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Caguioa, Leonen warn of dangers of SC vote upholding Boracay closure


The two Supreme Court justices who opposed the six-month closure of Boracay have warned of the "dangerous precedent" and the space for "abuse" set by the majority ruling that upheld the rehabilitative island shutdown.

In separate dissenting opinions, Associate Justices Alfredo Benjamin Caguioa and Marvic Leonen said the majority ruling allows "tyranny in its most dangerous form" and invites a "borderline authoritarian" government.

Two Boracay workers and a tourist filed a petition challenging the constitutionality of the the island's closure from April to October 2018. Boracay was reopened to tourists last Oct. 26.

Voting 11-2, the SC dismissed the petition on the grounds that the presidential proclamation that governed the closure did not impair the petitioners' right to travel and was a valid police power measure.

Written by Associate Justice Mariano del Castillo, the majority ruling found the temporary closure of the popular tourist destination "necessary under the circumstances."

It also said two of the petitioners, a sandcastle maker and a driver, do not have "vested rights to their sources of income" on the island because they are in the informal sector, "where earnings are not guaranteed."

'Unconstitutional shortcut'

But in his dissenting opinion, Caguioa said he found Proclamation No. 475, the Duterte order that placed Boracay under a state of calamity and closed it to tourists for half a year, has "absolutely no basis in law" -- an "unconstitutional shortcut" the government took despite the presence of an alternative.

In a 34-page opinion, the justice wrote that Congress could have enacted an enabling law for the island closure. Contrary to the majority's view, he believes the closure "directly impacts" the rights to travel and due process.

He said impairing the right to travel in the interest of national security, public safety or public health must be provided for by law, and without such a law, any restriction is "null and void."

"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,'" he wrote in a 34-page dissent.

"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."

'Ecological authoritarianism'

For his part, Leonen saw "constitutional and statutory violations" in the presidential proclamation that he also found "unduly vague" and "unconstitutionally broad."

He said Proclamation No. 475 was contrary to the Philippine Disaster Risk Reduction and Management Act of 2010 and the Philippine Clean Water Act of 2004.

The proclamation's affirmation by the SC majority "easily opens the slippery slope for ecological authoritarianism," he wrote in a 59-page dissenting opinion.

He observed that the situation in Boracay is "not the only ecological disaster" faced by the Philippines, saying that "[t]he majority creates a dangerous precedent."

He said existing laws could have been properly enforced, and that "human induced ecological disasters need to be addressed deliberately, systematically, structurally and with all institutions of government actively engaging public participation."

"The Majority's tolerance for the dramatic and drastic actions of the Chief Executive violates the rule of law and undermines constitutional democracy," he wrote.

"Considering the many calamities our society has to face, upholding the framework contained in Proclamation No. 475 invites a regime that is borderline authoritarian," he added.

As to the Boracay workers behind the dismissed petition, Leonen said they had a standing to sue because the proclamation deprived them of their right to life and liberty

"For those who have a very regular and lucrative source of income, a period of six months may not be a long time. However, to those within the informal sector, losing their jobs even for a day can spell disaster not only for themselves, but also for their families," he wrote.

He added that the petitioners, representing the informal sector, do not have the "same mobility of other workers who have more skills."

"To nonchalantly assume that they can find other jobs should not be an acceptable judicial approach, as that may trivialize the rights they assert," he said.

"It is an unfortunate -- though perhaps unintended -- display of our lack of compassion for the plight of petitioners," Leonen added. — MDM, GMA News

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