Knights of Rizal v DMCI (SolGen Comment) (2015 09 21)

7/23/2019 Knights of Rizal v DMCI (SolGen Comment) (2015 09 21)

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MEMORANDUMKnights of Rizal v. DMCI Homes, Inc., et al.G.R. No. 213948Page 2 of 46

impairment, the Constitutions policy is unquestionably in favor of

conservation and protection.

Propriety. The rule of law also requires that courts step in to invalidate

acts done contrary to the clear mandate of the law and prevent erring parties

from benefiting from their illegal acts. The Honorable Court is not without

power to pierce the veil of void permits that were used to construct Torre de

Manila, unlawfully creating facts on the ground which are now being used as

practical justification against the proper application of the law.

II.

PROCEDURAL POSTURE

The present case was originally a petition for injunction with prayer for

the issuance of a temporary restraining order and/or writ of preliminary

injunction filed by petitioner Knights of Rizal (KOR) before this Honorable

Court seeking to halt the construction of the Torre de Manila condominium

project of private respondent DMCI Homes, Inc. (DMCI) in the City of

Manila.1The petition sought the immediate and complete demolition of the

said Torre de Manila condominium project,2 and the issuance by this

Honorable Court of a Writ of Pamana

(Heritage) or a Writ of Kasaysayan

(History) as a legal remedy for the protection of the citizens right to all the

countrys artistic and historic wealth [which] constitutes the cultural treasure of

the nation.3

In a Resolution dated 25 November 2014, this Honorable Court

resolved to treat the petition as one for mandamusunder Rule 65 of the Rules of

Court and impleaded the City of Manila, the NCCA, the NM and the NationalHistorical Commission of the Philippines (NHCP) as respondents in the case.

III.

STATEMENT OF RELEVANT FACTS AND

OTHER RELEVANT PROCEEDINGS

1. On 1 September 2011, respondent DMCI acquired a 7,716.60

square meter (sq.m.) lot in Taft Avenue, Ermita, Manila for its condominium

project, the Torre de Manila. This building is situated between the former

Manila Jai-Alai Building on Taft Avenue and the Adamson Walkway, and about

sixty (60) meters from the Rizal Park, Manila.

1 Petition, at 25.

2

Id.3

Id.at 3.


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2. On 19 June 2012, the City of Manilas City Planning and

Development Office (CPDO) issued DMCI a zoning permit (locational

clearance), a one-page document which states that the Torre de Manila iswithin the University Cluster Zone. The zoning permit also provides that the

Torre de Manila has a proposed floor area of 97,549 sq.m. and a land area of

7,475 sq. m.

3. Amidst the mounting objections by the public to the construction

of the Torre de Manila, the Manila City Council formed a joint committee to

look into the controversy. The Manila City Council invited the NHCP Chair or

her duly authorized representative to a hearing on the Torre de Manila

condominium project, considering the fact that it was constructed near the statue of ournational hero Dr. Jose P. Rizal, which is a historical and heritage site.4

4. During the 22 June 2012 hearing, it was reported that NHCP

made representations that the Torre de Manila violated the NHCP Guidelines

on Monuments Honoring National Heroes, Illustrious Filipinos and Other

Personages (NHCP Guidelines).5

4OSGs Consolidated Comment dated 12 January 2015.5

The report was made in the online news portal Rappler last 6 November 2013, long beforethe present petition was filed. Available at http://www.rappler.com/nation/43012-nhcp-backs-off-torre-de-manila-issue, last accessed on 12 September 2015. Relevant parts of thereport narrate

NHCP flipflops

When NHCP attended the June 22, 2012 hearing on Torre de Manila, theirposition was clear: Torre de Manila violates NHCP guidelines on monumentshonoring national heroes.

In fact, according to Bagatsing who was present at the hearing, the NHCP

representatives Wilkie Delumen and Crisanto Lustre presented the guidelinesas basis for why DMCI's project should not push through.

But 6 months after the presentation, NHCP changed its stance.

NHCP Chairperson Maria Serena Diokno wrote to DMCI consultant AlfredoAndrade that DMCI need not worry about NHCP condemning the project.

Your project site is outside the boundaries of the Rizal Park and well to therear of the Rizal National Monument, hence it cannot possibly obstruct thefront view of the said National Monument, she wrote in the Nov 6, 2012

letter obtained by Rappler.

But in the next line, Diokno recommended that Manila City Hall enact anordinance designating a buffer zone around Rizal Park and prescribingguidelines building development to prevent the recurrence of a similardilemma in the future.

Bagatsing, who was counting on NHCP to support a dialogue between DMCI


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5. While the hearings conducted by the Manila City Council were

ongoing, DMCI filed its application for a building permit before the City of

Manilas Office of the Building Official (Building Official) on 5 July 2012,which the Building Official granted on the same date. The building permit

allowed DMCI to construct a Forty Nine (49) Storey [Building] w/ Basement

& 2 Penthouse Resl/Condominium.

6. On 24 July 2012, the Manila City Council adopted Resolution No.

121, series of 2012, enjoining the Building Official to temporarily suspend the

building permit issued to DMCI until an acceptable development design is

approved upon proper compliance with the standards and policy guidelines set

by the National Historical Commission. Resolution No. 121 noted that theTorre de Manila ruin[ed] the line of sight of the Rizal Shrine from the frontal

Roxas Boulevard vantage point.

7. On 22 August 2012, DMCI Vice President Gerard S. Ancheta

wrote to NHCP, requesting for a certification that the Torre de Manila project

is not part of the Heritage Zone[,] thus exempting it from the guidelines and

provisions stipulated in Republic Act No. 10066-National Cultural Heritage

Act of 2009 (NHCP Certification).

8.

On 30 August 2012, Building Official Melvin Balagot sought the

Manila City Legal Officers opinion on whether he was bound to comply with

Resolution No. 121.

9. In a legal opinion dated 12 September 2012, Manila City Legal

Officer Renato G. Dela Cruz stated that the building permits temporary

suspension was unjustified inasmuch as: (1) the Torre de Manila project lies

outside the Luneta Park; (2) the Luneta Park has not been declared as an

anthropological or archaeological area, a heritage zone, a cultural property, a

historical landmark, or a national treasure; (3) the Rizal Monument is not listed

in the NCCAs Registry of Philippine Cultural Property; and (4) the concerned

cultural agencies have not yet issued a cease and desist order against the Torre

de Manilas construction.

10. In a letter dated 26 September 2012 addressed to NHCP, Ancheta

reiterated DMCIs request for the NHCP Certification.

and stakeholders, was baffled by the agencys sudden backing off.

To pursue the issue, he called NHCP Executive Director Ludovico Badoy butonly got exasperated.

I called him and asked, Sir, whats your take on this project? I got shockedbecause he said he was for it, Bagatsing told Rappler.


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11. On 10 October 2012, then Officer-in-Charge of the CPDO Resty

A. Rebong wrote to DMCI, stating that while the latter exceeded the maximum

Floor-Area Ratio (FAR) under Ordinance No. 8119, the CPDO granted DMCIa zoning permit because the provision on height limitations and/or FAR

provisions in [Ordinance No. 8119] were suspended by the executive branch,

for it opted to follow the National Building Code.

12. A day after, NHCP received an Indorsement from the Presidential

Action Center, Office of the President, referring DMCI Consultant Alfredo

Andrades letter dated 13 September 2012, which asked for assistance in its

request for the NHCP Certification.

13.

On 19 October 2012, the NHCP Board decided to advise the City

of Manila to designate a buffer zone around the Rizal Park. The Board,

however, agreed that it has no basis to prevent the construction of the Torre de

Manila since it does not obstruct the Rizal Monuments front view.

14. On 6 November 2012, NHCP Chair Maria Serena Diokno wrote

to Andrade to say that

The NHCPs Guidelines on Monuments Honoring National Heroes,

Illustrious Filipinos and Other Personages seek to preserve the prominenceand dominance of monuments, partly by keeping vista points and visual

corridors to monuments clear for unobstructed viewing appreciation and

photographic opportunities. Your project site is outside the boundaries of

the Rizal Park and well to the rear (789 meters, according to Mr. Achite) ofthe Rizal National Monument; hence it cannot possibly obstruct the front

view of the said National Monument. To prevent a recurrence of a similar

dilemma in the future, the NHCP will recommend to the City Governmentof Manila the enactment of an ordinance designating a buffer zone around

Rizal Park and prescribing guidelines regulating building development.

15.

In a letter dated 7 November 2012 to Building Official Balagot,NHCP Executive Director Ludovico D. Badoy reiterated Chair Dioknos

position that the Torre de Manila is outside the boundaries of the Rizal Park

and well to the rear (789 meters) of the Rizal National Monument; hence it

cannot possibly obstruct the front view of the said National Monument.

