a restriction, but whether the restrictions it imposed are reasonable.[59]
Specifically, petitioners argue that: the ordered closure of Boracay Island is an extreme
measure;[60] it is overly broad, oppressive, unreasonable, and arbitrary; and that there
are more less restrictive and more narrowly drawn measures which the government
can employ to protect the State's interest.[61]
What is "reasonable," however, is not subject to exact definition or scientific
formulation. There is no all-embracing test of reasonableness;[62] its determination
rests upon human judgment as applied to the facts and circumstances of each
particular case.[63]

In this case, the following factual circumstances were considered, which led to the
issuance of Proclamation No. 475:

a. High concentration of fecal coliform due to insufficient sewer lines and illegal
discharge of untreated waste water into the beach, with daily tests revealing
consistent failure in compliance with acceptable water standards, with an average
result of 18,000 most probable number (MPN)/100 ml, exceeding the standard
level of 400 MPN/100 ml;
b. Failure of most commercial establishments and residences to connect to the
sewerage infrastructure of Boracay Island;
c. Improper waste disposal, in violation of environmental laws, rules, and
regulations;
d. Majority (14 out of 51) of the establishments near the shore are not compliant
with the Philippine Clean Water Act of 2004;
e. Degradation of the coral reefs and coral cover of Boracay Island as a consequence
of continued exposure to dirty water caused by increased tourist arrivals;
f. Solid waste within Boracay Island is at a generation rate of 90 to 115 tons per
day, while the hauling capacity of the local government is only 30 tons per day;
g. The natural habitats of Puka shells, nesting grounds of marine turtles, and
roosting grounds of flying foxes or fruit bats have been damaged and/or
destroyed;
h. Only four out of nine wetlands in Boracay Island remain due to illegal
encroachment of structures;
i. Beach erosion is prevalent in Boracay Island due to storms, extraction of sand
along the beach to construct properties and structures along the foreshore, and
discharge of waste water near the shore, causing degradation of coral reefs and
seagrass meadows;
j. Direct discharge of waste water near the shore has resulted in frequent algal
bloom and coral deterioration; and
k. The continuous rise of tourist arrivals, the insufficient sewer and waste
management system, and environmental violations of establishments aggravate
the environmental degradation and destroy the ecological balance of the Island of
Boracay, resulting in major damage to property and natural resources, as well as
the disruption of the normal way of life of the people therein.

After due consideration of the above, the President, upon the NDRRMC's
recommendation, declared a State of Calamity in the Island of Boracay and ordered its
closure as a tourist destination for a period of six months. Petitioners take issue with
the reasonableness of the measures taken and seek to take the President and the
implementing agencies to task on this account. Arriving at a conclusion regarding the
propriety and reasonableness of the above measures, however, will necessarily require
examining the factual circumstances which formed the premise for Proclamation No.
475's issuance.
Permit me to illustrate, using some of Proclamation No. 475's factual considerations.

On the high concentration of fecal coliform in the water: To prove unreasonableness,

petitioners may present evidence to prove that closure, if at all, for a shorter period of
time (less than six months) is needed for the water coliform level to return to
acceptable standards. Evidence may also be presented to show that closure of the
island as a tourist destination is not even necessary to address the insufficiency of
sewer lines and illegal discharge of untreated waste water into the beach.

On the non-connection of the commercial establishments and residences to the island's

sewerage infrastructure: To prove unreasonableness, petitioners may present evidence
to show that closure of the island is not even necessary to connect all establishments to
the existing sewerage infrastructure. Even assuming that some closure is necessary,
petitioners may present evidence to show that connection may be done on a one-
barangay-at-a-time basis (instead of simultaneously closing off all three barangays),
and for a period shorter than six months.

On the establishments' non-compliance with the Philippine Clean Water Act: To prove
unreasonableness, petitioners may present evidence that the simple issuance of notices
of violation would be sufficient to compel establishments to comply with the
requirements of the Act.

On the degradation of the coral reefs and coral cover in the island because of dirty
water: To prove unreasonableness, petitioners may present evidence to show that the
local government is unable to meet the waste generation rate in the island; that there
is no rational relation between the environmental issues (such as the destruction of the
natural habitats of the various animals, existence of illegal encroachments, beach
erosion, and other conditions existing in the island) and the purported closure of the
island to tourists for six months.

The foregoing, however, involve questions of fact which cannot be entertained by this
Court. Questions of fact indispensable to the disposition of a case, as in this case, are
cognizable by the trial courts; petitioners should thus have filed the petition before
them. Failure to do so, in fact, is sufficient to warrant the Court's dismissal of the case.
[64]

For similar reasons, I find that the Court should also decline to resolve the fourth issue
raised by petitioners, that is, whether Proclamation No. 475 violates the principle of
local autonomy insofar as it orders local government units to implement the closure.
Similar with the ponencia's finding, I find that, contrary to petitioners' arguments, the
text of RA 10121 actually recognizes and even empowers the local government unit in
disaster risk reduction and management.[65] I also hasten to add that whether or not
Proclamation No. 475 did, in fact, cause an actual intrusion into an affected local
government unit's powers is still largely a question of fact. In fact, even assuming that
petitioners are able to show such intrusion, again it seems to me that their issue
against such would involve a question into the reasonableness of the same under the
circumstances. This issue, as already shown, still involves the resolution of underlying
issues of fact. For example, petitioners would have to present evidence to show, among
others, that the local government unit concerned had recommended a less drastic
course of action to address the situation than those taken under the Proclamation, and
that this recommendation was not considered and/or actually overruled by the
President and/or NDRRMC.

Petitioners cite White Light Corporation v. City of Manila,[66] Lucena Grand Central
Terminal, Inc. v. JAC Liner, Inc.,[67] and Metropolitan Manila Development Authority v.
Viron Transportation, Co, Inc.[68] to demonstrate how this Court has stricken down
measures which have been shown to be unreasonable and/or not the least restrictive
means to pursue a particular government interest. To my mind, however, none of the
foregoing cases are useful to further petitioners' cause. Rather than justify direct resort
pursuant to this Court's original jurisdiction over certain cases, the foregoing cases all
the more highlight the necessity of following the hierarchy of courts.

In White Light Corporation, the validity of Manila City Ordinance No. 7774, entitled "An
Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-
Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar
Establishments in the City of Manila," was challenged on the ground that it violated
sacred constitutional rights to liberty, due process, and equal protection of law.

In Lucena Grand Central Terminal, Inc., the constitutionality of City Ordinance Nos.
1631 and 1778—which granted a franchise to petitioner and regulated entrance into the
city, respectively—was challenged on the ground that they constituted an invalid
exercise of police power, an undue taking of private property, and a violation of the
constitutional prohibition against monopolies.

In Metropolitan Manila Development Authority (MMDA), petitioners therein questioned

the MMDA's authority to order the closure of provincial bus terminals along Epifanio de
los Santos Avenue and major thoroughfares of Metro Manila.

It appears to escape petitioners' notice that while the above cases did involve
constitutional challenges, none involved a direct recourse to this Court. The challenges
were initially filed before the RTC, who had the first opportunity to evaluate and resolve
the same, after the parties were able to thresh out the factual issues, enter into
stipulations, or agree on the conduct of proceedings. By so doing, by the time the cases
reached this Court, only questions of law remained to be settled.[69] This, to my mind,
results in a more judicious use of the Court's limited time and resources. A strict
observance of the rule on hierarchy of courts would save the Court from having to
resolve factual questions (which, in the first place, it is ill-equipped to do, much less in
the first instance) and enable it to focus on the more fundamental tasks assigned to it
under the Constitution.

It is beyond dispute that the rights to travel and to due process of law are fundamental.
[70] This is significant because, traditionally, liberty interests are protected only against

arbitrary government interference, that is, a claim to a liberty interest may fail upon a
showing by the government of a rational basis to believe that its interference advances
a legitimate legislative objective.[71] Where, however, a liberty interest has been
accorded an "elevated" fundamental right status, the government is subject to a higher
burden of proof to justify intrusions into these interests, namely, the requirements of
strict scrutiny in equal protection cases[72] and that of compelling state interest in due
process cases.[73]

In his Concurring Opinion in Estrada v. Sandiganbayan,[74] Justice Vicente Mendoza

wrote:

Petitioner cites the dictum in Ople v. Torres that "when the integrity of a
fundamental right is at stake, this Court will give the challenged law,
administrative order, rule or regulation stricter scrutiny" and that "It will not
do for authorities to invoke the presumption of regularity in the performance
of official duties." As will presently be shown, "strict scrutiny," as used in
that decision, is not the same thing as the "strict scrutiny" urged by
petitioner. Much less did this Court rule that because of the need to
give "stricter scrutiny" to laws abridging fundamental freedoms, it
will not give such laws the presumption of validity.[75]

Similarly, mere invocation of a fundamental right, or an alleged restriction thereof,

would not operate to excuse a pleader from proving his case. Lest petitioners forget,
Proclamation No. 475, issued by the President pursuant to his power of subordinate
legislation under RA 10121, enjoys the presumption of constitutionality and legality. To
overcome this, facts establishing invalidity must be proven through the presentation of
evidence. In Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila,[76] citing O'Gorman & Young v. Hartford Fire Insurance Co.,[77] this Court
stressed:

It admits of no doubt therefore that there being a presumption of validity

the necessity for evidence to rebut it is unavoidable, unless the
statute or ordinance is void on its [face,] which is not the case here. The
principle has been nowhere better expressed than in the leading case of
O'Gorman & Young v. Hartford Fire Insurance Co., where the American
Supreme Court through Justice Brandeis tersely and succinctly summed up
the matter thus:

The statute here questioned deals with a subject clearly within

the scope of the police power. We are asked to declare it void on
the ground that the [specific] method of regulation prescribed is
unreasonable and hence deprives the plaintiff of due process of
law. As underlying questions of fact may condition the
constitutionality of legislation of this character, the presumption
of constitutionality must prevail in the absence of some factual
foundation of record for overthrowing the statute.

No such factual foundation being laid in the present case,

the lower court deciding the matter on the pleadings and
the stipulation of [facts], the presumption of validity must
prevail and the judgment against the ordinance set aside.
[78]
Thus, and until it is set aside with finality in an appropriate case by a competent court,
[79] Proclamation No. 475 has the force and effect of law and must be enforced

accordingly. The burden of proving its unconstitutionality rests on the party assailing
the governmental regulations and administrative issuances.[80]

More importantly, the doctrine of hierarchy of courts requires that factual questions first
be submitted to trial courts who are more properly equipped to receive evidence on,
and ultimately resolve, issues of fact. Where, as in this case, the resolution of the issue
on constitutionality requires the determination and evaluation of extant factual
circumstances, this Court should decline to exercise its original jurisdiction and,
instead, reserve judgment until such time that the question is properly brought before
it on appeal.

For all the foregoing reasons, I vote to DISMISS the petition.

[1] Rollo, p. 6.

[2] CONSTITUTION, Art. VIII, Sec. 5(1): and Sections 9(1) and 21(1) of Batas

Pambansa Bilang 129, otherwise known as The Judiciary Reorganization Act of 1980.

[3] Third paragraph, Sec. 18, Art. VII of the Constitution provides:

The Supreme Court may review, in an appropriate proceeding filed by any

citizen, the sufficiency of the factual basis of the proclamation of martial law
or the suspension of the privilege of the writ [of habeas corpus] or the
extension thereof, and must promulgate its decision thereon within thirty
days from its filing.

[4] Sec. 2, Rule 3 of the Internal Rules of the Supreme Court (A.M. No. 10-4-20-SC).

See Mafinco Trading Corporation v. Ople, G.R. No. L-37790, March 25, 1976, 70 SCRA
139, 161.

