G.R. No. 238467 - Separate Concurring Opinion

G.R. No. 238467, February 12, 2019
♦ Decision, Del Castillo, [J]
♦ Concurring Opinion, Carpio, [J]
♦ Concurring Opinion, Perlas-Bernabe, [J]
♦ Dissenting Opinion, Leonen, [J]
♦ Concurring and Dissenting Opinion, Jardeleza, [J]
♦ Dissenting Opinion, Caguioa, [J]

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

Proclamation No. 475 was issued because of the environmental degradation and destruction of the ecological balance of Boracay Island, which was aggravated by the continuing rise of tourist arrivals. 2 Under Section 43 of Presidential Decree No. 1586,4 the President may declare certain areas in the country as environmentally critical. To pave the way for the rehabilitation of Boracay Island and prevent further degradation of its rich ecosystem, the proclamation ordered the temporary closure of the island as a tourist destination for six months, 5 during which period the government would undertake massive road, drainage, and sewerage construction, as well as require all establishments to comply with the Clean Water Act, Clean Air Act, Code on Sanitation of the Philippines, Ecological Solid Waste Management Act of 2000, and other relevant laws. However, local residents of Boracay Island were not prohibited from entering or leaving the island during the rehabilitation period as the prohibition applied only to travelers and tourists.

The rehabilitation of Boracay Island resulted in the closure of almost all of the hotels because of non-compliance with the Clean Water Act, Clean Air Act, National Building Code of the Philippines, Code on Sanitation of the Philippines, Ecological Solid Waste Management Act of 2000, and the Environmental Compliance Certificate requirement. 6 The Department of Tourism suspended the accreditation of hotels and resorts in Boracay Island for six months to stop the disposal of wastewater into the seas.7 7Some establishments have also built illegal structures on Boracay's wetlands and forestlands which had to be dismantled. 8 Furthermore, some companies were operating without Environmental Compliance Certificate (ECC), in violation of Presidential Decree No. 1586 which established the Environmental Impact Statement System. 9

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

Many roads were closed for rehabilitation, widening, and construction, including the main road network which is the primary access to many establishments in the island. 15 Not only were the roads widened, sewage pipes were also laid to prevent sewage from flowing into the beach waters, and drainage pipes were installed to prevent clogged waterways which caused flooding before the closure. 16 As such, traveling around Boracay Island was severely restricted even for the local residents. Under Section 1 of Commonwealth Act No. 548, 17 "[national] roads may be temporarily closed to any or all classes of traffic by the Director of Public Works or his duly authorized representative whenever the condition of the road or the traffic thereon makes such action necessary or advisable in the public interest, or for a specified period, with the approval of the Secretary of Public Works and Communications."

The rehabilitation of Boracay Island as a consequence of Proclamation No. 475, declaring a state of calamity in Boracay Island, resulted in: (1) the closure of majority of the hotels and other business establishments for non-compliance with environmental laws; (2) the closure of many roads for repair, widening, and installation of drainage pipes; and (3) the ban on swimming in the beaches of Boracay Island due to the unsafe level of coliform bacteria.

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

Clearly, the condition of Boracay Island during the six-month rehabilitation period justified the prohibition on travelers and tourists from entering Boracay Island because of the physical impediment to traveling around the island resulting from the massive road, sewerage and drainage construction, the lack of accommodations, and the ban on swimming and other water recreational activities. Thus, Proclamation No. 4 75 is a valid exercise of various existing laws, that is, Presidential Decree No. 15 86, Commonwealth Act No. 548, Clean Water Act of 2004 (Republic Act No. 9275), Clean Air Act of 1999 (Republic Act No. 8749), National Building Code of the Philippines (Republic Act No. 6541), Ecological Solid Waste Management Act of 2000 (Republic Act No. 9003), and the Code on Sanitation of the Philippines (Presidential Decree No. 856). These are laws pursuant to the police power of the state. There is no claim that these laws are unconstitutional. The President, in the exercise of his control over the Executive branch of government, 19 can directly exercise the functions of subordinate officials tasked to implement these laws.1avvphi1