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THIRD DIVISION

[G.R. No. 129098. December 6, 2006.]

AMELIA CABRERA , petitioner, vs . MANUEL LAPID, FERNANDO


BALTAZAR, REYNALDO F. CABRERA and DIONY VENTURA ,
respondents.

DECISION

TINGA , J : p

The instant petition for review on certiorari seeks the reversal of the Resolution 1 dated 13
May 1996 and the Order 2 dated 21 March 1997, both issued by the Office of the
Ombudsman. The Resolution dismissed the complaint-affidavit filed by petitioner against
respondents and the Order denied her motion for reconsideration.
The instant petition originated from a Complaint-Affidavit 3 filed in November 1995 by
petitioner Amelia M. Cabrera with the Office of the Ombudsman ("Ombudsman"). Named
respondents were Manuel Lapid, Fernando Baltazar, Reynaldo F. Cabrera and
Superintendent Diony Ventura, respectively, in their capacities as Governor of Pampanga,
Mayor of Sasmuan, Pampanga, Vice-Mayor of Sasmuan, Pampanga and Superintendent of
the Philippine National Police (PNP)-Region 3, Pampanga. In her three(3)-page affidavit,
petitioner accused respondents of violating Section 3(e) of the Anti-Graft and Corrupt
Practices Act and Article 324 of the Revised Penal Code.
In her Complaint-Affidavit, petitioner stated that she entered into a lease agreement with
the Municipality of Sasmuan over a tract of land for the purpose of devoting it to fishpond
operations. According to petitioner, she had spent approximately P5,000,000.00 for its
construction before the fishpond operations commenced in August 1995. A month later,
petitioner learned from newspaper reports of the impending demolition of her fishpond as
it was purportedly illegal and blocked the flow of the Pasak River. Thus, petitioner sent the
fishpond administrator to dissuade respondents from destroying her property. 4
Despite pleas from petitioner, respondents ordered the destruction of petitioner's
fishpond. The property was demolished on 10 October 1995 by dynamite blasting.
Petitioner alleged that the demolition was purposely carried out in the presence of media
representatives and other government officials to gain media mileage. Petitioner imputed
evident bad faith on respondents Mayor Baltazar and Vice-Mayor Cabrera in allowing the
destruction of the fishpond despite their prior knowledge of the existence of the lease
agreement. She also charged respondents Governor Lapid and Senior Superintendent
Ventura with gross inexcusable negligence for ordering the destruction of the fishpond
without first verifying its legality. 5
At the preliminary investigation, respondents, except Senior Superintendent Ventura,
submitted counter-affidavits, denying the accusations against them. In the counter-
affidavit jointly filed by Mayor Baltazar and Vice-Mayor Cabrera, they insisted that contrary
to petitioner's claim, the fishpond was an illegal structure because it was erected on the
seashore, at the mouth of the Pasak River, and sat on an inalienable land. They claimed that
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the demolition was done by the Task Force Bilis Daloy upon the directive of then President
Fidel V. Ramos. 6
In his Counter-Affidavit, 7 Governor Lapid averred that the contract of lease between
petitioner and the Municipality of Sasmuan, represented by then Mayor Abelardo Panlaqui,
was executed two weeks before respondent Mayor Baltazar took his oath of office in
1995. Governor Lapid also argued that under the law, the Department of Agriculture (DA) is
the government agency authorized to enter into licensing agreements for fishpond
operations, and as per certification by the DA Regional Director, petitioner's fishpond
operation was not covered by a fishpond lease agreement or application. Governor Lapid
also referred to the certification by the Municipal Health Officer of Sasmuan issued before
the actual demolition of the fishpond, describing it as a nuisance per se and
recommending its abatement. 8
On 13 May 1996, the Ombudsman issued the assailed Resolution, dismissing petitioner's
complaint. The dismissal was based on the declaration that the fishpond was a nuisance
per se and, thus, may be abated by respondents in the exercise of the police power of the
State. 9
Petitioner sought reconsideration of the Resolution, arguing that under Sec. 149 of
Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code of 1991, the
exclusive authority to grant fishery privileges is vested in the municipalities. Petitioner also
questioned the certification by the Municipal Health Officer, alleging that the same was
issued before the ocular inspection of the property which took place only on the day of the
demolition. Petitioner also contended that a judicial proceeding was necessary to
determine whether the property indeed had caused the flooding. 1 0 Respondents filed
separate oppositions to petitioner's motion for reconsideration. 1 1 Petitioner filed a reply
to the opposition 1 2 and respondent Governor Lapid filed a rejoinder to the reply. 1 3
In the Order dated 21 March 1997, the Ombudsman affirmed its 13 May 1996 Resolution.
It ruled that the repealing clause of R.A. No. 7160 expressly repealed only Sec. 2, 6 and 29
of Presidential Decree (P.D.) No. 704 so that in harmonizing the remaining provisions of
P.D. No. 704 and the provisions of R.A. No. 7160 applicable to the grant of fishery
privileges, the Bureau of Fisheries and Aquatic Resources (BFAR) is the government
agency authorized to grant fishpond license or permit in areas not identified as municipal
waters or not declared as alienable or disposable by the Department of Environment and
Natural Resources (DENR). Since it appears from DENR records that the subject property
has not been declared disposable or included in areas devoted for fishpond development,
the Ombudsman concluded that the lease agreement entered into by petitioner was void
ab initio. In view of the illegality of the lease agreement, the Ombudsman ruled that its
demolition was justified. The Ombudsman described the demolition as a valid exercise of
police power and in accordance with the provision of Sec. 28 of P.D. No. 704 directing the
removal of any fishpen or fishpond that obstructed the free navigation of a stream or lake.
It also upheld the authority of the district health officer to determine the abatement of a
nuisance without need of judicial proceedings. 1 4
Petitioner elevated the matter to this Court via a petition for review on certiorari under Rule
45 of the Rules of Court to assail the 13 May 1996 Resolution and 21 March 1997 Order of
the Ombudsman. Petitioner subsequently filed an amended petition for review on certiorari
to implead the Ombudsman as respondent, although in a petition for review on certiorari,
the tribunal whose issuance is assailed need not be impleaded as respondent. acEHSI

The petition imputes the following errors on the Ombudsman:


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I.

THE OFFICE OF THE OMBUDSMAN ERRED AND EXCEEDED ITS AUTHORITY IN


RULING THAT THE LEASE CONTRACT BETWEEN THE MUNICIPALITY OF
SASMUAN AND PETITIONER IS NULL AND VOID.

II.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT THE DEMOLITION


OF THE FISHPOND WAS VALIDLY MADE BY VIRTUE OF THE DECLARATION BY
THE HEALTH OFFICER THAT IT WAS A NUISANCE PER SE.

III.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT THE DEMOLITION IS


PART OF THE PROPER EXERCISE OF THE POLICE POWER OF THE STATE.

IV.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT PETITIONER WAS


GIVEN DUE NOTICE AND HEARING BEFORE THE FISHPOND WAS BLASTED.

V.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT PROBABLE CAUSE


DOES NOT EXIST TO INDICT RESPONDENTS FOR VIOLATION OF THE SUBJECT
OFFENSES. 1 5

Clearly, this is an appeal from the questioned issuances of the Ombudsman. However,
such direct resort to this Court from a resolution or order of the Ombudsman is not
sanctioned by any rule of procedure.
Neither can petitioner avail of Sec. 27 1 6 of R.A. No. 6770, otherwise known as The
Ombudsman Act of 1989. The provision allowed direct appeals in administrative
disciplinary cases from the Office of the Ombudsman to the Supreme Court. The right to
appeal is granted only in respect to orders or decisions of the Ombudsman in
administrative cases. 1 7 The provision does not cover resolutions of the Ombudsman in
criminal cases. More importantly, Sec. 27 of R.A. No. 6770 insofar as it allowed a direct
appeal to this Court was declared unconstitutional in Fabian v. Hon. Desierto. 1 8
However, an aggrieved party in criminal actions is not without any recourse. Where grave
abuse of discretion amounting to lack or excess of jurisdiction taints the findings of the
Ombudsman on the existence of probable cause, the aggrieved party may file a petition for
certiorari under Rule 65. 1 9 The remedy from resolutions of the Ombudsman in preliminary
investigations of criminal cases is a petition for certiorari under Rule 65, not a petition for
review on certiorari under Rule 45. 2 0
But in this case, petitioner has taken the position that the Ombudsman has decided
questions of substance contrary to law and the applicable decisions of the Supreme Court.
That is a ground under a Rule 45 petition. Indeed, from a reading of the assignment of
errors, it is clear that petitioner does not impute grave abuse of discretion to the
Ombudsman in issuing the assailed Resolution and Order. Rather, she merely questions his
findings and conclusions. As stated earlier, direct appeal to the Supreme Court via a
petition for review on certiorari is not sanctioned by any rule of procedure. By availing of a
wrong remedy, the petition should be dismissed outright. TAIDHa

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Even if the Court treats the instant appeal as a petition for certiorari under Rule 65, its
dismissal is nevertheless warranted because petitioner failed to present, much more
substantiate, any grave abuse of discretion on the part of the Ombudsman.
A careful reading of the questioned Resolution reveals that the Ombudsman dismissed
petitioner's criminal complaint because respondents had validly resorted to the police
power of the State when they effected the demolition of the illegal fishpond in question
following the declaration thereof as a nuisance per se. Thus, the Ombudsman was of the
opinion that no violation of Section 3(e) 2 1 of the Anti-Graft and Corrupt Practices Act or of
Article 324 2 2 of the Revised Penal Code was committed by respondents. In the words of
the Ombudsman, "those who participated in the blasting of the subject fishpond were only
impelled by their desire to serve the best interest of the general public; for the good and
the highest good." 2 3

By grave abuse of discretion is meant capricious and whimsical exercise of judgment as is


equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave
abuse of discretion as when the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and must be so patent and so gross as to amount
to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act
at all in contemplation of law. 2 4
Grave abuse of discretion should be differentiated from an error in judgment. An error of
judgment is one which the court may commit in the exercise of its jurisdiction, and which
error is reversible only by an appeal. As long as the court acts within its jurisdiction, any
alleged errors committed in the exercise of its discretion will amount to nothing more than
mere errors of judgment, correctible by an appeal or a petition for review under Rule 45 of
the Rules of Court. An error of jurisdiction is one where the act complained of was issued
by the court without or in excess of jurisdiction and which error is correctible only by the
extraordinary writ of certiorari. 2 5
The other errors raised by petitioner pertain to the Ombudsman's opinion on the lack of
probable cause to indict respondents. These are purported errors in judgment which can
be corrected by an appeal, although not via a direct appeal to this Court. Direct resort to
this Court may be had only through the extraordinary writ of certiorari and upon showing
that the Ombudsman committed grave abuse of discretion, which petitioner failed to
demonstrate.
Absent any grave abuse of discretion tainting it, the courts will not interfere with the
Ombudsman's supervision and control over the preliminary investigation conducted by
him. 2 6 It is beyond the ambit of this Court to review the exercise of discretion of the
Ombudsman in prosecuting or dismissing a complaint filed before it. 2 7 The rule is based
not only upon respect for the investigatory and prosecutory powers granted by the
Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the
functions of the courts will be grievously hampered by innumerable petitions assailing the
dismissal of investigatory proceedings conducted by the Office of the Ombudsman with
regard to complaints filed before it, in much the same way that the courts would be
extremely swamped if they would be compelled to review the exercise of discretion on the
part of the fiscals or prosecuting attorneys each time they decide to file an information in
court or dismiss a complaint by a private complainant. 2 8
WHEREFORE, the instant petition for review on certiorari is DENIED. No costs. ICTaEH

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SO ORDERED.
Quisumbing, Carpio, Carpio Morales and Velasco, Jr., JJ., concur.
Footnotes

1. Rollo, pp. 22-26.


2. Id. at 27-35; 125-138; Likewise dated 5 March 1997.
3. Id. at 36-38.
4. Id. at 36-37.
5. Id. at 37.
6. Id. at 45-47.
7. Id. at 48-50.
8. Id. at 48-49.
9. Id. at 22.
10. Id. at 76.
11. Id. at 85-90, 91-95.
12. Id. at 96-100.
13. Id. at 101-103.
14. Supra note 2.
15. Rollo, pp. 113-114.
16. R.A. No. 6770 (1989), Sect. 27 provides: Effectivity and Finality of Decisions. (1) All
provisionary orders of the Office of the Ombudsman are immediately effective and
executory.
A motion for reconsideration of any order, directive or decision of the Office of the
Ombudsman must be filed within five (5) days after receipt of written notice and shall be
entertained only on any of the following grounds:

(1) New evidence has been discovered which materially affects the order,
directive or decision;

(2) Errors of law or irregularities have been committed prejudicial to the interest of
the movant. The motion for reconsideration shall be resolved within three (3) days from
filing: Provided, That only one motion for reconsideration shall be entertained.
Findings of fact by the Officer of the Ombudsman when supported by substantial
evidence are conclusive. Any order, directive or decision imposing the penalty of public
censure or reprimand, suspension of not more than one (1) month's salary shall be final
and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of


the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari
within ten (10) days from receipt of the written notice of the order, directive or decision or
denial of the motion for reconsideration in accordance with Rule 45 of the Rules of
Court.
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The above rules may be amended or modified by the Office of the Ombudsman as
the interest of justice may require.
17. Kara-an v. Office of the Ombudsman, G.R. No. 119990, June 21, 2004, 432 SCRA 457,
463-464.

18. 356 Phil. 787 (1998).


19. Kara-an v. Office of the Ombudsman, supra at 464.
20. Id. at 462-463.
21. Republic Act No. 3019 (1960), Sec. 3(e) provides:
SEC. 3. Corrupt practices of public officials.

xxx xxx xxx


(e) Causing any undue injury to any party, including the Government, or giving
any private party any unwarranted benefits, advantage or preference in the discharge of
his official administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or
permits or other concessions.

22. REVISED PENAL CODE, Art. 324. Crimes involving destruction. Any person who shall
cause destruction by means of explosion, discharge of electric current, inundation,
sinking or stranding of a vessel, intentional damaging of the engine of said vessel,
taking up the rails from a railway track, maliciously changing railway signals for the
safety of moving trains, destroying telegraph wires and telegraph posts, or those of any
other system, and, in general, by using any other agency or means of destruction as
effective as those above enumerated, shall be punished by reclusion temporal if the
commission has endangered the safety of any person; otherwise, the penalty of prision
mayor shall be imposed.
23. Rollo, p. 25.
24. Solvic Industrial Corporation. v. NLRC, 357 Phil. 430, 438 (1998).
25. Corpuz v. Sandiganbayan, G.R. No. 162214, November 11, 2004, 442 SCRA 294, 307-
308.
26. Mamburao, Inc. v. Office of the Ombudsman, G.R. Nos. 139141-42, November 15, 2000,
344 SCRA 805, 817-818.
27. Id. at 819.
28. Id.

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EN BANC

[G.R. No. 166494. June 29, 2007.]

CARLOS SUPERDRUG CORP., doing business under the name and


style "Carlos Superdrug", ELSIE M. CANO, doing business under the
name and style "Advance Drug", Dr. SIMPLICIO L. YAP, JR., doing
business under the name and style "City Pharmacy", MELVIN S.
DELA SERNA, doing business under the name and style "Botica dela
Serna", and LEYTE SERV-WELL CORP., doing business under the
name and style "Leyte Serv-Well Drugstore" , petitioners, vs .
DEPARTMENT OF SOCIAL WELFARE and DEVELOPMENT (DSWD),
DEPARTMENT OF HEALTH (DOH), DEPARTMENT OF FINANCE
(DOF), DEPARTMENT OF JUSTICE (DOJ), and DEPARTMENT OF THE
INTERIOR and LOCAL GOVERNMENT (DILG) , respondents.

DECISION

AZCUNA , J : p

This is a petition 1 for Prohibition with Prayer for Preliminary Injunction assailing the
constitutionality of Section 4 (a) of Republic Act (R.A.) No. 9257, 2 otherwise known as the
"Expanded Senior Citizens Act of 2003".
Petitioners are domestic corporations and proprietors operating drugstores in the
Philippines. TCcSDE

Public respondents, on the other hand, include the Department of Social Welfare and
Development (DSWD), the Department of Health (DOH), the Department of Finance (DOF),
the Department of Justice (DOJ), and the Department of the Interior and Local Government
(DILG) which have been specifically tasked to monitor the drugstores' compliance with the
law; promulgate the implementing rules and regulations for the effective implementation
of the law; and prosecute and revoke the licenses of erring drugstore establishments.
The antecedents are as follows:
On February 26, 2004, R.A. No. 9257, amending R.A. No. 7432, 3 was signed into law by
President Gloria Macapagal-Arroyo and it became effective on March 21, 2004. Section 4
(a) of the Act states:
SEC. 4. Privileges for the Senior Citizens. The senior citizens shall be
entitled to the following:

(a) the grant of twenty percent (20%) discount from all establishments
relative to the utilization of services in hotels and similar lodging establishments,
restaurants and recreation centers, and purchase of medicines in all
establishments for the exclusive use or enjoyment of senior citizens, including
funeral and burial services for the death of senior citizens;

xxx xxx xxx

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The establishment may claim the discounts granted under (a) , (f), (g) and (h) as
tax deduction based on the net cost of the goods sold or services rendered:
Provided, That the cost of the discount shall be allowed as deduction from gross
income for the same taxable year that the discount is granted. Provided, further,
That the total amount of the claimed tax deduction net of value added tax if
applicable, shall be included in their gross sales receipts for tax purposes and
shall be subject to proper documentation and to the provisions of the National
Internal Revenue Code, as amended. 4

On May 28, 2004, the DSWD approved and adopted the Implementing Rules and
Regulations of R.A. No. 9257, Rule VI, Article 8 of which states:
Article 8. Tax Deduction of Establishments. The establishment may claim
the discounts granted under Rule V, Section 4 Discounts for Establishments; 5
Section 9, Medical and Dental Services in Private Facilities[,] 6 and Sections 10 7
and 11 8 Air, Sea and Land Transportation as tax deduction based on the net
cost of the goods sold or services rendered. Provided, That the cost of the
discount shall be allowed as deduction from gross income for the same taxable
year that the discount is granted; Provided, further, That the total amount of the
claimed tax deduction net of value added tax if applicable, shall be included in
their gross sales receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal Revenue Code, as
amended; Provided, finally, that the implementation of the tax deduction shall be
subject to the Revenue Regulations to be issued by the Bureau of Internal
Revenue (BIR) and approved by the Department of Finance (DOF). 9 DSITEH

On July 10, 2004, in reference to the query of the Drug Stores Association of the
Philippines (DSAP) concerning the meaning of a tax deduction under the Expanded Senior
Citizens Act, the DOF, through Director IV Ma. Lourdes B. Recente, clarified as follows:
1) The difference between the Tax Credit (under the Old Senior Citizens Act)
and Tax Deduction (under the Expanded Senior Citizens Act).

