Professional Documents
Culture Documents
SUPREME COURT
Manila
En Banc
KNIGHTS OF RIZAL,
MEMORANDUM
Monuments are for the living, not for the dead. Frank Wedekind
Our heroes dont need monuments. We do. Dominic Galicia
Respondents NATIONAL MUSEUM (NM) and NATIONAL
COMMISSION FOR CULTURE AND THE ARTS (NCCA), by counsel,
in compliance with this Honorable Courts directive during the 1 September
2015 oral arguments, respectfully submit their Memorandum and state:
I.
PREFATORY STATEMENT
This case presents issues central to the rule of lawfidelity to the
Constitution and the proper enforcement of laws.
Fidelity. The rule of law requires that norms embodied in the
fundamental law of the land be given effect, with a view to avoiding results
completely opposite to the Constitutions conservationist and protectionist
policies. Between the permanent destruction and private appropriation of the
sightline of the Rizal Monument and the removal of the cause of that
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1
2
3
Petition, at 25.
Id.
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 is
within 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 our
national 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
OSGs Consolidated Comment dated 12 January 2015.
The report was made in the online news portal Rappler last 6 November 2013, long before
the present petition was filed. Available at http://www.rappler.com/nation/43012-nhcpbacks-off-torre-de-manila-issue, last accessed on 12 September 2015. Relevant parts of the
report narrate
4
NHCP flipflops
When NHCP attended the June 22, 2012 hearing on Torre de Manila, their
position was clear: Torre de Manila violates NHCP guidelines on monuments
honoring national heroes.
In fact, according to Bagatsing who was present at the hearing, the NHCP
representatives Wilkie Delumen and Crisanto Lustre presented the guidelines
as 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 Alfredo
Andrade that DMCI need not worry about NHCP condemning the project.
Your project site is outside the boundaries of the Rizal Park and well to the
rear of the Rizal National Monument, hence it cannot possibly obstruct the
front 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 an
ordinance designating a buffer zone around Rizal Park and prescribing
guidelines building development to prevent the recurrence of a similar
dilemma 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 the
Torre 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.
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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 10meter 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, as
in 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 buildings
are 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
10
Emphases supplied.
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11
Eight Justices voted to issue the TRO: Associate Justices Presbitero J. Velasco, Jr., Arturo
D. Brion, Teresita J. Leonardo-De Castro, Lucas P. Bersamin, Martin S. Villarama, Jr., Jose
C. Mendoza, Estela M. Perlas-Bernabe, and Francis H. Jardeleza. Five Justices voted against
the issuance of the TRO: Chief Justice Maria Lourdes P.A. Sereno, and Associate Justices
Antonio 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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B.
C.
A.
B.
2.
3.
2.
3.
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4.
C.
A.
40. The position of NHCP before the Senate therefore presents its
complete position on the Torre de Manila controversy, and explains away the
12
Emphases supplied.
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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.
13
During the 1 September 2015 Oral Arguments, Justice De Castro and Atty. Diokno had
the following exchange:
JUSTICE DE CASTRO:
I noticed that there were two letters sent, two separate letters sent by your
Commission. On November 6 you wrote Mr. Andrade, the consultant of
DMCI 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 was
about the background, the back view of the monument and you also said that
the issue is not about if it is within the boundary of a historical site, that is
not the issue you mentioned so you knew what the problem was all about
and yet you did not deal with the problem. You did not say anything about
the issue of Torre de Manila obstructing the background of the Rizal
Monument when you precisely knew that that was the conflict and the
position of the City of Manila was that, at that time, was that it will ruin the
image 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 did
you not make an opinion? In the same way that you sent an opinion to the
Senate and if you only gave an opinion, the same opinion you gave to the
Senate, the City would have backed off from issuing or from ratifying the
building permit. But you didnt say, you only said that for the future, you
think 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 is
asked 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 a
sightline would depend on the intention of the artists and designers, the location of the
monument, the structures already existing at or around the area of the monument, the size
and prominence of the monument itself, and its ensuing history. The Bonifacio Monument
in Grace Park, Caloocan, for example, sits in a rotunda, and would have no legally protected
sightline. Another example would be the Ninoy Aquino Monument at the Ayala
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During the 1 September 2015 Oral Arguments, Associate Justice Carpio and Solicitor
General 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 to
determine the metes and bounds of the sightline. But when you stand in
front of that sightline, you can...