Badoy further recommended to the City of Manila the enactment of an

ordinance designating a buffer zone around Rizal Park and prescribing

guidelines regulating building development.

16.

On 21 March 2013, the Manila City Council enacted OrdinanceNo. 8310, series of 2013,6or the Historical and Cultural Monuments Preservation

and Protection Ordinance of the City of Manila,which aims to regulate any

construction and/or development that would impair and/or ruin the vicinity or

6

City of Manilas Position Paper dated 15 July 2015.


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line of sight/view/vista of all historical and cultural sites/monuments situated

in the City of Manila. However, the same was vetoed by Mayor Alfredo Lim on

12 April 2013 for being ultra vires, without any further explanation.

17. On 15 April 2013, NHCP declared the Rizal Monument as a

National Monument that must be protected and preserved as part of the

national patrimony.7 On 14 November 2013, NM declared the Rizal

Monument in the Rizal Park as a National Cultural Treasure through Museum

Declaration No. 9-2013.

18. On 26 November 2013, during the administration of incumbent

Mayor Joseph Ejercito Estrada, the Manila City Council passed Resolution No.

146, series of 2013,8urgently enjoining the City Building Official of Manila to

temporarily suspend the building permit of the highly controversial Torre de Manila

condominium project, in the light of the recent public outcry of nearly 8,000 concerned citizens,

in order to give due course to their meritorious submitted petition.

19. According to the Manila City Council, the local Oversight Ad Hoc

committee found zonal law violations under City Ordinance No. 8119,

pertaining to floor area ratio and height restrictions within a

University/Institution Cluster Zone, and, inspite of enacted measures of the

City Council, such as Resolution No. 121, series of 2012, to curtail its

construction, DMCI had brazenly continued to build their proposed 41-storey

Torre de Manila condominium and pre-sell some units.9

7NHCP Resolution No. 5, series of 2013.8

City of Manilas Position Paper dated 15 July 2015.9

The relevant portions of Resolution No. 5, series of 2012, provides:

WHEREAS, the Park is a main tourist attraction of the City ofManila, where tourists, both local and foreign, flock in droves to bask in theparks many features, including the most important Rizal Monument, theprimal focal point and central destination;

WHEREAS, DMCI Homes, one of the largest constructionconglomerate in South East Asia, was hastily granted a building permit by theCity Building Official of Manila on July 5, 2012 whilst in the middle of an on-going City Council investigation and amidst serious protest from theNational Historical Commission (NHC), the Department of Tourism

(DOT), the National Parks Development Committee (NPDC), the Knightsof Rizal, and concerned heritage/conservation groups;

WHEREAS, DMCI Homes began to build the 41-storey Torre DeManila Condominium Complex in Taft Avenue and has already started pre-selling units in advance months ago;


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20. On 18 December 2013, DMCI President Alfredo R. Austria wrote

to Mayor Joseph E. Estrada, requesting the latter not to suspend DMCIs

building permit pending compliance with the required procedure. He explainedthat had DMCIs application for zoning permit been denied, [DMCI] could

have gone through the process of appealing to the local zoning board, if any

was then constituted, and applied for an exemption from the city council.

21. Mr. Austria added: [n]evertheless, should it be necessary that we

comply, we are willing to undertake the necessary steps to conform therewith.

We humbly request your good office, however, not to suspend our building

permit pending our compliance with the required procedure.

22.

There appears to be nothing on record to show that DMCI

undertook the necessary steps under City Ordinance No. 8119 to seek an

exemption.

23. On 23 December 2013, the Manila Zoning Board of Assessment

and Appeals (MZBAA), acting on the abovementioned request-letter, issued

Resolution No. 6, series of 2013, recommending the exemption of the Torre de

Manila from the FAR limit. On 8 January 2014, the MZBAA issued Resolution

No. 06-A, amending the conditions set forth in Resolution No. 06. Parts of the

resolution state

WHEREAS, the CPDO Evaluation Worksheet for Zoning PermitProcessing reveals that the Project exceeds the prescribed maximum

Percentage of Land Occupancy (PLO) and exceeds the prescribed Flor Area

Ratio (FAR) as stipulated in Article V, Section 17 of City Ordinance No.

8119.

24. On 16 January 2014, the Manila City Council issued Resolution

No. 5, series of 2014: (1) adopting MZBAA Resolution Nos. 06 and 06-A, and

(2) ratifying all permits, licenses, and approvals previously issued by the City ofManila for the construction of the Torre de Manila.

25. On 6 August 2014, Senator Pia Cayetano filed Senate Resolution

No. 824, directing the appropriate Senate committee to look into, in aid of

legislation, the construction of the Torre de Manila in the City of Manila. A

series of committee hearings were conducted on 27 August, 4 September, and

25 September 2014. Among the resource persons invited during the course of

the Senate hearings were the respective heads of respondents NCCA, NHCP,

and NM.

26. In a Position Paper dated 27 August 2014 submitted to the Senate

Joint Committees on Education, Arts & Culture and Urban Planning, NHCP

Chair Diokno admitted that while the Torre de Manila visually obstructs the


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vista of the Rizal Monument in Rizal Park, Manila, the NHCP nonetheless

could not find a legal leg to stand on in stopping [its] construction. Thus:

In the case of the Torre de Manila Condominium, the visual

corridor is adversely affected but the structure is well outside any

conceivable buffer area. The Torre condominium stands about 450 meters

from the end of the Rizal Park facing Taft Ave., way beyond the standard 10-

meter radius. We do not have a buffer zone as large as 450-meter radius and

cannot imagine any local government agreeing to a buffer area this large.

The issue is which takes precedence: the visual corridor or the buffer

zone? If the first, then no tall building could ever be constructed because, asin the case of Torre de Manila, the structure could stand 100 meters fa[r]ther

away from its present site or even farther, and it would still be seen. Even as

we wish to uphold the vista, however, there would still have to be a zone

area. Otherwise, we would have to legislate categorically that no tall buildingsare ever and forever allowed in identified areas. At the moment, obviously,

no such law exists.

For this reason, the Commission could not block the construction of

the Torre condominium, not because of any lack of appreciation of the

vistathe Commission does find that the condominium structure

visually obstructs the vista and adds an unattractive sight to what was

once a lovely public imagebut because the NHCP could not find a legal

leg to stand on in stopping the construction.10

27. On 12 September 2014, the Knights of Rizal (KOR) filed a

Petition for Injunction before the Honorable Court, seeking to enjoin the

construction of the Torre de Manila on the grounds that: (a) the Rizal

Monument is entitled to full protection of the law as a declared National

Cultural Treasure; (b) the Torre de Manila is a nuisance per se that should be

summarily abated; and (c) the Torre de Manila is being constructed in bad faith

and in blatant violation of Ordinance No. 8116.

28.

In a Resolution dated 25 November 2014, the Honorable Court

treated the Petition for Injunction as one for mandamus, and impleaded the City

of Manila, NHCP, NM, and NCCA as respondents.

29. On 25 January 2015, NCCA issued a Ceast and Desist Order

against DMCI-Holdings, Inc. from constructing the Torre de Manila until

such time as the commission can make the declaration of whether or not there

[is] actual destruction and if such destruction warrants a permanent cease and

desist order.

10Emphases supplied.


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30. In a Resolution dated 16 June 2015, the Honorable Court, voting

8-5,11 issued a Temporary Restraining Order against the construction of the

Torre de Manila, and set the case for oral arguments on 30 June 2015.

31. In an Advisory received by the OSG on 10 July 2015, the

Honorable Court, among others, required the parties to submit their respective

Position Papers addressing the issues enumerated therein not later than 15 July

2015.

32. On 15 July 2015, the OSG moved that the deadline for filing the

Position Paper be extended to 14 August 2015, and the oral arguments be reset

at least thirty (30) days from the 21 July 2015 schedule.

33. Prior to the filing of its Position Paper on 30 July 2015, the OSG

met with the NHCP, NCCA, and NM to inform them that the OSG had taken

a second look at the merits of the case and had decided to reconsider the

governments position. Notably, while NM and NCCA agreed with the

governments reconsidered position, NHCP Chair Diokno maintained that the

NHCP, as a matter of law, cannot do anything about the Torre de Manila.

34. On 30 July 2015, the Solicitor General wrote to Chair Diokno

requesting, among others, for a resolution from the NHCP Board officiallyobjecting to the governments official position so that the proper manifestation

may be filed with the Honorable Court.

35. On 3 August 2015, the OSG received a letter from the NHCP

Board, officially expressing that it is maintaining the position stated in the

OSGs Consolidated Comment dated 19 December 2014. On 4 August 2015,

the OSG filed a Manifestation, praying that the NHCP Boards letter be noted.