1.1. The provision of Section 4 of R.A. No. 7432 (the old Senior
Citizens Act) grants twenty percent (20%) discount from all establishments
relative to the utilization of transportation services, hotels and similar
lodging establishment, restaurants and recreation centers and purchase of
medicines anywhere in the country, the costs of which may be claimed by
the private establishments concerned as tax credit .

Effectively, a tax credit is a peso-for-peso deduction from a taxpayer's tax


liability due to the government of the amount of discounts such
establishment has granted to a senior citizen. The establishment recovers
the full amount of discount given to a senior citizen and hence, the
government shoulders 100% of the discounts granted.

It must be noted, however, that conceptually, a tax credit scheme under


the Philippine tax system, necessitates that prior payments of taxes have
been made and the taxpayer is attempting to recover this tax payment
from his/her income tax due. The tax credit scheme under R.A. No. 7432 is,
therefore, inapplicable since no tax payments have previously occurred.

1.2. The provision under R.A. No. 9257, on the other hand, provides
that the establishment concerned may claim the discounts under Section 4
(a), (f), (g) and (h) as tax deduction from gross income, based on the net
cost of goods sold or services rendered.
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Under this scheme, the establishment concerned is allowed to deduct from
gross income, in computing for its tax liability, the amount of discounts
granted to senior citizens. Effectively, the government loses in terms of
foregone revenues an amount equivalent to the marginal tax rate the said
establishment is liable to pay the government. This will be an amount
equivalent to 32% of the twenty percent (20%) discounts so granted. The
establishment shoulders the remaining portion of the granted discounts.

It may be necessary to note that while the burden on [the] government is


slightly diminished in terms of its percentage share on the discounts
granted to senior citizens, the number of potential establishments that may
claim tax deductions, have however, been broadened. Aside from the
establishments that may claim tax credits under the old law, more
establishments were added under the new law such as: establishments
providing medical and dental services, diagnostic and laboratory services,
including professional fees of attending doctors in all private hospitals and
medical facilities, operators of domestic air and sea transport services,
public railways and skyways and bus transport services. cDaEAS

A simple illustration might help amplify the points discussed above, as


follows:
Tax Deduction Tax Credit
Gross Sales xxxxxx xxxxxx

Less: Cost of goods sold xxxxx xxxxx

Net Sales xxxxxx xxxxxx


Less: Operating Expenses:
Tax Deduction on Discounts xxxx --
Other deductions: xxxx xxxx


Net Taxable Income xxxxx xxxxx
Tax Due xxx xxx

Less: Tax Credit -- xx


Net Tax Due -- xx


As shown above, under a tax deduction scheme, the tax deduction on
discounts was subtracted from Net Sales together with other deductions which
are considered as operating expenses before the Tax Due was computed based
on the Net Taxable Income. On the other hand, under a tax credit scheme, the
amount of discounts which is the tax credit item, was deducted directly from the
tax due amount. 1 0

Meanwhile, on October 1, 2004, Administrative Order (A.O.) No. 171 or the Policies and
Guidelines to Implement the Relevant Provisions of Republic Act 9257, otherwise known
as the "Expanded Senior Citizens Act of 2003" 1 1 was issued by the DOH, providing the
grant of twenty percent (20%) discount in the purchase of unbranded generic medicines
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from all establishments dispensing medicines for the exclusive use of the senior citizens.
On November 12, 2004, the DOH issued Administrative Order No. 177 1 2 amending A.O.
No. 171. Under A.O. No. 177, the twenty percent discount shall not be limited to the
purchase of unbranded generic medicines only, but shall extend to both prescription and
non-prescription medicines whether branded or generic. Thus, it stated that "[t]he grant of
twenty percent (20%) discount shall be provided in the purchase of medicines from all
establishments dispensing medicines for the exclusive use of the senior citizens".
Petitioners assail the constitutionality of Section 4 (a) of the Expanded Senior Citizens Act
based on the following grounds: 1 3
1) The law is confiscatory because it infringes Art. III, Sec. 9 of the
Constitution which provides that private property shall not be taken for
public use without just compensation; EAcHCI

2) It violates the equal protection clause (Art. III, Sec. 1) enshrined in our
Constitution which states that "no person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied of the
equal protection of the laws;" and

3) The 20% discount on medicines violates the constitutional guarantee in


Article XIII, Section 11 that makes "essential goods, health and other social
services available to all people at affordable cost." 1 4

Petitioners assert that Section 4 (a) of the law is unconstitutional because it constitutes
deprivation of private property. Compelling drugstore owners and establishments to grant
the discount will result in a loss of profit and capital because 1) drugstores impose a
mark-up of only 5% to 10% on branded medicines; and 2) the law failed to provide a
scheme whereby drugstores will be justly compensated for the discount.

Examining petitioners' arguments, it is apparent that what petitioners are ultimately


questioning is the validity of the tax deduction scheme as a reimbursement mechanism for
the twenty percent (20%) discount that they extend to senior citizens.
Based on the afore-stated DOF Opinion, the tax deduction scheme does not fully reimburse
petitioners for the discount privilege accorded to senior citizens. This is because the
discount is treated as a deduction, a tax-deductible expense that is subtracted from the
gross income and results in a lower taxable income. Stated otherwise, it is an amount that
is allowed by law 1 5 to reduce the income prior to the application of the tax rate to
compute the amount of tax which is due. 1 6 Being a tax deduction, the discount does not
reduce taxes owed on a peso for peso basis but merely offers a fractional reduction in
taxes owed.
Theoretically, the treatment of the discount as a deduction reduces the net income of the
private establishments concerned. The discounts given would have entered the coffers
and formed part of the gross sales of the private establishments, were it not for R.A. No.
9257.
The permanent reduction in their total revenues is a forced subsidy corresponding to the
taking of private property for public use or benefit. 1 7 This constitutes compensable taking
for which petitioners would ordinarily become entitled to a just compensation. TIcAaH

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Just compensation is defined as the full and fair equivalent of the property taken from its
owner by the expropriator. The measure is not the taker's gain but the owner's loss. The
word jus t is used to intensify the meaning of the word compensation , and to convey the
idea that the equivalent to be rendered for the property to be taken shall be real,
substantial, full and ample. 1 8
A tax deduction does not offer full reimbursement of the senior citizen discount. As such, it
would not meet the definition of just compensation. 1 9
Having said that, this raises the question of whether the State, in promoting the health and
welfare of a special group of citizens, can impose upon private establishments the burden
of partly subsidizing a government program.
The Court believes so.
The Senior Citizens Act was enacted primarily to maximize the contribution of senior
citizens to nation-building, and to grant benefits and privileges to them for their
improvement and well-being as the State considers them an integral part of our society. 2 0
The priority given to senior citizens finds its basis in the Constitution as set forth in the law
itself. Thus, the Act provides:
SEC. 2. Republic Act No. 7432 is hereby amended to read as follows:
SECTION 1. Declaration of Policies and Objectives. Pursuant to Article XV,
Section 4 of the Constitution, it is the duty of the family to take care of its elderly
members while the State may design programs of social security for them. In
addition to this, Section 10 in the Declaration of Principles and State Policies
provides: "The State shall provide social justice in all phases of national
development." Further, Article XIII, Section 11, provides: "The State shall adopt an
integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to
all the people at affordable cost. There shall be priority for the needs of the
underprivileged sick, elderly, disabled, women and children." Consonant with these
constitutional principles the following are the declared policies of this Act:
xxx xxx xxx
(f) To recognize the important role of the private sector in the
improvement of the welfare of senior citizens and to actively seek their
partnership . 2 1 DAEIHT

To implement the above policy, the law grants a twenty percent discount to senior citizens
for medical and dental services, and diagnostic and laboratory fees; admission fees
charged by theaters, concert halls, circuses, carnivals, and other similar places of culture,
leisure and amusement; fares for domestic land, air and sea travel; utilization of services in
hotels and similar lodging establishments, restaurants and recreation centers; and
purchases of medicines for the exclusive use or enjoyment of senior citizens. As a form of
reimbursement, the law provides that business establishments extending the twenty
percent discount to senior citizens may claim the discount as a tax deduction.
The law is a legitimate exercise of police power which, similar to the power of eminent
domain, has general welfare for its object. Police power is not capable of an exact
definition, but has been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room for an efficient and
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flexible response to conditions and circumstances, thus assuring the greatest benefits. 2 2
Accordingly, it has been described as "the most essential, insistent and the least limitable
of powers, extending as it does to all the great public needs." 2 3 It is "[t]he power vested in
the legislature by the constitution to make, ordain, and establish all manner of wholesome
and reasonable laws, statutes, and ordinances, either with penalties or without, not
repugnant to the constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same." 2 4
For this reason, when the conditions so demand as determined by the legislature, property
rights must bow to the primacy of police power because property rights, though sheltered
by due process, must yield to general welfare. 2 5
Police power as an attribute to promote the common good would be diluted considerably
if on the mere plea of petitioners that they will suffer loss of earnings and capital, the
questioned provision is invalidated. Moreover, in the absence of evidence demonstrating
the alleged confiscatory effect of the provision in question, there is no basis for its
nullification in view of the presumption of validity which every law has in its favor. 2 6
Given these, it is incorrect for petitioners to insist that the grant of the senior citizen
discount is unduly oppressive to their business, because petitioners have not taken time to
calculate correctly and come up with a financial report, so that they have not been able to
show properly whether or not the tax deduction scheme really works greatly to their
disadvantage. 2 7
In treating the discount as a tax deduction, petitioners insist that they will incur losses
because, referring to the DOF Opinion, for every P1.00 senior citizen discount that
petitioners would give, P0.68 will be shouldered by them as only P0.32 will be refunded by
the government by way of a tax deduction. cIDHSC

To illustrate this point, petitioner Carlos Super Drug cited the anti-hypertensive
maintenance drug Norvasc as an example. According to the latter, it acquires Norvasc
from the distributors at P37.57 per tablet, and retails it at P39.60 (or at a margin of 5%). If
it grants a 20% discount to senior citizens or an amount equivalent to P7.92, then it would
have to sell Norvasc at P31.68 which translates to a loss from capital of P5.89 per tablet.
Even if the government will allow a tax deduction, only P2.53 per tablet will be refunded
and not the full amount of the discount which is P7.92. In short, only 32% of the 20%
discount will be reimbursed to the drugstores. 2 8
Petitioners' computation is flawed. For purposes of reimbursement, the law states that the
cost of the discount shall be deducted from gross income, 2 9 the amount of income
derived from all sources before deducting allowable expenses, which will result in net
income. Here, petitioners tried to show a loss on a per transaction basis, which should not
be the case. An income statement, showing an accounting of petitioners' sales, expenses,
and net profit (or loss) for a given period could have accurately reflected the effect of the
discount on their income. Absent any financial statement, petitioners cannot substantiate
their claim that they will be operating at a loss should they give the discount. In addition,
the computation was erroneously based on the assumption that their customers
consisted wholly of senior citizens. Lastly, the 32% tax rate is to be imposed on income,
not on the amount of the discount.
Furthermore, it is unfair for petitioners to criticize the law because they cannot raise the
prices of their medicines given the cutthroat nature of the players in the industry. It is a
business decision on the part of petitioners to peg the mark-up at 5%. Selling the
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medicines below acquisition cost, as alleged by petitioners, is merely a result of this
decision. Inasmuch as pricing is a property right, petitioners cannot reproach the law for
being oppressive, simply because they cannot afford to raise their prices for fear of losing
their customers to competition.
The Court is not oblivious of the retail side of the pharmaceutical industry and the
competitive pricing component of the business. While the Constitution protects property
rights, petitioners must accept the realities of business and the State, in the exercise of
police power, can intervene in the operations of a business which may result in an
impairment of property rights in the process.
Moreover, the right to property has a social dimension. While Article XIII of the
Constitution provides the precept for the protection of property, various laws and
jurisprudence, particularly on agrarian reform and the regulation of contracts and public
utilities, continuously serve as a reminder that the right to property can be relinquished
upon the command of the State for the promotion of public good. 3 0
Undeniably, the success of the senior citizens program rests largely on the support
imparted by petitioners and the other private establishments concerned. This being the
case, the means employed in invoking the active participation of the private sector, in order
to achieve the purpose or objective of the law, is reasonably and directly related. Without
sufficient proof that Section 4 (a) of R.A. No. 9257 is arbitrary, and that the continued
implementation of the same would be unconscionably detrimental to petitioners, the Court
will refrain from quashing a legislative act. 3 1

WHEREFORE, the petition is DISMISSED for lack of merit. IDEScC

No costs.
SO ORDERED.
Puno, C.J., Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Tinga, Chico-
Nazario, Garcia, Velasco, Jr. and Nachura, JJ., concur.
Quisumbing, J., is on official leave.
Sandoval-Gutierrez, J., is on leave.

Footnotes

1. Under Rule 65 of the Rules of Court.


2. An Act Granting Additional Benefits and Privileges to Senior Citizens Amending for the
Purpose Republic Act No. 7432, otherwise known as "An Act to Maximize the
Contribution of Senior Citizens to Nation Building, Grant Benefits and Special Privileges
and for other Purposes".

3. Otherwise known as the Senior Citizens Act.


4. Emphasis supplied.
5. Section 4. Discounts from Establishments The grant of twenty percent (20%) discount
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on all prices of goods and services offered to the general public regardless of the
amount purchased from all establishments, irrespective of classification, relative to the
utilization of services for the exclusive use of senior citizen in the following:
IHaSED

xxx xxx xxx


d) DRUG STORES, HOSPITAL PHARMACIES, MEDICAL AND OPTICAL CLINICS
AND SIMILAR ESTABLISHMENTS DISPENSING MEDICINES The discount for
purchases of drugs/medicines shall be subject to the Guidelines to be issued by the
Bureau of Food and Drugs, Department of Health (BFAD-DOH), in coordination with the
Philippine Health Insurance Corporation (PHILHEALTH).
6. Section 9. Medical and Dental Services in Private Facilities. The senior citizen shall be
granted twenty percent (20%) discount on medical and dental services and diagnostic
and laboratory fees such as but not limited to x-ray, computerized tomography scans
and blood tests, including professional fees of attending doctors in all private hospitals
and medical facilities, in accordance with the rules and regulations to be issued by the
Department of Health, in coordination with the Philippine Health Insurance Corporation.
7. Section 10. Air and Transportation Privileges. At least twenty percent (20%) discount in
fare for domestic air, and sea travel based on the actual fare, including the promotional
fare, advance booking and similar discounted fare shall be granted for the exclusive use
and enjoyment of senior citizens.
8. Section 11. Public Land Transportation Privileges. Twenty percent (20%) discount in
public railways, including LRT, MRT, PNR, Skyways and fares in buses (PUB), jeepneys
(PUJ), taxi and shuttle services (AUV) shall be granted for the exclusive use and
enjoyment of senior citizens.

9. Rollo, p. 57.
10. Id. at 67-69; emphasis supplied.
11. The A.O. became effective on October 9, 2004, after its publication in two national
newspapers of general circulation.
12. "Amendment to Administrative Order No. 171, s. 2004 on the Policies and Guidelines to
Implement the Relevant Provisions of Republic Act 9257, otherwise known as the
"Expanded Senior Citizens Act of 2003."
13. Rollo, pp. 17-24.
14. According to petitioners, of the five (5) million Filipinos who are 60 years old and above,
only 500,000 are in Metro Manila and thus, have access to Mercury Drug which, because
of the bulk discounts it gets from pharmaceutical companies and suppliers, can afford
to give the 20% discount. Unlike Mercury Drug, small- to medium-scale drugstores similar
to those of petitioners', however, can only impose minimal mark-ups for competitive
pricing but are constrained to raise the prices of their medicines so that they would be
able to recoup the 20% discount that they extend to senior citizens. In the end, roughly
4.5 million senior citizens in the provinces or in the areas where Mercury Drug is not
present will not be able to benefit fully from the discount that the law provides.
15. Under Section 34 of the Tax Code, the itemized deductions considered as allowable
deductions from gross income include ordinary and necessary expenses, interest, taxes,
losses, bad debts, depreciation, depletion of oil and gas wells and mines, charitable and
other contributions, research and development expenditures, and pension trust
contributions.
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16. Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647,
April 15, 2005, 456 SCRA 414, 428-429 citing Smith, West's Tax Law Dictionary (1993),
pp. 177-178, 196. DHACES

17. The concept of public use is no longer confined to the traditional notion of use by the
public, but held synonymous with public interest, public benefit, public welfare, and
public convenience. The discount privilege to which senior citizens are entitled is
actually a benefit enjoyed by the general public to which these citizens belong
(Commissioner of Internal Revenue v. Central Luzon Drug Corporation, supra note 14, at
444; Land Bank of the Philippines v. De Leon, 437 Phil. 347, 359 [2002] citing Estate of
Salud Jimenez v. Philippine Export Processing Zone, G.R. No. 137285, January 16, 2001,
349 SCRA 240, 264).
18. National Power Corporation v. Manubay Agro-Industrial Development Corporation, G.R.
No. 150936, August 18, 2004, 437 SCRA 60, 68 citing Association of Small Landowners
in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989,
175 SCRA 343.
19. In the case of Commissioner of Internal Revenue v. Central Luzon Drug Corporation,
supra note 14, the Court held that just compensation confers the right to receive an
equivalent amount for the discount given and the prompt payment of such amount. The
advantage of a tax deduction is that the cost of the discount can immediately be
refunded, though not fully, by declaring it as a deductible expense in computing for
taxable income. In a tax credit, one has to await the issuance of a tax credit certificate
indicating the correct amount of the discounts given before the latter can be refunded.
Thus, the availment of a tax credit necessitates prior payment of income tax.

20. Article XV of the Constitution states: "Section 1. The State recognizes the Filipino family
as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development."
21. Emphasis supplied.
22. Sangalang v. IAC, G.R. No. 71169, August 25, 1989, 176 SCRA 719.
23. Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, L-
24693, July 31, 1967, 20 SCRA 849 citing Noble State Bank v. Haskell, 219 U.S. 412
(1911).
24. U.S. v. Toribio, 15 Phil. 85 (1910) citing Commonwealth v. Alger, 7 Cush., 53 (Mass.
1851); U.S. v. Pompeya, 31 Phil. 245, 253-254 (1915).
25. Alalayan v. National Power Corporation, 24 Phil. 172 (1968).
26. Id.
27. The person who impugns the validity of a statute must have personal interest in the
case such that he has sustained, or will sustain, direct injury as a result of its
enforcement (People v. Vera, 65 Phil. 56 [1937]).
28. Rollo, p. 11.
29. Section 27 (E) (4) of the National Internal Revenue Code (NIRC) provides that for
purposes of applying the minimum corporate income tax on domestic corporations, the
term 'gross income' shall mean gross sales less sales returns, discounts and allowances
and cost of goods sold. For a trading or merchandising concern, 'cost of goods sold'
shall include the invoice cost of the goods sold, plus import duties, freight in transporting
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the goods to the place where the goods are actually sold including insurance while the
goods are in transit.