JUSTICE CARPIO:
What if now the Rizal Park will construct a tall building across the street of
the 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 side
of the street is that a violation of the sightline?
SOLICITOR GENERAL HILBAY:
Well your Honor, certainly not because it doesnt impair the sightline of the
Rizal 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 would
stand in front of it. I think the physics of the monument itself allows you a
certain 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 has
to be specific. How far?
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impairment to the sightline of the Rizal Monument is a question of law for the
Honorable Court to decide.
2.
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.16 The 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 selfexecutory,19 are not, however, meaningless. While hortatory, they are,
nonetheless and at once, a source of legal insight and political meaning.
16
JUSTICE JARDELEZA:
My first question is, I dont think you made a categorical statement on the
status of Article XV of the Constitution. Is it or is it not a self-implementing
provision?
SOLICITOR GENERAL HILBAY:
We do not believe, your Honor, that it is a self-implementing provision of
the 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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57. This coercive power under 25 of R.A. No. 10066 should be read
in relation to the conservationist mandate of the same law which defines
broadly the concept of conservation
3(i) Conservation shall refer to all the processes and measures of
maintaining the cultural significance of a cultural property including, but not
limited to, preservation, restoration, reconstruction, protection, adaptation or
any combination thereof.
58. Of crucial note is the NHCPs charter, R.A. No. 10086, and its
remarkably even more expansive definition of conservation compared to 3(i)
of R.A. No. 10066
3(c) Conservation refers to all processes and measures of
maintaining the cultural significance of a cultural property including, but not
limited to, physical, social, legal preservation, restoration, reconstruction,
protection, adaptation, or any combination thereof.
59. The addition of the phrase physical, social, legal to all manner
of conservationpreservation, restoration, reconstruction, protection,
adaptation, or any combination thereofindicates the legislative intent to
promote the broadest possible conception of conservation, consistent with the
policy of the Constitution, and without a doubt, to legally empower cultural
agencies.
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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 of
preserving 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 arguments
dated 1 September 2015.
24
# 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-rizalmonuments-in-phl; http://globalnation.inquirer.net/news/breakingnews/view/20090619211392/10-Rizal-monuments-around-the-worldGordon, last accessed 27 July 2015.
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agency and the local government the matter of issuing preventive reliefs in the
form of a cease and desist order. Thus
Section 25. Power to Issue a Cease and Desist Order.When the physical
integrity of the national cultural treasures or important cultural properties are
found to be in danger of destruction or significant alteration from its original
state, the appropriate cultural agency shall immediately issue a Cease and
Desist Order ex parte suspending all activities that will affect the cultural
property. The local government unit which has the jurisdiction over the site
where the immovable cultural property is located shall report the same to the
appropriate cultural agency immediately upon discovery and shall promptly
adopt measures to secure the integrity of such immovable cultural property.
Thereafter, the appropriate cultural agency shall give notice to the owner or
occupant of the cultural property and conduct a hearing on the propriety of
the issuance of the Cease and Desist Order. The suspension of the activities
shall be lifted only upon the written authority of the appropriate cultural
agency after due notice and hearing involving the interested parties and
stakeholders.
71. Necessarily, the NHCPs power to issue a cease and desist order
when the physical integrity of a national cultural treasure or an important
cultural property is in danger of destruction or significant alteration from its original
state must be read in relation to its broader conservationist and protectionist
mandate. A cultural agencys general license to conserve should therefore be
aided by its specific power to protect through the issuance of a cease and desist
order.
72. Further, if the NHCPs general legal mandate to conserve
includes, in approriate instances, the protection of sightlines, it only follows
that such mandate should be performed in particular cases, such as in the case of
the Rizal Monument.
