Issues in the Boracay closure

By Atty. Gloria Estenzo Ramos |April 15,2018 - 09:57 PM

Atty. Gloria Estenzo-Ramos

The controversial Boracay closure triggered severe reactions from stakeholders, largely from the affected business community, its residents and workers principally dependent on the thriving tourism industry of the island.

The concerns are understandable as there seem to be no development plan, rehabilitation plan, relocation plan and livelihood plan nor were the stakeholders consulted when the closure was announced by the President.

Affected local government units, residents and business cannot be excluded from participation such as an unprecedented “island-wide closure” like what is intended to happen in Boracay.

Issues raised on social justice, participation, transparency and local autonomy must be investigated by our authorities.

The 1987 Constitution provides that “The territorial and political subdivisions shall enjoy local autonomy.”

Local autonomy means the dispersal of power and autonomy from the central government to the local governments.

Certain basic services and regulatory functions had been devolved to the local governments such as environmental protection, health, social services and tourism, among others.

Under Article 10, section 4 of the Constitution, the President exercises only the power of supervision but not the power of control over local governments.

The landmark 2000 ruling of Aguirre v. Pimentel (G.R. No. 132988. July 19, 2000) declared that “The Constitution vests the President with the power of supervision, not control, over local government units (LGUs). Such power enables him to see to it that LGUs and their officials execute their tasks in accordance with law. While he may issue advisories and seek their cooperation in solving economic difficulties, he cannot prevent them from performing their tasks and using available resources to achieve their goals. He may not withhold or alter any authority or power given them by the law.”

Is the “closure of Boracay” a valid exercise of the President’s power of general supervision over local governments? Or, is he already exercising the power of control over local government units, which he is not authorized to do?

The test was discussed by the Supreme Court in said Aguirre v. Pimentel Ruling, a portion of which states that: “…In Mondano v. Silvosa, the Court contrasted the President’s power of supervision over local government officials with that of his power of control over executive officials of the national government.

It was emphasized that the two terms — supervision and control — differed in meaning and extent. The Court distinguished them as follows:
“x x x In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer ha[s] done in the performance of his duties and to substitute the judgment of the former for that of the latter.”[6]

Xxx In…Drilon v. Lim, the difference between control and supervision was further delineated.

Officers in control lay down the rules in the performance or accomplishment of an act.

If these rules are not followed, they may, in their discretion, order the act undone or redone by their subordinates or even decide to do it themselves.

On the other hand, supervision does not cover such authority.

Supervising officials merely see to it that the rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them.

If the rules are not observed, they may order the work done or redone, but only to conform to such rules. They may not prescribe their own manner of execution of the act.

They have no discretion on this matter except to see to it that the rules are followed.

Under our present system of government, executive power is vested in the President.

The members of the Cabinet and other executive officials are merely alter egos.

As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed.

In contrast, the heads of political subdivisions are elected by the people.

Their sovereign powers emanate from the electorate, to whom they are directly accountable.

By constitutional fiat, they are subject to the Presidents supervision only, not control, so long as their acts are exercised within the sphere of their legitimate powers.

By the same token, the President may not withhold or alter any authority or power given them by the Constitution and the law.”

Under the Local Government Code, RA 7160, which is the national law implementing the principle of local autonomy enshrined in the Constitution, the provisions in Section 2 © and 26 requiring public consultations are pertinent.

Section 27 likewise provides that “No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.”

The air of uncertainty is removed when the Rule of Law is made to prevail.

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