30. By the "general police power of the State, persons and property are subjected to all
kinds of restraints and burdens, in order to secure the general comfort, health, and
prosperity of the State; of the perfect right in the legislature to do which, no question ever
was, or, upon acknowledged and general principles, ever can be made, so far as natural
persons are concerned." (U.S. v. Toribio, supra note 24, at 98-99, citing Thorpe v. Rutland
& Burlington R.R. Co. (27 Vt., 140, 149).
31. Subject to the determination of the courts as to what is a proper exercise of police
power using the due process clause and the equal protection clause as yardsticks, the
State may interfere wherever the public interests demand it, and in this particular a large
discretion is necessarily vested in the legislature to determine, not only what interests of
the public require, but what measures are necessary for the protection of such interests
(U.S. v. Toribio, supra note 24, at 98, citing Lawton v. Steele, 152 U.S. 133, 136; Barbier v.
Connoly, 113 U.S. 27; Kidd v. Pearson, 128 U.S. 1). IcDESA

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EN BANC

[G.R. No. 118127. April 12, 2005.]

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of


Manila HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of
the City of Manila and Presiding Officer of the City Council of
Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES,
HON. AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO, HON.
ALBERTO DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G.
VARONA, JR., HON. ROMUALDO S. MARANAN, HON. NESTOR C.
PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M.
ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG,
HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO,
HON. VICTORIANO A. MELENDEZ, HON. ERNESTO V.P. MACEDA,
JR., HON. ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON.
GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY
D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q.
BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D.
RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C.
SISON, HON. BIENVENIDO M. ABANTE, JR., HON. MA. LOURDES M.
ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA,
HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their
capacity as councilors of the City of Manila , petitioners, vs . HON.
PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and
MALATE TOURIST DEVELOPMENT CORPORATION , respondents.

DECISION

TINGA , J : p

I know only that what is moral is what you feel good after and what is immoral is
what you feel bad after.

Ernest Hemingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by
oneself, is less immoral than if performed by someone else, who would be well-
intentioned in his dishonesty.

J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary to its fealty to the
fundamental law of the land. It is foremost a guardian of the Constitution but not the
conscience of individuals. And if it need be, the Court will not hesitate to "make the
hammer fall, and heavily" in the words of Justice Laurel, and uphold the constitutional
guarantees when faced with laws that, though not lacking in zeal to promote morality,
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nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition 1 under Rule 45 (then Rule 42) of the Revised Rules on Civil
Procedure seeking the reversal of the Decision 2 in Civil Case No. 93-66511 of the Regional
Trial Court (RTC) of Manila, Branch 18 (lower court), 3 is the validity of Ordinance No. 7783
(the Ordinance) of the City of Manila. 4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a corporation
engaged in the business of operating hotels, motels, hostels and lodging houses. 5 It built
and opened Victoria Court in Malate which was licensed as a motel although duly
accredited with the Department of Tourism as a hotel. 6 On 28 June 1993, MTDC filed a
Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or
Temporary Restraining Order 7 (RTC Petition) with the lower court impleading as
defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L.
Atienza, and the members of the City Council of Manila (City Council). MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its prohibited
establishments, be declared invalid and unconstitutional. 8
Enacted by the City Council 9 on 9 March 1993 and approved by petitioner City Mayor on
30 March 1993, the said Ordinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT,
SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES. 1 0

The Ordinance is reproduced in full, hereunder:


SECTION 1.Any provision of existing laws and ordinances to the contrary
notwithstanding, no person, partnership, corporation or entity shall, in the Ermita-
Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in
the East, Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant
to P.D. 499 be allowed or authorized to contract and engage in, any business
providing certain forms of amusement, entertainment, services and facilities
where women are used as tools in entertainment and which tend to disturb the
community, annoy the inhabitants, and adversely affect the social and moral
welfare of the community, such as but not limited to:
1.Sauna Parlors EDSAac

2.Massage Parlors

3.Karaoke Bars

4.Beerhouses

5.Night Clubs

6.Day Clubs

7.Super Clubs
8.Discotheques

9.Cabarets
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10.Dance Halls

11.Motels
12.Inns

SEC. 2.The City Mayor, the City Treasurer or any person acting in behalf of the
said officials are prohibited from issuing permits, temporary or otherwise, or from
granting licenses and accepting payments for the operation of business
enumerated in the preceding section.
SEC. 3.Owners and/or operator of establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are hereby given three (3) months
from the date of approval of this ordinance within which to wind up business
operations or to transfer to any place outside of the Ermita-Malate area or convert
said businesses to other kinds of business allowable within the area, such as but
not limited to:

1.Curio or antique shop

2.Souvenir Shops

3.Handicrafts display centers

4.Art galleries
5.Records and music shops

6.Restaurants

7.Coffee shops

8.Flower shops

9.Music lounge and sing-along restaurants, with well-defined activities for


wholesome family entertainment that cater to both local and foreign clientele.
10.Theaters engaged in the exhibition, not only of motion pictures but also of
cultural shows, stage and theatrical plays, art exhibitions, concerts and the like.
11.Businesses allowable within the law and medium intensity districts as
provided for in the zoning ordinances for Metropolitan Manila, except new
warehouse or open-storage depot, dock or yard, motor repair shop, gasoline
service station, light industry with any machinery, or funeral establishments.
SEC. 4.Any person violating any provisions of this ordinance, shall upon
conviction, be punished by imprisonment of one (1) year or fine of FIVE
THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court, PROVIDED,
that in case of juridical person, the President, the General Manager, or person-in-
charge of operation shall be liable thereof; PROVIDED FURTHER, that in case of
subsequent violation and conviction, the premises of the erring establishment
shall be closed and padlocked permanently.
SEC. 5.This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.

Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)

In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included
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in its enumeration of prohibited establishments, motels and inns such as MTDC's Victoria
Court considering that these were not establishments for "amusement" or "entertainment"
and they were not "services or facilities for entertainment," nor did they use women as
"tools for entertainment," and neither did they "disturb the community," "annoy the
inhabitants" or "adversely affect the social and moral welfare of the community." 1 1
MTDC further advanced that the Ordinance was invalid and unconstitutional for the
following reasons: (1) The City Council has no power to prohibit the operation of motels as
Section 458 (a) 4 (iv) 1 2 of the Local Government Code of 1991 (the Code) grants to the
City Council only the power to regulate the establishment, operation and maintenance of
hotels, motels, inns, pension houses, lodging houses and other similar establishments; (2)
The Ordinance is void as it is violative of Presidential Decree (P.D.) No. 499 1 3 which
specifically declared portions of the Ermita-Malate area as a commercial zone with certain
restrictions; (3) The Ordinance does not constitute a proper exercise of police power as
the compulsory closure of the motel business has no reasonable relation to the legitimate
municipal interests sought to be protected; (4) The Ordinance constitutes an ex post facto
law by punishing the operation of Victoria Court which was a legitimate business prior to
its enactment; (5) The Ordinance violates MTDC's constitutional rights in that: (a) it is
confiscatory and constitutes an invasion of plaintiff's property rights; (b) the City Council
has no power to find as a fact that a particular thing is a nuisance per se nor does it have
the power to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of equal
protection under the law as no reasonable basis exists for prohibiting the operation of
motels and inns, but not pension houses, hotels, lodging houses or other similar
establishments, and for prohibiting said business in the Ermita-Malate area but not outside
of this area. 1 4
In their Answer 1 5 dated 23 July 1993, petitioners City of Manila and Lim maintained that
the City Council had the power to "prohibit certain forms of entertainment in order to
protect the social and moral welfare of the community" as provided for in Section 458 (a)
4 (vii) of the Local Government Code, 1 6 which reads, thus:
Section 458.Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare of
the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of
this Code, and shall:
xxx xxx xxx

(4)Regulate activities relative to the use of land, buildings and structures within
the city in order to promote the general welfare and for said purpose shall:

xxx xxx xxx


(vii)Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or,
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prohibit certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community. cDIaAS

Citing Kwong Sing v. City of Manila, 1 7 petitioners insisted that the power of regulation
spoken of in the above-quoted provision included the power to control, to govern and to
restrain places of exhibition and amusement. 1 8
Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila
to protect the social and moral welfare of the community in conjunction with its police
power as found in Article III, Section 18(kk) of Republic Act No. 409, 1 9 otherwise known
as the Revised Charter of the City of Manila (Revised Charter of Manila) 2 0 which reads,
thus:
ARTICLE III
THE MUNICIPAL BOARD
xxx xxx xxx

Section 18.Legislative powers. The Municipal Board shall have the following
legislative powers:

xxx xxx xxx


(kk)To enact all ordinances it may deem necessary and proper for the sanitation
and safety, the furtherance of the prosperity, and the promotion of the morality,
peace, good order, comfort, convenience, and general welfare of the city and its
inhabitants, and such others as may be necessary to carry into effect and
discharge the powers and duties conferred by this chapter; and to fix penalties for
the violation of ordinances which shall not exceed two hundred pesos fine or six
months' imprisonment, or both such fine and imprisonment, for a single offense.

Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private
respondent had the burden to prove its illegality or unconstitutionality. 2 1
Petitioners also maintained that there was no inconsistency between P.D. 499 and the
Ordinance as the latter simply disauthorized certain forms of businesses and allowed the
Ermita-Malate area to remain a commercial zone. 2 2 The Ordinance, the petitioners
likewise claimed, cannot be assailed as ex post facto as it was prospective in operation. 2 3
The Ordinance also did not infringe the equal protection clause and cannot be denounced
as class legislation as there existed substantial and real differences between the Ermita-
Malate area and other places in the City of Manila. 2 4
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-
parte temporary restraining order against the enforcement of the Ordinance. 2 5 And on 16
July 1993, again in an intrepid gesture, he granted the writ of preliminary injunction prayed
for by MTDC. 2 6
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining
the petitioners from implementing the Ordinance. The dispositive portion of said Decision
reads: 2 7
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series
of 1993, of the City of Manila null and void, and making permanent the writ of
preliminary injunction that had been issued by this Court against the defendant.
No costs.

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SO ORDERED. 2 8

Petitioners filed with the lower court a Notice of Appeal 2 9 on 12 December 1994,
manifesting that they are elevating the case to this Court under then Rule 42 on pure
questions of law. 3 0
On 11 January 1995, petitioners filed the present Petition, alleging that the following errors
were committed by the lower court in its ruling: (1) It erred in concluding that the subject
ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of
police power; (2) It erred in holding that the questioned Ordinance contravenes P.D. 499 3 1
which allows operators of all kinds of commercial establishments, except those specified
therein; and (3) It erred in declaring the Ordinance void and unconstitutional. 3 2
In the Petition and in its Memorandum, 3 3 petitioners in essence repeat the assertions they
made before the lower court. They contend that the assailed Ordinance was enacted in the
exercise of the inherent and plenary power of the State and the general welfare clause
exercised by local government units provided for in Art. 3, Sec. 18 (kk) of the Revised
Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code. 3 4 They allege that
the Ordinance is a valid exercise of police power; it does not contravene P.D. 499; and that
it enjoys the presumption of validity. 3 5
In its Memorandum 3 6 dated 27 May 1996, private respondent maintains that the
Ordinance is ultra vires and that it is void for being repugnant to the general law. It
reiterates that the questioned Ordinance is not a valid exercise of police power; that it is
violative of due process, confiscatory and amounts to an arbitrary interference with its
lawful business; that it is violative of the equal protection clause; and that it confers on
petitioner City Mayor or any officer unregulated discretion in the execution of the
Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment and tenderness for the
Ermita-Malate area being its home for several decades. A long-time resident, the Court
witnessed the area's many turn of events. It relished its glory days and endured its days of
infamy. Much as the Court harks back to the resplendant era of the Old Manila and yearns
to restore its lost grandeur, it believes that the Ordinance is not the fitting means to that
end. The Court is of the opinion, and so holds, that the lower court did not err in declaring
the Ordinance, as it did, ultra vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence
thereof violates a constitutional provision. The prohibitions and sanctions therein
transgress the cardinal rights of persons enshrined by the Constitution. The Court is called
upon to shelter these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held that
for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and must be passed according to the procedure prescribed by
law, it must also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must
not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not be unreasonable. 3 7
Anent the first criterion, ordinances shall only be valid when they are not contrary to the
Constitution and to the laws. 3 8 The Ordinance must satisfy two requirements: it must
pass muster under the test of constitutionality and the test of consistency with the
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prevailing laws. That ordinances should be constitutional uphold the principle of the
supremacy of the Constitution. The requirement that the enactment must not violate
existing law gives stress to the precept that local government units are able to legislate
only by virtue of their derivative legislative power, a delegation of legislative power from
the national legislature. The delegate cannot be superior to the principal or exercise
powers higher than those of the latter. 3 9
This relationship between the national legislature and the local government units has not
been enfeebled by the new provisions in the Constitution strengthening the policy of local
autonomy. The national legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it. 4 0
The Ordinance was passed by the City Council in the exercise of its police power, an
enactment of the City Council acting as agent of Congress. Local government units, as
agencies of the State, are endowed with police power in order to effectively accomplish
and carry out the declared objects of their creation. 4 1 This delegated police power is
found in Section 16 of the Code, known as the general welfare clause, viz:
SECTION 16.General Welfare. Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a balanced ecology,
encourage and support the development of appropriate and self-reliant scientific
and technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their
inhabitants. STCDaI

Local government units exercise police power through their respective legislative bodies;
in this case, the sangguniang panlungsod or the city council. The Code empowers the
legislative bodies to "enact ordinances, approve resolutions and appropriate funds for the
general welfare of the province/city/municipality and its inhabitants pursuant to Section 16
of the Code and in the proper exercise of the corporate powers of the
province/city/municipality provided under the Code." 4 2 The inquiry in this Petition is
concerned with the validity of the exercise of such delegated power.

The Ordinance contravenes


the Constitution
The police power of the City Council, however broad and far-reaching, is subordinate to the
constitutional limitations thereon; and is subject to the limitation that its exercise must be
reasonable and for the public good. 4 3 In the case at bar, the enactment of the Ordinance
was an invalid exercise of delegated power as it is unconstitutional and repugnant to
general laws.
The relevant constitutional provisions are the following:
SEC. 5.The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment
by all the people of the blessings of democracy. 4 4
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SEC. 14.The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men. 4 5
SEC. 1.No person shall be deprived of life, liberty or property without due process
of law, nor shall any person be denied the equal protection of laws. 4 6
SEC. 9.Private property shall not be taken for public use without just
compensation. 4 7

A.The Ordinance infringes


the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be
deprived of life, liberty or property without due process of law. . . ." 4 8
There is no controlling and precise definition of due process. It furnishes though a
standard to which governmental action should conform in order that deprivation of life,
liberty or property, in each appropriate case, be valid. This standard is aptly described as a
responsiveness to the supremacy of reason, obedience to the dictates of justice, 4 9 and as
such it is a limitation upon the exercise of the police power. 5 0
The purpose of the guaranty is to prevent governmental encroachment against the life,
liberty and property of individuals; to secure the individual from the arbitrary exercise of
the powers of the government, unrestrained by the established principles of private rights
and distributive justice; to protect property from confiscation by legislative enactments,
from seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode
of judicial procedure; and to secure to all persons equal and impartial justice and the
benefit of the general law. 5 1
The guaranty serves as a protection against arbitrary regulation, and private corporations
and partnerships are "persons" within the scope of the guaranty insofar as their property is
concerned. 5 2
This clause has been interpreted as imposing two separate limits on government, usually
called "procedural due process" and "substantive due process."
Procedural due process, as the phrase implies, refers to the procedures that the
government must follow before it deprives a person of life, liberty, or property. Classic
procedural due process issues are concerned with what kind of notice and what form of
hearing the government must provide when it takes a particular action. 5 3
Substantive due process, as that phrase connotes, asks whether the government has an
adequate reason for taking away a person's life, liberty, or property. In other words,
substantive due process looks to whether there is a sufficient justification for the
government's action. 5 4 Case law in the United States (U.S.) tells us that whether there is
such a justification depends very much on the level of scrutiny used. 5 5 For example, if a
law is in an area where only rational basis review is applied, substantive due process is met
so long as the law is rationally related to a legitimate government purpose. But if it is an
area where strict scrutiny is used, such as for protecting fundamental rights, then the
government will meet substantive due process only if it can prove that the law is necessary
to achieve a compelling government purpose. 5 6
The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law.
Such power cannot be exercised whimsically, arbitrarily or despotically 5 7 as its exercise is
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subject to a qualification, limitation or restriction demanded by the respect and regard due
to the prescription of the fundamental law, particularly those forming part of the Bill of
Rights. Individual rights, it bears emphasis, may be adversely affected only to the extent
that may fairly be required by the legitimate demands of public interest or public welfare.
5 8 Due process requires the intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and property. 5 9
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of
the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it
appear that the interests of the public generally, as distinguished from those of a particular
class, require an interference with private rights, but the means adopted must be
reasonably necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals. 6 0 It must be evident that no other alternative for the accomplishment of
the purpose less intrusive of private rights can work. A reasonable relation must exist
between the purposes of the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public interest, personal rights
and those pertaining to private property will not be permitted to be arbitrarily invaded. 6 1
Lacking a concurrence of these two requisites, the police measure shall be struck down as
an arbitrary intrusion into private rights 6 2 a violation of the due process clause.aSDHCT

The Ordinance was enacted to address and arrest the social ills purportedly spawned by
the establishments in the Ermita-Malate area which are allegedly operated under the
deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars,
girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court in
the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila 6 3 had already taken judicial notice of the "alarming increase in the rate of
prostitution, adultery and fornication in Manila traceable in great part to existence of
motels, which provide a necessary atmosphere for clandestine entry, presence and exit
and thus become the ideal haven for prostitutes and thrill-seekers." 6 4
The object of the Ordinance was, accordingly, the promotion and protection of the social
and moral values of the community. Granting for the sake of argument that the objectives
of the Ordinance are within the scope of the City Council's police powers, the means
employed for the accomplishment thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all
reasonable regulations looking to the promotion of the moral and social values of the
community. However, the worthy aim of fostering public morals and the eradication of the
community's social ills can be achieved through means less restrictive of private rights; it
can be attained by reasonable restrictions rather than by an absolute prohibition. The
closing down and transfer of businesses or their conversion into businesses "allowed"
under the Ordinance have no reasonable relation to the accomplishment of its purposes.
Otherwise stated, the prohibition of the enumerated establishments will not per se protect
and promote the social and moral welfare of the community; it will not in itself eradicate
the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of
sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and
establishments of the like which the City Council may lawfully prohibit, 6 5 it is baseless and
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insupportable to bring within that classification sauna parlors, massage parlors, karaoke
bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and
inns. This is not warranted under the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive to the moral welfare of
the community.
That these are used as arenas to consummate illicit sexual affairs and as venues
to further the illegal prostitution is of no moment. We lay stress on the acrid truth that
sexual immorality, being a human frailty, may take place in the most innocent of places
that it may even take place in the substitute establishments enumerated under Section
3 of the Ordinance. If the awed logic of the Ordinance were to be followed, in the
remote instance that an immoral sexual act transpires in a church cloister or a court
chamber, we would behold the spectacle of the City of Manila ordering the closure of
the church or court concerned. Every house, building, park, curb, street or even vehicles
for that matter will not be exempt from the prohibition. Simply because there are no
"pure" places where there are impure men. Indeed, even the Scripture and the Tradition
of Christians churches continually recall the presence and universality of sin in man's
history. (Catechism of the Catholic Church, De nitive Edition, p. 101; ECCE and Word &
Life Publications, Don Bosco Compound, Makati)
The problem, it needs to be pointed out, is not the establishment, which by its nature
cannot be said to be injurious to the health or comfort of the community and which in itself
is amoral, but the deplorable human activity that may occur within its premises. While a
motel may be used as a venue for immoral sexual activity, it cannot for that reason alone
be punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a
mere likelihood or a naked assumption. If that were so and if that were allowed, then the
Ermita-Malate area would not only be purged of its supposed social ills, it would be
extinguished of its soul as well as every human activity, reprehensible or not, in its every
nook and cranny would be laid bare to the estimation of the authorities.