73. This is as it should be considering that the demands of
conservation depend on the nature or the physics of the cultural artifact being
protected. Precisely because heritage comes in many shapes, sizes, and forms,
the legal meaning of the phrase physical integrity must be up to par, so to
speak, to accommodate a cultural objects myriad needs.
74. Following this concept, it becomes readily apparent that the
demands of conservation of monuments require, in certain cases, the
protection of its sightline which is integrated into its physics. This is because
the (generally) immovable character of monuments make them part of the
setting to which they are attached or in which they are situated.
75. Monuments blend with their setting or landscape and, in some
cases, influence the characterthe relationship between mass and spaceof
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26
27
26
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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. The
integrity 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 due
prominence 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 as
objects 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 for
unobstructed 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 directly
occupied by the monument, but it extends to the surrounding areas
whether open space or occupied by other structures as may be defined by
the traditional or juridical expanse of the property.
28
Emphases supplied.
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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 is
found 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, which
would 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 the Motto Stella from the park in
the same way that one cannot divorce the Motto 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 in
the 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 the
Constitution 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
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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
34
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37
Act No. 243 dated 28 September 1901 entitled An Act granting the right to use public land
upon 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 such
subscription shall be collected and disbursed.
38
The Centenary of the Rizal Monument, http://www.gov.ph/rizal-monument/, last accessed
on 14 September 2015.
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13.05
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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 the
zoning 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 other
environmental considerations, e.g., geological, hydrological, meteorological,
39
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G.R. No. 213948
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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.
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 void
zoning 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 independent
obligation on the part of the Local Building Officer and Business Promotion
and Development Officer to ascertain the validity of the zoning permit. These
officers therefore cannot issue the building and business permits on the sole
ground that a zoning permit had already been issued. Thus, the issuance of
building permit and a business permit in the face of a patently invalid zoning
permit constitutes a second and third violation of the law. DMCI is therefore in a
situation where all three permitszoning, building, and businessare
independently void.
117. The foregoing series of illegal acts is only worsened by the
inexplicable haste with which the Building Official granted the building permit
to DMCIthe permit was issued on 5 July 2012,41 or the same day it was
applied for, and despite the ongoing public hearings conducted by the Manila
City Council on the very issue of the construction of the Torre de Manila.
3.
40
Emphases supplied.
DMCIs Petition for Prohibition before the Regional Trial Court (RTC) of Makati.
41
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42
Section 61 of Ordinance No. 8119 provides the procedures for filing applications for
variances 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 with
the Manila Zoning Board of Adjustment and Appeals (MZBAA) through the CPDO
citing the section of this Ordinance under which the same is sought and stating the
ground/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 and
make a recommendation and forward the application to the Sangguniang Panlungsod
through 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 properties
adjacent to it shall be filed by the applicant with the MZBAA through the CPDO for
variance and exception.
5. The Sangguniang Panlungsod shall take action upon receipt of the recommendation
from MZBAA through the Committee on Housing, Urban Development and
Resettlements.
43
City of Manilas Position Paper dated 15 July 2015.
44
See Ordinance No. 8119, 79.
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45
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 the
process.
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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 because
it 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 that for the first time a 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.
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,
47
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48
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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, the
set 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 and
this 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 of
Manila declared that the issuances to DMCI by the City Planning and
Development Office and the Office of the Building Official of a Zoning
Permit 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.
Minutes of the 27 August 2014 Senate Joint Committee on Education, Arts & Culture and
Urban Planning Hearing, pp. 82-83.
52
Position Paper of the City of Manila dated 15 July 2015.
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54
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55
56
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156. DMCI is Entitled to Only Seven Floors Under Ordinance No. 8119. At
the very least, the Honorable Court should order DMCI to demolish the Torre
de Manila, at its own expense, insofar as it exceeds the maximum allowable
number of floors under Ordinance No. 8119.
157. The formula for computing the maximum allowable number of
floors is as follows
Formula:
Prescribed Maximum FAR x Total Lot Area = Maximum Allowable Gross Floor Area
Prescribed Maximum PLO x Total Lot Area = Maximum Allowable Building Footprint
Maximum Allowable Gross Floor Area / Maximum Allowable Building Footprint =
Maximum Allowable Floors of the Building
As applied:
FAR of 4 x 7,475 sq. m. = 29,900 sq. m.