36.

On 7 August 2015, NHCP filed an Entry of Appearance withUrgent Motion for Clarification praying that: (1) the entry of appearance of

Attys. Jose Manuel I. Diokno and Jose Y. Dalisay, III, as counsel for NHCP, be

recognized; and (2) the Solicitor Generals representation of NHCP and the

status of the OSGs Consolidated Comment be clarified. On 11 August 2015,

the Honorable Court required the OSG to comment on NHCPs Urgent

Motion for Clarification within five (5) days.

11Eight Justices voted to issue the TRO: Associate Justices Presbitero J. Velasco, Jr., ArturoD. Brion, Teresita J. Leonardo-De Castro, Lucas P. Bersamin, Martin S. Villarama, Jr., JoseC. Mendoza, Estela M. Perlas-Bernabe, and Francis H. Jardeleza. Five Justices voted againstthe issuance of the TRO: Chief Justice Maria Lourdes P.A. Sereno, and Associate JusticesAntonio T. Carpio, Mariano C. del Castillo, Jose P. Perez, and Bienvenido L. Reyes.Associate Justices Diosdado M. Peralta and Marvic Mario Victor F. Leonen were on leave.


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37. In its Manifestation in lieu of Comment dated 14 August 2015,

the OSG stated that: (1) it can neither represent the NHCP in this case, nor

can it collaborate with the NHCPs counsel because the NHCPs position iscontrary to the interests of the government; and (2) the OSGs Position Paper

dated 30 July 2015 amends, mutatis mutandis, the Consolidated Comment it filed

on 12 January 2015.

IV.

ISSUES

A.

WHETHER THE SIGHTLINE OF THE RIZAL

MONUMENT IS LEGALLY PROTECTED

B. WHETHER THE PERMITS OBTAINED BY DMCI

ARE VALID

C. WHETHER MANDAMUS MAY ISSUE

V.

ARGUMENTS

A. THE SIGHTLINE OF THE RIZAL MONUMENT

IS LEGALLY PROTECTEDIT CONSTITUTES

PART OF THE CULTURAL COMMONS OF THE

REPUBLIC

1. NHCP has a lready dec lared that the

s i ght l ine o f the Rizal Monument has been

impaired .

2. The Const i tut ions conservat ioni s t and

protectionist policies constitute broad mandates to

conserve and prot e c t cu l tura l ar t i fa c t s .

3. R.A. No. 10066 25 and R.A. No.

10086 cover the prot e c t i on o f s i ght l ines .

B.

THE PERMITS OBTAINED BY DMCI ARE VOID

1.

DMCIs zoning permi t i s void .

2. DMCIs building and business permits are void.

3. Mani la Ci ty Counc i l Resolut ion No. 5

cannot rat i fy DMCIs void permi t s .


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4. DMCI knew i t s permi t s were void .

C.

MANDAMUS MAY ISSUE

VI.

DISCUSSION

A.

THE SIGHTLINE OF THE RIZAL MONUMENT IS

LEGALLY PROTECTEDIT CONSTITUTES PART OF

THE CULTURAL COMMONS OF THE REPUBLIC

1.

NHCP has a lready dec lared that the s i ght l ine o f the

Rizal Monument has been impaired .

38. The government entirely agrees with the position of NHCP on

factual matters within its competence(a) the determination of the existence of

the sightline (or vista, vista points, or visual corridor) of the Rizal Monument,

and (b) the question whether that sightline has been impaired by the presence

of the Torre de Manila.

39. In its Position Paper dated 27 August 2014 submitted to the

Senate Joint Committees on Education, Arts & Culture and Urban Planning,

NHCP Chair Diokno took the position that the Torre de Manila visually

obstructs the vista of the Rizal Monument in Rizal Park, Manila:

In the case of the Torre de Manila Condominium, the visual

corridor is adversely affected but the structure is well outside any

conceivable buffer area. The Torre condominium stands about 450 metersfrom the end of the Rizal Park facing Taft Ave., way beyond the standard 10-

meter radius. We do not have a buffer zone as large as 450-meter radius and

cannot imagine any local government agreeing to a buffer area this large.

For this reason, the Commission could not block the construction of

the Torre condominium, not because of any lack of appreciation of the

vistathe Commission does find that the condominium structure

visually obstructs the vista and adds an unattractive sight to what was

once a lovely public imagebut because the NHCP could not find a legal

leg to stand on in stopping the construction.12

40. The position of NHCP before the Senate therefore presents its

complete position on the Torre de Manila controversy, and explains away the



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vagueness of its letter dated 6 November 2012 where it stated that Torre de

Manila cannot possibly obstruct the front view of the Rizal Monument.13

41.

The clear import of the NHCPs Position Paper is two-fold:

a) the Rizal Monument has a sightline; and

b) Torre de Manila impairs the sightline of the Rizal

Monument, whatever its metes and bounds may be.

42. First, the factual determination of NHCP that the Rizal

Monument has a sightline is crucial because not all monuments have

sightlines.14

13During the 1 September 2015 Oral Arguments, Justice De Castro and Atty. Diokno hadthe following exchange:

JUSTICE DE CASTRO:I noticed that there were two letters sent, two separate letters sent by yourCommission. On November 6 you wrote Mr. Andrade, the consultant ofDMCI and you had a very clear idea on what the issue was all about. You

mentioned its not about obstructing the front view because the issue wasabout the background, the back view of the monument and you also said thatthe issue is not about if it is within the boundary of a historical site, that isnot the issue you mentioned so you knew what the problem was all aboutand yet you did not deal with the problem. You did not say anything aboutthe issue of Torre de Manila obstructing the background of the RizalMonument when you precisely knew that that was the conflict and theposition of the City of Manila was that, at that time, was that it will ruin theimage of the Rizal Monument. But you did not mention anything about it.You did not make any opinion. Even if your opinion is not binding, why didyou not make an opinion? In the same way that you sent an opinion to theSenate and if you only gave an opinion, the same opinion you gave to theSenate, the City would have backed off from issuing or from ratifying thebuilding permit. But you didnt say, you only said that for the future, youthink that the City of Manila should identify a buffer zone.

ATTY. DIOKNO:May I respond to that?

JUSTICE DE CASTRO:We understand that it is not for you to dictate but when your opinion isasked as the National Historical Commission is mandated to issue guidelines,dont you think it was your duty to render an opinion as to the issue that you

were precisely able to identity in your letter to DMCI?

14 Not all monuments have or were meant to have a sightline. The existence or presence of asightline would depend on the intention of the artists and designers, the location of themonument, the structures already existing at or around the area of the monument, the sizeand prominence of the monument itself, and its ensuing history. The Bonifacio Monumentin Grace Park, Caloocan, for example, sits in a rotunda, and would have no legally protectedsightline. Another example would be the Ninoy Aquino Monument at the Ayala


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43. Second, there is a need to highlight the importance of these

conclusions by NHCP if only to underscore the fact that there is no need for

the Honorable Court to determine the metes and bounds of the sightline of theRizal Monument.15Thus, for purposes of this litigation, the Honorable Court is

Triangle.The monument, surrounded by tall, prominent buildings that have existed longbefore it was made, was clearly meant to have no sightline.

15 During the 1 September 2015 Oral Arguments, Associate Justice Carpio and SolicitorGeneral Hilbay had the following exchange:

JUSTICE CARPIO:How far from where you stand to the monument is protected?

SOLICITOR GENERAL HILBAY:Again your Honor, what we are saying is there is no need for the Court todetermine the metes and bounds of the sightline. But when you stand infront of that sightline, you can...

JUSTICE CARPIO:What if now the Rizal Park will construct a tall building across the street ofthe Rizal Monument? Does that mar the sightline?

SOLICITOR GENERAL HILBAY:Again, your Honor...

JUSTICE CARPIO:If because... there is Roxas Boulevard.

SOLICITOR GENERAL HILBAY:Yes, your Honor.

JUSTICE CARPIO:Now if the Rizal Park Management will put up a building on the other sideof the street is that a violation of the sightline?

SOLICITOR GENERAL HILBAY:

Well your Honor, certainly not because it doesnt impair the sightline of theRizal Monument which is front facing.

JUSTICE CARPIO:So you when you say sightline, when you are standing just

SOLICITOR GENERAL HILBAY:In front of the Rizal Monument.

JUSTICE CARPIO:In front. How far in front?

SOLICITOR GENERAL HILBAY:Your Honor, the ordinary person looking at the Rizal Monument wouldstand in front of it. I think the physics of the monument itself allows you acertain leeway where you can stand in front of the monument

JUSTICE CARPIO:How far? Because you are now saying it is protected by law but the law hasto be specific. How far?


