G.R. No. 238467 - Dissenting 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]

On April 26, 2018, President Rodrigo R. Duterte issued Proclamation No. 4752 (Proclamation 475), declaring a state of calamity in the island of Boracay and ordering its temporary closure for a maximum of six months.

Petitioners Mark Anthony Zabal (Zabal) and Thiting Estoso Jacosalem (Jacosalem), residents and workers in Boracay, filed the present Petition to assail the temporary closure of the island. They are joined herein by petitioner Odon Bandiola (Bandiola), a regular visitor of Boracay for business and pleasure.

Together, petitioners claim that Proclamation 475 is unconstitutional as it constitutes an invalid exercise of legislative power which places undue restrictions on their constitutional rights to travel and due process.

The ponencia denies the Petition, and affirms the validity of Proclamation 475, viewing it as an executive measure which does not pose an actual impairment on the right to travel and due process. 3Moreover, the ponencia is of the view that even if Proclamation 475 were to be construed as restrictive of these fundamental rights, its issuance remains justified as a reasonable exercise of police power occasioned by the pressing state of Boracay island.4

The judicial confirmation of Proclamation 475's purported validity comes after Boracay's re-opening. The temporary closure has come to an end; its decreed rehabilitation now complete. It appears that the proverbial ship has now sailed, as "paradise" appears to have been restored. Its restoration, however, has been forged at great expense - the indiscriminate impairment of fundamental rights.

I cannot, in conscience, give my imprimatur to yet another constitutional shortcut. In a democratic state governed by the rule of law, fundamental rights cannot be traded in exchange for the promise of paradise. Without question, under the rule of law, the end does not, and can never ever, justify the means.

I register my dissent not because I refuse to acknowledge the serious problems that Boracay has faced.1âшphi1 On the contrary, I recognize that there was a problem; a disaster that, in fact, needed action. The necessity for action did not, however, justify the measures which the Executive chose to take.

Our country's form of government - democratic, republican, and presidential - characterized by separation, coordination, and the interdependence of its branches, has long been criticized for having burdensome processes that slow down program execution, particularly, in the realm of disaster response. However, as long as this form of government is in place, and so long as our Constitution subscribes to the ideals of separation of powers, no shortcuts of any kind may or should be allowed. I find Proclamation 475 unconstitutional. It finds absolutely no basis in law, and unduly permits the consequent impairment of the rights to travel and due process by executive fiat.

Thus, I am impelled to dissent upon the insistence that the Constitution must be, at all times, respected. As the bedrock of our civil society, the Constitution deserves no less.

The right to travel is a chief element of the constitutional guarantee of liberty which was first introduced by the Congress of the United States to the Philippines during the early days of the American regime. 5

In Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City6 (Spark), the Court held that the right to travel refers to "the right to move freely from the Philippines to other countries or within the Philippines" and covers, among others, "the power of locomotion". 7 In the simplest of terms, it is the freedom to move where one chooses to go.

As a fundamental constitutional right, the protection afforded by the right to travel inures to every citizen. The provision granting such right is self-executing; its exercise is not contingent upon further legislation governing its enforcement. 8

Section 6, Article III of the
Constitution is clear - the right to
travel may only be restricted by law

The impairment of the right to travel, while permissible, is subject to the strict requirements set forth under Section 6, Article III of the Constitution, thus:

The import of the provision is crystal clear - the right to travel may only be impaired in the interest of national security, public safety or public health, on the basis of a law explicitly providing for the impairment.

Expounding on these parameters, the Court, in Genuino v. De Lima9 (Genuino), unequivocally held:

The requirement of a law authorizing the curtailment of the right to travel is, to repeat, crystal clear - any restriction imposed upon such right in the absence of the law, whether through a statute enacted through the legislative process, or provided in the Constitution itself, 11 necessarily renders the restriction null and void.

