(For the Repeal of Ordinance No. 5, S.

2008 of the Provincial Government of Negros Oriental)

In December of 2008, the Provincial Board of Negros Oriental passed Ordinance No. 5 series of 2008 entitled An Ordinance Regulating Outreach Activities Through Medical and Factfinding Missions in the Countryside of Negros Oriental and for other purposes . Copies of Resolution No. 1026 and Ordinance no. 5 are attached for reference. The following year, the Human Rights Committee of the NEGORNET requested the Dr. Jovito Salonga Law, Center for Development Studies and National Union of Peoples Lawyers for their legal opinion on the matter. Both essentially agreed that the ordinance is constitutionally infirm.

At the initiative of Negros Oriental-based non-government organizations and Community Empowerment Resource Network or CERNET, a dialogue was conducted in the same year between the stakeholders and the Provincial Board of Negros Oriental. After much discussion on the merits of the ordinance, and the constitutional issues involved, the Provincial Board essentially agreed to suspend the implementation of the ordinance while inviting the civil society to take part in its review.
Recent developments however revealed that the ordinance is being implemented by the military. Human rights and development workers doing their work in different municipalities have reportedly been stopped and harassed by soldiers who demanded seeing a permit issued under the aforementioned ordinance.

Already, two separate cases for violation of the ordinance had been filed against three human rights workers and are pending before the inferior court in Sta. Catalina, Negros Oriental.
These developments render it imperative for us to restate our opinion on the matter as we reaffirm our unity on the issue of its unconstitutionality and earlier call for the Provincial Board to repeal the same. We thus reiterate our position that the ordinance is unconstitutional and invalid on the following grounds, to wit:

The ordinance is an invalid exercise of police power.

It is true that the Province of Negros Oriental, as a local government unit, has police power under the Local Government Code. As such, it can pass and enforce ordinances to promote the general welfare of the public. However, this power is by no means unlimited, limited as it is by national laws, the 1987 Constitution and the international human rights instruments signed by the government. The State may interfere wherever the public interests demand it, and in this particular area, large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests (Barbier vs. Connoly, 113 U.S., 27).

To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interest of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive but is subject to the supervision of the courts. (US vs. Toribio, 15 Phil. 85) The stated purposes of the Ordinance are to provide protection to civilian persons in times of war or armed conflict; to protect or rehabilitate civilian persons especially children gravely

Threatened or endangered by circumstances which affect or will affect their survival and normal development and over which they have no control.

Assuming for the sake of argument that there is a valid public interest involved, a close perusal of the provisions of the ordinance reveals that the means to be undertaken to attain the above stated purposes are NOT reasonably necessary for the accomplishment of the said purposes and are in fact unduly oppressive on individuals.
In particular, Section 5 to 11 do not seek to protect civilians or children but rather to fully control, unjustifiably, the missions being conducted.

Further, the reasonable relation between the requirements and the purpose set forth therein does not simply exist. The registration, inspection, listing of the members of the mission, and even the penal clause provided for violations of the said provisions are not reasonably necessary for the attainment of the stated purposes. In fact, the provisions are unduly oppressive on those who will conduct humanitarian missions.

The ordinance is redundant.

The requirements imposed by the subject ordinance on legitimate and accredited non-government organizations in Negros Oriental are unnecessary impositions, and duplicate needlessly the requirements already complied with by said nongovernment organizations with government agencies, eg. SEC.

The ordinance violates the right of citizens to travel.

The ordinance violates the right of the people to travel under the Constitution and the International Bill of Human Rights, which includes the Universal Declaration on Civil and Political Rights. Under the 1987 Constitution, it may only be impaired in the interest of national security, public safety, or public health, as may be provided by law. As of this instant, the Congress has not enacted any law specifying the circumstances when the right may be impaired in the interest of national security or public safety.

The ordinance is vague. The ordinance is vague as to what it really wants to achieve and in fact lacks sufficient definiteness or specificity. The purposes and the means provided are vague in that they do not actually have any relationship to each other. It seeks to ..provide protection to civilian persons in times of war or armed conflict by regulating humanitarian and other missions, and yet, why are the human rights and development workers being harassed by the military when in fact the ordinance aims to protect them being civilian persons as well? It runs afoul of the due process clause of the Constitution as it fails to give adequate guidance to those who would be lawabiding, to advise defendants of the nature of the offense with which they are being charged, or to guide courts in trying those who are accused. It should be considered as void under the void for vagueness rule.

The ordinance will discourage NGO activities that benefit deprived communities
The activities sought to be regulated are most often conducted by human rights or development workers belonging to nongovernment organizations (NGOs) who are already accredited by the provincial government and other government agencies. NGOs are vital actors in the society. The government cannot adequately address the complex needs of the people, especially of those who are under-represented, marginalized or belong to the minorities and it is the NGOs who fill in the gap by providing direct services to under-serviced communities, teaching new skills and raising awareness of people in depressed areas. Discouraging NGOs to do their work in neglected or under-serviced communities will further deprive

them of services, skills, and information vital to their empowerment.

Besides, such an unwarranted and unreasonable interference on the legitimate activities of the nongovernment organizations as well as peoples organizations run counter to the provisions of Sec. 34, 35, 36, Chapter 4 of the Local Government Code of 1991 and Section 23, Article II of the 1987 Philippine Constitution. Under the foregoing provisions, the State is mandated to encourage nongovernmental, community-based, or sectoral organizations that promote the welfare of the nation. Further, the local government units are even mandated to promote the establishment and operation of peoples and nongovernmental organizations to become active partners in the pursuit of local autonomy.

IMMEDIATELY REPEAL ORDINANCE no. 5

From the foregoing, the undersigned civil society organizations, institutions and individuals hereby call upon the Honorable Office of the Governor and the Sangguniang Panlalawigan of Negros Oriental to immediately repeal Ordinance No. 5 on the grounds herein before discussed. Done on this 17th day of November 2011.

Signed by:
Mons. Merlin Logronio Chairperson, NEGORNET

Mr. Greg Fernandez General-Secretary, YMCA Dumaguete City

Atty. Arturo Umbac President, YMCA

Ms. Nancy Estolloso, Executive Director, TUBURAN Ms. Cecilia Hoffman Vice-Chairperson, GWAVE Atty. Sheena Alesna Executive Director, GWAVE Atty. Pristine Raymund IBP, Negros Oriental

Atty. Janette Icao Senior In-House Counsel, GWAVE Atty. Joel Obar Chairperson, NUPL Negros Oriental Atty. Alfonso Cinco IV Vice-Chairperson NUPL Visayas
Mr. Miguel Cabilao Executive Director, PAGBAG-O

Dr. Muriel O. Montenegro Executive Director, JPC- Silliman University Ms. May Macapobre Local Center Coordinator, FARDEC Ms. Melvin Koerkamp Coordinator, RMP Negros Or.
Dr. Fe Wale M.D Silliman University Extension Program

Dr. Oliver Gimenez, M.D Executive Director, CERNET