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]

Among other points, I agree with the ponencia that "this case does not actually involve the right to travel in its essential sense contrary to what petitioners want to portray."1 In my view, there can be no violation of the right to travel because, in the first place, Proclamation No. 4752 is not an issuance that substantively regulates such right.

To expound, the right to travel has been regarded as integral to personal liberty,3 which Blackstone defines as "freedom from restraint of the person."4 The guarantee of free movement may be historically traced5 to the Magna Carta of 1215 which assured the liberty for anyone, except those imprisoned, outlawed, and the natives of an enemy country, safe and secure entry to and exit from England. It likewise assured merchants, that they may enter, leave, stay, and move about England "unharmed and without fear."6 Much later, or in 1948, the Universal Declaration of Human Rights (UDHR) recognized everyone's right to freedom of movement within the borders of each state, as well as the one's right to leave and return to his country.7 The guarantee was likewise incorporated in the 1966 International Covenant on Civil and Political Rights,8 which the Philippines signed in the same year.9 This guarantee was incorporated in our fundamental law in the 1973 Constitution,10 and now appears in the 1987 Constitution.11

An examination of local cases wherein the right to travel was involved will support the premise that the right to travel – if one were to understand the same in its proper sense – ought to pertain to government regulations that directly affect the individual's freedom of locomotion or movement. For instance, in Samahan ng mga Progresibong Kabataan v. Quezon City,12 the minors' exercise of travel rights was restricted by the curfew ordinances. In several cases,13 the accused in a criminal case, especially those released on bail, were held to be validly prevented from departing from the Philippines. In Philippine Association of Service Exporters, Inc. v. Drilon,14 the deployment ban was imposed on female domestic overseas workers. Further, during medical emergencies, a person may be isolated or quarantined to prevent the spread of communicable diseases.15

Even the statutes recognized as validly impairing the right to travel have, for its proper object, a palpably direct restraint on a person's freedom of movement, viz.: (1) in the Human Security Act,16 the 1aw restricts the right to travel of an individual charged with the crime of terrorism even though such person is out on bail; (2) in the Philippine Passport Act of 1996,17 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) in the Anti-Trafficking in Persons Act of 2003,18 the Bureau of Immigration, in order to manage migration and curb trafficking in persons, issued Memorandum Order RADJR No. 2011-011,19 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 the Philippine ports; and (4) in the Inter-Country Adoption Act of 1995,20 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."21

In all these instances, the restrictions on the right to travel were imposed on a person or group of persons,22 seemingly attaching unto them some form of "ball and chain" to limit their movement. Clearly, this is not the situation presented in this case. While the closure of Boracay pursuant to Proclamation No. 475 prohibited the entry of tourists and non-residents thereto, these people still remained free to move about in other parts of the country without arbitrary restraint. Thus, whatever effect such regulation may have on a person's ability to travel to such a specific place is merely incidental in nature and accordingly, is conceptually remote from the right's proper sense. To my mind, Proclamation No. 475 is more akin to government regulations that amount to the "cordoning-off" of areas ravaged by flood, fire, or other calamities, where access by people thereto may indeed be prohibited pursuant to considerations of safety and general welfare based on circumstantial exigencies. Thus, as the right to travel is not the correct vantage point to resolve this case, there is no need to determine whether or not an explicit statutory enactment exists to justify the impairment of said right as required under Section 6, Article III of the 1987 Constitution.23

Lest it be misunderstood, the extrication of this case from a "right to travel analysis" does not necessarily mean that the President is, by his sole accord, both authorized and justified in issuing Proclamation No. 475.

Fundamentally speaking, the President is the Chief of the Executive Department whose main task is to faithfully execute the laws. In its simple sense, his duty is not to make law, but rather, implement the law. Proclamation No. 475 is not law, but rather, an executive issuance which derives statutory imprimatur from existing laws and hence, has the "force and effect" of law. As its titular heading denotes, Proclamation No. 475 is a declaration of a state of calamity in the barangays of Balabag, Manoc-Manoc, and Yapak (Island of Boracay) in the Municipality of Malay, Aldan. In order to address the situation declared thereunder, it was necessary for the Executive to effect "expeditious rehabilitation," and to implement this objective, the President had to direct the area's temporary closure.

To be sure, insofar as this case is concerned, the power of the President to declare a state of calamity over a particular locality may be sourced from the Administrative Code of 198724 in relation to the Philippine Disaster Risk Reduction and Management Act of 2010.25 Based on these laws, the President, pursuant to the recommendation of the National Disaster Risk Reduction and Management Council (NDRRMC), is authorized to "declare a state of calamity26 in areas extensively damaged," as well as to approve "proposals to restore normalcy in the affected areas."27 On this basis, the NDRRMC recommended to the President not only the declaration of a state of calamity in Boracay but also, as a means to restore normalcy therein, the "temporary closure of the Island as a tourist destination" for the purpose of assisting the government in the "expeditious rehabilitation" of the same.28 Thus, as an off-shoot of the declaration of a state of calamity, and acting upon the recommendation of the NDRRMC, the President found it necessary to decree the temporary closure of the affected areas if only to ensure the Island's proper rehabilitation.