The dismissal of the Petition is primarily grounded on the premise that any effect which Proclamation 4 7 5 may have on the right to travel is "merely corollary to the closure of Boracay," and as such, a necessary incident of the island's rehabilitation. 12 This premise gives rise to the conclusion that Proclamation 475 need not comply with the requirements set forth under Section 6, Article III, as its effect on the right to travel is only indirect and merely incidental.

The requirements under the Constitution are spelled out in clear and absolute terms - neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. The provision does not distinguish between measures that directly restrict the right to travel and those which do so indirectly, in the furtherance of another State purpose. Ubi lex non distinguit, nee nos distinguere debemus. This interpretation is grounded on the text of the Constitution and finds basis in case law both here and in the United States.

In Shapiro v. Thomspon 13 (Shapiro), the Supreme Court of the United States (SCOTUS) was confronted with a constitutional challenge against certain statutory provisions enacted in Connecticut, Pennsylvania and the District of Columbia (D.C). The assailed provisions denied welfare assistance to applicants who have not resided in the cities' respective jurisdictions for at least a year immediately preceding the filing of their applications. These provisions, according to the appellants therein, had been crafted as "a protective device to preserve the fiscal integrity of state public assistance programs." 14

Resolving the case, SCOTUS ruled that the assailed provisions violate the constitutional guarantee of interstate movement, among others, insofar as they create classifications which effectively penalize the exercise of the right to travel, 15 thus:

Following Shapiro, SCOTUS handed down its decision in Attorney General of New York v. Soto-Lopez 17 (Soto-Lopez), holding that "[a] state law implicates the right to travel when it actually deters such travel, x x x [whether] impeding travel is its primary objective, x x x or when it uses 'any classification which serves to penalize the exercise of that right. "' 18 Soto-Lopez involved a challenge against the employment preference afforded by the New York Constitution and Civil Service Law to New York resident-veterans honorably discharged from the Armed Forces. 19

More recently, in State of Ohio v. Burnett20 (Burnett), the Supreme Court of Ohio was confronted with an action questioning the validity of a Cincinnati ordinance which established "drug-exclusion zones" within the city for the purpose of controlling drug-related activity in the area. These zones were identified as those where the number of drug-related arrests were significantly higher than other similarly situated and sized areas of the city. The establishment of these zones had the incidental effect of prohibiting persons from entering the zones within a specified "exclusion period" upon the threat of arrest for criminal trespass. Thus, the Cincinnati ordinance was questioned for being violative of the right to travel, among others.

While conceding that the Cincinatti ordinance had been grounded on a compelling state interest, the Ohio Supreme Court nevertheless ruled that it had the incidental effect of "unconstitutionally burdening" the right to travel. 21 Hence, the Supreme Court of Ohio held:

Though these cases are not binding in this jurisdiction, the Court has regarded American case law as a rich source of persuasive jurisprudence22 that may guide the bench.

That said, the Court need not look beyond its own jurisprudence to find the answers that it seeks.

In the recent case of Spark, the Court characterized curfew ordinances as restrictive of minors' right to travel, albeit imposed primarily for the interest of public safety, particularly the promotion of juvenile safety and prevention of juvenile crime.23 To stress anew, the Court therein referred to the right to travel as "the right to move freely from the Philippines to other countries or within the Philippines," and a "right embraced within the general concept of liberty" which, in turn, includes "the power of locomotion and the right of citizens to be free to use their faculties in lawful ways and to live and work where they desire or where they can best pursue the ends of life."24

The afore-cited cases tell us that measures which impede the right to travel in furtherance of other state interests, whether impermissible (as in Shapiro) or even permissible (as in Burnett and Spark), are treated in the same manner as those which directly restrict the right.

The foregoing cases, taken together with the text of the Constitution, unequivocally negate the assertion that Proclamation 4 7 5 does not cause a substantive impairment on the right to travel so as to exempt it from the requirements set forth in Section 6, Article III.