[5] Vergara, Sr. v. Suelto, G.R. No. L-74766, December 21, 1987, 156 SCRA 753, 766.

[6] I find that petitioners have legal standing to file the present suit. In Agan, Jr. v.

Philippine International Air Terminals Co., Inc. (G.R. Nos. 155001, 155547, & 155661,
May 5, 2003, 402 SCRA 612), an interest to protect oneself from financial prejudice
and loss of source of income has been held sufficient to confer petitioners therein with
legal standing to challenge the contracts of Philippine International Air Terminals Co.,
Inc. Here, Zabal and Jacosalem have shown that with the closure of Boracay Island,
they are also in imminent danger of losing their sources of income, as sandcastle
maker and tourist driver, respectively, operating in the said island.

Similarly, and consistent with this Court's ruling in Samahan Ng Mga Progresibong
Kabataan (SPARK) v. Quezon City (G.R. No. 225442, August 8, 2017), I find that
petitioner Bandiola also has legal standing to raise the issue affecting the right to travel
insofar as he has alleged that he is a non-resident who will no longer be allowed entry
to Boracay Island beginning April 26, 2018.
[7] Rollo, pp. 4, 58.

[8] Id. at 14-17, 58.

[9] Id. at 20, 75-76, 78.

[10] Otherwise known as the Philippine Disaster Risk Reduction and Management Act of

2010.

[11] Emphasis and underscoring supplied.

[12] Sec. 4 of RA 10121. Emphasis supplied.

[13] Emphasis and underscoring supplied.

[14] Emphasis and underscoring supplied.

[15] Eastern Shipping Lines, Inc. v. POEA, G.R. No. L-76633, October 18, 1988, 166

SCRA 533, 544.

[16] Sec. 6(a) of RA 10121.

[17] Sections 6(c) and 16 of RA 10121.

[18] The Conference of Maritime Manning Agencies, Inc. v. Philippine Overseas

Employment Administration, G.R. No. 114714, April 21, 1995, 243 SCRA 666, 674,
citing Eastern Shipping Lines, Inc. v. POEA, supra.

[19] G.R. No. 166715, August 14, 2008, 562 SCRA 251. On filling in the details, see

Holy Spirit Homeowners Association, Inc. v. Defensor, G.R. No. 163980, August 3,
2006, 497 SCRA 581, 600. On ascertaining facts, see Irene R. Cortes, Philippine
Administrative Law: Cases and Materials, Revised 2nd edition, 1984, p. 117, citing
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), Cruz v. Youngberg, 56 Phil. 234 (
1931), and Lovina v. Moreno, G.R. No. 17821, November 29, 1963, 9 SCRA 557.

[20] Id. at 288.

[21] Bellosillo, J., Separate Opinion, Commissioner of Internal Revenue v. Court of

Appeals, G.R. No. 119761, August 29, 1996, 261 SCRA 236, 256. Also cited in Smart
Communications, Inc. (SMART) v. National Telecommunications Commission (NTC),
G.R. Nos. 151908 & 152063, August 12, 2003, 408 SCRA 678, 686.

[22] Smart Communications, Inc. (SMART) v. National Telecommunications Commission

(NTC), supra at 686-687.

[23] Note that Section 17 of RA 10121 provides that a declaration of a state of calamity

shall make mandatory the immediate undertaking of four remedial measures. The law,
however, does not expressly limit to these four remedial measures the effects and
consequences of declaring an area in a state of calamity.
[24] Including high concentration of fecal coliform in the beaches, degradation of nearby

coral reefs and coral cover, disproportionate level between generation of solid waste
and capacity to haul/dispose, destruction of the natural habitats of animals endemic to
the island, and other environmental degradation.

[25] Under Section 3(II) of RA 10121. a State of Calamity is defined thus:

(II) "State of Calamity" - a condition involving mass casualty and/or major

damages to property, disruption of means of livelihoods, roads and normal
way of life of people in the affected areas as a result of the occurrence of
natural or human-induced hazard.

[26] [10th] WHEREAS Clause, Proclamation No. 475.

[27] Supra note 18.

[28] Id. at footnote 13. Citations omitted.

[29] "Evacuate" means "to remove from some place in an organized way, especially as a

protective measure" or "to remove inhabitants of a place or area," Webster's Third New
International Dictionary of the English Language Unabridged (1993), p. 786.

[30] Under Section 11(b)(3) of RA 10121, local governments, through the

recommendation of the NDRRMC's local counterparts, may issue pre-emptive and
forced evacuation orders. See National Disaster Preparedness Plan.

See
https://lga.gov.ph/media/uploads/2/Publications%20PDF/Book/NDPP%20Vol%201.pdf,
last accessed January 22, 2019. For an illustration of a local government unit's
evacuation guideline; see also
https://www.academia.edu/23793398/EO_No._10_Forced Evac, last accessed Januarv
22, 2019.

[31] See https://www.phivolcs.dost.gov.ph/index.php/volcano-hazard/volcano-alert-

level, last accessed January 2, 2019.

[32] NDRRMC Update SitRep No. 18 re: Mayan Volcano Eruption. See:
http://webcache.googleusercontent.com/search?q=cache: http://www.ndrrmc.gov.
ph/attachments/article/3293/SitRep_No
_18_re_Mayon_Volcano_Eruption_as_of_27JAN2018_8AM.pdf, last accessed November
25, 2018.

[33] See https://www1.pagasa.dost.gov.ph/index.php/20-weather, last accessed

February 12, 2019.

[34] See https://www.rappler.com/move-ph/issues/disasters/181894-guide-marikina-

river-alarm-level system, last accessed December 27, 2018.

[35] Id.
[36] Energy Regulatory Board v. Court of Appeals, G.R. Nos. 113079 & 114923, April

20, 2001, 357 SCRA 30, 40, citing Nestle Philippines, Inc. v. Court of Appeals, G.R. No.
86738, November 13, 1991, 203 SCRA 504, 510-511, citing In re Allen, 2 Phil. 630 (
1903).

[37] G.R. No. L-44616, June 29, 1985, 137 SCRA 314.

[38] Id. at 319.

[39] G.R. No. L-73140, May 29, 1987, 150 SCRA 565.

[40] Id. at 568-569.

[41] G.R. Nos. 181912 & 183347, November 29, 2016, 811 SCRA 27.

[42] Id. at 74-75. Citation omitted.

[43] 467 U.S. 837 (1984).

[44] Id. See also City of Arlington, Texas, et al. v. Federal Communications Commission,

et al., 569 U.S. 290 (2013).

[45] Sec. 26. Congressional Oversight Committee. - There is hereby created a

Congressional Oversight Committee to monitor and oversee the implementation of the
provisions of this Act. The Committee shall be composed of six (6) members from the
Senate and six (6) members from the House of Representatives with the Chairpersons
of the Committees on National Defense and Security of both the Senate and the House
of Representatives as joint Chairpersons of this Committee. The five (5) other members
from each Chamber are to be designated by the Senate President and the Speaker of
the House of Representatives, respectively. The minority shall be entitled to pro rata
representation but shall have at least two (2) representatives from each Chamber.

[46] Sec. 27. Sunset Review. -Within five (5) years after the effectivity of this Act, or as

the need arises, the Congressional Oversight Committee shall conduct a sunset review.
For purposes of this Act, the term "sunset review" shall mean a systematic evaluation
by the Congressional Oversight Committee of the accomplishments and impact of this
Act, as well as the performance and organizational structure of its implementing
agencies, for purposes of determining remedial legislation.

[47] Emphasis and underscoring supplied.

[48] 39 Phil. 660 (1919).

[49] A.M. No. P-11-2927, December 13, 2011, 662 SCRA 126, 134-135.

[50] G.R. 197930, April 17, 2018.

[51] In this case, the Court stressed that, in addition to the three considerations

provided under the Constitution, there must also be an explicit provision of statutory
law which provides for the impairment of the right to travel.
[52] 381 U.S. 1 (1965).

[53] 2008 U.S. Dist. LEXIS 109090, December 3, 2008.

[54] 84 Wn. 2d 645, December 12, 1974.

[55] 94 Wn. 2d 552, October 16, 1980.

[56] Phil. Movie Pictures Workers' Assn. v. Premiere Productions, Inc., 92 Phil. 843 (

1953). See also JMM Promotion Management, Inc. v. Court of Appeals, G.R. No.
120095, August 5, 1996, 260 SCRA 319, 330.

[57] United States v. Gomez Jesus, 31 Phil. 218 (1915).

[58] Southern Luzon Drug Corporation v. The Department of Social Welfare and

Development, G.R. No. 199669, April 25, 2017.

[59] Mirasol v. Department of Public Works and Highways, G.R. No. 158793, June 8,

2006, 490 SCRA 318, 349.

[60] Rollo, pp. 83-84.

[61] Id. at 20, 22-25, 82, 84-85, 89.

[62] Mirasol v. Department of Public Works and Highways, supra at 348, citing City of

Raleigh v. Norfolk Southern Railway.Co., 165 S.E.2d 745 (1969).

[63] Id., citing Board of Zoning Appeals of Decatur v. Decatur, Ind. Co. of Jehovah's

Witnesses, 117 N.E.2d 115 (1954). Italics supplied.

[64] Chamber of Real Estate and Builders Associations, Inc. (CREBA) v. Secretary of

Agrarian Reform, G.R. No. 183409, June 18, 2010, 621 SCRA 295, 312; Mangaliag v.
Catubig-Pastoral, G.R. No. 143951, October 25, 2005, 474 SCRA 153, 161-162.

[65] Ponencia, pp. 26-27.

[66] G.R. No. 122846, January 20, 2009, 576 SCRA 416.

[67] G.R. No. 148339, February 23, 2005, 452 SCRA 174.

[68] G.R. No. 170656, August 15, 2007, 530 SCRA 341.

[69] In White Light Corporation, the parties agreed to submit the case for decision

without trial as the case involved a purely legal question; in Lucena Grand Central
Terminal, Inc., the parties agreed to dispense with the presentation of evidence and to
submit the case for resolution solely on the basis of the pleadings filed; and in
Metropolitan Manila Development Authority, the parties limited the issues, entered into
stipulations, and agreed to file their respective position papers in lieu of hearings.
[70] See Samahan Ng Mga Progresibong Kabataan (SPARK) v. Quezon City, G.R. No.

225442, August 8, 2017 and Central Bank Employees Association, Inc. v. Bangko
Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004, 446 SCRA 299.

[71] David Crump, "How do the Courts Really Discover Unenumerated Fundamental

Rights? Cataloguing the Methods of Judicial Alchemy," 19 Harv. J. L & Pub. Pol'y 795
(1996), pp. 799-800.

[72] See Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, supra

at footnote 16.

[73] See Obergefell v. Hodges, 576 U.S._ (2015), footnote 19.

[74] G.R. No. 148560, November 19, 2001, 369 SCRA 394.

[75] Id. at 461-462. Citations omitted. Emphasis supplied.

[76] G.R. No. L-24693, July 31, 1967, 20 SCRA 849.

[77] 282 U.S. 251 (1931).

[78] Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,

supra. (Emphasis supplied.) See also Agustin v. Edu, G.R. No. L-49112, February 2,
1979, 88 SCRA 195; Justice Teodoro R. Padilla's Separate Opinion in Guazon v. De
Villa, G.R. No. 80508, January 30, 1990, 181 SCRA 623; and the US case of Nashville,
C. & St. LR Co. v. Walters, 294 U.S. 405 ( 1935).

[79] Abakada Guro Party List v. Purisima, supra note 19 at 289.

[80] Mirasol v. Department of Public Works and Highways, G.R. No. 158793, June 8,

2006, 490 SCRA 318, 348.