PLO of 0.6 x 7,475 sq. m. = 4,485 sq. m.
29,900 sq. m.
---------------------4, 485 sq. m.
158. Clearly, what DMCI would have been normally entitled to under
Ordinance No. 8119 is merely seven floors. This computation was generally
accepted by counsel for DMCI, Atty. Lazatin, during interpellation with Justice
Diosdado Peralta.57
57
During the 11 August 2015 Oral Arguments, Associate Justice Peralta and DMCIs
counsel Atty. Lazatin, had the following exchange:
JUSTICE PERALTA:
Under Ordinance No. 8119, the university cluster zone, the maximum
allowable gross floor area is computed as follows:
ATTY. LAZATIN:
Thats accurate your honor.
JUSTICE PERALTA:
FAR, FAR is 4 and your lot area is 7,475 square meters, right?
ATTY. LAZATIN:
Thats correct your Honor.
JUSTICE PERALTA:
So you come out with 29,900 square meters as gross floor area, am I correct?
Still accurate?
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ATTY. LAZATIN:
Thats correct, Your Honor
JUSTICE PERALTA:
Now lets go to maximum allowable building footprint, okay. The PLO is
fixed which is 0.6, the PLO is percentage of land occupancy.
ATTY. LAZATIN:
Thats correct.
JUSTICE PERALTA:
The PLO times lot area which is 7,475 square meters, you have 4,485 square
meters.
ATTY. LAZATIN:
Thats correct your honor.
JUSTICE PERALTA:
That is your maximum allowable building footprint.
ATTY. LAZATIN:
Thats correct your honor.
JUSTICE PERALTA:
Allowable stories, you have gross floor area divided by building footprint or
29,900 square meters in slide no. 4 over 4,485 square meters, you are only
allowed to build 6.6 stories, rounded up to 7 stories, my computation is still
correct?
ATTY. LAZATIN:
On the assumption that your building footprint is 4,485 your Honor,
meaning your building is fat and squat, thats correct your Honor.
JUSTICE PERALTA:
The 0.6 is fixed by law and you get the building footprint times the area of
your lot, did you change the area of your lot?
ATTY. LAZATIN:
That is the maximum building footprint your Honor.
JUSTICE PERALTA:
Thats correct, thats why Im saying your maximum building footprint is
4,845, so your gross floor area of 29,000 over 4,000 yun na yung maximum
eh unless you want to lower it down, where will you get the figure, yun na
ang maximum eh, so you get 6.6 stories rounded up to 7 stories, thats my
own computation, I do not know if you have your own computation.
ATTY. LAZATIN:
Your Honor that is correct, but that is the maximum footprint meaning it
can be less.
JUSTICE PERALTA:
Thats correct.
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G.R. No. 213948
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18.24 or 18 maximum
allowable floors of the Torre
de Manila
ATTY. LAZATIN:
If it is less, then the tower or the building can be higher.
MEMORANDUM
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G.R. No. 213948
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163. Given that the construction of the Torre de Manila is illegal, the
Honorable Court may also order the City of Manila to cause the demolition of
the Torre de Manila by way of mandamus.
164. In particular, the Honorable Court may require the City Mayor of
Manila: (1) to require DMCI to make necessary changes in the construction of
the Torre de Manila, or (2) to demolish the same to the extent that it impairs
the sightline of the Rizal Monument.
165. The duty of the City Mayor of Manila to cause the demolition of
the Torre de Manila finds support in 455 (b) (3) (vi) of the Local Government
Code58
Section 455. Chief Executive; Powers, Duties and Compensation.