In this regard, I disagree with the contention that the effect of the closure of Boracay on a person's ability to travel is merely incidental in nature; hence, conceptually remote from the right's proper sense. To my mind, that an assailed government act only indirectly or incidentally affects a constitutional right is inconsequential as any impairment of constitutionally-protected rights must strictly comply with the mandate of the Constitution. As held in Genuino:

As well, Proclamation 475 cannot be likened to government regulations that amount to the "cordoning-off' of areas ravaged by calamities, where access by people thereto may be prohibited pursuant to public safety considerations. This is because local government units are already explicitly authorized under the Local Government Code to close down roads for such purpose, to wit:

Thus, I submit that the present case cannot be likened to a "cordoning-off' situation, considering that the latter actually complies with Section 6, Article III, i.e., that the restriction be grounded on either national security, public safety or public health, and that the restriction be provided by law. Accordingly, I maintain my position that the resolution of this case hinges on the right to travel.

There is no law which grants the
President any form of police power so
as to authorize the impairment of the
right to travel during a state of
calamity

The ponencia alternatively holds that the issuance of Proclamation 4 75 is valid as a police power measure. It cites Republic Act No. (RA) 10121 and RA 92 7 5 as statutory bases for the validity of the proclamation.

The ponencia, as well as respondents, rely on the provisions of RA 10121 which empower the National Disaster Risk Reduction and Management Council (NDRRMC) to recommend to the President the declaration of state of calamity. In particular, they cite the following provisions:

From the foregoing provisions, the ponencia argues that "the statutes from which [Proclamation 475] draws authority and the constitutional provisions which serve as its framework are primarily concerned with the environment and health, safety, and well-being of the people, the promotion and securing of which are clearly legitimate objectives of governmental efforts and regulations."26 The ponencia then concludes that Proclamation 475 is a valid police power measure.

First, the afore-cited provisions of RA 10121 only empower the NDRRMC to recommend to the President the declaration of a "state of calamity" and submit to him "proposals to restore normalcy in the affected areas." In turn, the actions or programs to be undertaken by the President during a state of calamity, to be valid, must still be within the powers granted to him under the Constitution and other laws.

To be sure, there is absolutely nothing in RA 10121 from which it could reasonably be inferred that the law empowers the NDRRMC or the President to close an entire island. In fact, RA 10121 does not even refer to the President, except in connection with the declaration of a state of calamity in Section 16, quoted above.

Parenthetically, it should be emphasized that, under RA 10121, a "state of calamity" only authorizes the President to impose the following remedial measures:

The very narrow scope of the President's powers during a state of calamity as declared in accordance with RA 10121 becomes more apparent when placed in contrast with those granted by the statute in favor of the NDRRMC.

The powers and prerogatives of the NDRRMC are detailed under RA 10121 as follows:

RA 10121 likewise established Local Disaster Risk Reduction and Management Councils/Offices (LDRRMCs/LDRRMOs) in every province, city, and municipality in the country, which are "responsible for setting the direction, development, implementation and coordination of disaster risk management programs within their [respective] territorial jurisdiction[s]."28 Specifically, LDRRMOs are empowered to, among others, (i) identify, assess, and manage the hazards, vulnerabilities and risks that may occur in their locality;29 (ii) identify and implement cost-effective risk reduction measures/strategies; 30 and (iii) respond to and manage the adverse effects of emergencies and carry out recovery activities in the affected area. 31

Notably, majority of those who compose the LDRRMCs are officials of local government units 32 (LGUs) over whom the President only exercises supervision, instead of control.33 Restated, it is very clear that the intent of the law - in directing the LDRRMCs to "take the lead", and in declaring that the NDRRMC would only take over "if two (2) or more regions are affected" - is to favor local autonomy in disaster preparedness and disaster response.

From the foregoing, there can be no serious doubt that the six-month closure of Boracay, as ordered by Proclamation 475, cannot be anchored on RA 10121. To conclude as such requires an Olympic leap in logic which is totally unwarranted, considering that RA 10121: (i) gave preference to local actors, not national ones, as regards disaster response and (ii) only granted the President authority to implement limited remedial measures following a declaration of a "state of calamity".