DISSENTING OPINION

CAGUIOA, J.:

"As one great furnace flamed, yet

from those flames
No light, but rather darkness visible."
[1]

On April 26, 2018, President Rodrigo R. Duterte issued Proclamation No. 475[2]
(Proclamation 475), declaring a state of calamity in the island of Boracay and ordering
its temporary closure for a maximum of six months.

Petitioners Mark Anthony Zabal (Zabal) and Thiting Estoso Jacosalem (Jacosalem),
residents and workers in Boracay, filed the present Petition to assail the temporary
closure of the island. They are joined herein by petitioner Odon Bandiola (Bandiola), a
regular visitor of Boracay for business and pleasure.

Together, petitioners claim that Proclamation 475 is unconstitutional as it constitutes an

invalid exercise of legislative power which places undue restrictions on their
constitutional rights to travel and due process.

The ponencia denies the Petition, and affirms the validity of Proclamation 475, viewing
it as an executive measure which does not pose an actual impairment on the right to
travel and due process.[3] Moreover, the ponencia is of the view that even if
Proclamation 475 were to be construed as restrictive of these fundamental rights, its
issuance remains justified as a reasonable exercise of police power occasioned by the
pressing state of Boracay island.[4]

The judicial confirmation of Proclamation 475's purported validity comes after Boracay's
re-opening. The temporary closure has come to an end; its decreed rehabilitation now
complete. It appears that the proverbial ship has now sailed, as "paradise" appears to
have been restored. Its restoration, however, has been forged at great expense — the
indiscriminate impairment of fundamental rights.

I cannot, in conscience, give my imprimatur to yet another constitutional shortcut. 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.

I register my dissent not because I refuse to acknowledge the serious problems that
Boracay has faced. On the contrary, I recognize that there was a problem; a disaster
that, in fact, needed action. The necessity for action did not, however, justify the
measures which the Executive chose to take.

Our country's form of government – democratic, republican, and presidential –

characterized by separation, coordination, and the interdependence of its branches, has
long been criticized for having burdensome processes that slow down program
execution, particularly, in the realm of disaster response. However, as long as this form
of government is in place, and so long as our Constitution subscribes to the ideals of
separation of powers, no shortcuts of any kind may or should be allowed. I find
Proclamation 475 unconstitutional. It finds absolutely no basis in law, and unduly
permits the consequent impairment of the rights to travel and due process by executive
fiat.

Thus, I am impelled to dissent upon the insistence that the Constitution must be, at all
times, respected. As the bedrock of our civil society, the Constitution deserves no less.

The constitutional right to travel

The right to travel is a chief element of the constitutional guarantee of liberty which
was first introduced by the Congress of the United States to the Philippines during the
early days of the American regime.[5]

In Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City[6] (Spark), the

Court held that the right to travel refers to "the right to move freely from the
Philippines to other countries or within the Philippines" and covers, among others, "the
power of locomotion".[7] In the simplest of terms, it is the freedom to move where one
chooses to go.

As a fundamental constitutional right, the protection afforded by the right to travel

inures to every citizen. The provision granting such right is self-executing; its exercise
is not contingent upon further legislation governing its enforcement.[8]

The same does not hold true, however, with respect to the right's impairment.

Section 6, Article III of the

Constitution is clear — the
right to travel may only be
restricted by law

The impairment of the right to travel, while permissible, is subject to the strict
requirements set forth under Section 6, Article III of the Constitution, thus:

Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may
be provided by law. (Emphasis supplied)

The import of the provision is crystal clear — the right to travel may only be impaired
in the interest of national security, public safety or public health, on the basis of a
law explicitly providing for the impairment.

Expounding on these parameters, the Court, in Genuino v. De Lima[9] (Genuino),

unequivocally held:

Clearly, under the provision, there are only three considerations that may
permit a restriction on the right to travel: national security, public safety or
public health. As a further requirement, there must be an explicit
provision of statutory law or the Rules of Court providing for the
impairment. The requirement for a legislative enactment was
purposely added to prevent inordinate restraints on the person's
right to travel by administrative officials who may be tempted to
wield authority under the guise of national security, public safety or
public health. This is in keeping with the principle that ours is a
government of laws and not of men and also with the canon that provisions
of law limiting the enjoyment of liberty should be construed against the
government and in favor of the individual.

The necessity of a law before a curtailment in the freedom of movement

may be permitted is apparent in the deliberations of the members of the
 Constitutional Commission. In particular, Fr. Joaquin Bernas, in his
sponsorship speech, stated thus:

On Section 5, in the explanation on page 6 of the annotated

provisions, it says that the phrase "and changing the same" is
taken from the 1935 version; that is, changing the abode. The
addition of the phrase WITHIN THE LIMITS PRESCRIBED BY LAW
ensures that, whether the rights be impaired on order of a court
or without the order of a court, the impairment must be in
accordance with the prescriptions of law; that is, it is not left to
the discretion of any public officer.[10] (Emphasis and
underscoring supplied)

The requirement of a law authorizing the curtailment of the right to travel is, to repeat,
crystal clear — any restriction imposed upon such right in the absence of the law,
whether through a statute enacted through the legislative process, or provided in the
Constitution itself,[11] necessarily renders the restriction null and void.

Proclamation 475 poses an

actual restriction on the
right to travel

The dismissal of the Petition is primarily grounded on the premise that any effect which
Proclamation 475 may have on the right to travel is "merely corollary to the closure of
Boracay," and as such, a necessary incident of the island's rehabilitation.[12] This
premise gives rise to the conclusion that Proclamation 475 need not comply with the
requirements set forth under Section 6, Article III, as its effect on the right to travel is
only indirect and merely incidental.

I disagree.

The requirements under the Constitution are spelled out in clear and absolute terms —
neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law. The
provision does not distinguish between measures that directly restrict the right to travel
and those which do so indirectly, in the furtherance of another State purpose. Ubi lex
non distinguit, nec nos distinguere debemus. This interpretation is grounded on the text
of the Constitution and finds basis in case law both here and in the United States.

In Shapiro v. Thomspon[13] (Shapiro), the Supreme Court of the United States

(SCOTUS) was confronted with a constitutional challenge against certain statutory
provisions enacted in Connecticut, Pennsylvania and the District of Columbia (D.C). The
assailed provisions denied welfare assistance to applicants who have not resided in the
cities' respective jurisdictions for at least a year immediately preceding the filing of
their applications. These provisions, according to the appellants therein, had been
crafted as "a protective device to preserve the fiscal integrity of state public assistance
programs."[14]

Resolving the case, SCOTUS ruled that the assailed provisions violate the constitutional
guarantee of interstate movement, among others, insofar as they create classifications
which effectively penalize the exercise of the right to travel,[15] thus:

We do not doubt that the one-year waiting period device is well suited to
discourage the influx of poor families in need of assistance. An indigent who
desires to migrate, resettle, find a new job, and start a new life will
doubtless hesitate if he knows that he must risk making the move without
the possibility of falling back on state welfare assistance during his first year
of residence, when his need may be most acute. But the purpose of
inhibiting migration by needy persons into the State is constitutionally
impermissible.

This Court long ago recognized that the nature of our Federal Union and our
constitutional concepts of personal liberty unite to require that all citizens be
free to travel throughout the length and breadth of our land uninhibited by
statutes, rules, or regulations which unreasonably burden or restrict this
movement. x x x

xxxx

Thus, the purpose of deterring the in-migration of indigents cannot serve as

justification for the classification created by the one-year waiting period,
since that purpose is constitutionally impermissible. If a law has "no other
purpose . . . than to chill the assertion of constitutional rights by penalizing
those who choose to exercise them, then it [is] patently unconstitutional."
[16] (Citations omitted)

Following Shapiro, SCOTUS handed down its decision in Attorney General of New York
v. Soto-Lopez[17] (Soto-Lopez), holding that "[a] state law implicates the right to travel
when it actually deters such travel, x x x [whether] impeding travel is its primary
objective, x x x or when it uses 'any classification which serves to penalize the exercise
of that right."'[18] Soto-Lopez involved a challenge against the employment preference
afforded by the New York Constitution and Civil Service Law to New York resident-
veterans honorably discharged from the Armed Forces.[19]

More recently, in State of Ohio v. Burnett[20] (Burnett), the Supreme Court of Ohio was
confronted with an action questioning the validity of a Cincinnati ordinance which
established "drug-exclusion zones" within the city for the purpose of controlling drug-
related activity in the area. These zones were identified as those where the number of
drug-related arrests were significantly higher than other similarly situated and sized
areas of the city. The establishment of these zones had the incidental effect of
prohibiting persons from entering the zones within a specified "exclusion period" upon
the threat of arrest for criminal trespass. Thus, the Cincinnati ordinance was questioned
for being violative of the right to travel, among others.

While conceding that the Cincinatti ordinance had been grounded on a

compelling state interest, the Ohio Supreme Court nevertheless ruled that it
had the incidental effect of "unconstitutionally burdening" the right to travel.
[21] Hence, the Supreme Court of Ohio held:
 Cincinnati asserts that the purposes of Chapter 755 are "restoring the
quality of life and protecting the health, safety, and welfare of citizens using
the public ways" in drug-exclusion zones and "allowing the public to use and
enjoy the facilities in such areas without interference arising from illegal
drug abuse and/or illegal drug abuse related crimes." We agree with the city
that these asserted interests are compelling. The destruction of some
neighborhoods by illegal drug activity has created a crisis of national
magnitude, and governments are justified in attacking the problem
aggressively. When legislation addressing the drug problem infringes
certain fundamental rights, however, more than a compelling
interest is needed to survive constitutional scrutiny. The statute
must also be narrowly tailored to meet the compelling interest. It is
our opinion that while Chapter 755 is justified by a compelling
interest, it fails constitutional analysis because the ordinance is not
narrowly tailored to restrict only those interests associated with
illegal drug activity, but also restricts a substantial amount of
innocent conduct. (Citations omitted; emphasis supplied)

Though these cases are not binding in this jurisdiction, the Court has regarded
American case law as a rich source of persuasive jurisprudence[22] that may guide the
bench.

That said, the Court need not look beyond its own jurisprudence to find the answers
that it seeks.

In the recent case of Spark, the Court characterized curfew ordinances as restrictive of
minors' right to travel, albeit imposed primarily for the interest of public safety,
particularly the promotion of juvenile safety and prevention of juvenile crime.[23] To
stress anew, the Court therein referred to the right to travel as "the right to move
freely from the Philippines to other countries or within the Philippines," and a "right
embraced within the general concept of liberty” which, in turn, includes "the power
of locomotion and the right of citizens to be free to use their faculties in lawful
ways and to live and work where they desire or where they can best pursue
the ends of life."[24]

The afore-cited cases tell us that measures which impede the right to travel in
furtherance of other state interests, whether impermissible (as in Shapiro) or even
permissible (as in Burnett and Spark), are treated in the same manner as those which
directly restrict the right.

The foregoing cases, taken together with the text of the Constitution, unequivocally
negate the assertion that Proclamation 475 does not cause a substantive impairment
on the right to travel so as to exempt it from the requirements set forth in Section 6,
Article III.