The Ordinance seeks to legislate morality but fails to address the core issues of morality.
Try as the Ordinance may to shape morality, it should not foster the illusion that it can
make a moral man out of it because immorality is not a thing, a building or establishment;
it is in the hearts of men. The City Council instead should regulate human conduct that
occurs inside the establishments, but not to the detriment of liberty and privacy which are
covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is commendable,
they unwittingly punish even the proprietors and operators of "wholesome," "innocent"
establishments. In the instant case, there is a clear invasion of personal or property rights,
personal in the case of those individuals desirous of owning, operating and patronizing
those motels and property in terms of the investments made and the salaries to be paid to
those therein employed. If the City of Manila so desires to put an end to prostitution,
fornication and other social ills, it can instead impose reasonable regulations such as daily
inspections of the establishments for any violation of the conditions of their licenses or
permits; it may exercise its authority to suspend or revoke their licenses for these
violations; 6 6 and it may even impose increased license fees. In other words, there are
other means to reasonably accomplish the desired end.
Means employed are
constitutionally infirm
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The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars,
beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls,
motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators
of the enumerated establishments are given three (3) months from the date of approval of
the Ordinance within which "to wind up business operations or to transfer to any place
outside the Ermita-Malate area or convert said businesses to other kinds of business
allowable within the area." Further, it states in Section 4 that in cases of subsequent
violations of the provisions of the Ordinance, the "premises of the erring establishment
shall be closed and padlocked permanently."
It is readily apparent that the means employed by the Ordinance for the achievement of its
purposes, the governmental interference itself, infringes on the constitutional guarantees
of a person's fundamental right to liberty and property. HCEcAa

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the
right to exist and the right to be free from arbitrary restraint or servitude. The term cannot
be dwarfed into mere freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the faculties with which he has been
endowed by his Creator, subject only to such restraint as are necessary for the common
welfare." 6 7 In accordance with this case, the rights of the citizen to be free to use his
faculties in all lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; and to pursue any avocation are all deemed embraced in the concept of
liberty. 6 8
The U.S. Supreme Court in the case of Roth v. Board of Regents, 6 9 sought to clarify the
meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty . . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognized . . . as essential to the orderly pursuit of happiness by
free men. In a Constitution for a free people, there can be no doubt that the
meaning of "liberty" must be broad indeed.

In another case, it also confirmed that liberty protected by the due process clause includes
personal decisions relating to marriage, procreation, contraception, family relationships,
child rearing, and education. In explaining the respect the Constitution demands for the
autonomy of the person in making these choices, the U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are central
to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the
right to define one's own concept of existence, of meaning, of universe, and of the
mystery of human life. Beliefs about these matters could not define the attributes
of personhood where they formed under compulsion of the State. 7 0

Persons desirous to own, operate and patronize the enumerated establishments under
Section 1 of the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to
consummate their bonds in intimate sexual conduct within the motel's premises be it
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stressed that their consensual sexual behavior does not contravene any fundamental state
policy as contained in the Constitution. 7 1 Adults have a right to choose to forge such
relationships with others in the confines of their own private lives and still retain their
dignity as free persons. The liberty protected by the Constitution allows persons the right
to make this choice. 7 2 Their right to liberty under the due process clause gives them the
full right to engage in their conduct without intervention of the government, as long as they
do not run afoul of the law. Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government
restraint; it must include privacy as well, if it is to be a repository of freedom. The right to
be let alone is the beginning of all freedom it is the most comprehensive of rights and
the right most valued by civilized men. 7 3
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc, 7 4 borrowing the words of
Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so fundamental that
they are the basis on which his civic obligations are built. He cannot abandon the
consequences of his isolation, which are, broadly speaking, that his experience is
private, and the will built out of that experience personal to himself. If he
surrenders his will to others, he surrenders himself. If his will is set by the will of
others, he ceases to be a master of himself. I cannot believe that a man no longer
a master of himself is in any real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion
of which should be justified by a compelling state interest. Morfe accorded recognition to
the right to privacy independently of its identification with liberty; in itself it is fully
deserving of constitutional protection. Governmental powers should stop short of certain
intrusions into the personal life of the citizen. 7 5
There is a great temptation to have an extended discussion on these civil liberties but the
Court chooses to exercise restraint and restrict itself to the issues presented when it
should. The previous pronouncements of the Court are not to be interpreted as a license
for adults to engage in criminal conduct. The reprehensibility of such conduct is not
diminished. The Court only reaffirms and guarantees their right to make this choice. Should
they be prosecuted for their illegal conduct, they should suffer the consequences of the
choice they have made. That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the
respondent of the beneficial use of its property. 7 6 The Ordinance in Section 1 thereof
forbids the running of the enumerated businesses in the Ermita-Malate area and in Section
3 instructs its owners/operators to wind up business operations or to transfer outside the
area or convert said businesses into allowed businesses. An ordinance which permanently
restricts the use of property that it can not be used for any reasonable purpose goes
beyond regulation and must be recognized as a taking of the property without just
compensation. 7 7 It is intrusive and violative of the private property rights of individuals. EHTCAa

The Constitution expressly provides in Article III, Section 9, that "private property shall not
be taken for public use without just compensation." The provision is the most important
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protection of property rights in the Constitution. This is a restriction on the general power
of the government to take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others. In part too, it is
about loss spreading. If the government takes away a person's property to benefit society,
then society should pay. The principal purpose of the guarantee is "to bar the Government
from forcing some people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole. 7 8
There are two different types of taking that can be identified. A "possessory" taking occurs
when the government confiscates or physically occupies property. A "regulatory" taking
occurs when the government's regulation leaves no reasonable economically viable use of
the property. 7 9
In the landmark case of Pennsylvania Coal v. Mahon, 8 0 it was held that a taking also could
be found if government regulation of the use of property went "too far." When regulation
reaches a certain magnitude, in most if not in all cases there must be an exercise of
eminent domain and compensation to support the act. While property may be regulated to
a certain extent, if regulation goes too far it will be recognized as a taking. 8 1

No formula or rule can be devised to answer the questions of what is too far and when
regulation becomes a taking. In Mahon, Justice Holmes recognized that it was "a question
of degree and therefore cannot be disposed of by general propositions." On many other
occasions as well, the U.S. Supreme Court has said that the issue of when regulation
constitutes a taking is a matter of considering the facts in each case. The Court asks
whether justice and fairness require that the economic loss caused by public action must
be compensated by the government and thus borne by the public as a whole, or whether
the loss should remain concentrated on those few persons subject to the public action. 8 2
What is crucial in judicial consideration of regulatory takings is that government regulation
is a taking if it leaves no reasonable economically viable use of property in a manner that
interferes with reasonable expectations for use. 8 3 A regulation that permanently denies all
economically beneficial or productive use of land is, from the owner's point of view,
equivalent to a "taking" unless principles of nuisance or property law that existed when the
owner acquired the land make the use prohibitable. 8 4 When the owner of real property has
been called upon to sacrifice all economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has suffered a taking. 8 5
A regulation which denies all economically beneficial or productive use of land will require
compensation under the takings clause. Where a regulation places limitations on land that
fall short of eliminating all economically beneficial use, a taking nonetheless may have
occurred, depending on a complex of factors including the regulation's economic effect on
the landowner, the extent to which the regulation interferes with reasonable investment-
backed expectations and the character of government action. These inquiries are informed
by the purpose of the takings clause which is to prevent the government from forcing
some people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole. 8 6
A restriction on use of property may also constitute a "taking" if not reasonably necessary
to the effectuation of a substantial public purpose or if it has an unduly harsh impact on
the distinct investment-backed expectations of the owner. 8 7

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The Ordinance gives the owners and operators of the "prohibited" establishments three (3)
months from its approval within which to "wind up business operations or to transfer to
any place outside of the Ermita-Malate area or convert said businesses to other kinds of
business allowable within the area." The directive to "wind up business operations"
amounts to a closure of the establishment, a permanent deprivation of property, and is
practically confiscatory. Unless the owner converts his establishment to accommodate an
"allowed" business, the structure which housed the previous business will be left empty
and gathering dust. Suppose he transfers it to another area, he will likewise leave the entire
establishment idle. Consideration must be given to the substantial amount of money
invested to build the edifices which the owner reasonably expects to be returned within a
period of time. It is apparent that the Ordinance leaves no reasonable economically viable
use of property in a manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area
or to convert into allowed businesses are confiscatory as well. The penalty of permanent
closure in cases of subsequent violations found in Section 4 of the Ordinance is also
equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property and build another one
outside the Ermita-Malate area. In every sense, it qualifies as a taking without just
compensation with an additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does not put an end to the
"problem," it merely relocates it. Not only is this impractical, it is unreasonable, onerous
and oppressive. The conversion into allowed enterprises is just as ridiculous. How may the
respondent convert a motel into a restaurant or a coffee shop, art gallery or music lounge
without essentially destroying its property? This is a taking of private property without due
process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be compensated by
the government. The burden on the owner to convert or transfer his business, otherwise it
will be closed permanently after a subsequent violation should be borne by the public as
this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning
ordinance, although a valid exercise of police power, which limits a "wholesome" property
to a use which can not reasonably be made of it constitutes the taking of such property
without just compensation. Private property which is not noxious nor intended for noxious
purposes may not, by zoning, be destroyed without compensation. Such principle finds no
support in the principles of justice as we know them. The police powers of local
government units which have always received broad and liberal interpretation cannot be
stretched to cover this particular taking.
Distinction should be made between destruction from necessity and eminent domain. It
needs restating that the property taken in the exercise of police power is destroyed
because it is noxious or intended for a noxious purpose while the property taken under the
power of eminent domain is intended for a public use or purpose and is therefore
"wholesome." 8 8 If it be of public benefit that a "wholesome" property remain unused or
relegated to a particular purpose, then certainly the public should bear the cost of
reasonable compensation for the condemnation of private property for public use. 8 9
Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions.
It in no way controls or guides the discretion vested in them. It provides no definition of
the establishments covered by it and it fails to set forth the conditions when the
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establishments come within its ambit of prohibition. The Ordinance confers upon the
mayor arbitrary and unrestricted power to close down establishments. Ordinances such as
this, which make possible abuses in its execution, depending upon no conditions or
qualifications whatsoever other than the unregulated arbitrary will of the city authorities as
the touchstone by which its validity is to be tested, are unreasonable and invalid. The
Ordinance should have established a rule by which its impartial enforcement could be
secured. 9 0
Ordinances placing restrictions upon the lawful use of property must, in order to be valid
and constitutional, specify the rules and conditions to be observed and conduct to avoid;
and must not admit of the exercise, or of an opportunity for the exercise, of unbridled
discretion by the law enforcers in carrying out its provisions. 9 1
Thus, in Coates v. City of Cincinnati, 9 2 as cited in People v. Nazario, 9 3 the U.S. Supreme
Court struck down an ordinance that had made it illegal for "three or more persons to
assemble on any sidewalk and there conduct themselves in a manner annoying to persons
passing by." The ordinance was nullified as it imposed no standard at all "because one may
never know in advance what 'annoys some people but does not annoy others.'"
Similarly, the Ordinance does not specify the standards to ascertain which establishments
"tend to disturb the community," "annoy the inhabitants," and "adversely affect the social
and moral welfare of the community." The cited case supports the nullification of the
Ordinance for lack of comprehensible standards to guide the law enforcers in carrying out
its provisions. EATCcI

Petitioners cannot therefore order the closure of the enumerated establishments without
infringing the due process clause. These lawful establishments may be regulated, but not
prevented from carrying on their business. This is a sweeping exercise of police power
that is a result of a lack of imagination on the part of the City Council and which amounts
to an interference into personal and private rights which the Court will not countenance. In
this regard, we take a resolute stand to uphold the constitutional guarantee of the right to
liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which is a
far cry from the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas, 9 4 the city of Dallas adopted a comprehensive ordinance
regulating "sexually oriented businesses," which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters as well as escort agencies, nude
model studio and sexual encounter centers. Among other things, the ordinance required
that such businesses be licensed. A group of motel owners were among the three groups
of businesses that filed separate suits challenging the ordinance. The motel owners
asserted that the city violated the due process clause by failing to produce adequate
support for its supposition that renting room for fewer than ten (10) hours resulted in
increased crime and other secondary effects. They likewise argued than the ten (10)-hour
limitation on the rental of motel rooms placed an unconstitutional burden on the right to
freedom of association. Anent the first contention, the U.S. Supreme Court held that the
reasonableness of the legislative judgment combined with a study which the city
considered, was adequate to support the city's determination that motels permitting room
rentals for fewer than ten (10) hours should be included within the licensing scheme. As
regards the second point, the Court held that limiting motel room rentals to ten (10) hours
will have no discernible effect on personal bonds as those bonds that are formed from the
use of a motel room for fewer than ten (10) hours are not those that have played a critical
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role in the culture and traditions of the nation by cultivating and transmitting shared ideals
and beliefs.

The ordinance challenged in the above-cited case merely regulated the targeted
businesses. It imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila, 9 5 it needs pointing out, is also different from this case in that what was involved
therein was a measure which regulated the mode in which motels may conduct business in
order to put an end to practices which could encourage vice and immorality. Necessarily,
there was no valid objection on due process or equal protection grounds as the ordinance
did not prohibit motels. The Ordinance in this case however is not a regulatory measure
but is an exercise of an assumed power to prohibit. 9 6
The foregoing premises show that the Ordinance is an unwarranted and unlawful
curtailment of property and personal rights of citizens. For being unreasonable and an
undue restraint of trade, it cannot, even under the guise of exercising police power, be
upheld as valid.
B.The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other
words, should not be treated differently, so as to give undue favor to some and unjustly
discriminate against others. 9 7 The guarantee means that no person or class of persons
shall be denied the same protection of laws which is enjoyed by other persons or other
classes in like circumstances. 9 8 The "equal protection of the laws is a pledge of the
protection of equal laws." 9 9 It limits governmental discrimination. The equal protection
clause extends to artificial persons but only insofar as their property is concerned. 1 0 0
The Court has explained the scope of the equal protection clause in this wise:
. . . What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Administration: "The ideal situation is for the law's benefits to be available to all,
that none be placed outside the sphere of its coverage. Only thus could chance
and favor be excluded and the affairs of men governed by that serene and
impartial uniformity, which is of the very essence of the idea of law." There is
recognition, however, in the opinion that what in fact exists "cannot approximate
the ideal. Nor is the law susceptible to the reproach that it does not take into
account the realities of the situation. The constitutional guarantee then is not to
be given a meaning that disregards what is, what does in fact exist. To assure
that the general welfare be promoted, which is the end of law, a regulatory
measure may cut into the rights to liberty and property. Those adversely affected
may under such circumstances invoke the equal protection clause only if they can
show that the governmental act assailed, far from being inspired by the
attainment of the common weal was prompted by the spirit of hostility, or at the
very least, discrimination that finds no support in reason." Classification is thus
not ruled out, it being sufficient to quote from the Tuason decision anew "that the
laws operate equally and uniformly on all persons under similar circumstances or
that all persons must be treated in the same manner, the conditions not being
different, both in the privileges conferred and the liabilities imposed. Favoritism
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and undue preference cannot be allowed. For the principle is that equal protection
and security shall be given to every person under circumstances which, if not
identical, are analogous. If law be looked upon in terms of burden or charges,
those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest. 1 0 1

Legislative bodies are allowed to classify the subjects of legislation. If the classification is
reasonable, the law may operate only on some and not all of the people without violating
the equal protection clause. 1 0 2 The classification must, as an indispensable requisite, not
be arbitrary. To be valid, it must conform to the following requirements:
1)It must be based on substantial distinctions. IEAacS

2)It must be germane to the purposes of the law.


3)It must not be limited to existing conditions only.
4)It must apply equally to all members of the class. 1 0 3
In the Court's view, there are no substantial distinctions between motels, inns, pension
houses, hotels, lodging houses or other similar establishments. By definition, all are
commercial establishments providing lodging and usually meals and other services for the
public. No reason exists for prohibiting motels and inns but not pension houses, hotels,
lodging houses or other similar establishments. The classification in the instant case is
invalid as similar subjects are not similarly treated, both as to rights conferred and
obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a
just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of
motels in the Ermita-Malate area but not outside of this area. A noxious establishment
does not become any less noxious if located outside the area.
The standard "where women are used as tools for entertainment" is also discriminatory as
prostitution one of the hinted ills the Ordinance aims to banish is not a profession
exclusive to women. Both men and women have an equal propensity to engage in
prostitution. It is not any less grave a sin when men engage in it. And why would the
assumption that there is an ongoing immoral activity apply only when women are
employed and be inapposite when men are in harness? This discrimination based on
gender violates equal protection as it is not substantially related to important government
objectives. 1 0 4 Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of
consistency with prevailing laws.
C.The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local
government units to regulate, and not prohibit, the establishments enumerated in Section 1
thereof.
The power of the City Council to regulate by ordinances the establishment, operation, and
maintenance of motels, hotels and other similar establishments is found in Section 458 (a)
4 (iv), which provides that:

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Section 458.Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare of
the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of
this Code, and shall:
xxx xxx xxx

(4)Regulate activities relative to the use of land, buildings and structures within
the city in order to promote the general welfare and for said purpose shall:

xxx xxx xxx


(iv)Regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging
houses, and other similar establishments, including tourist guides and
transports. . . .

While its power to regulate the establishment, operation and maintenance of any
entertainment or amusement facilities, and to prohibit certain forms of amusement or
entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as follows:
Section 458.Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare of
the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of
this Code, and shall:
xxx xxx xxx

(4)Regulate activities relative to the use of land, buildings and structures within
the city in order to promote the general welfare and for said purpose shall:
xxx xxx xxx

(vii)Regulate the establishment, operation, and maintenance of any


entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community.

Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments, the only power of the City
Council to legislate relative thereto is to regulate them to promote the general welfare. The
Code still withholds from cities the power to suppress and prohibit altogether the
establishment, operation and maintenance of such establishments. It is well to recall the
rulings of the Court in Kwong Sing v. City of Manila 1 0 5 that:
The word "regulate," as used in subsection (l), section 2444 of the Administrative
Code, means and includes the power to control, to govern, and to restrain; but
"regulate" should not be construed as synonymous with "suppress" or "prohibit."
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Consequently, under the power to regulate laundries, the municipal authorities
could make proper police regulations as to the mode in which the employment or
business shall be exercised. 1 0 6

And in People v. Esguerra, 1 0 7 wherein the Court nullified an ordinance of the Municipality
of Tacloban which prohibited the selling, giving and dispensing of liquor ratiocinating that
the municipality is empowered only to regulate the same and not prohibit. The Court
therein declared that:

(A)s a general rule when a municipal corporation is specifically given authority or


power to regulate or to license and regulate the liquor traffic, power to prohibit is
impliedly withheld. 1 0 8

These doctrines still hold contrary to petitioners' assertion 1 0 9 that they were modified by
the Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment or
amusement as found in the first clause of Section 458 (a) 4 (vii). Its powers to regulate,
suppress and suspend "such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants" and to
"prohibit certain forms of amusement or entertainment in order to protect the social and
moral welfare of the community" are stated in the second and third clauses, respectively of
the same Section. The several powers of the City Council as provided in Section 458 (a) 4
(vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of
which indicates that the clauses in which these powers are set forth are independent of
each other albeit closely related to justify being put together in a single enumeration or
paragraph. 1 1 0 These powers, therefore, should not be confused, commingled or
consolidated as to create a conglomerated and unified power of regulation, suppression
and prohibition. 1 1 1
The Congress unequivocably specified the establishments and forms of amusement or
entertainment subject to regulation among which are beerhouses, hotels, motels, inns,
pension houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)),
public dancing schools, public dance halls, sauna baths, massage parlors, and other places
for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore
cannot be included as among "other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants" or "certain
forms of amusement or entertainment" which the City Council may suspend, suppress or
prohibit. AEDcIH

The rule is that the City Council has only such powers as are expressly granted to it and
those which are necessarily implied or incidental to the exercise thereof. By reason of its
limited powers and the nature thereof, said powers are to be construed strictissimi juris
and any doubt or ambiguity arising out of the terms used in granting said powers must be
construed against the City Council. 1 1 2 Moreover, it is a general rule in statutory
construction that the express mention of one person, thing, or consequence is tantamount
to an express exclusion of all others. Expressio unius est exclusio alterium. This maxim is
based upon the rules of logic and the natural workings of human mind. It is particularly
applicable in the construction of such statutes as create new rights or remedies, impose
penalties or punishments, or otherwise come under the rule of strict construction. 1 1 3
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The argument that the City Council is empowered to enact the Ordinance by virtue of the
general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of
Manila is likewise without merit. On the first point, the ruling of the Court in People v.
Esguerra, 1 1 4 is instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or
section 2238 of the Revised Administrative Code, refers to matters not covered by
the other provisions of the same Code, and therefore it can not be applied to
intoxicating liquors, for the power to regulate the selling, giving away and
dispensing thereof is granted specifically by section 2242 (g) to municipal
councils. To hold that, under the general power granted by section 2238, a
municipal council may enact the ordinance in question, notwithstanding the
provision of section 2242 (g), would be to make the latter superfluous and
nugatory, because the power to prohibit, includes the power to regulate, the
selling, giving away and dispensing of intoxicating liquors.

On the second point, it suffices to say that the Code being a later expression of the
legislative will must necessarily prevail and override the earlier law, the Revised Charter of
Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior ones
which are repugnant thereto. As between two laws on the same subject matter, which are
irreconcilably inconsistent, that which is passed later prevails, since it is the latest
expression of legislative will. 1 1 5 If there is an inconsistency or repugnance between two
statutes, both relating to the same subject matter, which cannot be removed by any fair
and reasonable method of interpretation, it is the latest expression of the legislative will
which must prevail and override the earlier. 1 1 6
Implied repeals are those which take place when a subsequently enacted law contains
provisions contrary to those of an existing law but no provisions expressly repealing them.
Such repeals have been divided into two general classes: those which occur where an act
is so inconsistent or irreconcilable with an existing prior act that only one of the two can
remain in force and those which occur when an act covers the whole subject of an earlier
act and is intended to be a substitute therefor. The validity of such a repeal is sustained on
the ground that the latest expression of the legislative will should prevail. 1 1 7
In addition, Section 534(f) of the Code states that "All general and special laws, acts, city
charters, decrees, executive orders, proclamations and administrative regulations, or part
or parts thereof which are inconsistent with any of the provisions of this Code are hereby
repealed or modified accordingly." Thus, submitting to petitioners' interpretation that the
Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the
Charter stating such must be considered repealed by the Code as it is at variance with the
latter's provisions granting the City Council mere regulatory powers. ESCacI

It is well to point out that petitioners also cannot seek cover under the general welfare
clause authorizing the abatement of nuisances without judicial proceedings. That tenet
applies to a nuisance per se, or one which affects the immediate safety of persons and
property and may be summarily abated under the undefined law of necessity. It can not be
said that motels are injurious to the rights of property, health or comfort of the community.
It is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing
conducted for that purpose. A motel is not per se a nuisance warranting its summary
abatement without judicial intervention. 1 1 8
Notably, the City Council was conferred powers to prevent and prohibit certain activities
and establishments in another section of the Code which is reproduced as follows:
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Section 458.Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare of
the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of
this Code, and shall:

(1)Approve ordinances and pass resolutions necessary for an efficient and


effective city government, and in this connection, shall:
xxx xxx xxx

(v)Enact ordinances intended to prevent, suppress and impose appropriate


penalties for habitual drunkenness in public places, vagrancy, mendicancy,
prostitution, establishment and maintenance of houses of ill repute, gambling
and other prohibited games of chance, fraudulent devices and ways to obtain
money or property, drug addiction, maintenance of drug dens, drug pushing,
juvenile delinquency, the printing, distribution or exhibition of obscene or
pornographic materials or publications, and such other activities inimical to the
welfare and morals of the inhabitants of the city;
xxx xxx xxx

If it were the intention of Congress to confer upon the City Council the power to prohibit
the establishments enumerated in Section 1 of the Ordinance, it would have so declared in
uncertain terms by adding them to the list of the matters it may prohibit under the above-
quoted Section. The Ordinance now vainly attempts to lump these establishments with
houses of ill-repute and expand the City Council's powers in the second and third clauses
of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is
evident that these establishments may only be regulated in their establishment, operation
and maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can be
gleaned from another Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or operators of massage clinics,
sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the
"contractors" defined in paragraph (h) thereof. The same Section also defined
"amusement" as a "pleasurable diversion and entertainment," "synonymous to relaxation,
avocation, pastime or fun;" and "amusement places" to include "theaters, cinemas, concert
halls, circuses and other places of amusement where one seeks admission to entertain
oneself by seeing or viewing the show or performances." Thus, it can be inferred that the
Code considers these establishments as legitimate enterprises and activities. It is well to
recall the maxim reddendo singula singulis which means that words in different parts of a
statute must be referred to their appropriate connection, giving to each in its place, its
proper force and effect, and, if possible, rendering none of them useless or superfluous,
even if strict grammatical construction demands otherwise. Likewise, where words under
consideration appear in different sections or are widely dispersed throughout an act the
same principle applies. 1 1 9

Not only does the Ordinance contravene the Code, it likewise runs counter to the
provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted the
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residential Ermita-Malate area into a commercial area. The decree allowed the
establishment and operation of all kinds of commercial establishments except warehouse
or open storage depot, dump or yard, motor repair shop, gasoline service station, light
industry with any machinery or funeral establishment. The rule is that for an ordinance to
be valid and to have force and effect, it must not only be within the powers of the council
to enact but the same must not be in conflict with or repugnant to the general law. 1 2 0 As
succinctly illustrated in Solicitor General v. Metropolitan Manila Authority: 1 2 1
The requirement that the enactment must not violate existing law explains itself.
Local political subdivisions are able to legislate only by virtue of a valid
delegation of legislative power from the national legislature (except only that the
power to create their own sources of revenue and to levy taxes is conferred by the
Constitution itself). They are mere agents vested with what is called the power of
subordinate legislation. As delegates of the Congress, the local government units
cannot contravene but must obey at all times the will of their principal. In the case
before us, the enactment in question, which are merely local in origin cannot
prevail against the decree, which has the force and effect of a statute. 1 2 2

Petitioners contend that the Ordinance enjoys the presumption of validity. While this may
be the rule, it has already been held that although the presumption is always in favor of the
validity or reasonableness of the ordinance, such presumption must nevertheless be set
aside when the invalidity or unreasonableness appears on the face of the ordinance itself
or is established by proper evidence. The exercise of police power by the local government
is valid unless it contravenes the fundamental law of the land, or an act of the legislature, or
unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in
derogation of a common right. 1 2 3
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and
impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes
statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently detailed
and explicit that abuses may attend the enforcement of its sanctions. And not to be
forgotten, the City Council under the Code had no power to enact the Ordinance and is
therefore ultra vires, null and void. cHCSDa

Concededly, the challenged Ordinance was enacted with the best of motives and shares
the concern of the public for the cleansing of the Ermita-Malate area of its social sins.
Police power legislation of such character deserves the full endorsement of the judiciary
we reiterate our support for it. But inspite of its virtuous aims, the enactment of the
Ordinance has no statutory or constitutional authority to stand on. Local legislative bodies,
in this case, the City Council, cannot prohibit the operation of the enumerated
establishments under Section 1 thereof or order their transfer or conversion without
infringing the constitutional guarantees of due process and equal protection of laws not
even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court
declaring the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur.

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Panganiban, J., concurs in the result.
Ynares-Santiago, J., concurs in the result only.
Footnotes

1.Dated 11 January 1995; Rollo, pp. 6-73 with annexes.


2.Id. at 64-72.

3.The lower court declared the Ordinance to be null and void.


4.In the case of Cotton Club Corporation, etc. v. Hon. Alfredo S. Lim, etc, et al. before RTC,
Branch 55 of Manila, docketed as Civil Case No. 93-66551, Judge Hermogenes R. Liwag
declared the Ordinance void and unconstitutional. The defendants elevated the case to
the Court of Appeals which denied their petition on procedural grounds in its Decision
dated 21 May 2003. It appears that defendants Hon. Alfredo S. Lim and the City Council
of Manila did not elevate the case before the Court. Entry of Judgment of the CA
Decision was made on 22 April 2003.

5.Rollo, p. 37.
6.Id. at 75; It now calls itself Hotel Victoria.
7.Id. at 35-47.

8.Id. at 46.
9.The principal authors of the Ordinance are: Hons. Bienvenido M. Abante, Jr.; Humberto B.
Basco; Nestor C. Ponce, Jr.; Ernesto A. Nieva; Francisco G. Varona, Jr.; Jhosep Y. Lopez;
Ma. Paz E. Herrera; Gerino A. Tolentino, Jr; Ma. Lourdes M. Isip; Flaviano F. Concepcion,
Jr.; Ernesto V.P. Maceda, Jr.; Victoriano A. Melendez; Ma. Corazon R. Caballes;
Bernardito C. Ang; Roberto C. Ocampo; Rogelio B. dela Paz; Romeo G. Rivera; Alexander
S. Ricafort; Avelino S. Cailian; Bernardo D. Ragasa; Joey D. Hizon; Leonardo L. Angat;
and Jocelyn B. Dawis.
10.Rollo, p. 8.
11.RTC Records, pp. 10-11.
12.Paragraph (a) 4 (iv), Section 458, Chapter 3 of the Code reads, thus:

Section 458.Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:

xxx xxx xxx


(4)Regulate activities relative to the use of land, buildings and structures within the city in order
to promote the general welfare and for said purpose shall:
xxx xxx xxx

(iv)Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses,


hotels, motels, inns, pension houses, lodging houses, and other similar establishments,
including tourist guides and transports; . . .
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13.Presidential Decree No. 499; Dated 28 June 1974; Declaring Portions of the Ermita-Malate
Area as Commercial Zones with Certain Restrictions. It reads in full:

WHEREAS, the government is committed to the promotion and development of tourism in the
country, particularly in the City of Manila which is the hub of commercial and cultural
activities in Manila Metropolitan Area;
WHEREAS, certain portions of the districts of Ermita and Malate known as the Tourist Belt are
still classified as Class "A" Residential Zones and Class "B" Residential Zones where
hotels and other business establishments such as curio stores, souvenir shops,
handicraft display centers and the like are not allowed under the existing zoning plan in
the City of Manila;
WHEREAS, the presence of such establishments in the area would not only serve as an
attraction for tourists but are dollar earning enterprises as well, which tourist areas all
over the world cannot do without;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me under the Constitution as Commander-in-Chief of all the Armed
Forces of the Philippines and pursuant to Proclamation No. 1081, dated September 21,
1972, and General Order No. 1, dated September 22, 1972, as amended, do hereby order
and decree the classification as a Commercial Zone of that portion of the Ermita-Malate
area bounded by Teodoro M. Kalaw, Sr. Street in the north; Taft Avenue in the east; Vito
Cruz Street in the south and Roxas Boulevard in the west. PROVIDED, HOWEVER, That
no permit shall be granted for the establishment of any new warehouse or open storage
depot, dump or yard, motor repair shop, gasoline service station, light industry with any
machinery or funeral establishment in these areas, and PROVIDED, FURTHER, That for
purposes of realty tax assessment on properties situated therein, lands and buildings
used exclusively for residential purposes by the owners themselves shall remain
assessed as residential properties.

All laws, ordinances, orders, rules and regulations which are inconsistent with this Decree are
hereby repealed or modified accordingly.

This Decree shall take effect immediately.


Done in the City of Manila this 28th day of June in the year of Our Lord, nineteen hundred and
seventy-four.
14.RTC Records, pp. 11-13.

15.Id. at 158-171.
16.Id. at 160.
17.41 Phil. 103 (1920); see also Samson v. Mayor of Bacolod City , G.R. No. L-28745, 23 October
1974, 60 SCRA 267.
18.RTC Records, p. 161.

19.Approved on 18 June 1949.


20.RTC Records, p. 160.
21.Supra note 18.

22.Id. at 164.
23.Ibid.
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24.Id. at 165-169.
25.Id. at 84.
26.Id. at 453.

27.Rollo, pp. 6 and 72.


28.Id. at 6.
29.Dated 12 December 1994; Id. at 73.

30.Id. at 2.
31.Supra note 13.
32.Rollo, p. 13.
33.Id. at 190-201.

34.Id. at 16, 194, 198.


35.Id. at 19, 22, 25-26, 199.
36.Id. at 150-180.

37.Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992, 207 SCRA 157, 161; Solicitor
General v. Metropolitan Manila Authority, G.R. No. 102782, 11 December 1991, 204
SCRA 837, 845; Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097, 20 July 1994,
234 SCRA 255, 268-267.

38.See ART. 7, par. (3) of the Civil Code which reads, thus:
xxx xxx xxx
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution.

39.Magtajas v. Pryce Properties Corp, Inc., G.R. No. 111097, 20 July 1994, 234 SCRA 255, 270-
271.
40.Id. at 273.
41.Acebedo Optical Company, Inc. v. Court of Appeals, 385 Phil. 956, 968-969 (2000).
42.Metropolitan Manila Devt. Authority v. Bel-Air Village Asso., 385 Phil. 586, 603 (2000), citing
Sections 468 (a), 458 (a), and 447 (a), Book III, Local Government Code of 1991.

43.16 C.J.S., pp. 562-565.


44.Art. II, DECLARATION OF PRINCIPLES AND STATE POLICIES, 1987 CONST.

45.Ibid.
46.Art. III, BILL OF RIGHTS, 1987 CONST.
47.Ibid.
48.Id. at Sec. 9; See also CRUZ, ISAGANI A., CONSTITUTIONAL LAW 97 (1998).

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49.Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 20 Phil.
849, 860 (1967).
50.See In re Lutker, Okl. Cr., 274 P. 2d 786, 789, 790.
51.Supra note 43 at 1150-1151.

52.See Smith, Bell & Co. v. Natividad, 40 Phil. 136, 145 (1919).
53.CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES, 2nd Ed. 523
(2002).
54.Id. at 523-524.

55.See County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998).


56.CHEMERINSKY, supra note 53 at 524.
57.Lim v. Court of Appeals, 435 Phil. 857, 868 (2002); This is a related case involving the same
Ordinance challenged in this case. The Court denied the petition questioning the writ of
prohibitory preliminary injunction issued by the RTC, enjoining the closure of a certain
establishment pursuant to the Ordinance.
58.Homeowners' Asso. of the Phil., Inc. v. Municipal Board of the City of Manila, 133 Phil. 903,
907 (1968).

59.CRUZ, ISAGANI A., CONSTITUTIONAL LAW 104 (1998).


60.See U.S. v. Toribio, 15 Phil. 85 (1910); Fabie v. City of Manila, 21 Phil. 486 (1912); Case v.
Board of Health, 24 Phil. 256 (1913).
61.Balacuit v. CFI of Agusan del Norte, No. L-38429, 30 June 1988, 163 SCRA 182, 191-193.
62.CRUZ, supra note 59 at 56.

63.Ermita-Malate Hotel and Motel Operators Assoc. Inc. v. City Mayor of Manila, supra note 49.
64.Id. at 858-859.
65.Section 458 (a) 1 (v), the Code.

66.Lim v. Court of Appeals, supra note 57 at 867.


67.Rubi v. Provincial Board 39 Phil. 660 (1919), as cited in Morfe v. Mutuc, 130 Phil. 415
(1968).
68.Morfe v. Mutuc, 130 Phil. 415, 440 (1968).
69.408 U.S. 572.

70.See Lawrence v. Texas, 539 U.S. 558 (2003).


71.Concerned Employee v. Glenda Espiritu Mayor, A.M. No. P-02-1564, 23 November 2004, J.
Tinga, ponente.
72.Lawrence v. Texas, supra note 70.

73.Morfe v. Mutuc, supra note 68 at 442.


74.Id. at 442-443, citing Laski, Liberty in the Modern State, 44 (1944).
75.Id. at 444-445, citing Emerson, Nine Justices in Search of a Doctrine, 64 Mich. Law. Rev. 219,
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229 (1965).
76.People v. Fajardo, et al., 104 Phil. 443, 447 (1958).

77.Ibid. citing Arverne Bay Const. Co. v. Thatcher (N.Y.) 117 ALR. 1110, 1116.
78.CHEMERINSKY, supra note 53 at 616.
79.Id. at 617.

80.260 U.S. 393, 415 (1922).


81.Id. at 413-415.
82.See Penn Central Transportation Co. v. New York City , 438 U.S. 104 (1978).

83.CHEMERINSKY, supra note 53 at 623-626.


84.See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
85.Ibid.
86.CHEMERINSKY, supra note 53 at 166.

87.Supra note 82.


88.CRUZ, supra note 59 at 38.
89.People v. Fajardo, supra note 76 at 443, 448 citing Tews v. Woolhiser (1933) 352 Ill. 212,
185 N.E. 827.

