UNIVERSITY OF

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COLLEGE OF INTERNATIONAL TOURISM HOSPITALITY MANAGEMENT

Juliana Marie P. De Asis Legal Aspects in Tourism and Hospitality 0400

BSTM 3 Prof. Lourdes A. Mendoza

Petion for Prohibition and Mandamus

Mark Anthony Zabal (Zabal), Thiting Estoso Jacosalem (Jacosalem), and Odon Bandiola

(Bandiola) v. Rodrigo Duterte (President), Salvador Medialdea (Exec Sec), and Eduardo

Ano

Facts:

On April 26, 2018, President Duterte issued Proclamation No. 475 (PN 475), formally

declaring a state of Calamity in Boracay and ordering its closure for six (6) months. Zabal

builds sandcastles for tourists while Jacosalem drives for tourists and Bandiola is a tourist

that occasionally visits Boracay for business and pleasure.

Zabal et al.,’s Arguments

Zabal et al., filed a petition on April 25, 2018 praying:

1. that a temporary restraining order (TRO) and/or a writ of preliminary

prohibitory injunction be immediately issued restraining and/or

enjoining the respondents;

2. if the respondents enforce the enclosure after the instant petition, a

Status Quo Ante be issued restoring and maintaining the condition

prior to such closure;

3. After proper proceedings, a judgment be rendered permanently

restraining and/or enjoining the respondents, to declare the closure

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of Boracay Island or ban against petitioners, tourists, and non-

residents to be unconstitutional.

Zabal et al., assert that PN 475:

1. presents constitutional issues (whether President Duterte acted

within the scope of powers granted him by the Constitution, whether

the measures implemented infringes upon the constitutional rights

to travel and to due process of petitioners); and

2. President Duterte exercised a power legislative in nature, unlawfully

excluding the legislative department from the assertion of power.

Zabal et al., also argue that:

1. PN 475 is an invalid exercise of legislative power and must be

struck down;

2. PN 475 is unconstitutional for infringing on the constitutional rights

to travel (it has not been shown that the presence of tourists in the

island poses any threat or danger to national security, public safety,

or public health) and to due process (covers the right to work and

earn a living);

3. The closure of Boracay could not be anchored on police power.

Thereafter, on May 18, 2018, the petitioners filed a Supplemental Petition averring that

PN 475 impinges upon the local autonomy of affected Local Government Units (LGUs)

since it orders the said LGUS to implement the closure of Boracay and the ban of tourists

and non-residents therefrom.

Lastly Zabal et al., state that this case does not simply revolve on the need to rehabilitate
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Boracay, but rather, on the extent of executive power and the manner by which it was

wielded by President Duterte. To them, necessity does not justify the President’s abuse

of power.

Respondents’ Arguments

1. President Duterte must be dropped as a party-respondent in this

case because he is immune from suit;

2. The petition should be dismissed for lack of basis;

3. The issuance of writ of prohibition does not lie to restrain an act that

has already been fait accompli1;

4. Mandmus is obviously inappropriate;

5. There is no real justiciable controversy in this case since there is no

clash between the right of the State to preserve and protect its

natural resources and the right of petitioners to earn a living;

6. PN 475 is a valid exercise of police power;

7. PN 475 was issued pursuant to President’s executive power under

Section 1 of the Article VII of the Constitution, which were residual

and implied from the grant of executive power as held in Marcos v.

Manglapus;

8. PN 475 is within the ambit of the powers of the President;

9. The right to travel is not absolute right;

10. The violation of the right to due process – Zabal as sand castle

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maker and Jacosalem as driver are freelancers and belong to the

informal economy sector, meaning, their source of livelihood is

never guaranteed and is susceptible to changes in regulations and

the overall business climate.

11. PN 475 does not unduly regress upon the local autonomy of the

LGUs. Under RA 10121, it is the Local Disaster Risk Reduction

Management Council that is tasked to take the lead in situation

when a state of calamity is declared.

Issues:

1. Is President Duterte a respondent in this case?

NO. In Professor David v. President Macapagal-Arroyo, it was held that it is a settled

doctrine that the President, during the tenure of office or actual incumbency, may not be

sued in any civil or criminal case, and there is no need to provide for it in the Constitution

or law. It will degrade the dignity of the high office of the President, the Head of

State, if he can be dragged into court litigations while serving as such.

(2) Were Zabal et al., correct in filing for a petition for writ of prohibition and

mandamus?