In this regard, I disagree with the contention that the effect of the closure of Boracay
on a person's ability to travel is merely incidental in nature; hence, conceptually remote
from the right's proper sense. To my mind, that an assailed government act only
indirectly or incidentally affects a constitutional right is inconsequential as any
impairment of constitutionally-protected rights must strictly comply with the mandate
of the Constitution. As held in Genuino:

The DOJ would however insist that the resulting infringement of liberty is
merely incidental, together with the consequent inconvenience, hardship or
loss to the person being subjected to the restriction and that the ultimate
objective is to preserve the investigative powers of the DOJ and public order.
It posits that the issuance ensures the presence within the country of the
respondents during the preliminary investigation. Be that as it may, no
objective will ever suffice to legitimize desecration of a fundamental
right. To relegate the intrusion as negligible in view of the supposed
gains is to undermine the inviolable nature of the protection that the
Constitution affords.[25] (Emphasis supplied)

As well, Proclamation 475 cannot be likened to government regulations that amount to

the "cordoning-off" of areas ravaged by calamities, where access by people thereto
may be prohibited pursuant to public safety considerations. This is because local
government units are already explicitly authorized under the Local Government Code to
close down roads for such purpose, to wit:

Section 21. Closure and Opening of Roads. — (a) A local government unit
may, pursuant to an ordinance, permanently or temporarily close or
open any local road, alley, park, or square falling within its
jurisdiction: Provided, however, That in case of permanent closure, such
ordinance must be approved by at least two-thirds (2/3) of all the members
of the sanggunian, and when necessary, an adequate substitute for the
public facility that is subject to closure is provided.

xxxx

(c) Any national or local road, alley, park, or square may be

temporarily closed during an actual emergency, or fiesta celebrations,
public rallies, agricultural or industrial fairs, or an undertaking of public
works and highways, telecommunications, and waterworks projects, the
duration of which shall be specified by the local chief executive
concerned in a written order: x x x (Emphasis supplied)

Thus, I submit that the present case cannot be likened to a "cordoning-off” situation,
considering that the latter actually complies with Section 6, Article III, i.e., that the
restriction be grounded on either national security, public safety or public health, and
that the restriction be provided by law. Accordingly, I maintain my position that the
resolution of this case hinges on the right to travel.

There is no law which

grants the President any
form of police power so as
to authorize the
impairment of the right to
travel during a state of
calamity
The ponencia alternatively holds that the issuance of Proclamation 475 is valid as a
police power measure. It cites Republic Act No. (RA) 10121 and RA 9275 as statutory
bases for the validity of the proclamation.

The ponencia, as well as respondents, rely on the provisions of RA 10121 which

empower the National Disaster Risk Reduction and Management Council (NDRRMC) to
recommend to the President the declaration of state of calamity. In particular, they cite
the following provisions:

SEC. 6. Powers and Functions of the NDRRMC. — The National Council,

being empowered with policy-making, coordination, integration, supervision,
monitoring and evaluation functions, shall have the following
responsibilities:

xxxx

(c) Advise the President on the status of disaster preparedness, prevention,

mitigation, response and rehabilitation operations being undertaken by the
government, CSOs, private sector, and volunteers; recommend to the
President the declaration of a state of calamity in areas extensively
damaged; and submit proposals to restore normalcy in the affected areas,
to include calamity fund allocation;

xxx

SEC. 16. Declaration of Stale of Calamity. — The National Council shall

recommend to the President of the Philippines the declaration of a cluster of
barangays, municipalities, cities, provinces, and regions under a state of
calamity, and the lifting thereof, based on the criteria set by the National
Council. x x x

From the foregoing provisions, the ponencia argues that "the statutes from which
[Proclamation 475] 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."[26] The ponencia then concludes
that Proclamation 475 is a valid police power measure.

I differ.

First, the afore-cited provisions of RA 10121 only empower the NDRRMC to recommend
to the President the declaration of a "state of calamity" and submit to him "proposals to
restore normalcy in the affected areas." In turn, the actions or programs to be
undertaken by the President during a state of calamity, to be valid, must still be
within the powers granted to him under the Constitution and other laws.

To be sure, there is absolutely nothing in RA 10121 from which it could reasonably be

inferred that the law empowers the NDRRMC or the President to close an entire island.
In fact, RA 10121 does not even refer to the President, except in connection with the
declaration of a state of calamity in Section 16, quoted above.
Parenthetically, it should be emphasized that, under RA 10121, a "state of calamity"
only authorizes the President to impose the following remedial measures:

(a) Imposition of price ceiling on basic necessities and prime commodities by

the President upon the recommendation of the implementing agency as
provided for under Republic Act No. 7581, otherwise known as the "Price
Act", or the National Price Coordinating Council;

(b) Monitoring, prevention and control by the Local Price Coordination

Council of overpricing/profiteering and hoarding of prime commodities,
medicines and petroleum products;

(c) Programming/reprogramming of funds for the repair and safety

upgrading of public infrastructures and facilities; and

(d) Granting of no-interest loans by government financing or lending

institutions to the most affected section of the population through their
cooperatives or people's organizations.[27]

The very narrow scope of the President's powers during a state of calamity as declared
in accordance with RA 10121 becomes more apparent when placed in contrast with
those granted by the statute in favor of the NDRRMC.

The powers and prerogatives of the NDRRMC are detailed under RA 10121 as follows:

SEC. 6. Powers and Functions of the NDRRMC. — The National Council,

being empowered with policy-making, coordination, integration, supervision,
monitoring and evaluation functions, shall have the following
responsibilities:

(a) Develop a NDRRMF which shall provide for a comprehensive, all-hazards,

multi-sectoral, inter-agency and community-based approach to disaster risk
reduction and management. The Framework shall serve as the principal
guide to disaster risk reduction and management efforts in the country and
shall be reviewed on a five (5)-year interval, or as may be deemed
necessary, in order to ensure its relevance to the times;

(b) Ensure that the NDRRMP is consistent with the NDRRMF;

(c) Advise the President on the status of disaster preparedness, prevention,

mitigation, response and rehabilitation operations being undertaken by the
government, CSOs, private sector, and volunteers; recommend to the
President the declaration of a state of calamity in areas extensively
damaged; and submit proposals to restore normalcy in the affected areas,
to include calamity fund allocation;

(d) Ensure a multi-stakeholder participation in the development, updating,

and sharing of a Disaster Risk Reduction and Management Information
System and Geographic Information System-based national risk map as
policy, planning and decision-making tools;
(e) Establish a national early warning and emergency alert system to
provide accurate and timely advice to national or local emergency response
organizations and to the general public through diverse mass media to
include digital and analog broadcast, cable, satellite television and radio,
wireless communications, and landline communications;

(f) Develop appropriate risk transfer mechanisms that shall guarantee social
and economic protection and increase resiliency in the face of disaster;

(g) Monitor the development and enforcement by agencies and

organizations of the various laws, guidelines, codes or technical standards
required by this Act;

(h) Manage and mobilize resources for disaster risk reduction and
management including the National Disaster Risk Reduction and
Management Fund;

(i) Monitor and provide the necessary guidelines and procedures on the
Local Disaster Risk Reduction and Management Fund (LDRRMF) releases as
well as utilization, accounting and auditing thereof;

(j) Develop assessment tools on the existing and potential hazards and risks
brought about by climate change to vulnerable areas and ecosystems in
coordination with the Climate Change Commission;

(k) Develop vertical and horizontal coordination mechanisms for a more

coherent implementation of disaster risk reduction and management policies
and programs by sectoral agencies and LGUs;

(l) Formulate a national institutional capability building program for disaster

risk reduction and management to address the specific weaknesses of
various government agencies and LGUs, based on the results of a biennial
baseline assessment and studies;

(m) Formulate, harmonize, and translate into policies a national agenda for
research and technology development on disaster risk reduction and
management;

(n) In coordination with the Climate Change Commission, formulate and

implement a framework for climate change adaptation and disaster risk
reduction and management from which all policies, programs, and projects
shall be based;

(o) Constitute a technical management group composed of representatives

of the abovementioned departments, offices, and organizations, that shall
coordinate and meet as often as necessary to effectively manage and
sustain national efforts on disaster risk reduction and management;

(p) Task the OCD to conduct periodic assessment and performance

monitoring of the member-agencies of the NDRRMC, and the Regional
Disaster Risk Reduction and Management Councils (RDRRMCs), as defined in
the NDRRMP; and
 (q) Coordinate or oversee the implementation of the country's obligations
with disaster management treaties to which it is a party and see to it that
the country's disaster management treaty obligations be incorporated in its
disaster risk reduction and management frameworks, policies, plans,
programs and projects.

xxxx

Section 15. Coordination During Emergencies. — The LDRRMCs shall take

the lead in preparing for, responding to, and recovering from the effects of
any disaster based on the following criteria:

(a) The BDC, if a barangay is affected;

(b) The city/municipal DRRMCs, if two (2) or more barangays are

affected;

(c) The provincial DRRMC, if two (2) or more cities/municipalities

are affected;

(d) The regional DRRMC, if two (2) or more provinces are

affected; and

(e) The NDRRMC, if two (2) or more regions are affected.

RA 10121 likewise established Local Disaster Risk Reduction and Management

Councils/Offices (LDRRMCs/LDRRMOs) in every province, city, and municipality in the
country, which are "responsible for setting the direction, development, implementation
and coordination of disaster risk management programs within their [respective]
territorial jurisdiction[s]."[28] Specifically, LDRRMOs are empowered to, among others,
(i) identify, assess, and manage the hazards, vulnerabilities and risks that may occur in
their locality;[29] (ii) identify and implement cost-effective risk reduction
measures/strategies;[30] and (iii) respond to and manage the adverse effects of
emergencies and carry out recovery activities in the affected area.[31]

Notably, majority of those who compose the LDRRMCs are officials of local government
units[32] (LGUs) over whom the President only exercises supervision, instead of
control.[33] Restated, it is very clear that the intent of the law — in directing the
LDRRMCs to "take the lead", and in declaring that the NDRRMC would only take over "if
two (2) or more regions are affected" — is to favor local autonomy in disaster
preparedness and disaster response.

From the foregoing, there can be no serious doubt that the six-month closure
of Boracay, as ordered by Proclamation 475, cannot be anchored on RA 10121.
To conclude as such requires an Olympic leap in logic which is totally
unwarranted, considering that RA 10121: (i) gave preference to local actors, not
national ones, as regards disaster response and (ii) only granted the President
authority to implement limited remedial measures following a declaration of a "state of
calamity".
The case of Review Center Association of the Philippines v. Executive Secretary
Ermita[34] is on point. Therein, the President issued an executive order authorizing the
Commission on Higher Education (CHED) to supervise review centers and similar
establishments. The petitioner therein sought to declare the executive order
unconstitutional on the ground that CHED had no supervisorial authority over them and
that the executive order constitutes a usurpation of legislative power by the President.
Ruling m favor of the petitioner, the Court held:

The scopes of EO 566 and the RIRR clearly expand the CHED's coverage
under RA 7722. The CHED's coverage under RA 7722 is limited to public and
private institutions of higher education and degreegranting programs in all
public and private post-secondary educational institutions. EO 566 directed
the CHED to formulate a framework for the regulation of review centers and
similar entities.

The definition of a review center under EO 566 shows that it refers to one
which offers "a program or course of study that is intended to refresh and
enhance the knowledge or competencies and skills of reviewees obtained in
the formal school setting in preparation for the licensure examinations"
given by the PRC. It also covers the operation or conduct of review classes
or courses provided by individuals whether for a fee or not in preparation for
the licensure examinations given by the PRC.

xxxx

The President has no inherent or delegated legislative power to

amend the functions of the CHED under RA 7722. Legislative power
is the authority to make laws and to alter or repeal them, and this
power is vested with the Congress under Section 1, Article VI of the
1987 Constitution which states:

Section 1. The legislative power shall be vested in the Congress

of the Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by
the provision on initiative and referendum.

xxx

Police power to prescribe regulations to promote the health, morals, education, good
order or safety, and the general welfare of the people flows from the recognition that
salus populi est suprema lex — the welfare of the people is the supreme law. Police
power primarily rests with the legislature although it may be exercised by the
President and administrative boards by virtue of a valid delegation. Here, no
delegation of police power exists under RA 7722 authorizing the President to
regulate the operations of non-degree granting review centers.[35] (Emphasis
and underscoring supplied; emphasis in the original omitted)

Second, police power is an inherent attribute of sovereignty which has been defined as
the power to "make, ordain, and establish all manner of wholesome and reasonable
laws, statutes and ordinances, either with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good and welfare of the commonwealth,
and for the subjects of the same."[36] Our Constitutional design, however, lodges police
power primarily on the Legislature.

