[OPINION] Small people bear brunt of Boracay closure

It is the regular employees, masseurs, boatmen, tricycle drivers, and the like who are suffering immensely

Butch Sebastian

1:23:40pm August 12, 2018

1:23:40pm August 12, 2018

I have tried to refrain from commenting on social media on what's happening in Boracay. Insofar as I'm concerned, I am not actually affected since I am not doing business on the island and the absence of tourists does not bother me. I have, in fact, put up a sign outside my home offering free legal services for the duration of the closure, in case indigent residents have need of it. 

However, as always, it is the small people who are bearing the brunt of the island's closure and not the big businessmen who can very well weather the storm. This is what pains me most. It also hurts when I hear statements from well-meaning friends and acquaintances to the effect that the closure is necessary and "everybody has to sacrifice" to clean up the island. For the life of me, I do not understand what these non-residents have sacrificed.

Hopefully, this statement will help people in the rest of the country understand what's happening on the island.

After securing the go signal of my daughters and their mom, here's my personal take on the matter.

1. Unlawful taking/destruction of properties 

Several establishment owners were told to remove their structures for allegedly violating certain easements. Please note that, for those who have valid titles or other rights over property, there are legal processes that must be complied with prior to the taking of property. These ownership and/or possessory rights antedated the municipal ordinances imposing the 25+5-meter easement from the high-water mark and the 12-meter road widening easement. Summarily destroying and/or taking these properties is a violation of the constitutional rights to due process and just compensation (Sections 1 and 9, Bill of Rights). At this point, it may not be amiss to note that these easements were imposed by a municipal ordinance and I am not aware of any scientific basis for these. For instance, the Water Code only requires a 3-meter easement from the shore for urban areas.

2. Declaration of state of calamity  

The term "state of calamity" is defined by Republic Act (RA) 10121 as "a condition involving mass casualty and/or major damages to property, disruption of means of livelihoods, roads, and normal way of life of people in the affected areas as a result of the occurrence of natural or human-induced hazard." In the case of Boracay, these conditions are not present. Moreover, even granting arguendo that these conditions exist, impairment of the liberty of abode and right to travel (not to mention impairment of the rights to due process and just compensation) is not a consequence of the declaration of a state of calamity. The purpose of the declaration of a state of calamity is to assist the affected communities and alleviate their suffering. It is not meant to serve as a cloak of immunity to rationalize or justify wide scale violations of human rights.

And even if there was a factual basis to impose a state of calamity, the constitution states that liberty of abode shall not be impaired "except upon lawful order of the court" (Section 6, Bill of Rights). Neither may the right to travel "be impaired except in the interest of national security, public safety, or public health, as may be provided by law" (ibid). The government cannot possibly use public health or public safety as a ground for the impairment of these rights since residents are still allowed to stay on the island. If the conditions on the island are not "safe" or "healthy," everybody should be evacuated.

3. Boracay Inter-Agency Task Force – Executive Order (EO) 53

EO 53 created the Boracay Inter-Agency (IA) Task Force (the "Task Force") to implement existing laws, rules and regulations and to recommend changes to existing laws. However, the Task Force has clearly exceeded its mandate. For instance:

a. imposition of curfew 

Residents of the island are not allowed to enter the island between 10 pm and 6 am. In effect a curfew has been imposed on the island. This is worse than the situation in Mindanao, which is under martial law.

There is also the case of the recent refusal of the port authorities to allow bearers of Barangay Yapak IDs from going back to their homes on the island. Men, women, children, and elderly people were unable to go home and had to sleep in the port while waiting for permission to go home. This lasted for several days and no cogent reason has been given to justify this indiscriminate mass disenfranchisement of a whole barangay. 

While only tourists were barred by the President from entering the island, the implementing authorities have issued orders and regulations unrelated to the "state of calamity" and beyond the scope of the power delegated to them.

b. prohibition on swimming and water sports  

In addition to the curfew, residents may only swim in designated areas and, even then, only until 5 pm. I am at a loss as to the reason for this requirement. Are we so physically dirty that swimming after 5 pm will cause environmental damage to the island? Do we relieve ourselves in the water after 5 pm?

c. requirement for Sewage Treatment Plants – Department of Environment and Natural Resources (DENR) Memorandum Circular (MC) 2018-07 

The IA Task Force is now requiring all establishments on the beach with more than 49 rooms to build their own sewage treatment plants (STPs). This requirement has absolutely no legal basis. The only legal requirement under the implementing rules of the Clean Water Act is for households and establishments to connect to existing sewerage systems, not install their own STPs. Worse, requiring establishments to install and operate their own STPs is not only expensive. It also goes against existing engineering and environmental best practices worldwide. In fact, this requirement does not exist anywhere else in the country.

