Boracay workers file 1st petition vs closure at Supreme Court

MANILA, Philippines (UPDATED) – Two workers of Boracay and a tourist filed on Wednesday, April 25, the first petition challenging the closure of the island.

Aided by the National Union of Peoples' Lawyers (NUPL), the 3 filed before the Supreme Court (SC) petitions for prohibition and mandamus against President Rodrigo Duterte, Executive Secretary Salvador Medialdea, and Interior Secretary Eduardo Año.

The petitioners are Mark Anthony Zabal, who builds sandcastles; Thiting Jacosalem, who drives tourists and workers; and Odon Bandiola, a non-resident who frequents Boracay for business and pleasure.

They also requested the High Court to issue a temporary restraining order (TRO), a preliminary injunction, and/or a status quo ante order. (WATCH: No clear gov't plans 2 days ahead of Boracay closure)

Grounds

Boracay will be closed to the public beginning Thursday, April 26, to "clean it up." Members of the media also have to obtain accreditation and follow strict guidelines when covering the rehabilitation – restrictions that are unconstitutional, said a law expert.

The petitioners called the closure order "patent abuse of power and reckless disregard of the law," with the government officials acting with grave abuse of discretion.

They also said the closure infringes on their constitutional rights to travel and to due process.

Right to travel is guaranteed under the bill of rights. The petition applies it to tourists who will no longer be able to go to Boracay for months starting Thursday. (READ: 'Gov't assistance during Boracay closure not enough' – residents)

Quoting retired justice Isagani Cruz, the petition said: "Liberty under that clause includes the right to choose one's residence, to leave it whenever he pleases, and to travel wherever he wills."

They said that the law restricts right to travel only if it is based on national security, public safety, or public health.

"There is no national security, public safety, or public health situation calling for the curtailment of the right to travel," the petition said.

They also noted that there was no law passed or order signed to close Boracay.

"More importantly, there is no law restricting access to Boracay Island. By that fact alone, the respondents' act of closing the same to tourists and non-residents is clearly unconstitutional," the petition said.

Police power?

Malacañang had not declared a state of calamity over the island. Instead, police and military contingents were deployed to secure the area.

Petitioners said that if closing Boracay is an exercise of police power, then Duterte et al do not have that authority since police power is a power of the legislative.

"Despite holding the highest position in the land, President Duterte simply cannot, under our system of law, arrogate unto himself a power which the Constitution does not give him," their petition said. (READ: Philippine economy to lose up to P1.96 billion over Boracay closure)

The petitioners added that in City of Manila vs Laguio, the SC said police power should be exercised if it is evident "that no other alternative for the accomplishment of the purpose less intrusive of private rights can work."

"In the case at hand, there is no showing that extreme measures such as the total closure of Boracay Island – damaging to tens of thousands of person living and working therein – are at all necessary for the conduct of the rehabilitation," they said.

The petition also said that the closure was arbitrary, and that violations of businesses should have been dealt with in proper procedures.

"A sweeping governmental measure that curtails the rights of persons who have not been found guilty of such violations flies in the face of due process," the petition said.

Petitioners urged the High Court to resolve the constitutional questions as it would have "far-reaching implications."

"It would guide both the bench and the bar on issues concerning the limits of executive power, the principle of separation of powers, the right to due process, and the right to travel," the petition said.

Malacañang: 'No merit'

Reacting to this petition, Presidential Spokesperson Harry Roque said Malacañang sees "absolutely no merit for any private party to restrain the closure of Boracay." 

"While the President respects the Court, we see absolutely no merit for any private party to restrain the closure of Boracay to tourists given that SC itself has previously ruled that Boracay is owned primarily by the state," Roque said.

"We see no reason how private persons can allege and prove irreparable injuries, a prerequisite for a TRO, given that their stay in the island is by mere tolerance of the State. In any case, the closure is because of the inherent police power of the state to protect the environment in Boracay," he said.

Roque added, "Unless a TRO is issued, the planned closure of Boracay to tourists shall proceed." – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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