The case of Review Center Association of the Philippines v. Executive Secretary Ermita34 is on point. Therein, the President issued an executive order authorizing the Commission on Higher Education (CHED) to supervise review centers and similar establishments. The petitioner therein sought to declare the executive order unconstitutional on the ground that CHED had no supervisorial authority over them and that the executive order constitutes a usurpation of legislative power by the President. Ruling in favor of the petitioner, the Court held:

Second, police power is an inherent attribute of sovereignty which has been defined as the power to "make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same."36 Our Constitutional design, however, lodges police power primarily on the Legislature.

That police power is lodged primarily in the Legislature does not appear to be in dispute. This is apparent from the ponencia itself, which defines police power as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare."37

Clearly, police power cannot be exercised by any group or body of individuals not possessing legislative power; its exercise, therefore, is contingent upon a valid delegation.38

In fact, a look at the powers at the President's disposal in times of calamity leads to the inevitable conclusion that Proclamation 475 does not find basis in any law.

Under the Constitution, the President, on whom Executive power is vested by Section 1, Article VII of the Constitution, may, in times of calamity, exercise:

(1) calling out powers, an ordinary police action39 to call on the armed forces to prevent or suppress three specific instances - lawless violence, invasion, or rebellion;40

(2) emergency powers, which, even then, may only be exercised in times of war or after Congress considers the calamity as a "national emergency" and passes a law authorizing the President to exercise "powers necessary and proper to carry out a declared national policy";41 and

(3) taking over powers, which include taking over of, or directing the operation of any privately-owned public utility or business affected with public interest;42 and the power to establish and operate vital industries in the interest of national welfare or defense, and the power to transfer to public ownership utilities and other private enterprises to be operated by the Government upon payment of just compensation. 43

Under RA 7160 or the Local Government Code of 1991, the President may also exercise general supervision over LGUs,44 and augment the basic services and facilities assigned to an LGU when the need arises, that is, when such services or facilities are not made available or, if made available, are inadequate to meet the requirements of its inhabitants.45

Further, in cases of epidemics, pestilence, and other widespread public health dangers, the Secretary of Health may, upon the direction of the President and in consultation with the LGU concerned, temporarily assume direct supervision and control over health operations in any LGU for the duration of the emergency, but in no case exceeding a cumulative period of six (6) months. 46

Finally, in areas declared by the President to be in a state of calamity, the President may enact a supplemental budget by way of budgetary realignment, to set aside appropriations for the purchase of supplies and materials, or for the payment of services which are exceptionally urgent or absolutely indispensable to prevent imminent danger to, or loss of life or property, in the jurisdiction of an LGU concerned.47

From the foregoing, it is thus clear that the President has no power to close an entire island, even in a calamitous situation, and despite the blanket invocation of the State's police power.

The authority to restrict the right to
travel cannot be implied from the
executive department's power, under
RA 9275, to "take measures necessary
to upgrade the water quality"

The ponencia also views RA 927548 as another statutory basis for the issuance of Proclamation 475.49 This position is anchored on Section 6 of said statute which reads:

While the language used by RA 9275 was general, such that it may include any measure to upgrade the quality of water in a particular area, the provision in question is still bound by the limitations imposed by the Constitution and other applicable laws.

Specifically, RA 9275 itself provides that "[t]he LGUs shall prepare and implement contingency plans and other measures including relocation, whenever necessary, for the protection of health and welfare of the residents within potentially affected areas."50 It is apparent, therefore, that it is again the LGU s who are tasked with the implementation of contingency plans when measures need to be taken for the protection of the health and welfare of the residents in the area concerned. The DENR's, and consequently the President's, jurisdiction is limited to the adoption of measures for the treatment of water, that is, any method, technique, or process designed to alter the physical, chemical or biological and radiological character or composition of any waste or wastewater to reduce or prevent pollution. 51

More importantly, even if the language employed by RA 9275 was as general as it could be to allow leeway for the DENR as to the means it would undertake to clean the water, the DENR would still inarguably be bound by Section 6, Article III of the Constitution, which, as discussed, requires that the curtailment of the right to travel be done on the basis of a law.