That police power is lodged primarily in the Legislature does not appear to be in
dispute. This is apparent from the ponencia itself, which defines police power as the
"state authority to enact legislation that may interfere with personal liberty or property
in order to promote the general welfare."[37]

Clearly, police power cannot be exercised by any group or body of individuals not
possessing legislative power; its exercise, therefore, is contingent upon a valid
delegation.[38]

In fact, a look at the powers at the President's disposal in times of calamity leads to the
inevitable conclusion that Proclamation 475 does not find basis in any law.

Under the Constitution, the President, on whom Executive power is vested by Section
1, Article VII of the Constitution, may, in times of calamity, exercise:

(1) calling out powers, an ordinary police action[39] to call on the armed
forces to prevent or suppress three specific instances - lawless violence,
invasion, or rebellion;[40]

(2) emergency powers, which, even then, may only be exercised in times
of war or after Congress considers the calamity as a "national emergency"
and passes a law authorizing the President to exercise "powers necessary
and proper to carry out a declared national policy";[41] and

(3) taking over powers, which include taking over of, or directing the
operation of any privately-owned public utility or business affected with
public interest;[42] and the power to establish and operate vital industries in
the interest of national welfare or defense, and the power to transfer to
public ownership utilities and other private enterprises to be operated by the
Government upon payment of just compensation.[43]

Under RA 7160 or the Local Government Code of 1991, the President may also exercise
general supervision over LGUs,[44] and augment the basic services and facilities
assigned to an LGU when the need arises, that is, when such services or facilities are
not made available or, if made available, are inadequate to meet the requirements of its
inhabitants.[45]

Further, in cases of epidemics, pestilence, and other widespread public health dangers,
the Secretary of Health may, upon the direction of the President and in consultation
with the LGU concerned, temporarily assume direct supervision and control over health
operations in any LGU for the duration of the emergency, but in no case exceeding a
cumulative period of six (6) months.[46]

Finally, in areas declared by the President to be in a state of calamity, the President

may enact a supplemental budget by way of budgetary realignment, to set aside
appropriations for the purchase of supplies and materials, or for the payment of
services which are exceptionally urgent or absolutely indispensable to prevent
imminent danger to, or loss of life or property, in the jurisdiction of an LGU concerned.
[47]

From the foregoing, it is thus clear that the President has no power to close an entire
island, even in a calamitous situation, and despite the blanket invocation of the State's
police power.

The authority to restrict

the right to travel cannot
be implied from the
executive department's
power, under RA 9275, to
"take measures necessary
to upgrade the water
quality"

The ponencia also views RA 9275[48] as another statutory basis for the issuance of
Proclamation 475.[49] This position is anchored on Section 6 of said statute which
reads:

SEC. 6. Management of Non-attainment Areas. — The [DENR] shall

designate water bodies, or portions thereof, where specific pollutants from
either natural or man-made source have already exceeded water quality
guidelines as non-attainment areas for the exceeded pollutant. x x x

The [DENR] shall, in coordination with [National Water Resource Board],

Department of Health (DOH), Department of Agriculture (DA), governing
board and other concerned government agencies and private sectors shall
take measures as may be necessary to upgrade the quality of such
water in non-attainment areas to meet the standards under which it
has been classified. (Emphasis and underscoring supplied)

Again, I disagree.

While the language used by RA 9275 was general, such that it may include any
measure to upgrade the quality of water in a particular area, the provision in question
is still bound by the limitations imposed by the Constitution and other applicable laws.

Specifically, RA 9275 itself provides that "[t]he LGUs shall prepare and implement
contingency plans and other measures including relocation, whenever necessary, for
the protection of health and welfare of the residents within potentially affected areas."
[50] It is apparent, therefore, that it is again the LGUs who are tasked with the

implementation of contingency plans when measures need to be taken for the

protection of the health and welfare of the residents in the area concerned. The
DENR's, and consequently the President's, jurisdiction is limited to the adoption of
measures for the treatment of water, that is, any method, technique, or process
designed to alter the physical, chemical or biological and radiological character or
composition of any waste or wastewater to reduce or prevent pollution.[51]
More importantly, even if the language employed by RA 9275 was as general as it could
be to allow leeway for the DENR as to the means it would undertake to clean the water,
the DENR would still inarguably be bound by Section 6, Article III of the
Constitution, which, as discussed, requires that the curtailment of the right to
travel be done on the basis of a law.

The right to travel cannot

he impaired by a mere
Presidential Proclamation

As discussed, the existence of a law – which may either refer to the Constitution or to a
statute necessarily enacted by the Legislature – is a prerequisite for the curtailment of
the right to travel. The case of Ople v. Torres[52] (Ople) lends guidance.

In Ople, the President sought to establish a national computerized identification

reference system, or National ID System, through a mere administrative order. The
petitioner in the said case questioned the legality of the administrative order on the
ground that, among others, the subject of the administrative order should properly be
contained in a law, not a mere administrative issuance. In declaring the administrative
order unconstitutional, the Court explained at length:

Petitioner's sedulous concern for the Executive not to trespass on the

lawmaking domain of Congress is understandable. The blurring of the
demarcation line between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their delicate balance of
power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny
by this Court.

The line that delineates Legislative and Executive power is not indistinct.
Legislative power is "the authority, under the Constitution, to make laws,
and to alter and repeal them." The Constitution, as the will of the people in
their original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines. The grant of legislative power to Congress is
broad, general and comprehensive. The legislative body possesses plenary
power for all purposes of civil government. Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere. In fine, except as limited by
the Constitution, either expressly or impliedly, legislative power embraces all
subjects and extends to matters of general concern or common interest.

While Congress is vested with the power to enact laws, the President
executes the laws. The executive power is vested in the President. It is
generally defined as the power to enforce and administer the laws. It is the
power of carrying the laws into practical operation and enforcing their due
observance.

As head of the Executive Department, the President is the Chief Executive.

He represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department. He has control
over the executive department, bureaus and offices. This means that he has
the authority to assume directly the functions of the executive department,
bureau and office, or interfere with the discretion of its officials. Corollary to
the power of control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and public order.
Thus, he is granted administrative power over bureaus and offices under his
control to enable him to discharge his duties effectively.

Administrative power is concerned with the work of applying policies and

enforcing orders as determined by proper governmental organs. It enables
the President to fix a uniform standard of administrative efficiency and check
the official conduct of his agents. To this end, he can issue administrative
orders, rules and regulations.

Prescinding from these precepts, we hold that A.O. No. 308 involves
a subject that is not appropriate to be covered by an administrative
order. An administrative order is:

"[Section] 3. Administrative Orders. — Acts of the President

which relate to particular aspects of governmental operation in
pursuance of his duties as administrative head shall be
promulgated in administrative orders."

An administrative order is an ordinance issued by the President which

relates to specific aspects in the administrative operation of government. It
must be in harmony with the law and should be for the sole purpose
of implementing the law and carrying out the legislative policy. We
reject the argument that A.O. No. 308 implements the legislative policy of
the Administrative Code of 1987. x x x

xxxx

It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies — the primacy of
national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of
some basic rights of our citizenry vis-a-vis the State as well as the
line that separates the administrative power of the President to
make rules and the legislative power of Congress, it ought to be
evident that it deals with a subject that should be covered by law.

Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law
because it confers no right, imposes no duty, affords no protection, and
creates no office. Under A.O. No. 308, a citizen cannot transact
business with government agencies delivering basic services to the
people without the contemplated identification card. No citizen will
 refuse to get this identification card for no one can avoid dealing with
government. It is thus clear as daylight that without the ID, a citizen will
have difficulty exercising his rights and enjoying his privileges. Given this
reality, the contention that A.O. No. 308 gives no right and imposes no duty
cannot stand.

Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of
Congress to make laws. This is contrary to the established approach defining
the traditional limits of administrative legislation. As well stated by Fisher:
"x x x Many regulations however, bear directly on the public. It is
here that administrative legislation must be restricted in its scope
and application. Regulations are not supposed to be a substitute for
tire general policy-making that Congress enacts in the form of a
public law. Although administrative regulations are entitled to
respect, the authority to prescribe rules and regulations is not an
independent source of power to make laws."[53] (Emphasis and
underscoring supplied)

In the present case, the order to close Boracay for six months was issued in a form of a
proclamation. Title 1, Book III of Executive Order No. 292 or the Revised
Administrative Code of 1987 (Administrative Code) enumerates the different powers of
the Office of the President. Chapter 2 of the same – which contains the ordinance
powers of the President – defines a "proclamation" as follows:

BOOK III
Office of the President

TITLE I
Powers o fthe President

CHAPTER 1
Power of Control

SECTION 1. Power of Control. — The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed.

CHAPTER 2
Ordinance Power

SEC. 2. Executive Orders. — Acts of the President providing for the rules of
a general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.

SEC. 3. Administrative Orders. — Acts of the President which relate to

particular aspects of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.

SEC. 4. Proclamations. — Acts of the President fixing a date or

declaring a status or condition of public moment or interest, upon
 the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall
have the force of an executive order.

SEC. 5. Memorandum Orders. — Acts of the President on matters of

administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied in
memorandum orders.

SEC. 6. Memorandum Circulars. — Acts of the President on matters relating

to internal administration, which the President desires to bring to the
attention of all or some of the departments, agencies, bureaus or offices of
the Government, for information or compliance, shall be embodied in
memorandum circulars.

SEC. 7. General or Special Orders. — Acts and commands of the President in

his capacity as Commander-in-Chief of the Armed Forces of the Philippines
shall be issued as general or special orders. (Emphasis supplied)

The declaration of a state of calamity in the present case was embodied in a

"proclamation". But that is not all that was covered by the "proclamation". Along with
the declaration of a state of calamity, Proclamation 475 also ordered the closure of an
entire island — an order which directly impacts fundamental rights, particularly,
the right to travel and due process. Borrowing the words of the Court in Ople, when
an issuance "redefines the parameters of some basic rights of our citizenry vis a-vis the
State,"[54] then such is a subject matter that should be contained in a law. Such
matters are beyond the power of the President to determine, and cannot be undertaken
merely upon the authority of a proclamation.

As explained by Justice Dante O. Tinga in David v. Macapagal Arroyo:[55]

x x x The power of the President to make proclamations, while confirmed by

statutory grant, is nonetheless rooted in an inherent power of the presidency
and not expressly subjected to constitutional limitations. But proclamations,
by their nature, are a species of issuances of extremely limited efficacy. As
defined in the Administrative Code, proclamations are merely "acts of the
President fixing a date or declaring a status or condition of public moment or
interest upon the existence of which the operation of a specific law or
regulation is made to depend". A proclamation, on its own, cannot
create or suspend any constitutional or statutory rights or
obligations. There would be need of a complementing law or
regulation referred to in the proclamation should such act indeed put
into operation any law or regulation by fixing a date or declaring a status or
condition of a public moment or interest related to such law or regulation.
And should the proclamation allow the operationalization of such law or
regulation, all subsequent resultant acts cannot exceed or supersede the law
or regulation that was put into effect.[56] (Emphasis supplied)

In sum, as the governmental action at hand involves the curtailment of the

constitutionally guarded right to travel, it was thus invalid for the President to have
done so (i) without enabling legislation and (ii) in the form of a mere proclamation.

