Sunday, September 19, 2021

EXPLAINER: Do 2 lawyers suing IATF have legal standing? 'If dolphins can sue, so can we.' Yet core legal issue is whether PB ordinance is superior to IATF/presidential order.

SunStar File/Google Maps

THE SITUATION. From the Capitol to the Senate and the House, along with public discussion in media and wherever else people talk with one another these pandemic days, the debate has finally gone to court.

Suing as taxpayers, Cebu-based lawyers Clarence Paul Oaminal and Valentino Bacalso, filed Monday, June 21, with the Cebu Regional Trial Court a petition to stop the enforcement of a 10-day quarantine for overseas Filipino workers (OFW) and returning overseas Filipinos (ROF). The lawyers ask for a temporary restraining order (TRO) and injunction against the national agency IATF that is enforcing the quarantine protocol.

If news reports are correct, despite the order of President Rodrigo Duterte for Cebu to obey the IATF guidelines, the Cebu protocol of test-upon-arrival and release-to-their-homes-in-three-days was still being enforced at the Mactan-Cebu International Airport, although the IATF rule of 10-day mandatory quarantine in a hotel has been reduced to seven days.

If anyone seeks a court order, it must be IATF as the Capitol protocol is reportedly the rule being enforced, not the national agency's guideline.

The lawyers' petition asks the court to suspend the IATF resolution on quarantine and issue ex parte TRO for a period of 72 hours while it conducts a summary hearing. There might be no more reason for that if it can be shown the Capitol protocol, not the IATF order, is being enforced at Mactan airport.

DOLPHINS' LAWYER. What quickly catches attention, aside from being linked to the current imbroglio over airport Covid-19 protocol, is that the lawyer of the two lawyers suing is the same Benjamin Cabrido who since 2007 had, among his clients, dolphins and sea mammals.

In his most celebrated case, the Supreme Court on April 21, 2015 declared as unconstitutional and violation of law the oil exploration and exploitation of petroleum resources by Japanese firm Japex at Tanon Strait, located between the islands of Cebu and Negros. The case took eight years to resolve but it stopped the drilling in the area from 2007 to 2008, which allegedly damaged protected sea-life, fisherfolk livelihood, and habitat of dolphins and other marine species.

Environment lawyers Gloria Estenzo-Ramos and Liza Osorio joined Cabrido in filing the lawsuit way back on December 20, 2017. They were laughed at then. Dolphins, whales, and other sea animals could sue? They could, they did (with the human guardians) and won the lawsuit.

CORE COURT ISSUE that the two lawyers want the RTC to resolve is which government order or orders must prevail: Cebu Provincial Board Ordinance 2021-04 and Governor Gwendolyn Garcia's Executive Order #17? Or IATF's Resolution #114, providing among others for a seven-day mandatory stay in a regulated hotel to wait for the test on the seventh day. Atty. Cabrido was quoted as saying "the basis of the petition is the primacy of Cebu's ordinance."

A panel of medical and legal experts was to arrive in Cebu any day after Health Secretary Francisco Duque III Tuesday, June 15, accepted before the Senate committee on Covid-19 the governor's invitation for IATF to "revisit" with the PB the Cebu protocol.

That proceeds on its own, as the court must go separately, on the court's pace and under its procedure. The public cannot expect the litigation to settle disputed issues in the near future.

ANO'S, IATF POSITION. Local Government Secretary Eduardo Ano was asked by Senator Panfilo Lacson at the June 15 Senate forum if the president's order, which legally wraps the IATF guidelines, is superior to the LGU ordinance and EO.

Any presidential order is supreme, Ano in effect said, as the president is superior to local officials, being the commander in chief and the highest official who exercises supervision over local governments. The presidential order, in the form of IATF rules, must be followed and obeyed by local officials, the DILG head said. Ano's position may be safely seen as the stand of IATF if or when its delegation appears before the Cebu PB.

Governor Garcia, on the other hand, told the Senate the Constitution and the national laws support the Capitol stand, specifying the Local Government Code, to contend superiority of the PB ordinance. While her EO initiated the local protocol and the board merely adopted it, she told the senators, "It's now out of my hands."

And that issue is very much the core of the litigation -- if and when the case is given due course.

PARTY IN INTEREST. A requirement for a litigant is that one must be a real party in interest, a person who will be damaged or benefited by the outcome of the case.

SunStar asked Atty. Oaminal, one of the two petitioners, Monday, June 21, as to what personally prompted him and Atty. Bacalso to sue. "As lawyers," he said, "we cannot remain neutral to an injustice, a blatant oppression to Cebu by imperial Manila."

Cabrido had called the IATF protocol "nonsensical." Oaminal said it is a "ludicrous" and "stupid" requirement which has victimized, he said, not only Cebuanos but other passengers for Visayas and Mindanao who use Mactan as port of entry. They pay a lot more, if not OFWs, by a longer stay in a hotel. By Oaminal's argument, their personal interest is correcting that "injustice."

Yet what will be litigated is not the wisdom or practicality of which protocol, but the powers that the central authority and Capitol each want to uphold.

WHO'RE HURTING? Oaminal didn't say if he and Bacalso are personally affected by the questioned protocol, usually a gauge of one's being a real party in interest to acquire legal standing in court.

It is "similar in concept with the case of the Tanon Strait dolphins," Oaminal told SunStar. "If the SC recognized such legal standing, how much more with Cebuano residents/lawyers?"

Yet even the Supreme Court had been reluctant to give the marine animals legal standing, through the guardians, but reportedly gave the case due course because of its importance to the environment and society in general.

Would the SC see the same thing in the Oaminal-Bacalso petition when the two lawyers do not actually suffer or benefit from its outcome and at most would merely be helping future travelers affected by the IATF protocol?

The dolphins and other marine animals were assumed to suffer or benefit from the result of the litigation. But not the two attorneys. There's the difference, which could spell a different result.


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