90.Id. at 446-447.
91.Id. at 447, citing Schloss Poster Adv. Co., Inc. v. City of Rock Hill, et al., 2 SE (2d), pp. 394-
395; People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195.
92.402 U.S. 611 (1971).
93.No. L-44143, 31 August 1988, 165 SCRA 186, 195.

94.493 U.S. 215 (1990).


95.Supra note 49.
96.De la Cruz, et al. v. Hon. Paras, et al., 208 Phil. 490, 503(1983).

97.See Ichong v. Hernandez, 101 Phil. 1155 (1957).


98.16B Am Jur 2d 779 299 citing State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59
S. Ct. 232, 83 L. Ed. 208 (1938), reh'g denied, 305 U.S. 676, 59 S. Ct. 356, 83 L. Ed. 437
(1939) and mandate conformed to, 344 Mo. 1238, 131 S.W. 2d 217 (1939).
99.16B Am Jur 2d 779 299 citing Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed.
2d 855, 109 Ed. Law Rep. 539, 70 Fair Empl. Prac. Cas. (BNA) 1180, 68 Empl. Prac. Dec.
(CCH) 44013 (1996); Walker v. Board of Supervisors of Monroe County , 224 Miss. 801,
81 So. 2d 225 (1955), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955);
Preisler v. Calcaterra, 362 Mo. 662, 243 S.W. 2d 62 (1951).
100.Supra note 52 at 145.
101.Nuez v. Sandiganbayan, 197 Phil. 407 (1982).
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102.Cruz, supra note 59 at 125.

103.See People v. Cayat, 68 Phil. 12 (1939).


104.See Craig v. Boren, 429 U.S. 190 (1976).
105.Supra note 17.

106.Id. at 108 (1920).


107.81 Phil. 33 (1948).
108.Id. at 38.
109.Rollo, p. 19.

110.RTC Records, p. 409; The Decision of the Regional Trial Court of Manila, Branch 55 in the
case of Cotton Club Corporation, Inc. v. Hon. Alfredo S. Lim, etc., et al., Civil Case No. 93-
66551; Dated 28 July 1993; Penned by Judge Hermogenes R. Liwag; Citing Shaw, Harry,
Punctuate it Right! Everday Handbooks 125-126.
111.Id. at 408.
112.City of Ozamis v. Lumapas, No. L-30727, 15 July 1975, 65 SCRA 33, 42.
113.FRANCISCO, VICENTE J., STATUTORY CONSTRUCTION, Second Edition 172 (1959); See
Pepsi-Cola Bottling Company of the Philippines, Inc. v. Municipality of Tanauan, Leyte, et
al., 161 Phil. 591, 605 (1976).
114.Supra note 107 at 33.
115.AGPALO, RUBEN F., STATUTORY CONSTRUCTION 296 (1986).
116.FRANCISCO, supra note 113 at 271.
117.CRAWFORD, EARL T., THE CONSTRUCTION OF STATUTES 196-197 (1940); See Mecano v.
Commission on Audit, G.R. No. 103982, 11 December 1992, 216 SCRA 500, 505.
118.See Estate of Gregoria Francisco v. Court of Appeals, G.R. No. 95279, 25 July 1991, 199
SCRA 595, 601.
119.FRANCISCO, Supra note 113 at 178-179; See King, et al. v. Hernaez, etc., et al., 114 Phil.
730, 739 (1962).
120.Chua Lao, etc., et al. v. Raymundo, etc., et al., 104 Phil. 302, 307 (1958).
121.G.R. No. 102782, 11 December 1991, 204 SCRA 837.

122.Id. at 847.
123.Balacuit v. CFI of Agusan del Norte, supra note 61 at 198-199.

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THIRD DIVISION

[G.R. No. 93891. March 11, 1991.]

POLLUTION ADJUDICATION BOARD, petitioner, vs. COURT OF


APPEALS and SOLAR TEXTILE FINISHING CORPORATION,
respondents.

Oscar A. Pascua and Charemon Clio L. Borre for petitioner.


Leonardo A. Aurelio for respondent Solar Textile Finishing Corp.

SYLLABUS

1. ADMINISTRATIVE LAW; POLLUTION ADJUDICATION BOARD; MAY ISSUE CEASE


AND DESIST ORDERS EX-PARTE; BASIS. Section 7(a) of P.D. No. 984
authorized petitioner Board to issue ex parte cease and desist orders. An ex parte
cease and desist order may be issued by the Board (a) whenever the wastes
discharged by an establishment pose an "immediate threat to life, public health,
safety or welfare, or to animal or plant life," or (b) whenever such discharges or
wastes exceed "the allowable standards set by the [NPCC]." On the one hand, it
is not essential that the Board prove that an "immediate threat to life, public
health, safety or welfare, or to animal or plant life" exists before an ex parte
cease and desist order may be issued. It is enough if the Board nds that the
wastes discharged do exceed "the allowable standards set by the [NPCC]." In
respect of discharges of wastes as to which allowable standards have been set by
the Commission, the Board may issue an ex parte cease and desist order when
there is prima facie evidence of an establishment exceeding such allowable
standards. Where, however, the euents or discharges have not yet been the
subject matter of allowable standards set by the Commission, then the Board
may act on an ex parte basis when it nds at least prima facie proof that the
wastewater or material involved presents an "immediate threat to life, public
health, safety or welfare or to animal or plant life." Since the applicable
standards set by the Commission existing at any given time may well not cover
every possible or imaginable kind of euent or waste discharge, the general
standard of an "immediate threat to life public health, safety or welfare, or to
animal and plant life" remains necessary.
2. POLITICAL LAW; POLICE POWER; ENACTMENT OF POLLUTION CONTROL
STATUTES AND IMPLEMENTING REGULATIONS, AN EXERCISE THEREOF. The
relevant pollution control statute and implementing regulations were enacted
and promulgated in the exercise of that persuasive, sovereign power to protect
the safety, health, and general welfare and comfort of the public, as well as the
protection of plant and animal life, commonly designated as the police power.
3. CONSTITUTIONAL LAW; DUE PROCESS; YIELDS TO THE EXERCISE OF POLICE
POWER. It is a constitutional common place that the ordinary requirements of
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procedural due process yield to the necessities of protecting vital public interests
like those here involved, through the exercise of police power.
4. ADMINISTRATIVE LAW; POLLUTION ADJUDICATION BOARD; DUE PROCESS;
HOLDING OF PUBLIC HEARING AFTER EX-PARTE ISSUANCE OF A CEASE AND
DESIST ORDER, SUFFICIENT COMPLIANCE WITH DUE PROCESS CLAUSE.
Where the establishment aected by an ex parte cease and desist order contests
the correctness of the prima facie ndings of the Board, the Board must hold a
public hearing where such establishment would have an opportunity to
controvert the basis of such ex parte order. That such an opportunity is
subsequently available is really all that is required by the due process clause of
the Constitution in situations like that we have here.
5. REMEDIAL LAW; ACTIONS; APPEAL; PROPER REMEDY WHERE
QUESTIONED ORDER AND WRIT OF EXECUTION WHERE LAWFUL. Solar
claims nally that the petition for certiorari was the proper remedy as the
questioned Order and Writ of Execution issued by the Board were patent
nullities. Since we have concluded that Order and Writ of Execution were
entirely within the lawful authority of petitioner Board, the trial court did not
err when it dismissed Solar's petition for certiorari. It follows that the proper
remedy was an appeal from the trial court to the Court of Appeals, as Solar did
in fact appeal.

RESOLUTION

FELICIANO, J : p

Petitioner Pollution Adjudication Board ("Board") asks us to review the Decision


and Resolution promulgated on 7 February 1990 and 10 May 1990, respectively,
by the Court of Appeals in C.A.-G.R. No. SP 18821 entitled "Solar Textile Finishing
Corporation v. Pollution Adjudication Board." In that Decision and Resolution, the
Court of Appeals reversed an order of the Regional Trial Court, Quezon City,
Branch 77, in Civil Case No. Q-89-2287 dismissing private respondent Solar
Textile Finishing Corporation's ("Solar") petition for certiorari and remanded the
case to the trial court for further proceedings.
On 22 September 1988, petitioner Board issued an ex parte Order directing Solar
immediately to cease and desist from utilizing its wastewater pollution source
installations which were discharging untreated wastewater directly into a canal
leading to the adjacent Tullahan-Tinejeros River. The Order signed by Hon.
Fulgencio Factoran, Jr., as Board Chairman, reads in full as follows:
"Respondent, Solar Textile Finishing Corporation with plant and place of
business at 999 General Pascual Avenue, Malabon, Metro Manila is
involved in bleaching, rinsing and dyeing textiles with wastewater of about
30 gpm. being directly discharged untreated into the sewer. Based on
ndings in the Inspections conducted on 05 November 1986 and 15
November 1986, the volume of untreated wastewater discharged in the
nal outfall outside of the plant's compound was even greater. The result
of inspection conducted on 06 September 1988 showed that
respondent's Wastewater Treatment Plant was noted unoperational and
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the combined wastewater generated from its operation was about 30
gallons per minute and 80% of the wastewater was being directly
discharged into a drainage canal leading to the Tullahan-Tinejeros River by
means of a by-pass and the remaining 20% was channeled into the
plant's existing Wastewater Treatment Plant (WTP). Result of the analyses
of the sample taken from the by - pass showed that the wastewater is
highly pollutive in terms of Color units, BOD and Suspended Solids,
among others. These acts of respondent in spite of directives to comply
with the requirements are clearly in violation of Section 8 of Presidential
Decree No. 984 and Section 103 of its Implementing Rules and
Regulations and the 1982 Euent Regulations.

WHEREFORE, pursuant to Section 7 of P.D. 984 and Section 38 of its


Implementing Rules and Regulations, respondent is hereby ordered to
cease and desist from utilizing its wastewater pollution source
installations and discharging its untreated wastewater directly into the
canal leading to the Tullahan-Tinejeros River eective immediately upon
receipt hereof and until such time when it has fully complied with all the
requirements and until further orders from this Board.

SO ORDERED." 1

We note that the above Order was based on ndings of several inspections of
Solar's plant:
a. inspections conducted on 5 November 1986 and 12 November 1986
by the National Pollution Control Commission ("NPCC"), the predecessor
of the Board; 2 and

b. the inspection conducted on 6 September 1988 by the Department of


Environment and Natural Resources ("DENR").

The ndings of these two (2) inspections were that Solar's wastewater
treatment plant was non-operational and that its plant generated about 30
gallons per minute of wastewater, 80% of which was being directly
discharged into a drainage canal leading to the Tullahan-Tinejeros River. The
remaining 20% of the wastewater was being channeled through Solar's non-
operational wastewater treatment plant. Chemical analysis of samples of
Solar's euents showed the presence of pollutants on a level in excess of
what was permissible under P.D. No. 984 and its Implementing Regulations.
A copy of the above Order was received by Solar on 26 September 1988. A Writ
of Execution issued by the Board was received by Solar on 31 March 1989.
Meantime, Solar led a motion for reconsideration appeal with prayer for stay of
execution of the Order dated 22 September 1988. Acting on this motion, the
Board issued an Order dated 24 April 1989 allowing Solar to operate temporarily,
to enable the Board to conduct another inspection and evaluation of Solar's
wastewater treatment facilities. In the same Order, the Board directed the
Regional Executive Director of the DENR NCR to conduct the inspection and
evaluation within thirty (30) days.
On 21 April 1989, however, Solar went to the Regional Trial Court of Quezon
City, Branch 77, on petition for certiorari with preliminary injunction against the
Board, the petition being docketed as Civil Case No. Q-89-2287.
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On 21 July 1989, the Regional Trial Court dismissed Solar's petition upon two (2)
grounds, i.e., that appeal and not certiorari from the questioned Order of the
Board as well as the Writ of Execution was the proper remedy, and that the
Board's subsequent Order allowing Solar to operate temporarily had rendered
Solar's petition moot and academic.
Dissatised, Solar went on appeal to the Court of Appeals which, in the Decision
here assailed, reversed the Order of dismissal of the trial court and remanded the
case to that court for further proceedings. In addition, the Court of Appeals
declared the Writ of Execution null and void. At the same time, the Court of
Appeals said in the dispositive portion of its Decision that:
". . . Still and all, this decision is without prejudice to whatever action the
appellee [Board] may take relative to the projected 'inspection and
evaluation' of appellant's [Solar's] water treatment facilities." 3

The Court of Appeals, in so ruling, held that certiorari was a proper remedy since
the Orders of petitioner Board may result in great and irreparable injury to Solar;
and that while the case might be moot and academic, "larger issues" demanded
that the question of due process be settled. Petitioner Board moved for
reconsideration, without success. prcd

The Board is now before us on a Petition for Review basically arguing that:
1. i t s ex parte Order dated 22 September 1988 and the Writ of
Execution were issued in accordance with law and were not
violative of the requirements of due process; and
2. the ex parte Order and the Writ of Execution are not the proper
subjects of a petition for certiorari.
The only issue before us at this time is whether or not the Court of Appeals erred
in reversing the trial court on the ground that Solar had been denied due process
by the Board. LibLex

Petitioner Board claims that under P.D. No. 984, Section 7(a), it has legal
authority to issue ex parte orders to suspend the operations of an establishment
when there is prima facie evidence that such establishment is discharging
euents or wastewater, the pollution level of which exceeds the maximum
permissible standards set by the NPCC (now, the Board). Petitioner Board
contends that the reports before it concerning the euent discharges of Solar
into the Tullahan-Tinejeros River provided prima facie evidence of violation by
Solar of Section 5 of the 1982 Euent Code.
Solar, on the other hand, contends that under the Board's own rules and
regulations, an ex parte order may issue only if the euents discharged pose an
"immediate threat to life, public health; safety or welfare, or to animal and plant
life." In the instant case, according to Solar, the inspection reports before the
Board made no nding that Solar's wastewater discharged posed such a threat.
The Court is not persuaded by Solar's contention. Section 7(a) of P.D. No. 984
authorized petitioner Board to issue ex parte cease and desist orders under the
following circumstances:
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"P.D. 984, Section 7, paragraph (a), provides:
(a) Public Hearing . . . Provided, That whenever the Commission nds
prima facie evidence that the discharged sewage or wastes are of
immediate threat to life, public health, safety or welfare, or to animal or
plant life, or exceeds the allowable standards set by the Commission, the
Commissioner may issue an ex-parte order directing the discontinuance
of the same or the temporary suspension or cessation of operation of the
establishment or person generating such sewage or wastes without the
necessity of a prior public hearing. The said ex-parte order shall be
immediately executory and shall remain in force until said establishment
or person prevents or abates the said pollution within the allowable
standards or modied or nullied by a competent court." (Emphasis
supplied).

We note that under the above-quoted portion of Section 7(a) of P.D. No. 984, an
ex parte cease and desist order may be issued by the Board (a) whenever the
wastes discharged by an establishment pose an "immediate threat to life, public
health, safety or welfare, or to animal or plant life," or (b) whenever such
discharges or wastes exceed "the allowable standards set by the [NPCC]." On the
one hand, it is not essential that the Board prove that an "immediate threat to
life, public health, safety or welfare, or to animal or plant life" exists before an ex
parte cease and desist order may be issued. It is enough if the Board nds that
the wastes discharged do exceed "the allowable standards set by the [NPCC]." In
respect of discharges of wastes as to which allowable standards have been set by
the Commission, the Board may issue an ex parte cease and desist order when
there is prima facie evidence of an establishment exceeding such allowable
standards. Where, however, the euents or discharges have not yet been the
subject matter of allowable standards set by the Commission, then the Board
may act on an ex parte basis when it nds at least prima facie proof that the
wastewater or material involved presents an "immediate threat to life, public
health, safety or welfare or to animal or plant life." Since the applicable
standards set by the Commission existing at any given time may well not cover
every possible or imaginable kind of euent or waste discharge, the general
standard of an "immediate threat to life public health, safety or welfare, or to
animal and plant life" remains necessary. Cdpr

Upon the other hand, the Court must assume that the extant allowable
standards have been set by the Commission or Board precisely in order to avoid
or neutralize an "immediate threat to life, public health, safety or welfare, or to
animal or plant life."
Section 5 of the Euent Regulations of 1982 4 sets out the maximum
permissible levels of physical and chemical substances which euents from
domestic wastewater treatment plants and industrial plants must not exceed
"when discharged into bodies of water classied as Class A, B, C, D, SB and SC in
accordance with the 1978 NPCC Rules and Regulations." The waters of Tullahan-
Tinejeros River are classied as inland waters Class D under Section 68 of the
1978 NPCC Rules and Regulations, 5 which in part provides that:
"Section 68. Water Usage and Classication. The quality of Philippine
waters shall be maintained in a safe and satisfactory condition according
to their best usages. For this purpose, all water shall be classied
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according to the following benecial usages:

(a) Fresh Surface Water.


Classication Best usage
xxx xxx xxx

Class D For agriculture, irrigation,


live stock watering and
industrial cooling and
processing

xxx xxx xxx


(Emphases supplied)

The reports on the inspections carried on Solar's wastewater treatment facilities


on 5 and 12 November 1986 and 6 September 1988 set forth the following
identical nding:
"a. For legal action in [view of] violation of Section 103 of the
implementing rules and regulations of P.D. No. 984 and Section 5 of the
Euent Regulations of 1982." 6

Placing the maximum allowable standards set in Section 5 of the Euent


Regulations of 1982 alongside the ndings of the November 1986 and
September 1988 inspection reports, we get the following results:
"Inland November September

Waters 1986 1988

(Class C & D) 7 Report 8 Report 9

Station 1 Station 1
a) Color in 100 a) Color units 250 125

platinum (Apparent

cobalt Color)

units

b) p H 6-8.5 b) pH 9.3 8.7


c) Tempera- 40 c) Temperature

ture in C (C)

d) Phenols in 0.1 d) Phenols in

mg./l. mg./l.

e) Suspended 75 e) Suspended 340 80

solids in solids in

mg./l. mg./l.

f) BOD in 80 f) BOD (5-day) 1,100 152


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mg./l mg./l.

g) oil/Grease 10 g) Oil/Grease

in mg./l. mg./l.

h) Detergents 5 h) Detergents 2.93

in mg./l." mg./l. MBAS

i) Dissolved 0

Oxygen, mg./l.

j) Settleable 0.4 1.5

Matter, mg./l.

k) Total Dis- 800 610

solved Solids

mg./l.

l) Total Solids 1,400 690

mg./l.

m) Turbidity

NTU/ppm. SiO3 70

The November 1986 inspections report concluded that:


"Records of the Commission show that the plant under its previous
owner, Fine Touch Finishing Corporation, was issued a Notice of Violation
on 20 December 1985 directing same to cease and desist from
conducting dyeing operation until such time the waste treatment plant is
already completed and operational. The new owner Solar Textile
Corporation informed the Commission of the plant acquisition thru its
letter dated March 1986 (sic).

The new owner was summoned to a hearing held on 13 October 1986


based on the adverse ndings during the inspection/water sampling test
conducted on 08 August 1986. As per instruction of the Legal Division a
re-inspection/sampling test should be conducted rst before an
appropriate legal action is instituted; hence, this inspection.