As discussed, the existence of a law - which may either refer to the Constitution or to a statute necessarily enacted by the Legislature - is a prerequisite for the curtailment of the right to travel. The case of Ople v. Torres 52 (Ople) lends guidance.

In Ople, the President sought to establish a national computerized identification reference system, or National ID System, through a mere administrative order. The petitioner in the said case questioned the legality of the administrative order on the ground that, among others, the subject of the administrative order should properly be contained in a law, not a mere administrative issuance. In declaring the administrative order unconstitutional, the Court explained at length:

In the present case, the order to close Boracay for six months was issued in a form of a proclamation. Title 1, Book III of Executive Order No. 292 or the Revised Administrative Code of 1987 (Administrative Code) enumerates the different powers of the Office of the President. Chapter 2 of the same - which contains the ordinance powers of the President - defines a "proclamation" as follows:

The declaration of a state of calamity in the present case was embodied in a "proclamation". But that is not all that was covered by the "proclamation". Along with the declaration of a state of calamity, Proclamation 475 also ordered the closure of an entire island - an order which directly impacts fundamental rights, particularly, the right to travel and due process. Borrowing the words of the Court in Ople, when an issuance "redefines the parameters of some basic rights of our citizenry vis-a-vis the State,"54 then such is a subject matter that should be contained in a law. Such matters are beyond the power of the President to determine, and cannot be undertaken merely upon the authority of a proclamation.

In sum, as the governmental action at hand involves the curtailment of the constitutionally guarded right to travel, it was thus invalid for the President to have done so (i) without enabling legislation and (ii) in the form of a mere proclamation.

The authority to curtail the right to
travel is neither subsumed in the
President's duty to execute laws, nor
can it be deemed inherent in the
President's power to promote the
general welfare

In the absence of statutory and Constitutional basis, it is imperative to stress that the restriction of the right to travel, as imposed through Proclamation 475, cannot be justified as a necessary incident of the Executive's duty to execute laws.

The faithful execution clause is found in Section 17, Article VII of the Constitution. It states:

The foregoing clause should not be understood as a grant of power, but rather, an obligation imposed upon the President.57 In turn, this obligation should not be construed in the narrow context of the particular statute to be carried out, but, more appropriately, in conjunction with the very document from which such obligation emanates. Hence, speaking of the faithful execution clause, the Court has ruled:

Based on these premises, I cannot subscribe to the position that the restriction of the right to travel imposed as a consequence of Boracay's closure is valid simply because it is necessary for the island's rehabilitation. The fact that the restriction of the right to travel is deemed necessary to achieve the avowed purpose of Proclamation 475 does not take such restriction away from the scope of the Constitutional requirements under Section 6, Article III.

As well, I cannot agree with respondents' contention that the authority to restrict the right to travel is inherent in the exercise of the President's residual power to protect and promote the general welfare. 59 This claim appears to result from an analogy drawn from the Court's rulings in Silverio v. Court of Appeals60 (Silverio) and Leave Division, Office of the Administrative Services, Office of the Court Administrator v. Heusdens61 (Leave Division), which speak of the inherent powers of the judicial and legislative departments.

A close reading of these cases reveals, however, that respondents' claim does not find support in either Silverio or Leave Division.

In Silverio, the petitioner therein had been charged with a violation of the Revised Securities Act. The petitioner assailed the order issued by the handling Regional Trial Court (RTC) which directed: (i) the Department of Foreign Affairs to cancel his passport; and (ii) then Commission on Immigration to prevent him from leaving the Philippines. 62 The petitioner further argued that the R TC could not validly impair his right to travel on the basis of grounds other than national security, public safety and public health.63

Resolving the issue, the Court held that Section 6, Article III should not be construed to limit the inherent power of the courts to use all means necessary to carry their orders into effect, thus:

In Leave Division, petitioner therein argued that the Office of the Court Administrator (OCA) Circular No. 49-2003 (B), which requires court employees to secure a travel authority as a requisite for foreign travel, unduly restricts the right to travel.