The added requirement for those with less than 50 rooms (including small stores and restaurants) to pool their resources is much worse. It is, to say the least, impractical to expect several establishments to agree on building and operating a common STP. In the first place, it would be very difficult to agree on whose property the STP will be located (some of these establishments have a floor area of less than 30 square meters). More importantly, these establishments have neither the financial wherewithal (a STP costs roughly P2 million) nor the technical capacity to operate a STP.

It should therefore be enough for these establishments to connect to the nearest existing sewerage line as required by the Clean Water Act. And if there is no existing sewerage line, it is the government's duty to provide one to its taxpayers.

While Boracay Water Island Company (BWIC) and Boracay Tubi Systems Inc (BTSI) offer to shoulder all or part of the cost of building these private STPs, this comes at a cost. Establishments who avail of this offer must agree to exclusively source their water supply for years from the concessionaire which installs the STP. This deprives them of their freedom to source their water from the supplier of their choice.

Sadly, the DENR is using this requirement as a Damocletian sword (blackmail in less polite terms) against the whole island. In his 23 June 2018 letter to Boracay stakeholders informing them of the STP requirement, Attorney Pascua of the DENR ended by saying: "NO SEWERAGE TREATMENT PLANT, NO OPENING." This despite the lack of legal basis and the violation of the constitutional right to equal protection (see pararagraph 4 below)

d. displacement of workers 

The closure of the island also displaced thousands of workers who are in no way responsible for the conditions on the island. They are merely trying to earn a living. However, in implementing the "state of calamity," workers (who are obviously not tourists) are unable to go to work on the island. And even those who have valid barangay IDs are proscribed from going to the island from 6 pm to 6 am.

4. Equal protection of the law – Section 1 of the Bill of Rights 

Laws should apply equally to everyone similarly situated. If the rationale for the declaration of a state of calamity is that Boracay "is a cesspool," this same rationale applies to other areas in the country which are as dirty or dirtier than Boracay. For instance, this applies to all communities on the shores of Manila Bay and the Pasig River, if not more so. In fact, there is an existing Supreme Court order for the government to clean up and rehabilitate Manila Bay which, to date, has not been implemented. The government should prioritize this instead of focusing on Boracay.

While the Boracay community supports the cleanup and rehabilitation of Boracay, the heavy-handed approach by government is not commensurate to the problem. In the first place, the sorry state of Boracay is due to the failure of the Tourism Infrastructure and Economic Zone Authority (TIEZA) to provide adequate sewerage infrastructure and services. This cannot be overemphasized. TIEZA and its predecessor, PTA, is responsible for this mess. This is a failure of the national government, not the local government. It is quite unfair, to say the least, to punish all the residents of the island indiscriminately for this failure of governance.

More importantly, prior to the closure of the island, DENR already had a list of violators who were not properly connected to the sewerage system. Under Section 8.2 of the implementing rules and regulations (IRR) of the Clean Water Act (in connection with Section 29 of Presidential Decree or PD 198), these establishments may be deprived of all services, including supply of water, after 10 days' prior written notice. Without any water supply, these violators will have no sewage or wastewater to discharge. This would have driven down the coliform level drastically. This is infinitely much better than penalizing the whole island, guilty and innocent alike. Instead, the Task Force chose to prioritize the "rights" of these violators over the rights of innocent residents and business owners and recommended the closure of the island.

In closing, it should again be emphasized that it is not the big business owners that bear the brunt of the negative effects of the island's closure. It is the regular employees, masseurs, boatmen, tricycle drivers, and the like who are suffering immensely. The enrollment rate is down drastically since these people have to prioritize food over education. These people cannot restructure their loans. In fact, they have no access to the banking system. Their only recourse is to buy rice, sardines, and instant noodles from the neighborhood sari-sari store on credit. And after several months, even these small stores have run out of supplies. These people are now starving!

I hope this leads to a more informed conversation on the sorry state of the island of Boracay. And please bear in mind that, if this can be done to our island, it can also be done to your community. – Rappler.com

Butch Sebastian is a retired lawyer, a nature advocate, and an outdoor enthusiast. This article originally appeared on his Facebook page, and Rappler is republishing it with his permission.