TASK Force Boracay is looking at filing criminal complaints against private individuals seen responsible for the environmental mess in the popular resort destination.
In an interview with media, one day before the planned six-month closure of Boracay Island, Interior Assistant Secretary for Plans and Programs Epimaco V. Densing III said, “We will be asking onboard the CIDG [Criminal Investigation and Detection Group of the Philippine National Police] if they can also investigate private individuals who can be filed cases.”
He explained in a text message to the BusinessMirror that these private individuals are
“resort owners,” and that the charges, “primarily the criminal aspects, if any, [will be] the violation of environmental laws and possibly even tax-evasion cases.”
He added there was “no one definite [on the list yet]. We will let the CIDG do their procedures.”
This developed as the interagency task force intends to shut down Boracay at exactly 12 midnight on Thursday, with or without a state of calamity declaration and closure order from President Duterte.
This was the response of Tourism Assistant Secretary Frederick M. Alegre after no announcements were made by Malacañang regarding the closure as of press time.
“Yes [we will still close it]. At 12 midnight,” he said in a text message on Wednesday, adding, “Spokesman Harry Roque confirmed the state of calamity declaration will be signed [by Duterte] today [Wednesday].” He added, once the state of calamity is proclaimed, there would be no need for an executive order from the President enforcing the closure order of the island for 180 days starting on April 26.
Members of the Task Force include the departments of Environment and Natural Resources (DENR), Interior and Local Government (DILG) and of Tourism.
Meanwhile, the DILG will be leveling administrative cases against more than 10 local government officials of Aklan with the office of the Ombudsman. In a media interview aired by the Boracay Informer, Densing, however, declined to name the officials that will be charged.
“There are more than 10 [local government officials]; we start with the incumbents first, because these are administrative cases, but there could be criminal [offenses].” The administrative charge, he explained, would be “grave neglect of duty,” adding that it was standard procedure for the investigation to cover the provincial governor, down to the barangay officials.
He added that the DILG’s legal department has already finished the drafting of the complaint sheet versus these officials. “The only reason we’re not filing yet because we need to get the authenticated evidence so that it could be attached to the cases we will be filing,” he said. The agency is targeting to file the cases against the errant officials “on or before April 30.”
Also, Densing said he will be writing the Commission on Audit “to request them for a special audit on the environmental fees collected,” by the local government of Malay, Aklan, which covers Boracay Island. He said 2 million tourists went to Boracay last year, which means the local government should have collected some P150 million in environmental fees, based on the P75-per-person levy. “However, the local government reported they only collected P91 million” in environmental fees last year.
“That’s why I don’t want to pass judgment vis-à-vis the discrepancy on the total expected environmental fees and the actual environmental fees actually disclosed by the locality,” he stressed. He added the DILG is also looking into possible discrepancies in amounts estimated to be collected and reported collection in previous years.
“We also want to look into how they used these funds,” Densing said, because under a local ordinance, the funds “should be used exclusively for the environmental projects in Boracay. Even the 15 percent of the funds that goes to the provincial government, should be also used for environmental projects on Boracay. So where did they use the funds?”
Data provided by the Malay government at the workshop-conference for Boracay stakeholders on April 17 showed some P567.04 million in fees were collected at the jetty port from 2010 to 2017, of which, 15 percent or P85.06 million went to the provincial government, while P481.98 million was retained by the municipal government.
“Other collections” amounted to P118.61 million, resulting in total collections by the local government of P600.6 million for the seven-year period. Of the total collections, 75 percent, or P450.44 million, were used for solid waste management projects, and P150.15 million for tourism projects.
Petition for TRO
Affected workers and residents of Boracay Island on Wednesday filed a petition before the Supreme Court seeking the issuance of a temporary restraining order (TRO) to stop the closure of the country’s popular tourist destination for six months starting on April 26.
The petitioners—Mark Anthony Zabal and Thiting Jacosalem—represented by the National Union of People’s Lawyers (NUPL) said if the closure pushes through, the Court should issue a status quo ante to restore the situation prior to the closure.
Named respondents in the petition for prohibition and mandamus were President Duterte, Executive Secretary Salvador C. Medialdea and Interior Officer in Charge Eduardo M. Año.
Zabal, according to the petition, earns a living by making sandcastles for tourists in the beaches of Boracay Island, while Jacosalem works a a driver for tourists and workers in the island.
The petitioner argued that the directive of the President to close Boracay to tourists and nonresidents is unconstitutional as it violates the people’s right to travel, and right to due process of those people whose livelihood depend on the island’s tourism activities.
“Imposing restrictions upon persons visiting Boracay Island or depriving persons earning a living therein, even though they have not been found guilty of violating environmental, is arbitrary, whimsical and unreasonable intrusion into individual rights, and a violation of the right to due process,” the petition read.