Speaking of "inherent limitations on the right to travel", the Court in Leave Division held:

While the foregoing cases decree that the requirements of Section 6, Article III should not be interpreted to unduly negate the inherent powers belonging to the judicial and legislative departments, these cases do not purport to sanction the curtailment of the right to travel solely on the basis of implication.

To be sure, the authority to restrict the right to travel, while inherent in the exercise of judicial power and in the conduct of legislative inquiry, do not stem from mere abstraction, but rather, proceed from specific grants of authority under the Constitution. These grants of authority therefore satisfy the requirement that the restriction be provided for by law.

To recall, Section 5(5), Article VIII of the Constitution vests unto the Court the power to promulgate rules concerning, among others, the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts. Pursuant to such authority, the Court promulgated the Rules 135 of the Rules of Court, which reads:

In this connection, the jurisdiction to exercise judicial power and exert all means necessary to carry such jurisdiction into effect is conferred upon the lower courts by law, specifically, under Batas Pambansa Bilang 129.

Similarly, the Legislature's power to promulgate rules governing the conduct of a congressional inquiry stems from Section 21, Article VI of the Constitution, thus:

In tum, the Congress' power to resort to coercive measures in the course of legislative inquiry have been detailed in their respective internal rules promulgated pursuant to Section 21. 66

Plainly, there is no basis to conclude that these inherent powers constitute exceptions to the parameters set forth by Section 6, Article III, for the reason that the Constitution itself provides the basis for their exercise.

Nevertheless, respondents argue, by analogy, that the authority to restrict the right to travel is inherent in the President's exercise of residual powers to protect general welfare. 67 In support of this proposition, respondents rely on Marcos v. Manglapus68 (Marcos), the relevant portion of which reads:

To echo the Court's words in Genuino, the imposition of a restriction on the right to travel may not be justified by resorting to an analogy. 70

A closer look at the very limited cases in which the President's unstated "residual powers" and "broad discretion" have been recognized71 reveals that the exercise of these residual powers can only be justified in the existence of circumstances posing a threat to the general welfare of the people so imminent that it requires immediate action on the part of the government.

In Marcos, these circumstances were "the catalytic effect of the return of the Marcoses that may pose a serious threat to the national interest and welfare", 72 the fact that the country was only then "beginning to recover from the hardships brought about by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions".73 The distinctiveness of these circumstances impelled the Court to thus treat its pronouncement therein as sui generis:

I submit, therefore, that respondents' reliance on the Court's ruling in Marcos as basis to determine the scope of the President's "residual powers" is erroneous.

In any case, the "residual powers" as referred to in Section 20, Chapter 7, Title I, Book III of the Administrative Code, refers to the President's power to "exercise such other powers and functions vested [in the President] which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law."

While residual powers are, by their nature, "unstated," these powers are vested in the President in furtherance of the latter's duties under the Constitution. To exempt residual powers from the restrictions set forth by the very same document from which they emanate is absurd. While residual powers are "unstated", they are not extra-constitutional.

Indeed, while the President possesses the residual powers in times of calamity, these powers are limited by, and must therefore be wielded within, the bounds set forth by the Constitution and applicable laws enabling such powers' exercise. As aptly observed by the Supreme Court in Rodriguez, Sr. v. Gella: 75

Inasmuch as the President has the power to ensure the faithful execution of laws, 77 and to protect the general welfare of the people, such power can, by no means, be wielded at every turn, or be unduly expanded to create "inherent restrictions" upon fundamental rights protected by the Constitution.

In the resolution of this Petition, the ponencia and the related concurring opinions appear to harp on the necessity of the governmental action involved, i.e., closure of the entire island to solve the problem at hand. The ponencia, for instance, states:

As I earlier intimated in this opinion, I concede and recognize that Boracay was facing a critical problem that necessitated its closure. I do acknowledge that there was both necessity and urgency to act on the island's problem. Nonetheless, at the risk of being repetitive, I reiterate that the closure was invalid without an enabling law enacted for the purpose - a requirement that is neither impossible nor unreasonable to comply with.