NO. The petition must be subjected to four (4) exacting requisites for the exercise of the

power of judicial review:

I) there must be an actual controversy;

II) the petitioners must possess locus standi;

III) the question of constitutionality must be raised at the earliest

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opportunity;

IV) the issue of constitutionality must be the lis mota of the case.

• It is not enough that this petition mounts a constitutional challenge against

PN 475. It is likewise necessary that it meets the aforementioned requisites

before the Court sustains the propriety of the recourse.

(a) Is there an actual controversy in this case?

YES. The actual controversy is evident in this case. PN 475 was issued by President

Duterte on April 26, 2018 and Boracay was temporarily closed on the same day.

Certainly, the implementation of the proclamation has rendered legitimate concern

of petitioners that constitutional rights may have possibly been breached by this

governmental measure.

(b) Is there a legal standing?

NO. Like in Galicto v. Aquino, what Zabal and Jacosalem could lose in this case are mere

projected earnings which are in no way guaranteed, and are sheer expectancies

characterized as contingent, subordinate, or consequential interest. Concomitantly, an

assertion of direct injury on the basis of loss of income does not clothe Zabal and

Jacosalem with legal standing.

As to Bandiola, he utterly failed to demonstrate that he possesses the requisite legal

standing to use by merely claiming direct injury on the premise that his right to travel was

affected by the proclamation without providing specifics as to how.

However, even if there was a lack of locus standing, the Court will allow this

petition to proceed to its ultimate conclusion to its transcendental importance.

After all, the rule on locus standi is a mere procedural technicality, which the Court, in a

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long line of cases involving subjects of transcendental importance, has waived or relaxed,

thus allowing non- traditional plaintiffs such as concerned citizens, taxpayers, voters and

legislators to sue in cases of public interest, albeit they may not have been personally

injured by a government act.

As to the two other requirements, their existence is indubitable. Clearly, the filing of

the petition and the supplemental petition signals the earliest opportunity that the

constitutionality of the subject government measure could be raised. There can also be

denying that the very lis mota of his case is the constitutionality of PN 475.

(3) Does PN 475 constitute an impairment to right to travel?

NO. There is no showing that PN 475 deliberately meant to impair the right to travel.

Hence, if at all, the impact of PN 475 on the right to travel is not direct but merely

consequential; and the same is only for a reasonably short period of time or merely

temporary.

(4) Is PN 475 a valid exercise of police power? (Whether the means employed

are reasonably necessary for the accomplishment of the purpose and

unduly oppressive upon individuals).

YES. The Court held in Oposa v. Factoran that unless the rights to a balanced and

healthful ecology and to health are given continuing importance and the State assumes it

solemn obligation to preserve and protect them, the time will come that nothing will be left

not only for this generation but for the generations to come as well.

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Allowing tourist into the island while it was undergoing necessary rehabilitation would be

therefore be pointless as no establishment would cater to their accommodation and their

other needs. Further, the petitioners totally failed to counter the factual bases of, and

justification for the challenged executive action.

(5) Do Zabal et al., have vested rights on their sources of income to be

entitled to due process?

NO. The Court in Souther Luzon Drug Corporation v. DSWD, the court elucidated on

vested rights, these are rights which are fixed, unalterable, irrevocable. Here,

Zabal et al., asserted right to whatever they may earn from tourist arrivals in

Boracay are merely an inchoate right or one that has not fully developed and

therefore cannot be claimed as one’s own.

Besides, PN 475 does not strip Zabal and Jacosalem of their right to work and earn a

living. They are free to work and practice their trade elsewhere. That they were not

able to do so in Boracay, at least for the duration of its closure, is a necessary

consequence of the police power to measure to close and rehabilitate the island.

(6) Was there an intrusion into the autonomy of the concerned LGUs?

NO. RA 10121 recognizes and even puts a premium on the role of the LGUs in disaster

risk reduction and management as shown by the fact that a number of the legislative

policies set out in the subject statute recognize to aim and to strengthen the powers

decentralized to LGUs.

The fact that other government agencies are involved in the rehabilitation works does not

create the interference that the powers and functions of the LGUs are being encroached

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upon.

Court Ruling:

The Court sustains the constitutionality and validity of PN 475. Wherefore, the Petition for

Prohibition and Mandamus is DISMISSED

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Alabang-Zapote Road, Pamplona, Las Piñas City, 1704 Philippines • Tel. No.: (02) 871-0639
www.perpetualdalta.edu.ph
Las Piñas Campus