They petitioners further contended that there is no provision in the 1987 Constitution that would give legal basis to the President’s order to prevent entry of nonresidents in Boracay.
Even if the President’s order is an exercise of police power aimed at rehabilitating the island, this would still need the approval of Congress, according to the petitioners.
“Any order he issues, whether verbal or written, that curtails or limits the enjoyment of fundamental rights, can never be valid and must be struck down by the courts if it finds no statutory or constitutional basis. Such is the clear import o the principles of checks and balances and the separation of powers as embodied in our legal system,” the petitioners insisted.
The petitioners also said the right to travel is a fundamental right guaranteed under Section 6, Article III of the 1987 Constitution.
The petitioners noted that the Court had earlier ruled that limitations to the right to travel must be in the interest of national security, public safety, or public health and provided by law.
In the case of Boracay, the petitioners said such grounds have not been shown to exist to warrant the restrictions to travel.
The petitioners added that the closure of Boracay is tantamount to the curtailment of the property rights of the residents, which include right to work and earn a living.
They noted that they have been earning less and less ever since the government declared that it would close the island.
“The closure is too oppressive to all persons living and working in Boracay,” said lawyer Angelo Karlo Guillen, of the NUPL-Panay.
“The island is heavily dependent on tourism. If you take that away from them, it would deprive the people there of their livelihood. The Duterte administration can casually say that it will close Boracay for six months, but that sudden move also means thousands of families will be deprived of income and go hungry. The measure does not take into account their plight. The closure of Boracay must be fair to all,” he added.
Asked to comment on the petition, Presidential Spokesman Harry L. Roque Jr. said Malacañang sees “absolutely no merit” for any private party to restraint the closure of Boracay.
Roque also noted that it was also the High Court which previously ruled that Boracay is owned primarily by the State.
“We see no reason how private persons can allege and prove irreparable injuries, a prerequisite for TRO, given that their stay in the island is by mere tolerance of the state. In any case, the closure is because of the inherent police power of the state to protect the environment in Boracay,” Roque said.
The Department of Labor and Employment (DOLE) assured that it will provide emergency employment to 2,500 workers who will be displaced by the closure of Boracay.
In an interview, Labor Secretary Silvestre H. Bello III said these were the workers they were able to profile and are now ready for deployment.
“By April 27, one day after the closure of Boracay, these 2,500 will start the cleaning of the area,” Bello said.
He added they are targeting to provide similar assistance to another 2,500 affected workers in the coming weeks.
“We are prepared to give the some form of livelihood tricycles. As for the lumad, the livelihood program we will provide them will be for agriculture programs like
planting of root crops,” Bello said.
Due process
DENR Undersecretary Jonas R. Leones said the case buildup against violators of environmental laws on Boracay Island will take some time and “an extra effort.”
Leones said due process is being carefully observed by the government in pursuing cases against violators and that the DENR is not keen on prematurely releasing a list of the names of the violators or their purported violations until it is proven, and the filing of cases and imposition of fines and penalties are made.
He added the issuance of a notice of violation compels a company to attend a technical meeting with the DENR to discuss the violation, the necessary corrective measures, including the deadline to institute such corrective measure.
“It is a tedious process. It starts with the issuance of a notice of violation. Then there will be technical meeting. We don’t want to just release a list of violators unless we are sure that indeed, a violation is committed,” Leones said.
In a press briefing in Boracay on Wednesday, Environment Secretary Roy A. Cimatu disclosed the names of establishments that were illegally connected to the rainwater drainage pipe of the Tourism Infrastructure and Enterprise Zone Authority. These include New Guard Enterprises, Red Coco Inn, Hennan Garden, Red Coconut Beach Resort, Lime Hotel, and Crown Regency Convention Center.
Leones also rejected demands for the Task Force Boracay, or the DENR, to publicly release the list of violators. He said the violation of the 25+5 easement rule is a full-blown operation and Task Force Boracay is con-tinuously holding dialogues with violators to voluntarily dismantle their structures.
As for the violations committed by hotels and resorts for illegal occupancy of forestland and wetlands, or those that expanded their establishments without necessary permits, the case buildup is being done by the DENR and Task Force Boracay.
He said alleged violators are being issued notices, while some have been issued notices to vacate already. However, Leones said the task force is not keen on just demolishing hotels or resort structures to avoid legal setbacks.
Once the task force established the violation of illegal construction, he said the demolition will be enforced by the DILG and the local government of Malay.
“These property owners are not small-time companies. Of course, we don’t want to be flooded with cases so we are very careful in observing due process,” he said.
With Joel R. San Juan and Jonathan L. Mayuga