To illustrate, under the Constitution, the President may certify a bill as urgent "to meet a public calamity or emergency."79 Thus:

In Tolentino vs. Secretary of Finance, 80 the Court ruled that the President's certification dispenses with the requirement of (i) three readings on separate days and (ii) of printing and distribution three days before its passage. This constitutional mechanism allows the President to communicate to Congress what the government's priority measures are, and allows these same bills to "skip" what otherwise would be a rather burdensome and time-consuming procedure in the legislative process. Stated differently, this certification provides a constitutionally sanctioned procedure for the passing of urgent matters that needed to be in the form of a law.

Indeed, this is not uncharted territory. The Court can take judicial notice81 of the fact that, for instance, the bill that would later on become the Bangsamoro Organic Law was certified as urgent on May 29, 2018. 82 In less than two months, or by July 26, 2018, the bill was already signed into law. 83 Another example is the passage of the Responsible Parenthood and Reproductive Health Act. After its second reading in the House of Representatives on December 12, 2012, the Reproductive Health (RH) Bill was certified as urgent by the then President on December 13, 2012.84 The House of Representatives and Senate approved the measure on third reading on December 17, 2012 and ratified its final version on December 19, 2012.85 By December 21, 2012, or merely eight days from the certification of the bill as urgent, the RH Bill was signed into law.86

There is thus clear precedent on the effectiveness of this mechanism. Regrettably, it was not resorted to in addressing Boracay's problems. Instead, an unconstitutional shortcut was taken by merely issuing a proclamation to close the island.

This unconstitutional shortcut is, to repeat, the raison d'etre for this dissent. The situation in Boracay is undoubtedly dire; yet, there are constitutionally permissible measures that the government could, and should, have taken to address the problem.

The protection afforded by the right to
due process, as asserted in connection
with one's right to work, applies with
equal force to all persons, regardless of
their profession

Finally, the ponencia declares that petitioners Zabal and Jacosalem, being part of the informal economy sector where earnings are not guaranteed, cannot be said to have already acquired vested rights to their sources of income in Boracay. Since their earnings are contingent, the ponencia proceeds to conclude that petitioners have no vested rights to their sources of income as to be entitled to due process. 87

Section 1, Article III on the Bill of Rights of the Constitution provides that "[n]o person shall be deprived of life, liberty, or property without due process of law x x x." Property protected under this constitutional provision includes the right to work and the right to earn a living.

In JMM Promotion and Management, Inc. v. Court of Appeals, 88 which was cited by the ponencia, the Court held that "[a] profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong."89

Notwithstanding this constitutional protection, the right to property is not absolute as it may be curtailed through a valid exercise of the State's police power. 90 However, such deprivation must be done with due process.

The ponencia concedes that one's profession or trade is considered a property right covered by the due process clause.91 However, the ponencia is of the position that petitioner Zabal and Jacosalem's right thereto is merely inchoate, reasoning as follows:

There is no question that petitioners have no vested right to their future income. However, what is involved here is not necessarily the right to their future income; rather, it is petitioners' existing and present right to work and to earn a living. To belabor the point, such right is not inchoate - on the contrary, it is constitutionally recognized and protected. The fact that petitioner Zabal and Jacosalem's professions yield variable income (as opposed to fixed income) does not, in any way, dilute the protection afforded them by the Constitution.

On this score, I take exception to the position that petitioners Zabal and Jacosalem lack legal standing to file the present Petition.93

Locus standi or legal standing is the right of appearance in a court of justice on a given question.94 In order to possess the necessary legal standing, a party must show a personal and substantial interest in the case such that s/he has sustained or will sustain direct injury as a result of the challenged governmental act.95 This requirement of direct injury "guarantees that the party who brings suit has such personal stake in the outcome of the controversy and, in effect, assures 'that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.’’’’96

Applying jurisprudential standards, the inescapable conclusion is that petitioners Zabal and Jacosalem unquestionably have legal standing. Undoubtedly, they have a personal and substantial interest in this case and they have shown that they would sustain direct injury as a result of the Boracay closure.