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bound to respect the NHCPs affirmative, categorial answer to the question

whether the Rizal Monuments sightline has been impaired.

44.

To be sure, the Court is not being asked in this case to legislate

as if it were the Congressfor future purposes, the boundaries of the sightline

of the Rizal Monument. That is the function of the City of Manila and of the

concerned national agencies, consistent with their existing mandate.

45. Instead, the Honorable Court is only being asked, in this actual

case and controversy, to adjudicate the specific legal question whether, given

the NHCPs finding of fact that the sightline of the Rizal Monument has

already been impaired, R.A. No. 10066 and R.A. No. 10086 provide legal bases

for the Court to issue an appropriate legal relief to remedy that impairment.

46. In any case, for the avoidance of error, the government agrees

with the NHCPs findings of fact even as it emphatically disagrees with the

NHCPs position that the situation we are in is damnum absque injuriathat

there is no law that can be invoked to remedy the impairment of the sightline

of the Rizal Monument. It is the position of the government that this legal self-

immolation is an abject refusal to perform a legal mandate and constitutes

grave abuse of discretion.

47. As was repeatedly stated by the government during the oral

arguments in this case, there is a clear need to distinguish the competence of

NHCP over matters of fact and its lack of competence over pure questions of

law, in particular, the meaning of the statute passed by Congress to implement

constitutional policy. The NHCP, after all, is not a legal department. Whether,

under the Constitution and our heritage laws, a legal remedy exists to undo the

SOLICITOR GENERAL HILBAY:The law your Honor doesnt say...

JUSTICE CARPIO:Yes.

SOLICITOR GENERAL HILBAY:It cannot in fact say.

JUSTICE CARPIO:The law when it says physical integrity, you, youre saying physical integrityincludes sightlines. But there are no standards how far the sightline shouldbe, correct?

SOLICITOR GENERAL HILBAY:In this particular case, your Honor, given the Rizal Monuments properties,you have to stand in front of the Rizal Monument and when you stand infront of the Rizal Monument, there can be no doubt that your view is marredand impaired.


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impairment to the sightline of the Rizal Monument is a question of law for the

Honorable Court to decide.

2.

The Const i tut ions conservat ioni s t and prot e c t i oni s t

pol i c i e s cons t i tut e broad mandates to conserve and prot e c t

cu l tura l ar t i fa c t s .

48. The Constitution declares that all the countrys artistic and

historic wealth constitutes the cultural treasure of the nation and shall be under

the protection of the State.16The accompanying mandate is for the State to

conserve, promote, and popularize the nations historical and cultural heritage

and resources.17

49. From the sparse language of these twin provisions, we can distill

conservationist and protectionist policies that are unique to the 1987

Constitution.18

50. The conservationist and protectionist policies of the Constitution,

existing as they do at a level of abstraction that makes them non self-

executory,19 are not, however, meaningless. While hortatory, they are,

nonetheless and at once, a source of legal insight and political meaning.

16CONST., Art. XIV, 16.17CONST., Art. XIV, 15.18Compared with the 1935 and the 1973 Constitutions, only the 1987 Constitution containsan express provision with respect to the conservation and promotion of historical andcultural heritage. The 1935 Constitution is silent on this matter while Art. XV, 9 (2) of the1973 Constitution broadly states that the Filipino culture shall be preserved and developedfor national identity.19

During the1 September 2015 Oral Arguments, Associate Justice Jardeleza and SolicitorGeneral Hilbay had the following exchange:

JUSTICE JARDELEZA:My first question is, I dont think you made a categorical statement on thestatus of Article XV of the Constitution. Is it or is it not a self-implementingprovision?

SOLICITOR GENERAL HILBAY:We do not believe, your Honor, that it is a self-implementing provision ofthe Constitution.

JUSTICE JARDELEZA:And if it is not self-implementing, what implements Section 15?

SOLICITOR GENERAL HILBAY:What implements Section 15 are all the heritage laws that we have right now,in particular 10066, 10086, and all other related laws.

JUSTICE JARDELEZA:


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51. Constitutional policies perform very important functions: they

admonish all government institutions, in particular, Congress, to enact enabling

law to transform such policies into detailed enforceable mandates; they provideboth meaning and interpretive direction to the language of the law; they declare

a sense of national priority; and they instill a sense of normative consciousness,

even duty, on citizens.

52. Thus, as a matter of principle, even in the absence of a statute, the

constitutional mandate to protect the countrys historic wealth and conserve

the nations historical and cultural heritage exists in relation to the Rizal

Monument, a cultural artifact that is undoubtedly part of the cultural treasure

of the nation. The existence of an implementing statute only serves to providethe practical mechanisms for such conservationist and protectionist policiesit

provides details to the Constitutions marching orders.

53. It also follows that the presence of a statute should entrench even

more the Constitutions conservationist and protectionist policies, providing

greater justification for the practical implementation of the Constitutions

mandate.

54. Whereas the Honorable Court has, in some cases, directly

enforced constitutional provisions that would otherwise have been interpreted

as non-self-executory, as in Oposa v. Factoran,20Manila Prince Hotel v. GSIS21and

Gamboa v. Teves,22the government in this case is only asking that the Honorable

Court interpret a statute consistent with the Constitutions conservationist and

So, your position would be 15 is not self-implementing and it is beingimplemented in terms of a statute passed by Congress all the heritage laws and I call your attention to Republic Act 10066 and Section 25. Yourtheory is physical integrity includes the protection of the sightline.

SOLICITOR GENERAL HILBAY:Our theory, your Honor, is that as a general principle we can and we shouldinterpret Section 25 to include in certain cases the protection of the sightlineof a monument when it comes to the protection of its physical integrity, as,again, as a general matter. And as, as applied to this particular case, given thatthe Rizal Monument has a sightline, that general application should be madewith respect to the Rizal Monument.

JUSTICE JARDELEZA:Yes, so... again just to clarify, again the sequence is: youre not staking a claimthat Section 15 is self-executing.

SOLICITOR GENERAL HILBAY:No, your Honor, in fact we believe that the law itself has been passed andthat law sufficiently implements Section 15.

20 G.R. No. 101083, 30 July 1993.21G.R. No. 122156, 3 February 1997.22G.R. No. 175579, 28 June 2011.


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60. Even more important, the logical consequence of the addition of

the phrase physical, social, legal to the conservationist and protectionist

mandate of the NHCP is that it is a textual rejection of DMCIs and NHCPsposition23equating physical integrity with mere physical structure.

61. The plain language of the law indicates that the mandate of

conservation of the NHCP goes well-beyond merely protecting the physical

structure of cultural artifacts. This is as it should be, considering that the

maintenance of the cultural significance of cultural property cannot simply be

equated with preserving the physical structure of an artifact.

62. In the case of the Rizal Monument, its cultural significance cannot

be equated with the existence of theMotto Stella. The special quality of the RizalMonument in Lunetaas opposed to all the other Rizal monuments all overthe world24is precisely its hallowed location, a sacred secular space if thereever was one. When outraged, shocked, and indignant Filipinos vent their furyover the loss of the sightline of the Rizal Monument, they are simply protestingthat a part of the cultural commons they used to enjoy, admire, respect, andreflect on has been appropriated for private use and profit.

63. Indeed, the additional clear evidence of this broad, if pragmatic,conception of conservation is found in relation to the definition ofpreservation in the charter of the NHCP, a concept defined in the NCHPcharter, not anywhere else

(q) Preservation refers to all activities that employ means to

control, minimize or prevent damage or deterioration to cultural property.

64. Thus, both DMCI and NHCP clearly mistake the distinction

between conservation and preservation, as embodied in the language of the

statute and consistent with both logic and the normative goals of conservation.

65.

Whereas preservation may very well be limited only to the idea ofpreserving the physical structure of a cultural property, conservation is

obviously a much broader concept. Whereas preservation is about

prevent[ing] damage or deterioration to cultural property, conservation

includes preventing the significant alteration [of a cultural property] from its

original state. Put otherwise, preservation is simply a sub-category of

conservation.

23

As stated by its private counsel, Atty. Jose Manuel I. Diokno during the oral argumentsdated 1 September 2015.!"There are 118 monuments and statues of Jose Rizal in the Philippines and 10 more

abroad. Available at:http://www.gmanetwork.com/news/story/314079/lifestyle/travel/pinoy-visits-118-rizal-monuments-in-phl; http://globalnation.inquirer.net/news/breakingnews/view/20090619-211392/10-Rizal-monuments-around-the-worldGordon, last accessed 27 July 2015.


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66. Considering the broad conservationist mandate of the NHCP, it is

the governments position that the protection of sightlines is certainly and

necessarily included in that mandate. When the law speaks of physical, social,legal preservation, restoration, reconstruction, protection, adaptation, or any

combination thereof, it means any conceivable form of conservation.