Based on the above ndings, it is clear that the new owner continuously
violates the directive of the Commission by undertaking dyeing operation
without completing rst and operating its existing WTP. The analysis of
results on water samples taken showed that the untreated wastewater
from the rm pollutes our water resources. In this connection, it is
recommended that appropriate legal action be instituted immediately
against the rm . . ." 10

The September 1988 inspection report's conclusions were:


"1. The plant was undertaking dyeing, bleaching and rinsing operations
during the inspection. The combined wastewater generated from the said
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operations was estimated at about 30 gallons per minute. About 80% of
the wastewater was traced directly discharged into a drainage canal
leading to the Tullahan - Tinejeros river by means of a bypass. The
remaining 20% was channeled into the plant's existing wastewater
treatment plant (WTP).
2. The WTP was noted not yet fully operational some accessories were
not yet installed. Only the sump pit and the holding/collecting tank are
functional but appeared seldom used. The wastewater mentioned
channeled was noted held indenitely into the collection tank for primary
treatment. There was no euent discharge [from such collection tank].
3. A sample from the bypass wastewater was collected for laboratory
analyses. Result of the analyses show that the bypass wastewater is
polluted in terms of color units, BOD and suspended solids, among
others. (Please see attached laboratory result)." 11

From the foregoing reports, it is clear to this Court that there was at least prima
facie evidence before the Board that the euents emanating from Solar's plant
exceeded the maximum allowable levels of physical and chemical substances set
by the NPCC and that accordingly there was adequate basis supporting the ex
parte cease and desist order issued by the Board. It is also well to note that the
previous owner of the plant facility Fine Touch Finishing Corporation had
been issued a Notice of Violation on 20 December 1985 directing it to cease and
refrain from carrying out dyeing operations until the water treatment plant was
completed and operational. Solar, the new owner, informed the NPCC of the
acquisition of the plant on March 1986. Solar was summoned by the NPCC to a
hearing on 13 October 1986 based on the results of the sampling test conducted
by the NPCC on 8 August 1986. Petitioner Board refrained from issuing an ex
parte cease and desist order until after the November 1986 and September 1988
re-inspections were conducted and the violation of applicable standards was
conrmed. In other words, petitioner Board appears to have been remarkably
forbearing in its eorts to enforce the applicable standards vis-a-vis Solar. Solar,
on the other hand, seemed very casual about its continued discharge of
untreated, pollutive euents into the Tullahan-Tinejeros River, presumably loath
to spend the money necessary to put its Wastewater Treatment Plant ("WTP") in
an operating condition. cdrep

In this connection, we note that in Technology Developers, Inc. v. Court of


Appeals, et al., 12 the Court very recently upheld the summary closure ordered
by the Acting Mayor of Sta. Maria, Bulacan, of a pollution-causing establishment,
after nding that the records showed that:
"1. No mayor's permit had been secured. While it is true that the matter
of determining whether there is a pollution of the environment that
requires control if not prohibition of the operation of a business is
essentially addressed to the then National Pollution Control Commission
of the Ministry of Human Settlements, now the Environmental
Management Bureau of the Department of Environment and Natural
Resources, it must be recognized that the mayor of a town has as much
responsibility to protect its inhabitants from pollution, and by virtue of his
police power, he may deny the application for a permit to operate a
business or otherwise close the same unless appropriate measures are
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taken to control and or avoid injury to the health of the residents of the
community from the emission in the operation of the business.

2. The Acting Mayor, in a letter of February 16, 1989, called the attention
of petitioner to the pollution emitted by the fumes of its plant whose
oensive odor "not only pollute the air in the locality but also aect the
health of the residents in the area," so that petitioner was ordered to stop
its operation until further orders and it was required to bring the
following:
xxx xxx xxx

(3) Region III-Department of Environment and Natural


Resources Anti-Pollution permit. (Annex A-2, petition).

3. This action of the Acting Mayor was in response to the complaint of the
residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the
Provincial Governor through channels (Annex A-B, petition). . . .
4. The closure order of the Acting Mayor was issued only after an
investigation was made by Marivic Guina who in her report of December
8, 1988 observed that the fumes emitted by the plant of petitioner goes
directly to the surrounding houses and that no proper air pollution device
has been installed. (Annex A-9, petition).
xxx xxx xxx

6. While petitioner was able to present a temporary permit to operate by


the then National Pollution Control Commission on December 15, 1987,
the permit was good only up to May 25, 1988 (Annex A-12, petition).
Petitioner had not exerted any eort to extend or validate its permit much
less to install any device to control the pollution and prevent any hazard
to the health of the residents of the community."

In the instant case, the ex parte cease and desist Order was issued not by a local
government ocial but by the Pollution Adjudication Board, the very agency of
the Government charged with the task of determining whether the euents of a
particular industrial establishment comply with or violate applicable anti-
pollution statutory and regulatory provisions.
Ex parte cease and desist orders are permitted by law and regulations in
situations like that here presented precisely because stopping the continuous
discharge of pollutive and untreated euents into the rivers and other inland
waters of the Philippines cannot be made to wait until protracted litigation over
the ultimate correctness or propriety of such orders has run its full course,
including multiple and sequential appeals such as those which Solar has taken,
which of course may take several years. The relevant pollution control statute
and implementing regulations were enacted and promulgated in the exercise of
that persuasive, sovereign power to protect the safety, health, and general
welfare and comfort of the public, as well as the protection of plant and animal
life, commonly designated as the police power. It is a constitutional common
place that the ordinary requirements of procedural due process yield to the
necessities of protecting vital public interests like those here involved, through
the exercise of police power. The Board's ex parte Order and Writ of Execution
would, of course, have compelled Solar temporarily to stop its plant operations, a
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state of aairs Solar could in any case have avoided by simply absorbing the
bother and burden of putting its WTP on an operational basis. Industrial
establishments are not constitutionally entitled to reduce their capitals costs and
operating expenses and to increase their prots by imposing upon the public
threats and risks to its safety, health, general welfare and comfort, by
disregarding the requirements of anti-pollution statutes and their implementing
regulations. cdll

It should perhaps be made clear the Court is not here saying that the correctness
of the ex parte Order and Writ of Execution may not be contested by Solar in a
hearing before the Board itself. Where the establishment aected by an ex parte
cease and desist order contests the correctness of the prima facie ndings of the
Board, the Board must hold a public hearing where such establishment would
have an opportunity to controvert the basis of such ex parte order. That such an
opportunity is subsequently available is really all that is required by the due
process clause of the Constitution in situations like that we have here. The
Board's decision rendered after the public hearing may then be tested judicially
by an appeal to the Court of Appeals in accordance with Section 7(c) of P.D. No.
984 and Section 42 of the Implementing Rules and Regulations. A subsequent
public hearing is precisely what Solar should have sought instead of going to
court to seek nullication of the Board's Order and Writ of Execution and instead
of appealing to the Court of Appeals. It will be recalled that the Board in fact gave
Solar authority temporarily to continue operations until still another inspection
of its wastewater treatment facilities and then another analysis of euent
samples could be taken and evaluated.
Solar claims nally that the petition for certiorari was the proper remedy as the
questioned Order and Writ of Execution issued by the Board were patent nullities.
Since we have concluded that Order and Writ of Execution were entirely within
the lawful authority of petitioner Board, the trial court did not err when it
dismissed Solar's petition for certiorari. It follows that the proper remedy was an
appeal from the trial court to the Court of Appeals, as Solar did in fact appeal.
ACCORDINGLY, the Petition for Review is given DUE COURSE and the Decision of
the Court of Appeals dated 7 February 1990 and its Resolution dated 10 May
1990 in A.C.-G.R. No. SP 18821 are hereby SET ASIDE. The Order of petitioner
Board dated 22 September 1988 and the Writ of Execution, as well as the
decision of the trial court dated 21 July 1989, are hereby REINSTATED, without
prejudice to the right of Solar to contest the correctness of the basis of the
Board's Order and Writ of Execution at a public hearing before the Board.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

Footnotes

1. Rollo, pp. 17-18.


2. Section 19 of Executive Order No. 192, dated 10 June 1987, abolished the NPCC
and transferred its powers and functions relating to the adjudication of pollution
cases under R.A. No. 3931 and P.D. No. 984 to the Board.

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3. Rollo, p. 33.

4. 78 Ocial Gazette No. 1, p. 52 (4 January 1982).


5. 74 Ocial Gazette No. 23, p. 4453 (5 June 1978).
6. Rollo, pp. 64 and 66.
7. 78 Ocial Gazette No. 1, p. 53 (4 January 1982).
8. Rollo, p. 68.

9. Id., p. 66.
10. Rollo, p. 67; emphases supplied.
11. Id., p. 65; emphases supplied.
12. G.R. No. 94759, promulgated 21 January 1991.

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SECOND DIVISION

[G.R. No. 130230. April 15, 2005.]

METROPOLITAN MANILA DEVELOPMENT AUTHORITY , petitioner, vs .


DANTE O. GARIN , respondent.

DECISION

CHICO-NAZARIO , J : p

At issue in this case is the validity of Section 5(f) of Republic Act No. 7924 creating the
Metropolitan Manila Development Authority (MMDA), which authorizes it to confiscate and
suspend or revoke driver's licenses in the enforcement of traffic laws and regulations.
The issue arose from an incident involving the respondent Dante O. Garin, a lawyer, who
was issued a traffic violation receipt (TVR) and his driver's license confiscated for parking
illegally along Gandara Street, Binondo, Manila, on 05 August 1995. The following
statements were printed on the TVR:
YOU ARE HEREBY DIRECTED TO REPORT TO THE MMDA TRAFFIC OPERATIONS
CENTER PORT AREA MANILA AFTER 48 HOURS FROM DATE OF APPREHENSION
FOR DISPOSITION/APPROPRIATE ACTION THEREON. CRIMINAL CASE SHALL BE
FILED FOR FAILURE TO REDEEM LICENSE AFTER 30 DAYS.
VALID AS TEMPORARY DRIVER'S LICENSE FOR SEVEN DAYS FROM DATE OF
APPREHENSION. 1

Shortly before the expiration of the TVR's validity, the respondent addressed a letter 2 to
then MMDA Chairman Prospero Oreta requesting the return of his driver's license, and
expressing his preference for his case to be filed in court.
Receiving no immediate reply, Garin filed the original complaint 3 with application for
preliminary injunction in Branch 260 of the Regional Trial Court (RTC) of Paraaque, on 12
September 1995, contending that, in the absence of any implementing rules and
regulations, Sec. 5(f) of Rep. Act No. 7924 grants the MMDA unbridled discretion to
deprive erring motorists of their licenses, pre-empting a judicial determination of the
validity of the deprivation, thereby violating the due process clause of the Constitution. The
respondent further contended that the provision violates the constitutional prohibition
against undue delegation of legislative authority, allowing as it does the MMDA to fix and
impose unspecified and therefore unlimited fines and other penalties on erring
motorists. SaHTCE

In support of his application for a writ of preliminary injunction, Garin alleged that he
suffered and continues to suffer great and irreparable damage because of the deprivation
of his license and that, absent any implementing rules from the Metro Manila Council, the
TVR and the confiscation of his license have no legal basis.
For its part, the MMDA, represented by the Office of the Solicitor General, pointed out that
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the powers granted to it by Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing,
collection and imposition of fines and penalties for traffic violations, which powers are
legislative and executive in nature; the judiciary retains the right to determine the validity of
the penalty imposed. It further argued that the doctrine of separation of powers does not
preclude "admixture" of the three powers of government in administrative agencies. 4
The MMDA also refuted Garin's allegation that the Metro Manila Council, the governing
board and policy making body of the petitioner, has as yet to formulate the implementing
rules for Sec. 5(f) of Rep. Act No. 7924 and directed the court's attention to MMDA
Memorandum Circular No. TT-95-001 dated 15 April 1995. Respondent Garin, however,
questioned the validity of MMDA Memorandum Circular No. TT-95-001, as he claims that it
was passed by the Metro Manila Council in the absence of a quorum.
Judge Helen Bautista-Ricafort issued a temporary restraining order on 26 September
1995, extending the validity of the TVR as a temporary driver's license for twenty more
days. A preliminary mandatory injunction was granted on 23 October 1995, and the MMDA
was directed to return the respondent's driver's license.
On 14 August 1997, the trial court rendered the assailed decision 5 in favor of the herein
respondent and held that:
a. There was indeed no quorum in that First Regular Meeting of the MMDA
Council held on March 23, 1995, hence MMDA Memorandum Circular No. TT-95-
001, authorizing confiscation of driver's licenses upon issuance of a TVR, is void
ab initio.
b. The summary confiscation of a driver's license without first giving the
driver an opportunity to be heard; depriving him of a property right (driver's
license) without DUE PROCESS; not filling (sic) in Court the complaint of
supposed traffic infraction, cannot be justified by any legislation (and is) hence
unconstitutional.

WHEREFORE, the temporary writ of preliminary injunction is hereby made


permanent; th(e) MMDA is directed to return to plaintiff his driver's license; th(e)
MMDA is likewise ordered to desist from confiscating driver's license without first
giving the driver the opportunity to be heard in an appropriate proceeding.

In filing this petition, 6 the MMDA reiterates and reinforces its argument in the court below
and contends that a license to operate a motor vehicle is neither a contract nor a property
right, but is a privilege subject to reasonable regulation under the police power in the
interest of the public safety and welfare. The petitioner further argues that revocation or
suspension of this privilege does not constitute a taking without due process as long as
the licensee is given the right to appeal the revocation.
To buttress its argument that a licensee may indeed appeal the taking and the judiciary
retains the power to determine the validity of the confiscation, suspension or revocation of
the license, the petitioner points out that under the terms of the confiscation, the licensee
has three options:
1. To voluntarily pay the imposable fine,
2. To protest the apprehension by filing a protest with the MMDA
Adjudication Committee, or
3. To request the referral of the TVR to the Public Prosecutor's Office.
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The MMDA likewise argues that Memorandum Circular No. TT-95-001 was validly passed
in the presence of a quorum, and that the lower court's finding that it had not was based on
a "misapprehension of facts," which the petitioner would have us review. Moreover, it
asserts that though the circular is the basis for the issuance of TVRs, the basis for the
summary confiscation of licenses is Sec. 5(f) of Rep. Act No. 7924 itself, and that such
power is self-executory and does not require the issuance of any implementing regulation
or circular. SHacCD

Meanwhile, on 12 August 2004, the MMDA, through its Chairman Bayani Fernando,
implemented Memorandum Circular No. 04, Series of 2004, outlining the procedures for
the use of the Metropolitan Traffic Ticket (MTT) scheme. Under the circular, erring
motorists are issued an MTT, which can be paid at any Metrobank branch. Traffic
enforcers may no longer confiscate drivers' licenses as a matter of course in cases of
traffic violations. All motorists with unredeemed TVRs were given seven days from the
date of implementation of the new system to pay their fines and redeem their license or
vehicle plates. 7
It would seem, therefore, that insofar as the absence of a prima facie case to enjoin the
petitioner from confiscating drivers' licenses is concerned, recent events have overtaken
the Court's need to decide this case, which has been rendered moot and academic by the
implementation of Memorandum Circular No. 04, Series of 2004.
The petitioner, however, is not precluded from re-implementing Memorandum Circular No.
TT-95-001, or any other scheme, for that matter, that would entail confiscating drivers'
licenses. For the proper implementation, therefore, of the petitioner's future programs, this
Court deems it appropriate to make the following observations:
1. A license to operate a motor vehicle is a privilege that the state may withhold in
the exercise of its police power.
The petitioner correctly points out that a license to operate a motor vehicle is not a
property right, but a privilege granted by the state, which may be suspended or revoked by
the state in the exercise of its police power, in the interest of the public safety and welfare,
subject to the procedural due process requirements. This is consistent with our rulings in
Pedro v. Provincial Board of Rizal 8 on the license to operate a cockpit, Tan v. Director of
Forestry 9 and Oposa v. Factoran 1 0 on timber licensing agreements, and Surigao Electric
Co., Inc. v. Municipality of Surigao 1 1 on a legislative franchise to operate an electric plant.
Petitioner cites a long list of American cases to prove this point, such as State ex. Rel.
Sullivan, 1 2 which states in part that, "the legislative power to regulate travel over the
highways and thoroughfares of the state for the general welfare is extensive. It may be
exercised in any reasonable manner to conserve the safety of travelers and pedestrians.
Since motor vehicles are instruments of potential danger, their registration and the
licensing of their operators have been required almost from their first appearance. The
right to operate them in public places is not a natural and unrestrained right, but a privilege
subject to reasonable regulation, under the police power, in the interest of the public safety
and welfare. The power to license imports further power to withhold or to revoke such
license upon noncompliance with prescribed conditions."
Likewise, the petitioner quotes the Pennsylvania Supreme Court in Commonwealth v. Funk,
1 3 to the effect that: "Automobiles are vehicles of great speed and power. The use of them
constitutes an element of danger to persons and property upon the highways. Carefully
operated, an automobile is still a dangerous instrumentality, but, when operated by
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careless or incompetent persons, it becomes an engine of destruction. The Legislature, in
the exercise of the police power of the commonwealth, not only may, but must, prescribe
how and by whom motor vehicles shall be operated on the highways. One of the primary
purposes of a system of general regulation of the subject matter, as here by the Vehicle
Code, is to insure the competency of the operator of motor vehicles. Such a general law is
manifestly directed to the promotion of public safety and is well within the police power."

The common thread running through the cited cases is that it is the legislature, in the
exercise of police power, which has the power and responsibility to regulate how and by
whom motor vehicles may be operated on the state highways. HIAEcT

2. The MMDA is not vested with police power.


In Metro Manila Development Authority v. Bel-Air Village Association, Inc., 1 4 we
categorically stated that Rep. Act No. 7924 does not grant the MMDA with police power,
let alone legislative power, and that all its functions are administrative in nature.
The said case also involved the herein petitioner MMDA which claimed that it had the
authority to open a subdivision street owned by the Bel-Air Village Association, Inc. to
public traffic because it is an agent of the state endowed with police power in the delivery
of basic services in Metro Manila. From this premise, the MMDA argued that there was no
need for the City of Makati to enact an ordinance opening Neptune Street to the public.
Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we concluded that
the MMDA is not a local government unit or a public corporation endowed with legislative
power, and, unlike its predecessor, the Metro Manila Commission, it has no power to enact
ordinances for the welfare of the community. Thus, in the absence of an ordinance from
the City of Makati, its own order to open the street was invalid.
We restate here the doctrine in the said decision as it applies to the case at bar: police
power, as an inherent attribute of sovereignty, is the power vested by the Constitution in
the legislature to make, ordain, and establish all manner of wholesome and reasonable
laws, statutes and ordinances, either with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good and welfare of the commonwealth, and
for the subjects of the same.
Having been lodged primarily in the National Legislature, it cannot be exercised by any
group or body of individuals not possessing legislative power. The National Legislature,
however, may delegate this power to the president and administrative boards as well as
the lawmaking bodies of municipal corporations or local government units (LGUs). Once
delegated, the agents can exercise only such legislative powers as are conferred on them
by the national lawmaking body.
Our Congress delegated police power to the LGUs in the Local Government Code of 1991.
1 5 A local government is a "political subdivision of a nation or state which is constituted by
law and has substantial control of local affairs." 1 6 Local government units are the
provinces, cities, municipalities and barangays, which exercise police power through their
respective legislative bodies.
Metropolitan or Metro Manila is a body composed of several local government units. With
the passage of Rep. Act No. 7924 in 1995, Metropolitan Manila was declared as a "special
development and administrative region" and the administration of "metro-wide" basic
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services affecting the region placed under "a development authority" referred to as the
MMDA. Thus:
. . . [T]he powers of the MMDA are limited to the following acts: formulation,
coordination, regulation, implementation, preparation, management, monitoring,
setting of policies, installation of a system and administration. There is no
syllable in R. A. No. 7924 that grants the MMDA police power, let alone
legislative power . Even the Metro Manila Council has not been
delegated any legislative power . Unlike the legislative bodies of the local
government units, there is no provision in R. A. No. 7924 that empowers
the MMDA or its Council to "enact ordinances, approve resolutions and
appropriate funds for the general welfare" of the inhabitants of Metro
Manila . The MMDA is, as termed in the charter itself, a "development authority."
It is an agency created for the purpose of laying down policies and
coordinating with the various national government agencies, people's
organizations, non-governmental organizations and the private sector
for the efficient and expeditious delivery of basic services in the vast
metropolitan area. All its functions are administrative in nature and
these are actually summed up in the charter itself, viz:

"Sec. 2. Creation of the Metropolitan Manila Development Authority.


