Zabal v. Duterte G.R. No. 238467, February 12, 2019 Case Digest

Facts: 

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. 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. 

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.

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. Petitioners filed the petition on April 25, 2018 praying that 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. 

On May 18, 2018, petitioners filed a Supplemental Petition stating that the day following the filing of their original petition or on April 26, 2018, President Duterte issued Proclamation No. 475 formally declaring a state of calamity in Boracay and ordering its closure for six months from April 26, 2018 to October 25, 2018. 

The closure was implemented on even date. 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. In the Resolutions dated April 26, 2018 and June 5, 2018, the Court required respondents to file their Comment on the Petition and the Supplemental Petition, respectively. Respondents filed their Consolidated Comment on July 30, 2018 while petitioners filed their Reply 17 thereto on October 12, 2018. 

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

ISSUE: Whether or not the closure of Boracay constitute an impairment on a person’s right to travel.

HELD: NO.

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. 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.

 

ISSUE: Whether or not the closure of Boracay is a valid exercise of Police power.

 

HELD: YES. 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 with personal liberty or property in order to promote general welfare." "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 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 owe its origin to the Charter" since "it is inborn in the very fact of statehood and sovereignty." 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." Thus, police power constitutes an implied limitation on the Bill of Rights. After all, "the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties. The assailed governmental measure in this case is within the scope of police power cannot be disputed. 

The motivating factor in the issuance of Proclamation No. 475 is without a doubt the interest of the public in general. 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 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. 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. 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. 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.