MARK ANTHONY V. ZABAL, THITING ESTOSO JACOSALEM, AND ODON S.

BANDIOLA , petitioners,
vs. RODRIGO R. DUTERTE, President of the Republic of the Philippines; SALVADOR C.
MEDIALDEA, Executive Secretary; and EDUARDO M. AÑO, [Secretary] of the Department of the
Interior and Local Government, respondents
[G.R. No. 238467. February 12, 2019.]

FACTS:
1. 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.
2. Claiming that Boracay has become a cesspool, President Duterte first made public his plan to
shut it down during a business forum. 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.
3. 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
4. Petition for Prohibition and Mandamus with Application for Temporary Restraining Order,
Preliminary Injunction, and/or Status Quo Ante Order against respondents President Rodrigo R.
Duterte (President Duterte ), Executive Secretary Salvador C. Medialdea, and Secretary Eduardo
M. An8 o of the Department of Interior and Local Government (DILG).
5. 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.
6. 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.
7. 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.
a. Other arguments:
i. 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.
b. 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. He cannot
lay down the rules himself as this already constitutes control.
8. At the outset, respondents assert that President Duterte must be dropped as party respondent in
this case because he is immune from suit.
 9. respondents contend that the issuance of Proclamation No. 475 is a valid exercise of delegated
legislative power.
10. , 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.

ISSUES:

1. WON Proclamation No. 475 constitute an impairment on the right to travel- NO

2. WON Proclamation No. 475 is a valid police power measure- YES

RULING:

 President Duterte is dropped as respondent. 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.
 Notwithstanding petitioners' lack of locus standi, this Court will allow this petition to proceed to its
ultimate conclusion due to its transcendental importance. (what Zabal and Jacosalem could lose
in this case are mere projected earnings which are in no way guaranteed, and are sheer
expectancies. Concomitantly, an assertion of direct injury on the basis of loss of income does not
clothe Zabal and Jacosalem with legal standing.)
 1. Proclamation No. 475 does not pose an actual impairment on the right to travel
 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 nonresidents 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.
 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.
 The proclamation is therefore not a law and conversely, the President did not usurp the law-
making power of the legislature.
 2. The statutes from which the said measure draws authority and the constitutional provisions51
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.
 SC ruled that the temporary closure of Boracay as a tourist destination for six months is
reasonably necessary under the circumstances
 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

OTHER ISSUES:

 Petitioners have no vested rights on their sources of income as to be entitled to due process
o petitioners' earnings are contingent. To stress, only rights which have completely and
definitely accrued and settled are entitled protection under the due process clause.
 No intrusion into the autonomy of the concerned LGUs
o The respective roles of each government agency are particularly defined and
enumerated in Executive Order No. 53 and all are in accordance with their respective
mandates. Also, the situation in Boracay can in no wise be characterized or labelled
as a mere local issue as to leave its rehabilitation to local actors.

ull Text: https://lawphil.net/judjuris/juri2019/feb2019/gr_238467_2019.html

G.R. No. 238467

MARK ANTHONY V. ZABAL, THITING ESTOSO JACOSALEM, AND ODON S.

BANDIOLA, Petitioners
vs.
RODRIGO R. DUTERTE, President of the Republic of the Philippines; SALVADOR C.
MEDIALDEA, Executive Secretary; and EDUARDO M. ANO, [Secretary] of the Department of
Interior and Local Government, Respondents

DECISION

DEL CASTILLO, J.:

Paradise is a place of bliss, felicity, and delight. For Filipinos and foreign nationals alike, Boracay - a
1

small island in Malay, Aklan, with its palm-fringed, pristine white sand beaches, azure waters, coral
reefs, rare seashells, and a lot more to offer, - is indeed a piece of paradise. Unsurprisingly, Boracay
2 3

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. Respondents, on the other hand,
4

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. This was followed by several
5

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. They also allege
7

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

(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 stating that the day following the filing of
11

their original petition or on April 26, 2018, President Duterte issued Proclamation No. 475 formally
12

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 and June 5, 2018, the Court required respondents to file
14 15

their Comment on the Petition and the Supplemental Petition, respectively. Respondents filed their
Consolidated Comment on July 30, 2018 while petitioners filed their Reply thereto on October 12,
16 17

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.

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 infonnal
economy sector. This means that their source of livelihood is never guaranteed and is susceptible to
changes in regulations and the overall 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, the mere fact that some individuals in the
19

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 on the non-
20

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 (Citations omitted; emphasis supplied)
25

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. The petition must be
26

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. Hence, it is not enough that this petition mounts a constitutional challenge
27

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, an actual case or controversy was
28

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". And
30

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 farreaching 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." There must be a present substantial interest and not a mere expectancy or a
32

future, contingent, subordinate, or consequential interest. 33

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

constitutionality of Executive Order No. 7 (E07) 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 E07 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
1avvphi1

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." Indeed, the petition utterly fails to demonstrate that
35

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 nontraditional 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. More importantly, the matters raised in this case, involved on
36

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

Y APAK (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)/1 OOml, 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 93 7 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 3 77 .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,
Aldan. 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, Aldan 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. Tue 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 of2010 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, the Court held that the
39

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. "It has been defined as the 'state authority to enact legislation that may interfere
40

with personal liberty or property in order to promote general welfare." "As defined, it consists of (1)
41

imposition or restraint upon liberty or property, (2) in order to foster the common good. It is not capable
of exact definition but has be purposely, veiled in general terms to underscore its all-comprehensive
embrace." The police power "finds no specific Constitutional grant for the plain reason that it does not
42

owe its origin to the Charter" since "it is inborn in the very fact of statehood and sovereignty." It is
43 44

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." Thus, police power constitutes an implied limitation on
45

the Bill of Rights. After all, "the Bill of Rights itself does not purport to be an absolute guaranty of
46

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." "It has to be
48

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 from which the said measure draws authority and the constitutional
50

provisions which serve as its framework are primarily concerned with the environment and health,
51

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. in regard 52

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. It further taught that the right to a balanced and healthful ecology carries with it the
53

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. Also part of the equation is the lack of commitment to effectively enforce pertinent
55

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. Also, time is of the essence. Every
56

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." Under this premise, petitioners claim that they were deprived of due process when
57

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." Otherwise, police power as an
58

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, the Court elucidated on vested
60

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 x61

Here, Zabal and J acosalem '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.’’’’ Clearly, said petitioners'
62

earnings are contingent in that, even assuming tourists are still allowed in the island, the 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 LG Us 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 LG Us in disaster risk reduction and management as shown by the
fact that a number of the legislative policies set out in the subject statute recognize and aim to
strengthen the powers decentralized to LGUs. This role is echoed in the questioned proclamation.
64

The fact that other government agencies are involved in the rehabilitation works does not create the
inference that the powers and functions of the LGUs are being encroached upon. The respective roles
of each government agency are particularly defined and enumerated in Executive Order No. 53 and 65

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 xx 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, called out the concerned government agencies for their cavalier attitude towards solving
66

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.

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, this Court clarified the connection between supervision and control. The
67

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. The power of control
68

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, we ruled that the Chief Executive's power over local governments was merely that
69

of checking whether the officials were performing their duties within the bounds of law.

In Province of Batangas v. Romulo, then President Joseph Ejercito Estrada (President Estrada)
70

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 redone 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, the Department of Interior and Local Government was
72

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 DILGdictated
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.