The authority to curtail the

right to travel is neither
subsumed in the
President's duty to execute
laws, nor can it be deemed
inherent in the President's
power to promote the
general welfare

In the absence of statutory and Constitutional basis, it is imperative to stress that the
restriction of the right to travel, as imposed through Proclamation 475, cannot be
justified as a necessary incident of the Executive's duty to execute laws.

The faithful execution clause is found in Section 17, Article VII of the Constitution. It
states:

SEC. 17. The President shall have control of all the executive departments,
bureaus and offices. He shall ensure that the laws be faithfully executed.

The foregoing clause should not be understood as a grant of power, but rather, an
obligation imposed upon the President.[57] In turn, this obligation should not be
construed in the narrow context of the particular statute to be carried out, but, more
appropriately, in conjunction with the very document from which such obligation
emanates. Hence, speaking of the faithful execution clause, the Court has ruled:

[The faithful execution clause] simply underscores the rule of law and,
corollarily, the cardinal principle that the President is not above the laws
but is obliged to obey and execute them. This is precisely why the law
provides that "administrative or executive acts, orders and regulations shall
be valid only when they are not contrary to the laws or the Constitution."[58]
(Emphasis supplied)

Based on these premises, I cannot subscribe to the position that the restriction of the
right to travel imposed as a consequence of Boracay's closure is valid simply because it
is necessary for the island's rehabilitation. The fact that the restriction of the right
to travel is deemed necessary to achieve the avowed purpose of Proclamation
475 does not take such restriction away from the scope of the Constitutional
requirements under Section 6, Article III.

As well, I cannot agree with respondents' contention that the authority to restrict the
right to travel is inherent in the exercise of the President's residual power to protect
and promote the general welfare.[59] This claim appears to result from an analogy
drawn from the Court's rulings in Silverio v. Court of Appeals[60] (Silverio) and Leave
Division, Office of the Administrative Services, Office of the Court Administrator v.
Heusdens[61] (Leave Division), which speak of the inherent powers of the judicial and
legislative departments.
A close reading of these cases reveals, however, that respondents' claim does not find
support in either Silverio or Leave Division.

In Silverio, the petitioner therein had been charged with a violation of the Revised
Securities Act. The petitioner assailed the order issued by the handling Regional Trial
Court (RTC) which directed: (i) the Department of Foreign Affairs to cancel his
passport; and (ii) then Commission on Immigration to prevent him from leaving the
Philippines.[62] The petitioner further argued that the RTC could not validly impair his
right to travel on the basis of grounds other than national security, public safety and
public health.[63]

Resolving the issue, the Court held that Section 6, Article III should not be construed to
limit the inherent power of the courts to use all means necessary to carry their orders
into effect, thus:

Petitioner takes the posture, however, that while the 1987 Constitution
recognizes the power of the Courts to curtail the liberty of abode within the
limits prescribed by law, it restricts the allowable impairment of the right to
travel only on grounds of interest of national security, public safety or public
health, as compared to the provisions on freedom of movement in the 1935
and 1973 Constitutions.

xxxx

Petitioner x x x theorizes that under the 1987 Constitution, Courts can

impair the right to travel only on the grounds of "national security, public
safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted

to mean that while the liberty of travel may be impaired even
without Court Order, the appropriate executive officers or
administrative authorities are not armed with arbitrary discretion to
impose limitations. They can impose limits only on the basis of
"national security, public safety, or public health" and "as may be
provided by law," a limitive phrase which did not appear in the 1973
text x x x. Apparently, the phraseology in the 1987 Constitution was a
reaction to the ban on international travel imposed under the previous
regime when there was a Travel Processing Center, which issued certificates
of eligibility to travel upon application of an interested party x x x.

Article III, Section 6 of the 1987 Constitution should by no means be

construed as delimiting the inherent power of the Courts to use all
means necessary to carry their orders into effect in criminal cases
pending before them. When by law jurisdiction is conferred on a
Court or judicial officer, all auxiliary writs, process and other means
necessary to carry it into effect may be employed by such Court or
officer x x x.

xxxx
 Petitioner is facing a criminal charge. He has posted bail but has violated the
conditions thereof by failing to appear before the Court when required.
Warrants for his arrest have been issued. Those orders and processes would
be rendered nugatory if an accused were to be allowed to leave or to
remain, at his pleasure, outside the territorial confines of the country.
Holding an accused in a criminal case within the reach of the Courts by
preventing his departure from the Philippines must be considered as a valid
restriction on his right to travel so that he may be dealt with in accordance
with law. The offended party in any criminal proceeding is the People of the
Philippines. It is to their best interest that criminal prosecutions should run
their course and proceed to finality without undue delay, with an accused
holding himself amenable at all times to Court Orders and processes.[64]
(Emphasis and underscoring supplied; citations omitted)

In Leave Division, petitioner therein argued that the Office of the Court Administrator
(OCA) Circular No. 49-2003 (B), which requires court employees to secure a travel
authority as a requisite for foreign travel, unduly restricts the right to travel.

Speaking of "inherent limitations on the right to travel", the Court in Leave Division
held:

Inherent limitations on the right to travel are those that naturally emanate
from the source. These are very basic and are built-in with the power. An
example of such inherent limitation is the power of the trial courts to
prohibit persons charged with a crime to leave the country. In such a case,
permission of the court is necessary. Another is the inherent power of
the legislative department to conduct a congressional inquiry in aid
of legislation. In the exercise of legislative inquiry, Congress has the
power to issue a subpoena and subpoena duces tecum to a witness
in any part of the country, signed by the chairperson or acting
chairperson and the Speaker or acting Speaker of the House; or in
the case of the Senate, signed by its Chairman or in his absence by
the Acting Chairman, and approved by the Senate President.[65]
(Emphasis supplied)

While the foregoing cases decree that the requirements of Section 6, Article III should
not be interpreted to unduly negate the inherent powers belonging to the judicial and
legislative departments, these cases do not purport to sanction the curtailment of the
right to travel solely on the basis of implication.

To be sure, the authority to restrict the right to travel, while inherent in the
exercise of judicial power and in the conduct of legislative inquiry, do not
stem from mere abstraction, but rather, proceed from specific grants of
authority under the Constitution. These grants of authority therefore satisfy
the requirement that the restriction be provided for by law.

To recall, Section 5(5), Article VIII of the Constitution vests unto the Court the power to
promulgate rules concerning, among others, the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts. Pursuant to such
authority, the Court promulgated the Rules 135 of the Rules of Court, which reads:
 SEC. 6. Means to carry jurisdiction into effect. — When by law jurisdiction is
conferred on a court or judicial officer, all auxiliary writs, processes and
other means necessary to carry it into effect may be employed by such court
or officer; and if the procedure to be followed in the exercise of such
jurisdiction is not specifically pointed out by law or by these rules, any
suitable process or mode of proceeding may be adopted which appears
comfortable to the spirit of the said law or rules.

In this connection, the jurisdiction to exercise judicial power and exert all means
necessary to carry such jurisdiction into effect is conferred upon the lower courts by
law, specifically, under Batas Pambansa Bilang 129.

Similarly, the Legislature's power to promulgate rules governing the conduct of a

congressional inquiry stems from Section 21, Article VI of the Constitution, thus:

SEC. 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation m accordance with its
duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.

In turn, the Congress' power to resort to coercive measures in the course of legislative
inquiry have been detailed in their respective internal rules promulgated pursuant to
Section 21.[66]

Plainly, there is no basis to conclude that these inherent powers constitute exceptions
to the parameters set forth by Section 6, Article III, for the reason that the Constitution
itself provides the basis for their exercise.

Nevertheless, respondents argue, by analogy, that the authority to restrict the right to
travel is inherent in the President's exercise of residual powers to protect general
welfare.[67] In support of this proposition, respondents rely on Marcos v. Manglapus[68]
(Marcos), the relevant portion of which reads:

x x x The power involved is the President's residual power to protect the

general welfare of the people. It is founded on the duty of the President, as
steward of the people. To paraphrase Theodore Roosevelt, it is not only the
power of the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand. x x x

x x x The President is not only clothed with extraordinary powers in times of

emergency, but is also tasked with attending to the day-to-day problems of
maintaining peace and order and ensuring domestic tranquillity in times
when no foreign foe appears on the horizon. Wide discretion, within the
bounds of law, in fulfilling presidential duties in times of peace is not in any
way diminished by the relative want of an emergency specified in the
commander-in-chief provision. x x x[69] (Citations omitted)

I cannot subscribe to this position.

To echo the Court's words in Genuino, the imposition of a restriction on the right to
travel may not be justified by resorting to an analogy.[70]
A closer look at the very limited cases in which the President's unstated "residual
powers" and "broad discretion" have been recognized[71] reveals that the exercise of
these residual powers can only be justified in the existence of circumstances posing a
threat to the general welfare of the people so imminent that it requires immediate
action on the part of the government.

In Marcos, these circumstances were "the catalytic effect of the return of the Marcoses
that may pose a serious threat to the national interest and welfare",[72] the fact that
the country was only then "beginning to recover from the hardships brought about by
the plunder of the economy attributed to the Marcoses and their close associates and
relatives, many of whom are still here in the Philippines in a position to destabilize the
country, while the Government has barely scratched the surface, in its efforts to
recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions".
[73] The distinctiveness of these circumstances impelled the Court to thus treat its

pronouncement therein as sui generis:

This case is unique. It should not create a precedent, for the case of a
dictator forced out of office and into exile after causing twenty years of
political, economic and social havoc in the country and who within the short
space of three years seeks to return, is in a class by itself.[74] (Emphasis
supplied)

I submit, therefore, that respondents' reliance on the Court's ruling in Marcos as basis
to determine the scope of the President's "residual powers" is erroneous.

In any case, the "residual powers" as referred to in Section 20, Chapter 7, Title I, Book
III of the Administrative Code, refers to the President's power to "exercise such other
powers and functions vested [in the President] which are provided for under the laws
and which are not specifically enumerated above, or which are not delegated by the
President in accordance with law."

While residual powers are, by their nature, "unstated," these powers are vested in the
President in furtherance of the latter's duties under the Constitution. To exempt
residual powers from the restrictions set forth by the very same document
from which they emanate is absurd. While residual powers are "unstated",
they are not extra-constitutional.

Indeed, while the President possesses the residual powers in times of calamity, these
powers are limited by, and must therefore be wielded within, the bounds set forth by
the Constitution and applicable laws enabling such powers' exercise. As aptly observed
by the Supreme Court in Rodriguez, Sr. v. Gella:[75]

Shelter may not be sought in the proposition that the President

should be allowed to exercise emergency powers for the sake of
speed and expediency in the interest and for the welfare of the
people, because we have the Constitution, designed to establish a
government under a regime of justice, liberty and democracy. x x x
Much as it is imperative in some cases to have prompt official action,
deadlocks in and slowness of democratic processes must be preferred to
 concentration of powers in any one man or group of men for obvious
reasons. The framers of the Constitution, however, had the vision of and
were careful in allowing delegation of legislative powers to the President for
a limited period "in times of war or other national emergency." They had
thus entrusted to the good judgment of the Congress the duty of coping
with any national emergency by a more efficient procedure; but it alone
must decide because emergency in itself cannot and should not create
power. In our democracy the hope and survival of the nation lie in the
wisdom and unselfish patriotism of all officials and in their faithful adherence
to the Constitution."[76] (Emphasis supplied)

Inasmuch as the President has the power to ensure the faithful execution of laws,[77]
and to protect the general welfare of the people, such power can, by no means, be
wielded at every turn, or be unduly expanded to create "inherent restrictions" upon
fundamental rights protected by the Constitution.

