Much ado about Esplanade 1 and 2

By Atty. Eduardo T. Reyes III

 

CONTROVERSY is rife in regard to the issue of whether bicycles will be allowed to traverse Esplanade 1 and 2. This came on the heels of a protest by a cyclist who was barred from passing through Esplanade 1 and 2 by City Hall employees manning the entrance of this picturesque pathway encrusted with bricks, engulfed by a well-maintained garden and a cornucopia of flowers along the Iloilo River.

The City Mayor had put his foot down with his pronouncement that the Esplanade 1 and 2 shall only be reserved for walking, strolling or jogging especially by senior citizens. Yet, a certification from the Secretariat of the City Council had swirled in social media which purports to claim that to date, no executive order or ordinance prohibits cycling in Esplanade 1 and 2.

What is the legal weight of this certification? Does this mean that the mayor’s pronouncement is legally hollow and can be dismissed as lacking in basis in law?

To answer the question, it is important to underline the nature of the powers of a chief executive. It bears to stress that while it may be true that under the doctrine of separation of powers, it is the law-making body that enacts laws which will be enforced, implemented or executed by the chief executive and thus as a rule, the implementation of rules must always be based on law.

This leads us to the next point. Is it necessary for the law to expressly, specifically and unmistakably enumerate the powers of the chief executive in order for him to be able to act? Stated inversely, if certain acts of the chief executive are not among those enumerated by law, would that render such acts unlawful to the point of being susceptible to disobedience or defiance?

By analogy, we can refer to a previous landmark decision of the Supreme Court for guidance based on precedence. When Marcos was exiled in Hawaii after the Edsa Revolution in 1986 and he and his family had attempted to repatriate, then President Cory Aquino barred their return to the country. The Marcos family assailed such act of President Aquino as it is not among any of the powers specifically bestowed by the Constitution or any law to a sitting president.

Invoking the breadth of the power of a chief executive in the exercise of the general welfare clause, the Supreme Court ruled as follows:

“To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the President’s residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the President’s duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President’s duty to take care that the laws are faithfully executed [see Hyman, The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President]”. (Marcos v. Manglapus, G.R. No. 88211 September 15, 1989, underlining supplied).

Indeed, this doctrinal-ruling of the Philippine Supreme Court in Marcos v. Manglapus definitively teaches that the powers of the chief executive are not only confined to those expressly stated by law but also to those implicit from the one’s specifically mentioned. This echoes one of the most powerful dissents ever dished out in jurisprudential history which runs, thus:

“The question is not whether there is a power, but whether there is a prohibition”. (Justice Oliver Wendell Holmes).

So goes the nature of the general welfare clause-it envisages a power that is not only patent, but also latent, and those spoken and unspoken. The city mayor is the chief executive of Iloilo City as a local government unit to whom the Local Government Code of 1991 (Republic Act No. 7160) had profoundly granted the powers to protect the general welfare. His powers are not circumscribed by those enumerated in an executive order or an ordinance but also those necessarily included in the interest of public welfare.

Metaphorically speaking, this power of the chief executive is akin to ogling at the moon while strolling at the Esplanade: we see not only the full bright moon, but also its penumbra (or aura or shadow around it). It is the same as the powers of the chief executive in the exercise of the general welfare clause.

The executive powers are not limited to the moon-they include what may be found along its penumbra.

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).