67. This means that when NHCP declaredboth in its Position

Paper before the Senate and during oral argumentsthat the sightline of the

Rizal Monument has been impaired, but has no legal justification to remedy

such damage to that cultural artifact, it acted outside of its jurisdiction because

it acted contrary to the conservationist and protectionist mandate of its own

charter.

b. The Concept of Physical Integrity.

68. The position of NHCP is that the impairment of the sightline of

the Rizal Monument is a problem of the City of Manila25and, insofar as it is the

concerned cultural agency in this case, damnum absque injuria and thus can no

longer be remedied. The government disagrees with this jurisdictional hand-

washing.

69.

Part and parcel of the NHCPs conservationist and protectionistmandate is its overlapping jurisdiction with local governments, which is implicitin the structure of laws relating to heritage, and expressed in both the LocalGovernment Code and in 25 of R.A. No. 10066. The fact assumes greaterimport when we consider that the Rizal Monument is a National Monumentand a National Cultural Treasure.

70. This concept of overlapping jurisdiction has for its obviouspurpose a double layer of protection to ensure the conservation of our culturaland artistic wealth. Section 25 thus consigns to both the appropriate cultural

25During the 1 September 2015 Oral Arguments, Dr. Diokno stated

DR. DIOKNO:May I respond, Your Honor? Let me first clarify. The property that we aretalking about here, the site of the Torre de Manila, is privately-ownedproperty. That entire swat of land is not part of the Rizal Park that wasdeclared as a National Heritage Site in 1995. It is well beyond. Thats fact 1.

Fact 2, the National Historical Commission has been very strict aboutconstructions on the park...but the property that was being constructed upon

is well outside the park. 450 meters from Taft Avenue when the legal bufferzone is 5 meters. Therefore, it was very clear to the Board of theCommission that any decision with respect to that portion was welloutside the jurisdiction of the National Historical Commission. Thathad to be determined by zoning ordinance or some regulation enactedby the City Government...


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that setting or landscape. This is true with respect to the Washington

Monument and the Rizal Monument.

26

27

26Photograph courtesy, and with the permission, of Mr. Paolo Alcazaren.27 Available at http://www.nps.gov/storage/images/wamo/Webpages/originals/408.jpg,last accessed 17 September 2015.


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76. The fact that these monuments have dominated the view of the

area is reflected in the shape of the park in which they are situated. One cannot

therefore separate the monuments from their vista which are integrated. Theintegrity of their physics that require conservation demand the protection of

the monuments and their accompanying vista which is the cultural artifact.

c. The Torre de Manila impairs the

sightline of the Rizal Monument.

77. The NHCP itself has made the determination that [i]n the case

of the Torre de Manila Condominium, the visual corridor is adversely affected and

that the condominium structure visually obstructs the vista and adds an

unattractive sight to what was once a lovely public image.28

78. This is consistent with the NHCPs own Guidelines on Monuments

Honoring National Heroes, Illustrious Filipinos & Other Personages,the relevant parts

of which provide

1. DOMINANCE

Monuments are landmarks of our cities, towns and provinces. They must be

honored, preserved and protected. Monuments should be given dueprominence since they symbolize national significance. For the purposes of

these guidelines, the Rizal National Monument in Luneta (Rizal Park, Manila)

and the Bonifacio National Monument (Caloocan City) are established asobjects of reference. The monument should preferably be the focal point of

a city or town center

Measures by which dominance could be achieved are the following:

b. Keep vista points and visual corridors to monuments clear forunobstructed viewing appreciation and photographic opportunities;

g. Use strong contrast between the monument and its background. This will

enhance the monument as a focal point of the site;

2. SITE AND ORIENTATION

A. SITE/SETTING the area or territory where a monument is found or

located. The setting is not only limited with the exact area that is directlyoccupied by the monument, but it extends to the surrounding areas

whether open space or occupied by other structures as may be defined bythe traditional or juridical expanse of the property.



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The International Charter for the Conservation and Restoration of

Monuments and Sites (The Venice Charter) further defines SETTING in

the following:

ARTICLE 1. The concept of an historic monument embraces not only

the single architectural work but also the urban or rural setting in which isfound the evidence of a particular civilization, a significant development

or an historic event. This applies not only to great works of art but also to

more modest works of the past which have acquired cultural significance

with the passing of time; and,

ARTICLE 6. The conservation of a monument implies preserving a

setting, which is not out of scale. Wherever the traditional setting exists, it

must be kept. No new construction, demolition or modification, whichwould alter the relations of mass and color, must be allowed.

79. The NHCP is, of course, bound by its own Guidelines, regardless

of its binding effect on others, and its Position Paper and its own findings that

the Torre de Manila obstructs the vista or adversely affects the visual corridor

of the Rizal Monument is a legitimate factual finding.

80. These pronouncements make sense because the Rizal Monument

was intended to be, and has always been, seen with a clear sightline (or vista or

visual corridor). One cannot therefore divorce theMotto Stellafrom the park inthe same way that one cannot divorce theMotto Stella from the sightline.

81. The physics of the Rizal Monument is such that the obelisk, the

bronze sculpture, and its sightline constitute a single piece of cultural heritage.

Stated differently, the sightline of the Rizal Monumenta front-facing

monumentis part of its physics. It therefore only follows that when that

sightline is impaired, the physical integrity of the Rizal Monument is likewise

impaired.

82. As a piece of art and as part of the nations history, the image

most Filipinos have of the monument is with its characteristic background of

clear sky. Pictures of the monument are often taken from its baseits viewing

platformfacing Rizal. To pay homage to (or simply just appreciate) the

monument is to stand in front of it.

83. This framed view of the monument is both historic and iconic. It

is the image Filipinos call to mind when thinking of the monument. It has been

memorialized in our postage stamps, in our history books, our currency, and inthe countless photographs by the millions of guests who have visited the

monument over the last hundred years. This framed view has always been part

of the aesthetic experience of the public, which makes it part of the cultural

commons of the Republic. This view, now gone, is part of the cultural treasure

of the nation.


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84. It is also this original state of the Rizal Monument that has been

subjected to significant alteration by the presence of Torre de Manila. So

when we speak of the Rizal Monument as a cultural artifact that theConstitution seeks to conserve and protect, we are talking about the Rizal

Monument as we used to see it.

29

85. In other words, when people say that the Rizal Monument has

been desecrated or ruined by the presence of Torre de Manila, the statutory

equivalent of that outrage is that the Rizal Monument has been significantly

altered from its original state due to the impairment to its sightline.

86. The sightline of the Rizal Monument is legally protected because

it is part of how those who view (offline and online) the Rizal Monument

appreciate the monument itself as a cultural artifact. And again, converting

public outrage into the language of the law, it cannot be said that the

impairment to the sightline of the Rizal Monument is damnum absque injuria

because, in legal contemplation, the construction of the Torre de Manila is

nothing less than the private appropriation of a part of the cultural commons

of the Republic.

87. If the words cultural treasure of the nation and cultural

heritage mean anything, it means that the Constitution has consigned to the

29 Decena, Ferdinand. Rizal Monument. 2 December 2006. Available athttps://www.flickr.com/photos/ironwulf/1408078866/, last accessed on 12 September2015.


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present generation the stewardship of the cultural commons of the Republic.

With particular reference to this case, it is therefore our legal obligation to

ensure that present and future generations be able to view the Rizal Monumentas it was meant to be seen and as it has always been seen, until the construction

of the Torre de Manila.

88. This is because what we bestow to future generations of citizens

of the Republic in the form of cultural heritage is not simply the Motto Stella,

but the transcendent experience of that particular Rizal Monument situated in

Luneta. Lest we forget, the Rizal Monument, and the park that cradles it, was at

the heart of the master urban architectural plan of Daniel Burnham for the

Philippines, which was meant to match the aspirations of the country as anemerging player in world affairs.30

d. The governments interpretation is

both reasonable and practical.

89. In arguing for the protection of the monuments sightlines,

respondents are simply forwarding an interpretation of our heritage laws,

consistent with the Constitutions conservationist and protectionist policies.

Choosing this interpretation is not controversial. The Honorable Court has, in

many cases, chosen to give the law a similar reasonable and practical

interpretation to enforce a constitutional policy or to promote a higher-level

policy.

90. In Risos-Vidal v. COMELEC,31 the Honorable Court rejected a

rigid and inflexible reading of Articles 36 and 41 of the Revised Penal Code as

it will defeat or unduly restrict the power of the President to grant an

executive clemency.

91.

