Tourists board a motorboat as they leave Boracay island on Saturday. The Philippine tourism industry is scrambling to manage the fallout from the temporary shutdown of its world-famous island, which threw into chaos trips planned by hundreds of thousands of tourists.
AFP
Boracay wholly state-owned — 2008 Supreme Court ruling
Edu Punay (The Philippine Star) - April 9, 2018 - 12:00am

MANILA, Philippines — The government has every right to close down Boracay Island, based on existing jurisprudence by the Supreme Court (SC) that declared the famous tourist destination as state-owned.

An October 2008 decision of the SC had classified the island as both forest and agricultural land that belongs to the government as it junked ownership claims by several resort owners.

The ruling, which stands as it has not been appealed or reconsidered, could provide legal justification to the six-month closure ordered by Malacañang for the rehabilitation of the island.

It may also have legal implications upon the reported plan of the Duterte administration to allow casino resorts in the island, a court insider told The STAR.

“Giving property ownership to casino resorts in areas covered by forest land under the law may be questioned based on this decision,” explained the source, who requested anonymity.

The SC classified the owners of resorts fronting the shoreline as merely “builders in good faith” because the area is a forestland that cannot be privatized.

“The continued possession and considerable investment of private claimants do not automatically give them a vested right in Boracay. Nor do these give them a right to apply for a title to the land they are presently occupying,” said the 35-page decision penned by now retired Associate Justice Ruben Reyes.

“At any rate, the Court is tasked to determine the legal status of Boracay Island, and not look into its physical layout. Hence, even if its forest cover has been replaced by beach resorts, restaurants and other commercial establishments, it has not been automatically converted from public forest to alienable agricultural land,” it stressed.

The SC affirmed Proclamation 1064 issued by then president Gloria Macapagal-Arroyo which classified Boracay Island into 400 hectares of reserved forestland for “protection purposes” and 628.96 hectares of agricultural land that are “alienable and disposable.”

It explained that only owners with valid land titles since June 12, 1945, the date prescribed under the Public Land Act or Commonwealth Act 141, could claim ownership to their properties in the island. Most owners of beachfront properties are without titles. 

Under the law, unclassified lands are considered public forests and only agricultural lands can be disposed of for private ownership.

The Court ruled that even those who occupy their properties “since time immemorial” cannot make ownership claims, without valid original titles obtained from the period.

“For one thing, those with lawful possession may claim good faith as builders of improvements. They can take steps to preserve or protect their possession. For another, they may look into other modes of applying for original registration of title, such as by homestead or sales patent,” it suggested.

“The burden of proof in overcoming the presumption of State ownership of the lands of the public domain is on the person applying for registration, who must prove that the land subject of the application is alienable or disposable,” the ruling said.

But the high court pointed out that the more practical option is for Congress to pass a law that would reclassify the lands and entitle the claimants to ownership over certain areas.

The court issued this ruling based on petitions challenging Proclamation 1064 filed by two groups of resort owners – Jose Yap Jr., Libertad Talapian, Mila Sumnad and Aniceto Yap; and Orlando Sacay, the owner of Waling-Waling Beach Resort and chairman of the Board of Boracay Foundation Inc., and Wilfredo Gelito, owner of Willy’s Beach Resort. 

The groups lamented that even if they already spent millions to develop their respective properties, they could not be granted ownership.

“While the Court commiserates with private claimants’ plight, we are bound to apply the law strictly and judiciously. This is the law and it should prevail,” the Court added.

No infringement

President Duterte’s order to close Boracay does not infringe the people’s right to travel, presidential spokesman Harry Roque said yesterday.

“The closure of Boracay is meant to protect (the island) since it is our crown jewel – tourist destination – to ensure that it’s not our generation alone that can discover the paradise that is Boracay,” Roque said, in response to a query whether or not the government’s move is a violation of the people’s right to travel.

The government has invoked its police power to protect the environment when Duterte followed the recommendation of the Departments of Tourism (DOT) and the Interior and Local Government (DILG) to rehabilitate Boracay.

Staggered shutdown

Meanwhile, senators yesterday sought a staggered implementation of the shutdown of Boracay Island to lessen the economic losses to be sustained by the six-month closure.

Sen. Sherwin Gatchalian noted the announcement of the DILG and DOT that the rehabilitation of the island “can be conducted by partial closure or a closure of different segments of Boracay.”

“Six months really has a lot of economic impact that’s why the sooner we can open Boracay, the better for the entire industry. We can open a small segment after 30 days, then another (segment) so Boracay operates slowly,” Gatchalian said.

The proposed “phased” closure and opening of portions of Boracay should be accompanied by a cash-for-work program for the estimated 30,000 workers, who will be displaced by the shutdown, according to the senator. – With Christina Mendez, Paolo Romero

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BORACAY ISLAND
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