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Supreme Court 2008 decision: Boracay is state property

But Aquino 3rd ignored it, as well as Arroyo’s Proclamation 1064

BORACAY’s elite lording it over the island shouldn’t take lightly President Duterte’s threat to close it down if they don’t reverse the degradation of the island into a cesspool.

It is the state which has ownership of this once paradisiacal island. It therefore may decide what to do with it, close it down or take it over.

Boracay again is a classic case of a weak Philippine state losing control of land it is the supreme sovereign of, and allowing it to be ravaged both by uncaring local and foreign capitalists.

Although scandalously ignored to this day, the 15-member Supreme Court under then Chief Justice Renato Puno unanimously ruled in October 2008 (G.R. No. 167707) that there is no legal basis for private individuals to claim ownership of any property in the island. (To his credit, even Justice Antonio Tirol Carpio, a member of the Tirol clan that is the biggest single landowner in the island concurred with the decision written by Associate Justice Ruben Reyes.)

There hasn’t even been  a move to ask the court to reconsider its decision. Many of the big resort owners who thought they owned their lands — like Orlando Sacay who was one of those who filed the Court case — have left the island after the decision,  or have moved to what they think is the next paradise-area, Coron in Palawan.

“The island is State property,” the high court ruled. It explained that for a land to be “alienable,” or subject to private ownership, the state must declare it as such.

STATE-OWNED? A bird’s eye view of the P70,000 per night Shangri-la Hotel in Boracay.

In the case of Boracay, the court pointed out, “no such proclamation, executive order, administrative action, report, statute, or certification was presented to the Supreme Court. The records are bereft of evidence showing that, prior to 2006, the portions of Boracay occupied by private claimants were subject of a government proclamation that the land is alienable and disposable.”

The court was not unaware of the implications of its decision, and noted: “The Court is aware that millions of pesos have been invested for the development of Boracay Island, making it a byword in the local and international tourism industry. The Court also notes that for a number of years, thousands of people have called the island their home.”

Law should prevail

However, it declared: “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. Ito ang batas at ito ang dapat umiral.”

The Court did note though that claimants “may look into other modes of applying for original registration of title, such as by homestead or sales patent, subject to the conditions imposed by law.” However, not a single Boracay “claimant” – the term the Court used to refer to people who claim to be landowners in Boracay – has attempted to apply for such modes of ownership.

The Supreme Court also noted that “more realistically, Congress may enact a law to entitle private claimants to acquire title to their occupied lots or to exempt them from certain requirements under the present land laws.”

There has been no such law passed in Congress, although bills were filed for such purposes in each Congress since 2008.

I don’t think Boracay’s land claimants should hope that Congress will pass such a bill during Duterte’s presidency.

The latest such bill on Boracay’s land titling was filed only last month – by Magdalo party-list Rep. Gary Alejano, a vicious critic of the Duterte administration who had filed together with his boss Sen. Antonio Trillanes4th, a crime-against-humanity suit against this president and his other officials at the International Criminal Court. I don’t have any information why on earth Alejano filed this bill, whether it is another financial project or whether he is an “Aklanon.”

It is astonishing how private individuals got to claim to be landowners of Boracay, and how businessmen, which include foreigners, have set up establishments there that have through the years ruined the island, many of which have even dumped their human waste straight to the sea.

There have been rumors that a member of one of the biggest “land claimants” in the late 1980s had managed to control the Aklan Registrar of Deeds, which explains the clan’s huge holdings

President Marcos in 1978 through Proclamation 1801 had declared it— as well as two dozen other areas—as tourist zones and marine reserves under the administration of the Philippine Tourism Authority. Marcos’ proclamation precluded the titling of lands in Boracay, although his buddy Fred Elizalde ( a media magnate who owns DZRH ) as well as about a dozen families that include that of Justice Carpio’s got to own vast lands in the island.

The Marcos proclamation had a very categorical statement: “No development projects or construction for any purposes shall be introduced within the zones without prior approval of the President of the Philippines upon recommendation of the Philippine Tourism Authority.”

Arroyo’s proclamation declaring 40 percent of Boracay as forest land.

Do you think such humongous projects on a small, environmentally-fragile island such as Fil-Estate’s Fairways and Bluewater golf course set up during Fidel Ramos’ term, Shangri- la Hotel and Discovery Suites during Aquino’s, and the Elizaldes’ D’Mall and D’Talipapa were approved by presidents at that time?

Such is the power of our elites to ignore a presidential proclamation and a Supreme Court decision.

Unclassified land

The Republic through various administrations took the official stance that Boracay was an unclassified land, and therefore its lands cannot be put under private ownership unless a President first “alienates” such lands from the public domain. This view was upheld in the Supreme Court decision.

As a result, most of the Boracay land-claimants’ “proof of ownership” had been through their tax declarations—receipts that they paid the property taxes—in the hope that in the future these would prove their right to have titles.

President Gloria Macapagal-Arroyo took a major step in allowing land-claimants in the island to secure legal titles and at the same time to protect the island from further degradation. She issued in 2006 Proclamation 1064 that classified 40 percent of Boracay’s 1,028 hectares as “reserved forest land” (which cannot be privately owned) and 60 percent as “agricultural land,” which can be titled. The proclamation provided detailed geographic coordinates of the forest and agricultural lands.

The 60-40 distribution makes me suspect that Arroyo simply wanted to ensure that at least 40 percent of the island will be protected forestland, regardless of whether such areas were or are still forests.

I am quite sure , having visited the areas in the 1980s, that the locations of Fairways and Bluewater golf course and Shangri-la were thick forests. It was in fact after Fairways was constructed that a breath-taking. unusual sight every sunset  in Boracay vanished: the flight of thousands of bats flying away from those areas for their nocturnal hunts in the mainland, which was so thick it looked like clouds. That signaled the start of Boracay’s environmental degradation.

Arroyo’s Proclamation of course only hardened Western Visayas—where most of the elite land-claimants are from—as a Yellow bastion, led by Mar Roxas.

However, practically nothing was done to implement the proclamation. Because Aklan was Yellow territory, Aquino  when he assumed power in 2010 allegedly gave the order to his environment and natural resources department, the entity in charge of implementing Arroyo’s proclamation, to forget it was ever signed.

As result, 12 years after Arroyo’s Proclamation was issued,  the DENR hasn’t even undertaken a cadastral survey to determine which of the Boracay lands are part of the reserve forest lands and which ones are agricultural, based on the coordinates it provided.

Solving the Boracay quagmire will be extremely difficult, as it has been left untouched for decades, putting it at the mercy of unrestrained capitalism.

Duterte would face enormous political pressure to just do  what  his predecessor Aquino did, which was to do nothing. But if the President will address the issue, and boldly uphold the Supreme Court decision, his success will be a precedent in preserving our national treasures that succeeding generations of Filipinos have a right to.

Isn’t it so shameful that an island so well known in the world for its beauty that we have been so proud of it, is controlled and run by people, both local and foreign, who ignore our nation’s rule of law?

Isn’t it so scandalous that they are defying the Supreme Court’ s unanimous decision, and the High Court doesn’t even seem to mind?


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