In Manila Prince Hotel v. GSIS,32 the Honorable Court, given anarrow interpretation of the term national patrimony, chose instead to

interpret the term to include Filipino cultural heritage in order to promote the

Filipino First policy of the Constitution.

92. The Honorable Court also chose to give a flexible reading to 15

of Article VII of the Constitution in De Castro v. JBC33 in order to strengthen

the independence of the judiciary.

30The Centenary of the Rizal Monument, http://www.gov.ph/rizal-monument/, last accessedon 14 September 2015.31G.R. No. 206666, 21 January 2015.32Supranote 21.33G.R. No. 191002, 17 March 2010.


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93. In Gamboa v. Teves,34 the Honorable Court interpreted the term

capital in 11, Article XII of the Constitution to includeonly shares of stock

entitled to vote in the election of directors in order to give meaning to thebroader state policy to develop a self-reliant and independent national economy

effectively controlled by Filipinos.

94. In the instant case, the Honorable Court should choose the

governments interpretation because:

a) This is the interpretation consistent with the physics of

the Rizal Monument as an integrated unit, a unified

piece of cultural artifact;

b) This is the interpretation that will give practical

meaning to the conservationist and protectionist

policies of the Constitution; and

c) Applying the Precautionary Principle in environmentallaw by analogy, when human activities may lead to

threats of serious and irreversible damage to [cultural

heritage], actions shall be taken to avoid or diminish

that threat.35

e. On the national heros wishes and

the monument erected in his honor.

95. Dr. Jose Rizal, with knowledge of his impending death, wrote:

Bury me in the ground, place a stone and cross over it. My name, the date of my

birth and of my death. Nothing more. If you later wish to surround my grave with a fence,

you may do so. No anniversaries. I prefer Paang Bundok [the area where the Manila

North and Chinese Cemeteries now stand]36

96. Rizals wish for a simple grave and apparent distaste for

anniversaries to commemorate his death indicates an acute foreknowledge of

his martyrdom and reflects his knowledge of history. They are the measures of

the man we consider our national hero. His will, however, also bears no

relevance to this case.

97. The issue in this case is whether the monument built in honor of

Rizal has a legally-protected sightline, a part of our cultural heritage or cultural

34Supranote 22.35A.M. No. 09-6-8-SC (Rules of Procedure for Environmental Cases).36Ocampo, Ambeth R. Much ado about Torre: Rizal asked only for cross on tombstone, PhilippineDaily Inquirer, Commentary, 23 August 2015, http://opinion.inquirer.net/87853/much-ado-about-torre-rizal-asked-only-for-cross-on-tombstone, last accessed on 05 September2015.


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commons of the Republic. The Honorable Court is being asked to interpret

constitutional and statutory language, and choose between competing

interpretations. It is not here empaneled, as if in testate proceedings, to enactRizals will.

98. The patent logical disconnect between the attempt to relate the

legal question in the present case with Rizals will is such that if we were to

follow his will, we might even have to destroy the monument he did not wish

for himself. The apparent suggestion to turn the Rizal Monument towards the

east is even more disjointed, though perhaps reflective of a droll sense of

priority and progress.

99.

The reality is that the Rizal Monument was built by a grateful

nation in honor of a humble man who was selfless enough to sacrifice an

otherwise magnificently well-lived existence. The monument is an invocation to

Rizal as a national symbolit is not about him, but about us: it is about our

gratitude to the First Filipino and how his life continues to profoundly inspire

and exemplify our hopes and dreams as a people. The generation Rizal left

behind was impelled to embody this symbol in stone and metal, framed by the

bloodied ground of Bagumbayan and its expansive horizon.

100.

The monument has stood for more than a century. By legal fiat

and with the passage of time, it has acquired power and value independent of

the final wishes of Rizal the man, regardless of how the monument may

allegedly embody historical inaccuracies.

101. The monument was erected more than a hundred years ago by

popular subscription.37The people wished for a monument and funded it with

their donations.38 This subscription is renewed everyday by those who pay

homage to the monument, and who can no longer enjoy its sightline that has

been marred by a condominium.

102. In this case, the Honorable Court is simply being asked by the

government to provide legal relief to the private appropriation by DMCI of

what is otherwise publicthe cultural commons of the Republic.

B. THE PERMITS OBTAINED BY DMCI ARE VOID

1. DMCIs zoning permi t i s void .

37Act No. 243 dated 28 September 1901 entitled An Act granting the right to use public landupon the Luneta in the city of Manila upon the city of Manila upon which to erect a statue of Jose Rizal,from fund to be raised by public subscriptions, and prescribing as a condition the method by which suchsubscription shall be collected and disbursed.38The Centenary of the Rizal Monument, http://www.gov.ph/rizal-monument/, last accessedon 14 September 2015.


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a. On its face, DMCIs zoning permit

violates the FAR limit under

Ordinance No. 8119.

103. Section 63 of Ordinance No. 8119 provides

SEC. 63. Zoning Permit (Locational Clearance).All lot/land

owners/land developers and business establishments shall secure a zoning

permit (locational clearance) from the City Planning and Development

Officer for all conforming uses and, in cases of variances and exceptionsfrom the Sangguniang Panlungsodas per recommendation from the Manila

Zoning Board of Adjustments and Appeals (MZBAA) through the

Committee on Housing, Urban Development and Resettlements prior to

conducting any business activity or construction on their property/land.

104. Section 63 establishes the jurisdictional divide between the CPDO

and the Sangguniang Panlungsod, such that for all conforming uses it is the

former which is legally empowered to issue the zoning permit while, on the

other hand, for non-conforming usesvariances and exceptionsit is the

Sangguniang Panlungsodwhich is the issuing authority.

105. Obviously, if the CPDO issues a zoning permit for a non-

conforming use of propertyas it did in this casesuch permit is void,because it has been issued without authority. This is even more obvious in this

case because the determination of the FAR does not even require expertise,

given the simple formula involved.

106. In relation to this, 17 of Ordinance No. 8119 provides that

buildings within the Institutional University Zone, such as the Torre de Manila,

shall have a maximum Percentage of Land Occupancy (PLO) of 0.6 and a

maximum FAR of 4.

107. The Torre de Manila has a floor area of 97,549 sq. m. and a land

area of 7,475 sq. m.

108. On the face of the one-page zoning permit issued by the CPDO

to DMCI, that permit was patently beyond the maximum FAR of 4, as in fact

its FAR is 13.05 based on the simple formula of Total Floor Area/Total Lot

Area = FAR.

97,549 sq. m.

---------------------- = 13.057,475 sq. m.

109. Given a maximum FAR of 4, DMCIs FAR of 13.05 clearly

indicates that its use is non-conforming and therefore the CPDO had no


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authority to issue the zoning permit it issued. Having obtained a permit from

an office without authority to do so, DMCIs zoning permit is therefore void.

b.

Mayor Lim had no authority to

suspend the local zoning ordinance,

assuming he did in fact suspend the

zoning ordinance.

110. In a letter dated 10 October 2012 addressed to DMCI, the CPDO

justified post facto its grant of the zoning permit on the ground that the

provision on height limitations and/or FAR provisions in [Ordinance No.

8119] were suspended by the executive branch, for it opted to follow the

National Building Code. However, the CPDO failed to cite any legal basis to

support this supposed action by Mayor Lim.

111. Even on the assumption that Mayor Lim did suspend

Ordinance No. 8119, such act is clearly unlawful. It is basic that a mayor, as an

executive arm of a local government unit, has no authority to suspend the

effectivity of a local law. A mayor has even less authority to suspend a zoning

ordinance considering that the enactment of zoning rules are core prerogatives

of the city council under the Local Government Code.39

112. Under 455 of the Local Government Code, the City Mayor is

mandated to enforce all laws and ordinances relative to the governance of the

city. He may issue an executive order, but only for the faithful and appropriate

enforcement and execution of laws and ordinances. Moreover, 48 of the Local

Government Code is very clear that the local legislative power shall be

exercised by the Sangguniang Panlungsod. DMCI cannot possibly rely on a

patently illegal order that may not have been issued.

113.

That Mayor Lim does not have the authority to suspend thezoning ordinance is bolstered by 707 of the National Building Code IRR

which expressly provides that the applicable law in determining the FAR limit

is the more restrictive law between the National Building Code and the local

zoning ordinance. The relevant provisions state:

Section 707.Maximum Height of Buildings

1. The maximum height and number of storeys of proposed building

shall be dependent upon the character of use or occupancy and the type of

construction, considering end-user population density, light and ventilation,width of RROW/streets particularly of its roadway/carriageway component,

building bulk, off-street cum off-site parking requirements, etc. and in

relation to local land use plan and zoning regulations as well as otherenvironmental considerations, e.g., geological, hydrological, meteorological,

39SeeLOCAL GOVERNMENT CODE, Art. 3, 458(a)(2)(9).