(b)
For efficient, effective and economical governance the
purpose of which is the general welfare of the city and its inhabitants
pursuant to Sec. 16 of this Code, the city mayor shall:
(3)
Initiate and maximize the generation of resources and
revenues, and apply the same to the implementation of development plans,
program objectives and priorities
(iv)
Issue licenses and permits and suspend or revoke the same
for any violation of the conditions upon which said licenses or permits had
been issued, pursuant to law or ordinance;
(vi)
Require owners of illegally constructed houses,
buildings or other structures to obtain the necessary permit, subject to
such fines and penalties as may be imposed by law or ordinance, or to
make necessary changes in the construction of the same when said
construction violates any law or ordinance, or to order the demolition or
removal of said house, building or structure within the period prescribed
by law or ordinance.
166. Section 455 (b) (2) (ii) of the Local Government Code additionally
provides that the City Mayor has the duty to [e]nforce all laws and ordinances
relative to the governance of the city, and to [i]ssue such executive orders for
the faithful and appropriate enforcement and execution of laws and
58
Emphasis supplied
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3.
169. Section 5 of R.A. No. 10086 mandates NHCP to, among others,
undertake and prescribe the manner of restoration, conservation and
protection of the countrys historical movable and immovable objects61 and to
manage, maintain, and administer national shrines, monuments, historical
sites, edifices and landmarks of significant historical-cultural value.62
170. NHCP, as the primary legal custodian of monuments, such as the
Rizal Monument, has the duty to prescribe its manner of conservation and
protection. Since the NHCP determined that the Torre de Manila has impaired
the visual corridor of the Rizal Monument, then it should have prescribed the
manner for its conservation and its protection and not relinquish its mandate to
the City of Manila.
59
In Special People, Inc. v. the Secretary of the DENR, 688 SCRA 403 [2013], the Honorable
Court clarified as to when a writ of mandamus may be issued to compel the performance of a
duty, viz.:
A key principle to be observed in dealing with petitions for mandamus
is that such extraordinary remedy lies to compel the performance of duties
that are purely ministerial in nature, not those that are discretionary. A purely
ministerial act or duty is one that an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of its own judgment upon the
propriety or impropriety of the act done. The duty is ministerial only when its
discharge requires neither the exercise of official discretion or judgment.
60
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171. In this case, the clear remedy to the impairment of the sightline of
the Rizal Monument is the demolition of the Torre de Manila. The NHCP
believes that such manner of restoration, conservation and protection is not
contemplated in its charter. Therefore, a finding by this Honorable Court that
such position constitutes grave abuse of discretion means that it can also order
the NHCP, by way of mandamus, to restore, conserve, and protect the sightline
of the Rizal Monument within the parameters of the decision of this Honorable
Court.
172. Given NHCPs position on this matter, there may be a need for
an alternative method of enforcing reliefs coming from this Honorable Court.
Thus, this Honorable Court may likewise order the NCCA, by way of
mandamus, to oversee the demolition of Torre de Manila and to prescribe
policies for its conservation and preservation in coordination with other
national cultural agencies.
173. Section 8 of Republic Act No. 7356, or the Law Creating the
National Commission for Culture and the Arts provides, thus:
A National Commission for Culture and the Arts is hereby created to
formulate policies for the development of culture and arts; implement
these policies in coordination with affiliated cultural agencies;
coordinate the implementation of programs of these affiliated
agencies; administer the National Endowment Fund for Culture and Arts
(NEFCA); encourage artistic creation within a climate of artistic freedom;
develop and promote the Filipino national culture and arts; and preserve
Filipino cultural heritage. The Commission shall be an independent
agency. It shall render an annual report of its activities and achievements to
the President and to Congress.
63
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PRAYER
WHEREFORE, premises considered, it is respectfully prayed of this
Honorable Court to:
(1)
(2)
(3)
Other reliefs as may be just and equitable under the premises are likewise
prayed for.
Makati City for Manila, 21 September 2015.
OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo St., Legaspi Village, 1229 Makati City
Tel. No.: 8186301 to 09 (Trunkline)
Fax No.: 8176037
Website: www.osg.gov.ph;
Email: docket@osg.gov.ph
67
Id., 3 (d).
Amended Implementing Rules and Regulations of Republic Act. No. 7356, 4 February
2010, 18.2.
68