There are Constitutionally

permissible measures to
address the problem

In the resolution of this Petition, the ponencia and the related concurring opinions
appear to harp on the necessity of the governmental action involved, i.e., closure of
the entire island to solve the problem at hand. The ponencia, for instance, states:

Certainly, 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, testing, demolition, relocation,
and construction. These works could not have easily been done with tourists
present. The rehabilitation works in the first place were not simple,
superficial or mere cosmetic but rather quite complicated, major, and
permanent in character as they were intended to serve as long-term
solutions to the problem. 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. Moreover, as part of the
rehabilitation efforts, operations of establishments in Boracay had to be
halted in the course thereof since majority, if not all of them, need to comply
with environmental and regulatory requirements in order to align
themselves with the government's goal to restore Boracay into normalcy and
develop its sustainability. Allowing tourists into the island while it was
undergoing necessary rehabilitation would therefore be pointless as no
establishment would cater to their accommodation and other needs.
Besides, it could not be said that Boracay, at the time of the
issuance of the questioned proclamation, was in such a physical
state that would meet its purpose of being a tourist destination. For
one, its beach waters could not be said to be totally safe for swimming. In
any case, the closure, to emphasize, was only for a definite period of six
 months, i.e., from April 26, 2018 to October 25, 2018. To the mind of the
Court, this period constitutes a reasonable time frame, if not to complete,
but to at least put in place the necessary rehabilitation works to be done in
the island. Indeed, the temporary closure of Boracay, although
unprecedented and radical as it may seem, was reasonably necessary and
not unduly oppressive under the circumstances. It was the most practical
and realistic means of ensuring that rehabilitation works in the
island are started and carried out in the most efficacious and
expeditious way. x x x[78] (Emphases and underscoring supplied)

As I earlier intimated in this opinion, I concede and recognize that Boracay was facing a
critical problem that necessitated its closure. I do acknowledge that there was both
necessity and urgency to act on the island's problem. Nonetheless, at the risk of
being repetitive, I reiterate that the closure was invalid without an enabling law enacted
for the purpose — a requirement that is neither impossible nor unreasonable to
comply with.

To illustrate, under the Constitution, the President may certify a bill as urgent "to meet
a public calamity or emergency."[79] Thus:

No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have
been distributed to its Members three days before its passage, except
when the President certifies to the necessity of its immediate
enactment to meet a public calamity or emergency. Upon the last
reading of a bill, no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and the yeas and nays
entered in the Journal. (emphasis supplied)

In Tolentino vs. Secretary of Finance,[80] the Court ruled that the President's
certification dispenses with the requirement of (i) three readings on separate days
and (ii) of printing and distribution three days before its passage. This constitutional
mechanism allows the President to communicate to Congress what the government's
priority measures are, and allows these same bills to "skip" what otherwise would be a
rather burdensome and time-consuming procedure in the legislative process. Stated
differently, this certification provides a constitutionally sanctioned procedure for the
passing of urgent matters that needed to be in the form of a law.

Indeed, this is not uncharted territory. The Court can take judicial notice[81] of the fact
that, for instance, the bill that would later on become the Bangsamoro Organic Law was
certified as urgent on May 29, 2018.[82] In less than two months, or by July 26, 2018,
the bill was already signed into law.[83] Another example is the passage of the
Responsible Parenthood and Reproductive Health Act. After its second reading in the
House of Representatives on December 12, 2012, the Reproductive Health (RH) Bill was
certified as urgent by the then President on December 13, 2012.[84] The House of
Representatives and Senate approved the measure on third reading on December 17,
2012 and ratified its final version on December 19, 2012.[85] By December 21, 2012,
or merely eight days from the certification of the bill as urgent, the RH Bill was
signed into law.[86]

There is thus clear precedent on the effectiveness of this mechanism. Regrettably, it

was not resorted to in addressing Boracay's problems. Instead, an unconstitutional
shortcut was taken by merely issuing a proclamation to close the island.

This unconstitutional shortcut is, to repeat, the raison d'etre for this dissent. The
situation in Boracay is undoubtedly dire; yet, there are constitutionally permissible
measures that the government could, and should, have taken to address the problem.

The protection afforded by

the right to due process, as
asserted in connection with
one's right to work, applies
with equal force to all
persons, regardless of their
profession

Finally, the ponencia declares that petitioners Zabal and Jacosalem, being part of the
informal economy sector where earnings are not guaranteed, cannot be said to have
already acquired vested rights to their sources of income in Boracay. Since their
earnings are contingent, the ponencia proceeds to conclude that petitioners have no
vested rights to their sources of income as to be entitled to due process.[87]

I disagree.

Section 1, Article III on the Bill of Rights of the Constitution provides that "[n]o person
shall be deprived of life, liberty, or property without due process of law x x x." Property
protected under this constitutional provision includes the right to work and the right
to earn a living.

In JMM Promotion and Management, Inc. v. Court of Appeals,[88] which was cited by
the ponencia, the Court held that "[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."[89]

Notwithstanding this constitutional protection, the right to property is not absolute as it

may be curtailed through a valid exercise of the State's police power.[90] However, such
deprivation must be done with due process.

The ponencia concedes that one's profession or trade is considered a property right
covered by the due process clause.[91] However, the ponencia is of the position that
petitioner Zabal and Jacosalem's right thereto is merely inchoate, reasoning as follows:

In any case, petitioners, particularly 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. x x x

x x x Clearly, said petitioners' earnings are contingent in that, even

assuming tourists are still allowed in the island, they will still earn nothing if
no one avails of their services. Certainly, they do not possess any vested
right on their sources of income, and under this context, their claim of lack
of due process collapses. To stress, only rights which have completely and
definitely accrued and settled are entitled protection under the due process
clause.[92]

There is no question that petitioners have no vested right to their future income.
However, what is involved here is not necessarily the right to their future income;
rather, it is petitioners' existing and present right to work and to earn a living.
To belabor the point, such right is not inchoate — on the contrary, it is constitutionally
recognized and protected. The fact that petitioner Zabal and Jacosalem's professions
yield variable income (as opposed to fixed income) does not, in any way, dilute the
protection afforded them by the Constitution.

On this score, I take exception to the position that petitioners Zabal and Jacosalem lack
legal standing to file the present Petition.[93]

Locus standi or legal standing is the right of appearance in a court of justice on a given
question.[94] In order to possess the necessary legal standing, a party must show a
personal and substantial interest in the case such that s/he has sustained or will
sustain direct injury as a result of the challenged governmental act.[95] This
requirement of direct injury "guarantees that the party who brings suit has such
personal stake in the outcome of the controversy and, in effect, assures 'that concrete
adverseness which sharpens the presentation of issues upon which the court depends
for illumination of difficult constitutional questions."'[96]

In their petition, petitioners stated that:

106. Petitioners Zabal and Jacosalem's daily earnings from their tourism-
related activities are absolutely necessary to put food on the table, send
their children to school, and cover the daily expenses of their families.

107. Without such sources of income – even if only for a period of six (6)
months – said petitioners' families will go hungry and, worse, be uprooted or
forced to relocate to other places. Such a development would disrupt their
children's schooling and work untold hardships upon their families.

108. Petitioners have every right to continue to earn a living in the manner
they so choose which, and depriving them of their livelihood violates such
right and creates untold hardships for them and their families.[97]

Applying jurisprudential standards, the inescapable conclusion is that petitioners Zabal

and Jacosalem unquestionably have legal standing. Undoubtedly, they have a personal
and substantial interest in this case and they have shown that they would sustain direct
injury as a result of the Boracay closure.
In denying petitioners any legal standing, the ponencia cites Galicto v. Aquino III,[98]
(Galicto) a case involving the constitutionality of Executive Order No. (E.O.) 7 issued by
President Benigno Aquino III which ordered, among others, a moratorium on the
increases in the salaries and other forms of compensation of all government owned and
controlled corporations (GOCCs). The ponencia summarized the ruling therein as
follows:

x x x The Court held that Galicto, an employee of the GOCC Philhealth, has
no legal standing to assail [E.O.] 7 for his failure to demonstrate that he has
a personal stake or material interest in the outcome of the case. His
interest, if any, was speculative and based on a mere expectancy. Future
increases in his salaries and other benefits were contingent events or
expectancies to which he has no vested rights. Hence, he possessed no
locus standi to question the curtailment thereof.[99]

Applying the foregoing principles, the ponencia finds that petitioners Zabal and
Jacosalem do not have standing to file the instant petition, reasoning that:

x x x, Zabal is a sandcastle maker and Jacosalem, a [tricycle] driver. The

nature of their livelihood is one wherein earnings are not guaranteed. As
correctly pointed out by respondents, their earnings are not fixed and may
vary depending on the business climate in that while they can earn much on
peak seasons, it is also possible for them not to earn anything on lean
seasons, especially when the rainy days set in. Zabal and Jacosalem could
not have been oblivious to this kind of situation, they having been in the
practice of their trade for a considerable length of time. 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, just like
in Galicto. Concomitantly, an assertion of direct injury on the basis of loss of
income does not clothe Zabal and Jacosalem with legal standing.[100]

Contrary to the foregoing supposition, Galicto is inapplicable in this case.

In Galicto, the Court correctly ruled that Galicto's interest was merely speculative and
based on a mere expectancy because he has no vested rights to salary increases and,
therefore, the absence of such right deprives him of legal standing to assail E.O. 7. The
same ruling cannot be applied in the instant case. The impairment of
petitioners' rights as a consequence of the closure of Boracay gives rise to
interests that are real, and not merely speculative. There is no doubt that they
will be directly affected by the closure because they derive their income on tourism-
related activities in Boracay. While Galicto was concerned about future increases, what
is involved in the present case is petitioners' constitutionally protected right to work
and earn a living.[101] To stress, the fact that petitioners Zabal and Jacosalem's
professions yield variable income does not, in any way, dilute the protection they are
entitled to under the Constitution.

Conclusion
I end this discourse fully cognizant of the unfortunate realities that the island of
Boracay has faced. I do not attempt to ignore the degradation it has suffered in the
hands of those who have refused to comply with statutes, rules and regulations crafted
for its protection.

When the exigencies of times call for limitations on fundamental rights, it is

incumbent upon Congress to respond to the need by explicitly authorizing
such limitations through law.[102] While the President has the power, nay, duty, to
address such exigencies, the necessity of impairing constitutional rights in connection
therewith is not for him to determine, more so, unilaterally impose, most particularly in
cases where, as here, there is an absence of any indication that Congress would be
unable to respond to the call.

The requirements under Section 6, Article III of the Constitution are as clear as they
are absolute. The parameters for their application have been drawn in deft strokes by
the Court in Genuino promulgated just nine (9) months ago. Respondents' shotgun
attempt to carve out an exception to these requirements in order to justify the issuance
of Proclamation 475 actually betrays their complete awareness of the Proclamation's
nullity. In Genuino, the Court warned against the sacrifice of individual liberties for a
perceived good as this is disastrous to a democracy. Therein, the Court emphasized:

One of the basic principles of the democratic system is that where the rights
of the individual are concerned, the end does not justify the means. It is not
enough that there be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution. Mere expediency
will not excuse constitutional shortcuts. There is no question that not even
the strongest moral conviction or the most urgent public need, subject only
to a few notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a person invoking a right guaranteed
under Article III of the Constitution is a majority of one even as against the
rest of the nation who would deny him that right.[103]

The Court did not hesitate to protect the Constitution against the threat of executive
overreach in Genuino. The refusal to do so now is nothing less than bewildering.

The judicial validation of Proclamation 475 lends itself to abuse. It grants the President
the power to encroach upon fundamental constitutional rights at whim, upon the guise
of "faithful execution," and under a sweeping claim of "necessity." The ponencia lauds
the "bold and urgent action" taken by the present government, but in the process, lost
sight that it did so at the expense of fundamental rights. Undue premium has been
placed on the underlying necessity for which the remedial action was taken, and the
speed in which it was implemented. As a consequence, the inviolability of
constitutionally protected rights has been forgotten.