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topographical, prevailing traffic conditions, the availability and capacity of

public utility systems, etc. (Refer to Guidelines on Building Bulk at the end of this

Rule)

2. Determination of Building Height:

The Building Height Limit (BHL) of any proposed

building/structure shall only be as allowed under this Rule (as shown in

table below) or under the duly approved city/municipal (local) zoning

ordinance, whichever is more restrictive.40

2. DMCIs bui ld ing and bus iness permi t s are void .

114. The defects in the zoning permit also taint the validity of DMCIs

building and business permits. Under 69 of Ordinance No. 8119

SEC. 69. Building Permit./Business Permit.No building and

business permit shall be issued by the Local Building Officer and Business

Promotion and Development Officer, respectively, without a valid zoning

permit (locational clearance) in accordance with this Ordinance.

115. The prohibitory language of 69 can only mean that DMCIs voidzoning permit cannot be used as justification for its building and business

permit. Therefore, DMCIs building and business permits are also void.

116. Morever, the clear import of 69 is to impose an independentobligation on the part of the Local Building Officer and Business Promotionand Development Officer to ascertain the validity of the zoning permit. Theseofficers therefore cannot issue the building and business permits on the soleground that a zoning permit had already been issued. Thus, the issuance ofbuilding permit and a business permit in the face of a patently invalid zoningpermit constitutes a secondand thirdviolation of the law. DMCI is therefore in asituation where all three permitszoning, building, and businessare

independently void.

117. The foregoing series of illegal acts is only worsened by theinexplicable haste with which the Building Official granted the building permitto DMCIthe permit was issued on 5 July 2012,41 or the same day it wasapplied for, and despite the ongoing public hearings conducted by the ManilaCity Council on the very issue of the construction of the Torre de Manila.

3. Mani la Ci ty Counc i l Resolut ion No. 5 cannot

rat i fy DMCIs void permi t s .

a. The variance is void for procedural defects.

40Emphases supplied.41DMCIs Petition for Prohibition before the Regional Trial Court (RTC) of Makati.


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118. DMCIs argument that the issuance of Resolution No. 5, series of

2014, allowed it to construct beyond the FAR and height limit is incorrect.

Under 61 of Ordinance No. 8119, [a] written application for variance shallbe filed with the [MZBAA] through the CPDO citing the section of [the]

Ordinance under which the same is sought and stating the ground/s thereof.42

119. DMCI, however, never applied for a variance before the MZBAA

through the CPDO. Instead, on 18 December 2013, DMCI President Alfredo

R. Austria merely wrote Mayor Joseph Estrada to (a) seek clarification and

assistance on the Torre de Manila project, and (b) request Mayor Estrada not to

suspend DMCIs building permit pending its compliance with the required

procedures.43

120. The following also militate against the claim that the 18 December

2013 letter is an application for variance within the contemplation of 61,

Ordinance No. 8119: (a) nowhere in the letter is it mentioned that DMCI was

applying for a variance; (b) DMCI failed to cite the provision in Ordinance No.

8119 upon which the variance is sought and the grounds to support its

application, assuming there was any; and (c) DMCI did not mention that it was

writing Mayor Estrada in his capacity as a member of the MZBAA.44

121.

Despite the clear absence of an application for variance from

DMCI, the MZBAA issued Resolution Nos. 06 and 06-A recommending the

exemption of the Torre de Manila from the FAR limit.

42Section 61 of Ordinance No. 8119 provides the procedures for filing applications forvariances and exceptions, as follows:

Sec. 61. Procedures for Granting Variances and Exceptions. -The procedure for the granting of

exception and/or variance is as follows:1. A written application for an exception for variance and exception shall be filed withthe Manila Zoning Board of Adjustment and Appeals (MZBAA) through the CPDOciting the section of this Ordinance under which the same is sought and stating theground/s thereof.

2. Upon filing of application, a visible project sign, (indicating the name and nature of

the proposed project) shall be posted at the project site.

3. The CPDO shall conduct studies on the application and submit report within fifteen(15) working days to the MZBAA. The MZBAA shall then evaluate the report andmake a recommendation and forward the application to the Sangguniang Panlungsodthrough the Committee on Housing, Urban Development and Resettlements.

4.

A written affidavit of non-objection to the project/s by the owner/s of the propertiesadjacent to it shall be filed by the applicant with the MZBAA through the CPDO forvariance and exception.

5.The Sangguniang Panlungsod shall take action upon receipt of the recommendationfrom MZBAA through the Committee on Housing, Urban Development andResettlements.

43City of Manilas Position Paper dated 15 July 2015.44SeeOrdinance No. 8119, 79.


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122. Meanwhile, the Sangguniang Panlungsod issued on 16 January 2014

Resolution No. 5, series of 2014, adopting MZBAA Resolution Nos. 06 and

06-A and ratifying all permits, licenses, and approvals previously issued by theCity of Manila for the construction of the Torre de Manila.45

123. MZBAA Resolution No. 6 mentions that the CPDO elevated

the application for zoning appeal regarding the special use permitto the

MZBAA. However, no formal application for a variance allegedly filed by

DMCI with the MZBAA, through the CPDO, has been presented.

124. Apparently, this appears to have been done by the CPDO, upon

the instance of Mayor Estrada, who instructed him to help DMCI.46

125. Even assuming that the letter dated 18 December 2013 is a formal

application for variance, the same was belatedly filed. As mentioned, 63 of

Ordinance 8119 expressly mandates that the application for variance should

have been done prior to conducting any business activity or construction on

the[ir] property/land.

b. DMCIs void permits cannot be ratified.

126. DMCI contends that Resolution No. 5 ratifies all the permits

previously issued by the City of Manila. This argument flies in the face of the

fact that a void act is not subject to ratification. It also conflates ratification

from the effects of obtaining a variance under the ordinance.

45DMCIs CommentAd Cautelamin Case No. NCCA-1-2015-6.46During the18 August 2015 Oral Arguments, Associate Justice Jardeleza and Manila CityPlanning and Development Officer Dennis Lacuna, Jr. had the following exchange:

JUSTICE JARDELEZA:You are the one who approached [Mayor Estrada], or not really approach,during one of your daily lunches?

CPDO LACUNA:Yes, Your Honor.

JUSTICE JARDELEZA:You told him, Mr. President Mayor, there is a request for assistance...

CPDO LACUNA:Yes, Your Honor.

JUSTICE JARDELEZA:What did the President Mayor tell you?

CPDO LACUNA:To help the developer [DMCI] to make sure that they go through theprocess.


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127. In the first place, even assuming that the variance is valid, the

zoning, building, and business permits are void from inception and thus cannot

be ratified. A void permit cannot be the source of a legal right or duty becauseit is non-existent in contemplation of law. Put plainly, DMCI never had any valid

zoning, building, or business permits.

128. In the second place, the issuance of a zoning permit and a

variance refers to two distinct and independent processes under Ordinance No.

8119. Hence, a variance cannot ratify a defective zoning permit. If at all,

obtaining a variance only means thatfor the first timea valid zoning permit is had

by the grantee. Its force is prospective, not retroactive.

129.

A zoning permit as an ordinary locational clearance is issued on

the premise that the building is compliant with the maximum FAR prescribed

by Ordinance No. 8119. In contrast, a variance as a special locational clearance

grants a property owner relief from certain provisions of Zoning Ordinance

where, because of the particular, physical surrounding, shape or topographical

conditions of the property, compliance on height, area, setback, bulk and/or

density would result in a particular hardship upon the owner, as distinguished

from a mere inconvenience or a desire to make more money.47

130.

A zoning permit is for compliant use, while a variance (or special

location clearance) is for non-conforming use. A zoning permit cannot

substitute for a variance, while a variance cannot ratify a void zoning permit.

131. Thus, the only meaning that may be attached to Resolution No. 5

(on the assumption that it is valid) is that it was only on 16 January 2014 that

DMCI may be said to have finally obtained a (special) locational clearance.

4. DMCI knew i t s permit s were void but cons truc t ed

Torre de Mani la anyway.

132. DMCI violated Ordinance No. 8119 and knew about it.

133. DMCI, a leading and experienced project developer in the

country, is duty-bound to know the law. It has successfully completed over 500

projects and has built numerous landmark infrastructure such as the Manila

Hotel, the Cultural Center of the Philippines, and the Makati Shangri-La,

47HLURBs Guidelines for the Formulation/Revision of a Comprehensive Land Use Plan(Model Zoning Ordinance), Art. 3(51).


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among others.48 DMCI Holdings, Inc., through DMCI Project Developers,

Inc., has investments in infrastructure and real estate project development.49

134.