While it appears that the above-cited statutes do not spell out in "black and-white" the President's power to temporarily close-off an area, it is my opinion that a logical complement to the Executive's power to faithfully execute the laws is the authority to perform all necessary and incidental acts that are reasonably germane to the statutory objective that the President is, after all, tasked to execute. What comes to mind is the doctrine of necessary implication which evokes that "[e]very statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis. And every statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege."29 This principle, in its general sense, holds true in this case. By and large, I find it unreasonable that a President who declares a state of calamity, and who has been further prompted by a specialized government agency created for disaster operations pursuant to existing laws to effect a viable plan of action is nonetheless impotent to pursue the necessary steps to effect a viable plan of action. Surely, the President must be given reasonable leeway to address calamitous situations, else he be reduced to a mere mouthpiece of doom.

At this juncture, it is apt to state that Proclamation No. 475 explicitly recognizes in its "whereas clauses" the State's constitutional duty to protect and advance the rights to health and to a balanced and healthful ecology,30 which duty has been translated in numerous legislative enactments, such as the Philippine Clean Water Act of 2004,31 and as mentioned, the Philippine Disaster Risk Reduction and Management Act of 2010, as well as the Administrative Code of 1987. The Philippine Clean Water Act of 2004 authorizes the Department of Environment and Natural Resources (DENR) to undertake emergency clean-up operations32 to counter water pollution. As earlier mentioned, the Philippine Disaster Risk Reduction and Management Act of 2010 empowers the NDRRMC to recommend the declaration of a state of calamity in areas extensively damaged by either natural or human-induced hazards such as environment degradation, as well as proposals to restore normalcy in the affected areas, such as through rehabilitation33 or the rebuilding of damaged infrastructures. Further, the Administrative Code of 1987 grants the DENR the power to "exercise supervision and control over [alienable public lands],"34 such as Boracay, and the Department of Interior and Local Government the authority to implement programs "to meet national or local emergencies arising from natural or man-made disasters,"35 such as environmental destruction.

Ultimately, the agglomeration of the above-stated laws reveals that the Executive Department has sufficient statutory authority to clean up the Island. Since the Constitution vests all executive power in the President, and on this score, grants him the power of control over all executive departments, he can, within the bounds of law, integrate and take on the above-stated functions, and in the exercise of which, issue a directive to implement an environmental rehabilitation program as recommended by the relevant state agency. At the risk of sounding repetitive, the temporary closure of the Island to tourists was necessary to effectively execute Boracay's rehabilitation program pursuant to a declaration of a state of calamity. Therefore, the President had sufficient authority from both the Constitution and statutes to issue Proclamation No. 475. That being said, and as a point of clarification, I find it unnecessary to situate such authority in his unstated residual powers.36

Having discussed the President's authority, the final question to be traversed is whether or not there was ample justification for the issuance of Proclamation No. 475

As previously mentioned, this case should not be assessed against the parameters of the right to travel.1âшphi1 As Proclamation No. 475 constitutes a restriction not against a person's freedom of movement, but rather, a "place based" regulation, I deem it appropriate to instead examine the issuance's validity under the lens of petitioners' right to property under Section 1, Article III of the 1987 Constitution. After all, this approach specifically corresponds to petitioners' line of argumentation. In particular, as found in the petition, petitioners Mark Anthony V. Zabal (Zabal) and Thiting Estoso Jacosalem (Jacosalem) assail the validity of Proclamation No. 475 on the ground that it violated their right as persons earning a living in the Boracay Island. As alleged, Zabal earns a living by making sandcastles while Jacosalem works as a driver for tourists.37 Accordingly, they submit that the exclusion of tourists from the Island drastically affected their trade or livelihood.38

Under the auspices of Section 1, Article III of the 1987 Constitution, protected property includes the right to work and the right to earn a living.39 The purpose of the due process guaranty is "to prevent arbitrary governmental encroachment against the life, liberty, and property of individuals."40 While the right to property is sheltered by due process provision, it is by no means absolute as it must yield to the general welfare.41 Thus, the State may deprive persons of property rights provided that the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.42

In this case, although the exclusion of tourists from the Island drastically affected the trade or livelihood of those reliant on them, including petitioners, I submit that the government had a legitimate State interest in rehabilitating the affected localities of Boracay given the Island's current critical state. Findings of various government agencies in the Island reveal its precarious environmental condition, to wit: (a) high concentration of fecal coliform due to improper sewage infrastructure and sewer waste management system; (b) dirty water resulting in the degradation of coral reefs and coral cover; (c) improper solid waste management; (d) destruction of natural habitats in the island; (e) beach erosion caused by illegal extraction of sand along the beach; (f) illegal structures along the foreshore; and (g) unauthorized discharge of untreated waste water near the shore.43 Notably, these environmental problems were found to have been aggravated by "tourist influx."44

To effectively remedy the Island's environmental woes, "expeditious rehabilitation" thereof became crucial, and in line therewith, the entry of tourists became necessary to suspend. As aptly rationalized in the ponencia:

Moreover, the limited six (6)-month period shows that the closure was not unduly oppressive upon individuals, and was put in place only to implement the desired State objective. Therefore, all things considered, Proclamation No. 475 cannot be said to have been issued with grave abuse of discretion, and as such, remains constitutional.