I invite everyone, both within and outside the confines of this judicial institution, to
learn from history. The Berlin Wall — the border system that divided a country
physically and ideologically for nearly three decades — was said to have been built
overnight. For a modern democracy, such as ours, that is struggling to strike a balance
between maintaining the integrity of its institutions and dealing with its inefficiencies,
the swiftness with which the Berlin Wall was built may be astonishing, if not enviable.
Yet, it is well to be reminded that the Berlin Wall was constructed at the initiative of a
leader perceived by many as a dictator. If this country is to remain a democracy — as
opposed to a dictatorship — the challenge for all of us is to accept that progressive and
sustainable changes require much time.

To my mind, this ponencia, which prioritizes swiftness of action over the rule of law,
leads to the realization of the very evil against which the Constitution had been crafted
to guard against — tyranny, in its most dangerous form. To say that we believe in our
Constitution, and yet discard it so easily because of expediency, is to champion
hypocrisy to the detriment of our national soul.

In view of the foregoing, I vote to GRANT the Petition.

[1] Milton, J., Paradise Lost (1667).

[2] DECLARING A STATE OF CALAMITY IN THE BARANGAYS OF BALABAG, MANOC-

MANOC AND YAPAK (ISLAND OF BORACAY) IN THE MUNICIPALITY OF MALAY, AKLAN,

AND TEMPORARY CLOSURE OF THE ISLAND AS A TOURIST DESTINATION.

[3] Ponencia, pp. 18, 24 and 28.

[4] See id. at 21-22.

[5] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A

Commentary, 867- 870 (2003 ed.)

[6] G.R. No. 225442, August 8, 2017, 835 SCRA 350.

[7] Id. at 402-403.

[8] As a general rule, the provisions of the Constitution are considered self-executing,

and do not require future legislation for their enforcement. For if they are not treated
as self-executing, the mandate of the fundamental law can be easily nullified by the
inaction of Congress. See generally Tondo Medical Center Employees Association v.
Court of Appeals, 554 Phil. 609, 625 (2007).

[9] G.R. Nos. 197930, 199034 and 199046, April 17, 2018.

[10] Id. at 17-18.

[11] See Justice Leonen's Separate Opinion in Genuino, supra note 9.

[12] Ponencia, p. 20.

[13] 394 U.S. 618 (1969). Penned for the majority by Associate Justice William J.

Brennan, Jr., with Chief Justice Earl Warren, and Associate Justices Hugo Black and
John Marshall Harlan dissenting. Chief Justice Warren and Associate Justice Black were
of the position that Congress has the power to impose and authorize nationwide
residence requirements under the "commerce clause". (Id. at 651.) Justice Harlan, on
the other hand, was of the view that "a number of considerations militate in favor of
[the] constitutionality [of the assailed provisions]", particularly, that (i) "legitimate
governmental interests are furthered by [the] residence requirements"; (ii) "the impact
of the requirements upon the freedom of individuals to travel to interstate is indirect"
and "according to [the] evidence, x x x insubstantial"; (iii) the assailed provisions are
not attempts to interfere with the right of citizens to travel, but a case where the states
act within the terms of a limited authorization by the National Government; and (iv)
the legislatures which have enacted the assailed provisions have rejected appellees'
objections after "mature deliberation". (Id. at 674.)

[14] Id. at 627.

[15] Id.

[16] Id. at 629-631.

[17] 476 U.S. 898 (1986). Penned for the majority by Associate Justice William J.

Brennan, Jr., with Associate Justices Sandra Day O' Connor, William Rehnquist and John
Paul Stevens dissenting. Justice O' Connor, with whom Justices Rehnquist and Stevens
concur, opined that the New York veterans' preference scheme assailed in the case does
not penalize the right to migrate, and is thus, permissible.

[18] Id. at 903.

[19] Id. at 900.

[20] 93 Ohio St. 3d 419. Penned by Chief Justice Thomas J. Moyer for the unanimous

Court.

[21] Id.

[22] Social Justice Society (SJS) v. Dangerous Drugs Board, 591 Phil 393, 409 (2008).

[23] Spark, supra note 6, at 405-408.

[24] Id. at 402-403. Emphasis and underscoring supplied.

[25] Genuino, supra note 9, at 27.

[26] Ponencia, p. 22.

[27] RA 10121, Sec. 17.

[28] Id., Sec. 12(a).

[29] Id., Sec. 12(c)(9).

[30] Id., Sec. 12(c)(11).

[31] Id., Sec. 12(c)(16).

[32] See id., Sec. 11(a).

[33] San Juan v. Civil Service Commission, 273 Phil. 271, 280 (1991).

[34] 602 Phil. 342 (2009).

[35] Id. at 364-369.

[36] Gancayco v. City Government of Quezon City, 674 Phil. 637, 651 (2011), citing

MMDA v. Bel-Air Village Association, 385 Phil. 586, 601 (2000).

[37] Ponencia, p. 21 , citing Gorospe, Rene, B., Constitutional Law, Notes and Readings

on the Bill of Rights, Citizenship and Suffrage, Volume 1 (2006), p. 9, further citing Edu
v. Ericta, 146 Phil. 469 1970).

[38] MMDA v. Bel-Air Village Association, supra note 36, at 601.

[39] David v. Macapagal-Arroyo, 522 Phil. 705, 780 (2006).

[40] 1987 CONSTITUTION, Art. VII, Sec. 18.

[41] Id., Art. VI, Sec. 23(2).

[42] Id., Art. XII, Sec. 17.

[43] Id., Art. XII, Sec. 18.

[44] RA 7160, Sec. 25.

[45] Id., Sec. 17(f).

[46] Id., Sec. 105.

[47] Id., Sec. 321.

[48] Otherwise referred to as the PHILIPPINE CLEAN WATER ACT.

[49] Ponencia, p. 22.

[50] RA 9275, Sec. 6.

[51] Id., Sec. 4(kk).

[52] 354 Phil. 948 (1998).

[53] Id. at 966-970.

[54] Ople, id. at 969.

[55] J. Tinga, Dissenting Opinion, supra note 39, at 818-854.

[56] Id. at 820-821.

[57] Almario v. Executive Secretary, 714 Phil. 127, 164 (2013).

[58] Id. at 164.

[59] Ponencia, p. 8.

[60] 273 Phil. 128 (1991).

[61] 678 Phil. 328 (2011).

[62] Silverio, supra note 60, at 130.

[63] Id. at 131, 132.

[64] Id. at 132-135.

[65] Leave Division, supra note 61, at 340-340.

[66] Sections 17 and 18 of the Senate Rules of Procedure Governing Inquiries in Aid of

Legislation state, in part:

Sec. 17. Powers of the Committee. — The Committee shall have the
powers of an investigating committee, including the power to summon
witnesses and take their testimony and to issue subpoena and subpoena
duces tecum, signed by its Chairman, or in his absence by the Acting
Chairman, and approved by the President. Within Metro Manila, such process
shall be served by the Sergeant-at-Arms or his assistant. Outside of Metro
Manila, service may be made by the police of a municipality or city, upon
request of the Secretary. x x x

Sec. 18. Contempt. — (a) The Chairman with the concurrence of at least
one (1) member of the Committee, may punish or cite in contempt any
witness before the Committee who disobeys any order of the Committee or
refuses to be sworn or to testify or to answer a proper question by the
Committee or any of its members, or testifying, testifies falsely or evasively,
or who unduly refuses to appear or bring before the Committee certain
documents and/or object evidence required by the Committee
notwithstanding the issuance of the appropriate subpoena therefor. A
majority of all the members of the Committee may, however, reverse or
modify the aforesaid order of contempt within seven (7) days.

A contempt of the Committee shall be deemed a contempt of the Senate.

Such witness may be ordered by the Committee to be detained in such place
as it may designate under the custody of the Sergeant-at-Arms until he/she
agrees to produce the required documents, or to be sworn or to testify, or
otherwise purge himself/herself of that contempt.
On the other hand, Section 7 of the House of Representatives Rules of Procedure
Governing Inquiries in Aid of Legislation states, in part:

Section 7. Compulsory Attendance of Witnesses. — The committee shall

have the power to issue subpoena and subpoena duces tecum to witnesses
in any part of the country, signed by the chairperson or acting chairperson
and the Speaker or acting Speaker x x x.

[67] Ponencia, p. 8.

[68] 258 Phil. 479 (1989); see Ponencia, p. 8.

[69] Marcos, id. at 504-505.

[70] Supra note 9, at 45-46.

[71] Marcos, supra note 68; Sanidad v. COMELEC, 165 Phil. 303, 336 (1976).

[72] Id. at 508.

[73] Id. at 509.

[74] Id. at 492.

[75] 92 Phil. 603 (1953).

[76] Id. at 611-612.

[77] 1987 CONSTITUTION, Art. VII, Sec. 17.

[78] Ponencia, pp. 23-24.

[79] 1987 CONSTITUTION, Art. VI, Sec. 26(2).

[80] 305 Phil. 686 (1994).

[81] RULES OF COURT, Rule 129, Sec. 1 provides:

SECTION 1. Judicial notice, when mandatory. — A court shall take judicial

notice, without the introduction of evidence, of the existence and territorial
extent of states, their political history, forms of government and symbols of
nationality, the law of nations, the admiralty and maritime courts of the
world and their seals, the political constitution and history of the Philippines,
the official acts of the legislative, executive and judicial departments
of the Philippines, the laws of nature, the measure of time, and the
geographical divisions. (Emphasis and underscoring supplied)

[82] Dharel Placide, "Duterte certifies BBL as urgent," ABS-CBN News, <
https://news.abs cbn.com/news/05/29/18/duterte-certifies-bbl-as-urgent > (last
accessed January 22, 2019).
[83] "Duterte signs Bangsamoro Law," ABS-CBN News, < https://news.abs-
cbn.com/news/07/26/18/duterte-signs-bangsamoro-law > (last accessed January 22,
2019).

[84] Willard Cheng, "PNoy certifies RH bill as urgent" ABS-CBN News, <
https://news.abscbn.com/nation/12/14/12/pnoy-certifies-rh-bill-urgent > (last
accessed January 22, 2019).

[85] Angela Casauay, "President Aquino signs RH bill into law," <
https://www.rappler.com/nation/18728-aquino-signs-rh-bill-into-law > (last accessed
January 22, 2019).

[86] Karen Boncocan, "RH Bill finally signed into law," Inquirer, <
https://newsinfo.inquirer.net/331395/gonzales-aquino-signed-rh-bill-into-law > (last
accessed January 22, 2019).

[87] Ponencia, pp. 24-26.

[88] 329 Phil. 87 (1996).

[89] Id. at 99-100.

[90] Id. at 100.

[91] Ponencia, p. 24.

[92] Id. at 25-26.

[93] Id. at 14.

[94] Advocates For Truth in Lending, Inc. v. Bangko Sentral Monetary Board, 701 Phil.

483, 493 (2013).

[95] Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 893 (2003).

[96] The Provincial Bus Operators Association of the Philippines v. DOLE and LTFRB,

G.R. No. 202275, July 17, 2018, p. 17.

[97] Petition, p. 25.

[98] 683 Phil. 141 (2012).

[99] Ponencia, p. 13.

[100] Id. at 13-14.

[101] 1987 CONSTITUTION, ART. II, SEC. 18 and ART. XIII, SEC. 3. provide:

Section 18. The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.
 xxxx
Section 3. The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of
employment opportunities for all.

[102] See Genuino, supra note 9, at 20.

[103] Genuino, id. at 27, citing Association of Small Landowners in the Philippines, Inc.

v. Secretary of Agrarian Reform, 256 Phil. 777, 809 (1989).

Source: Supreme Court E-Library

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