DMCI simply cannot use its supposed ignorance of zoning laws

as an excuse. It is expected to have expertise on the requirements and

rudiments of seeking permits for the construction of condominium buildings,

not just because it is the law but, more important, because having such

knowledge is an indispensable requirement of its business. It chose to obtain an

invalid permit from the CPDO, perhaps to avoid the difficulty of having to

actually obtain a valid permit in the form of a special locational clearance or a

variance from the Sangguniang Panglungsod which, at the time, was clearly

opposed to the Torre de Manila project as it even issued an ordinance toprevent the construction of the condominium.

135. That DMCI clearly went forum-shopping for purposes of

convenience is shown by the contrast between the ease with which it was able

to obtain its void permits from the City of Manilas executives and the

vigorousness with which the City of Manilas legislators opposed the Torre de

Manila project. The purpose of this forum-shopping is obvious: to avoid the

City Council which, under the Ordinance No. 8119, is the institution

empowered to grant DMCI a valid zoning permit.

136. The fact that DMCI knew its permits were defective is a matter of

record.

137. First. During the 27 August 2014 Senate Committee

Hearing,50Atty. Roel Pacio, the Vice President for Legal Services of DMCI,

admitted that DMCI had full knowledge of its violation of prescribed FAR

under Ordinance 8119 at the time of the application for zoning and building

permits:

THE CHAIRPERSON (SEN. P. CAYETANO). Did you know that youexceeded the height requirement?

... ... ...

MR. PACIO.On the basis of the zoning permit, when we checked it

out, maam, it appears that we exceeded the height limit. But using the

same permit, we went to the city building official to verify if we can

apply for a building permit, of which they granted us a building

permit.

48 http://www.dmcihomes.com/about-us.php?company-history last accessed on 7September 2015.49 https://www.dmciholdings.com/our_businesses/page/residential-development, last

accessed on 7 September 2015.50 Joint Committee Hearing of the Senate Committees on Education, Arts & Culture andUrban Planning.


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THE CHAIRPERSON (SEN. P. CAYETANO). Do you have

documentation to show the exchange of information and the details leading

to the issuance of permit? Because if I [were] the lawyer and I know that

on its face, my application exceeds the requirement, the ordinance, theset requirement, then I will ask for something in writing to ensure me

that if I move forward, Im not violating anything para hindi ako

mabalikan at sabihing, Bakit nag-violate ka?

So do you have anything other than this zoning permit that shows that after

your explanations or after further discussions, You are hereby allowed andthis is what youre going to do?

MR. PACIO.We have the building permit, maam.51

138.

Second. The letter dated 18 December 2013 likewise shows the

clear intent and design of DMCI to circumvent Ordinance No. 8119:

The zoning permit was issued after we have submitted the required

development plans. As the former city planning and development officer did

not deny the applicant, we continued on with the application for the building

permit of the project. Had our application for zoning permit been

denied, we could have gone through the process of appealing to the

local zoning board, if any was then constituted, and applied for an

exemption from the city council.52

139. Third.The letter of Chair Diokno dated 6 November 2012 to Mr.

Andrade of DMCI

As you may be aware, the matter of the construction of the Torre de

Manila project of DMCI Homes has been attended by some controversy,starting on 25 May 2012 when some residents of Sta. Ana, Manila

complained that the construction of high-rise buildings in the area will violate

the existing zoning ordinance. Acting on that complaint, the City Council ofManila declared that the issuances to DMCI by the City Planning and

Development Office and the Office of the Building Official of a ZoningPermit and a Building Permit, respectively, were in gross violation of

Ordinance No. 8119 (Zoning Regulations of 2006) and that the issuing

officials may have committed grave abuse of discretion in the process, which

the City Council undertook to investigate in aid of legislation.

140. It would be the height of impunity to allow DMCI to use as an

excuse its own violation of the law, just as it would be injurious to the rule of

law to allow a violator to profit from the illegality of ones acts. Section 65 of

Ordinance No. 8119 expressly provides that [t]he issuance of a Zoning Permit

(Locational Clearance) shall not be construed as an approval or authorization tothe permittee to disregard or violate any of the provisions of this Ordinance.

51Minutes of the 27 August 2014 Senate Joint Committee on Education, Arts & Culture andUrban Planning Hearing, pp. 82-83.52Position Paper of the City of Manila dated 15 July 2015.


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141. As is obvious from a casual reading of 63 of Ordinance No.

8119, the proper procedure for DMCI should have been to secure a variance

from the Sangguniang Panlungsod through the MZBAA, and not to apply with theCPDO.

142. Whether DMCI knew that it would not have gotten the required

variance from the Sangguniang Panlungsod, given its expressed opposition to the

Torre de Manila is, of course, a different matter. But it certainly taxes ones

credulity to believe DMCI sought its permit from the CPDO because it was

ignorant of the legal requirements. Either way, it cannot use its ignorance or

bad faith as an excuse.

143.

Finally, DMCI cannot claim that it erroneously relied on the

CPDOs letter dated 10 October 2012.53 It bears emphasis that the CPDO

issued this letter several months after the issuance of the void zoning permit on

19 June 2012.

C. MANDAMUS MAY ISSUE

1. The Honorable Court should d i re c t ly order DMCI to

demol i sh the Torre de Mani la at i t s own expense .

144. Judgment Should Include an Order to Demolish. Considering that

respondent DMCI constructed the Torre de Manila in violation of R.A. No.

10066, R.A. No. 10086, and Ordinance No. 8119, DMCI should be ordered to

demolish the Torre de Manila. An order of demolition is a natural consequence

of the finding that the Torre de Manila was built in violation of national and

local laws.

145. Under 5 (d), Rule 135 of the Rules of Court, courts have an

inherent power [t]o compel obedience to its judgments, orders and processes,and to the lawful orders of a judge out of court, in a case pending therein.54

146. DMCI should not be allowed to take advantage of its own illegal acts.

Plainly, from the facts of the case, there can be no doubt that DMCI had no

right to begin construction of the Torre de Manila on 5 July 2012, the day it

obtained its building permit.

147. With full knowledge of the defects in its permits, amidst the

public clamor, without due regard to resolutions from the City Council of

Manila, in the face of opposition from the NM and the NCCA, and unmindful

of a Senate investigation, DMCI proceeded with undue haste to construct the

Torre de Manila.

53DMCIs CommentAd Cautelamin Case No. NCCA-1-2015-6.54RULES OF COURT, Rule 135, 5 (c).


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148. A crucial date that the Honorable Court must consider is 16

January 2014, the day DMCI was able to obtain a variance from the City of

Manila. On the assumption that this variance is valid, this date is the only pointin time when DMCI may reasonably claim to have complied with the zoning

ordinance. All acts prior to this date are, without a doubt, unlawful and done

with full knowledge of their unlawfulness.

149. This date is crucial because, in between the date when DMCIobtained its void zoning permit (as well as its building and business permits)and 16 January 2014, the Rizal Monument has already been declared a NationalMonument on 15 April 2013 by NHCP55 and a National Cultural Treasure on14 November 2013 by the National Museum.56

150. More important, had DMCI actually followed the law (on theassumption that it had a valid permit by 16 January 2014), it would not havebeen able to build as high as 39 floors by 16 June 2015.

151. The Honorable Court should therefore not consider itselfespecially burdened by the responsibility of having to order the demolition ofthe Torre de Manila, given that the danger of loss DMCI now confronts isentirely self-imposedit has assumed the risks to which it is now exposed.

152.

For the Honorable Court to feel otherwise would be to allowDMCI to create facts on the ground and unjustly benefit from the multiplelayers of violations it committed in this case. This idea is entirely corrosive tothe rule of law and incompatible with elementary notions of fair play.

153. In practical terms, had DMCI begun construction works on its lotonly after 16 January 2014, it would most likely not have been able to buildbeyond (or way beyond) seven floors by the time this Honorable Court issuedits TRO on 16 June 2015. Instead, with the use of a void building permit(issued 5 July 2012), it was able to build illegallyand apparently with undue

hastefor about one and a half years (or until 16 January 2014).

154. In other words, had DMCI started construction works on its lots

only after 16 January 2014 (and stopped on 16 June 2015), this Honorable

Court would be faced with only the purely legal question whether the Torre de

Manila can theoreticallygo beyond seven floors. Instead, the Honorable Court is

being sold afait accompli, a situation entirely of DMCIs making.

155. Given these circumstances, it is imperative that the Honorable

Court issue the appropriate, just relief not because it wants to send a message

to anyoneeven as it may be a necessary consequence thereofbut simply

because it has to apply th

Knights of Rizal v DMCI (SolGen Comment) (2015 09 21)

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Transcript of Knights of Rizal v DMCI (SolGen Comment) (2015 09 21)