In denying petitioners any legal standing, the ponencia cites Galicto v. Aquino III 98 (Galicto) a case involving the constitutionality of Executive Order No. (E.O.) 7 issued by President Benigno Aquino III which ordered, among others, a moratorium on the increases in the salaries and other forms of compensation of all government owned and controlled corporations (GOCCs). The ponencia summarized the ruling therein as follows:

Applying the foregoing principles, the ponencia finds that petitioners Zabal and Jacosalem do not have standing to file the instant petition, reasoning that:

In Galicto, the Court correctly ruled that Galicto's interest was merely speculative and based on a mere expectancy because he has no vested rights to salary increases and, therefore, the absence of such right deprives him of legal standing to assail E.O. 7. The same ruling cannot be applied in the instant case. The impairment of petitioners' rights as a consequence of the closure of Boracay gives rise to interests that are real, and not merely speculative. There is no doubt that they will be directly affected by the closure because they derive their income on tourism-related activities in Boracay. While Galicto was concerned about future increases, what is involved in the present case is petitioners' constitutionally protected right to work and earn a living. 101 To stress, the fact that petitioners Zabal and Jacosalem's professions yield variable income does not, in any way, dilute the protection they are entitled to under the Constitution.

I end this discourse fully cognizant of the unfortunate realities that the island of Boracay has faced. I do not attempt to ignore the degradation it has suffered in the hands of those who have refused to comply with statutes, rules and regulations crafted for its protection.

When the exigencies of times call for limitations on fundamental rights, it is incumbent upon Congress to respond to the need by explicitly authorizing such limitations through law. 102 While the President has the power, nay, duty, to address such exigencies, the necessity of impairing constitutional rights in connection therewith is not for him to determine, more so, unilaterally impose, most particularly in cases where, as here, there is an absence of any indication that Congress would be unable to respond to the call.

The requirements under Section 6, Article III of the Constitution are as clear as they are absolute. The parameters for their application have been drawn in deft strokes by the Court in Genuino promulgated just nine (9) months ago. Respondents' shotgun attempt to carve out an exception to these requirements in order to justify the issuance of Proclamation 475 actually betrays their complete awareness of the Proclamation's nullity. In Genuino, the Court warned against the sacrifice of individual liberties for a perceived good as this is disastrous to a democracy. Therein, the Court emphasized:

The Court did not hesitate to protect the Constitution against the threat of executive overreach in Genuino. The refusal to do so now is nothing less than bewildering.

The judicial validation of Proclamation 475 lends itself to abuse. It grants the President the power to encroach upon fundamental constitutional rights at whim, upon the guise of "faithful execution," and under a sweeping claim of "necessity." The ponencia lauds the "bold and urgent action" taken by the present government, but in the process, lost sight that it did so at the expense of fundamental rights. Undue premium has been placed on the underlying necessity for which the remedial action was taken, and the speed in which it was implemented. As a consequence, the inviolability of constitutionally protected rights has been forgotten.

I invite everyone, both within and outside the confines of this judicial institution, to learn from history. The Berlin Wall - the border system that divided a country physically and ideologically for nearly three decades - was said to have been built overnight. For a modem democracy, such as ours, that is struggling to strike a balance between maintaining the integrity of its institutions and dealing with its inefficiencies, the swiftness with which the Berlin Wall was built may be astonishing, if not enviable.

Yet, it is well to be reminded that the Berlin Wall was constructed at the initiative of a leader perceived by many as a dictator. If this country is to remain a democracy - as opposed to a dictatorship - the challenge for all of us is to accept that progressive and sustainable changes require much time.

To my mind, this ponencia, which prioritizes swiftness of action over the rule of law, leads to the realization of the very evil against which the Constitution had been crafted to guard against - tyranny, in its most dangerous form. To say that we believe in our Constitution, and yet discard it so easily because of expediency, is to champion hypocrisy to the detriment of our national soul.