...
The MMDA shall perform planning, monitoring and coordinative functions,
and in the process exercise regulatory and supervisory authority over the
delivery of metro-wide services within Metro Manila, without diminution of
the autonomy of the local government units concerning purely local
matters." IcHSCT

xxx xxx xxx


Clearly, the MMDA is not a political unit of government. The power delegated to
the MMDA is that given to the Metro Manila Council to promulgate administrative
rules and regulations in the implementation of the MMDA's functions. There is
no grant of authority to enact ordinances and regulations for the
general welfare of the inhabitants of the metropolis . 1 7 (footnotes omitted,
emphasis supplied)

Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and
by the petitioner to grant the MMDA the power to confiscate and suspend or revoke
drivers' licenses without need of any other legislative enactment, such is an unauthorized
exercise of police power.
3. Sec. 5(f) grants the MMDA with the duty to enforce existing traf c rules and
regulations.
Section 5 of Rep. Act No. 7924 enumerates the "Functions and Powers of the Metro Manila
Development Authority." The contested clause in Sec. 5(f) states that the petitioner shall
"install and administer a single ticketing system, fix, impose and collect fines and penalties
for all kinds of violations of traffic rules and regulations, whether moving or nonmoving in
nature, and confiscate and suspend or revoke drivers' licenses in the enforcement of such
traffic laws and regulations, the provisions of Rep. Act No. 4136 1 8 and P.D. No. 1605 1 9 to
the contrary notwithstanding," and that "(f)or this purpose, the Authority shall enforce all
traffic laws and regulations in Metro Manila, through its traffic operation center, and may
deputize members of the PNP, traffic enforcers of local government units, duly licensed
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security guards, or members of non-governmental organizations to whom may be
delegated certain authority, subject to such conditions and requirements as the Authority
may impose."
Thus, where there is a traffic law or regulation validly enacted by the legislature or those
agencies to whom legislative powers have been delegated (the City of Manila in this case),
the petitioner is not precluded and in fact is duty-bound to confiscate and suspend or
revoke drivers' licenses in the exercise of its mandate of transport and traffic
management, as well as the administration and implementation of all traffic enforcement
operations, traffic engineering services and traffic education programs. 2 0
This is consistent with our ruling in Bel-Air that the MMDA is a development authority
created for the purpose of laying down policies and coordinating with the various national
government agencies, people's organizations, non-governmental organizations and the
private sector, which may enforce, but not enact, ordinances.
This is also consistent with the fundamental rule of statutory construction that a statute is
to be read in a manner that would breathe life into it, rather than defeat it, 2 1 and is
supported by the criteria in cases of this nature that all reasonable doubts should be
resolved in favor of the constitutionality of a statute. 2 2
A last word. The MMDA was intended to coordinate services with metro-wide impact that
transcend local political boundaries or would entail huge expenditures if provided by the
individual LGUs, especially with regard to transport and traffic management, 2 3 and we are
aware of the valiant efforts of the petitioner to untangle the increasingly traffic-snarled
roads of Metro Manila. But these laudable intentions are limited by the MMDA's enabling
law, which we can but interpret, and petitioner must be reminded that its efforts in this
respect must be authorized by a valid law, or ordinance, or regulation arising from a
legitimate source. AEDISC

WHEREFORE, the petition is dismissed.


SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur.

Footnotes

1. Records, p. 10.
2. Id., p. 11.
3. Id., p. 1.
4. Memorandum for Defendants, Records, pp. 178-185.
5. Id., pp. 187-190, penned by Hon. Helen Bautista-Ricafort.
6. Records, pp. 197-225.
7. Sec. 7, Mem. Circ. No. 04, Series of 2004.
8. 56 Phil 123 (1931).

9. G.R. No. L-24548, 27 October 1983, 125 SCRA 302.


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10. G.R. No. 101083, 30 July 1993, 224 SCRA 792.

11. G.R. No. L-22766, 30 August 1968, 24 SCRA 898.


12. 63 P. 2d 653, 108 ALR 1156, 1159.
13. 323 Pa. 390, 186 A. 65 (108 ALR 1161).
14. G.R. No. 135962, 27 March 2000, 328 SCRA 836, penned by Justice Reynato S. Puno.
15. Sec. 16 of Book I of the Local Government Code of 1991 states:

General Welfare. Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and those which are essential to
the promotion of the general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-
reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their
inhabitants.

16. Supra, Note 18, p. 844, citing Bernas, The 1987 Constitution of the Philippines, A
Commentary, pp. 95-98 [1996], citing UP Law Center Revision Project, Part II, 712 [1970]
citing Sady, "Improvement of Local Government Administration for Development
Purpose," Journal of Local Administration Overseas 135 [July 1962].

17. Ibid., pp. 849-860.


18. Entitled "An Act to Compile the Laws Relative to Land Transportation and Traffic Rules,
to Create a Land Transportation Commission and for Other Purposes," approved on 20
June 1964. Sec. 29 thereof states:

Confiscation of driver's license. Law enforcement and peace officers duly


designated by the Commissioner shall, in apprehending any driver for violations of this
Act or of any regulations issued pursuant thereto, or of local traffic rules and regulations,
confiscate the license of the driver concerned and issue a receipt prescribed and issued
by the Commission therefore which shall authorize the driver to operate a motor vehicle
for a period not exceeding seventy-two hours from the time and date of issue of said
receipt. The period so fixed in the receipt shall not be extended, and shall become invalid
thereafter. Failure of the driver to settle his case within fifteen days from the date of
apprehension will cause suspension and revocation of his license. (emphasis supplied)

19. Entitled "Granting the Metropolitan Manila Commission Certain Powers Related to
Traffic Management and Control in Metropolitan Manila, Providing Penalties, and for
Other Purposes," dated 21 November 1978.
SEC. 5. In case of traffic violations, the driver's license shall not be confiscated
but the erring driver shall be immediately issued a traffic citation ticket prescribed by the
Metropolitan Manila Commission which shall state the violation committed, the amount
of fine imposed for the violation and an advice that he can make payment to the city or
municipal treasurer where the violation was committed or to the Philippine National
Bank or Philippine Veteran's Bank or their branches within seven days from the date of
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issuance of the citation ticket. (emphasis supplied)
20. Section 3(b), Rep. Act No. 7924.

21. Thus, in Briad Agro Development Corporation v. dela Serna, (G.R. No. 82805, 29 June
1989, 174 SCRA 524) we upheld the grant of concurrent jurisdiction between the
Secretary of Labor or its Regional Directors and the Labor Arbiters to pass upon money
claims, among other cases, "the provisions of Article 217 of this Code to the contrary
notwithstanding," as enunciated in Executive Order No. 111. Holding that E.O. 111 was a
curative law intended to widen worker's access to the Government for redress of
grievances, we held, ". . . the Executive Order vests in Regional Directors jurisdiction, '[t]he
provisions of Article 217 of this Code to the contrary notwithstanding,' it would have
rendered such a proviso and the amendment itself useless to say that they
(Regional Directors) retained the self-same restricted powers, despite such an
amendment. It is fundamental that a statute is to be read in a manner that would
breathe life into it, rather than defeat it." (See also Philtread Workers Union v. Confessor,
G.R. No. 117169, 12 March 1997, 269 SCRA 393.)
22. In Heirs of Ardona v. Reyes, (G.R. No. 60549, 26 October 1983, 125 SCRA 221) we
upheld the constitutionality of Presidential Decree No. 564, the Revised Charter of the
Philippine Tourism Authority, and Proclamation No. 2052 declaring certain
municipalities in the province of Cebu as tourist zones. The law granted the Philippine
Tourism authority the right to expropriate 282 hectares of land to establish a resort
complex notwithstanding the claim that certificates of land transfer and emancipation
patents had already been issued to them thereby making the lands expropriated within
the coverage of the land reform area under Presidential Decree No. 2, and that the
agrarian reform program occupies a higher level in the order of priorities than other State
policies like those relating to the health and physical well-being of the people, and that
property already taken for public use may not be taken for another public use. We held
that, "(t)he petitioners have failed to overcome the burden of anyone trying to strike
down a statute or decree whose avowed purpose is the legislative perception of the
public good. A statute has in its favor the presumption of validity. All reasonable doubts
should be resolved in favor of the constitutionality of a law. The courts will not set aside
a law as violative of the Constitution except in a clear case (People v. Vera, 65 Phil. 56).
And in the absence of factual findings or evidence to rebut the presumption of validity,
the presumption prevails (Ermita-Malate Hotel, etc. v. Mayor of Manila, 20 SCRA 849;
Morfe v. Mutuc, 22 SCRA 424)."
In the same manner, we upheld in Dumlao v. COMELEC (G.R. No. L-52245, 22 January
1980, 95 SCRA 392) the first paragraph of Section 4 of Batas Pambansa Bilang 52
providing that any retired elective provincial, city or municipal official, who has received
payment of the retirement benefits and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected is disqualified to
run for the same elective local office from which he has retired. Invoking the need for the
emergence of younger blood in local politics, we affirmed that the constitutional
guarantee is not violated by a reasonable classification based upon substantial
distinctions, where the classification is germane to the purpose of the law and applies to
all those belonging to the same class. (See also Tropical Homes, Inc, v. National
Housing Authority, G.R. No. L-48672, 31 July 1987 152 SCRA 540; Peralta v. COMELEC,
G.R. No. L-47791, 11 March 1978, 82 SCRA 55; People v. Vera, GR No. 45685, 65 Phil 56
[1937].)

23. Section 3(b), Republic Act No. 7924.

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SECOND DIVISION

[G.R. No. 126102. December 4, 2000.]

ORTIGAS & CO. LTD. , petitioner, vs . THE COURT OF APPEALS and


ISMAEL G. MATHAY III , respondents.

Atty. Eulogio R. Rodriguez for petitioner.


Puhawan Aldon & Associates Law Offices for private respondent.

SYNOPSIS

Petitioner Ortigas sold to the Hermosos a parcel of land in Greenhills Subdivision. The
contract of sale provided that the lot will be used for single-family residential building only
and this was annotated at the back of the title of the lot. In 1981, the Metropolitan
Commission enacted MMC Ordinance No. 81-01 reclassifying as a commercial zone the
stretch of Ortigas Avenue from Roosevelt Street to Madison Street. Subsequently in 1984,
private respondent Mathay III leased the lot from Hermoso and constructed a commercial
building for Greenhills Autohaus, Inc., a car sales company.
Petitioner filed Civil Case No. 4 seeking to enjoin the building by respondent of structure
on the lot and sought the demolition of the commercial structure for having violated the
terms and conditions of the Deed of Sale. The trial court issued the injunctive order ruling
that the ordinance should be given prospective application. On certiorari, however, the CA
granted the petition, ruling that the trial court gravely abused its discretion in refusing to
treat MMC Ordinance No. 81-01 as applicable to Civil Case No. 64931. CA held that the
ordinance effectively nullified the restrictions allowing only residential use of the property
in question.
In this petition, petitioner claims that even with the zoning ordinance, the seller and buyer
of the re-classified lot can voluntarily agree to an exclusive residential use thereof; and that
respondent Mathay III as a mere lessee of the lot in question, is a total stranger to the
deed of sale and is thus barred from questioning the condition of said deed.
The Supreme Court denied the petition, ruling: that while as a rule, laws are to be construed
as having only prospective operation, one exception is a law which involves police power,
which could be given retroactive effect and may reasonably impair vested rights or
contracts; that the MMC Ordinance No. 81-01 has been held to be a legitimate police
power measure to which the non-impairment of contracts or vested rights clauses will
have to yield; and that Mathay III in this case is clearly a real party in interest because he
holds the lot pursuant to a valid lease and it is his building of a commercial structure which
petitioner seeks to enjoin.

SYLLABUS

1. STATUTORY CONSTRUCTION; LAWS ARE GENERALLY GIVEN PROSPECTIVE


APPLICATION; LAW WHICH INVOLVES POLICE POWER IS AN EXCEPTION. In general,
we agree that laws are to be construed as having only prospective operation. Lex prospicit,
non respicit. Equally settled, only laws existing at the time of the execution of a contract
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are applicable thereto and are not later statutes, unless the latter are specifically intended
to have a retroactive effect. A later law which enlarges, abridges, or in any manner changes
the intent of the parties to the contract necessarily impairs the contract itself and cannot
be given retroactive effect without violating the constitutional prohibition against
impairment of contracts. But, the foregoing principles do admit of certain exceptions. One
involves police power. A law enacted in the exercise of police power to regulate or govern
certain activities or transactions could be given retroactive effect and may reasonably
impair vested rights or contracts. Police power legislation is applicable not only to future
contracts, but equally to those already in existence. Nonimpairment of contracts or vested
rights clauses will have to yield to the superior and legitimate exercise by the State of
police power to promote the health, morals, peace, education, good order, safety, and
general welfare of the people. Moreover, statutes in exercise of valid police power must be
read into every contract.
2. CONSTITUTIONAL LAW; POLICE POWER; CONTRACTUAL STIPULATIONS AND
VESTED RIGHTS MUST YIELD TO POLICE POWER; CASE AT BAR. Noteworthy, in
Sangalang vs. Intermediate Appellate Court, we already upheld MMC Ordinance No. 81-01
as a legitimate police power measure. Following our ruling in Ortigas & Co., Ltd. vs. Feati
Bank & Trust Co., 94 SCRA 533 (1979), the contractual stipulations annotated on the
Torrens Title, on which Ortigas relies, must yield to the ordinance. When that stretch of
Ortigas Avenue from Roosevelt Street to Madison Street was reclassified as a commercial
zone by the Metropolitan Manila Commission in March 1981, the restrictions in the
contract of sale between Ortigas and Hermoso, limiting all construction on the disputed
lot to single-family residential buildings, were deemed extinguished by the retroactive
operation of the zoning ordinance and could no longer be enforced. While our legal system
upholds the sanctity of contract so that a contract is deemed law between the contracting
parties, nonetheless, stipulations in a contract cannot contravene "law, morals, good
customs, public order, or public policy." Otherwise such stipulations would be deemed null
and void.
3. REMEDIAL LAW; CIVIL PROCEDURE; REAL PARTY IN INTEREST; LESSEE WHO BUILT
COMMERCIAL STRUCTURE SOUGHT TO BE DEMOLISHED IS A REAL PARTY IN INTEREST.
By real interest is meant a present substantial interest, as distinguished from a mere
expectancy or a future, contingent, subordinate, or consequential interest. Tested by the
foregoing definition, private respondent in this case is clearly a real party in interest. It is
not disputed that he is in possession of the lot pursuant to valid lease. He is a possessor
in the concept of a "holder of the thing" under Article 525 of the Civil Code. He was
impleaded as a defendant in the amended complaint in Civil Case No. 64931. Further, what
petitioner seeks to enjoin is the building by respondent of a commercial structure on the
lot. Clearly, it is private respondent's acts which are in issue, and his interest in said issue
cannot be a mere incidental interest. In its amended complaint, petitioner prayed for,
among others, judgment "ordering the demolition of all improvements illegally built on the
lot in question." These show that it is petitioner Mathay III, doing business as "Greenhills
Autohaus, Inc.," and not only the Hermosos, who will be adversely affected by the court's
decree. ACEIac

DECISION

QUISUMBING , J : p

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This petition seeks to reverse the decision of the Court of Appeals, dated March 25, 1996,
in CA-G.R. SP No. 39193, which nullified the writ of preliminary injunction issued by the
Regional Trial Court of Pasig City, Branch 261, in Civil Case No. 64931. It also assails the
resolution of the appellate court, dated August 13, 1996, denying petitioner's motion for
reconsideration. ATcEDS

The facts of this case, as culled from the records, are as follows:
On August 25, 1976, petitioner Ortigas & Company sold to Emilia Hermoso, a parcel of
land known as Lot 1, Block 21, Psd-66759, with an area of 1,508 square meters, located in
Greenhills Subdivision IV, San Juan, Metro Manila, and covered by Transfer Certificate of
Title No. 0737. The contract of sale provided that the lot:
1. . . . (1) be used exclusively . . . for residential purposes only, and not more
than one single-family residential building will be constructed thereon, . . .

xxx xxx xxx

6. The BUYER shall not erect . . . any sign or billboard on the roof . . . for
advertising purposes . . .

xxx xxx xxx

11. No single-family residential building shall be erected . . . until the building


plans, specification . . . have been approved by the SELLER . . .

xxx xxx xxx

14. . . . restrictions shall run with the land and shall be construed as real
covenants until December 31, 2025 when they shall cease and terminate . .
.1

These and the other conditions were duly annotated on the certificate of title issued to
Emilia.
In 1981, the Metropolitan Manila Commission (now Metropolitan Manila Development
Authority) enacted MMC Ordinance No. 81-01, also known as the Comprehensive Zoning
Area for the National Capital Region. The ordinance reclassified as a commercial area a
portion of Ortigas Avenue from Madison to Roosevelt Streets of Greenhills Subdivision
where the lot is located.
On June 8, 1984, private respondent Ismael Mathay III leased the lot from Emilia Hermoso
and J.P. Hermoso Realty Corp.. The lease contract did not specify the purposes of the
lease. Thereupon, private respondent constructed a single story commercial building for
Greenhills Autohaus, Inc., a car sales company.
On January 18, 1995, petitioner filed a complaint against Emilia Hermoso with the Regional
Trial Court of Pasig, Branch 261. Docketed as Civil Case No. 64931, the complaint sought
the demolition of the said commercial structure for having violated the terms and
conditions of the Deed of Sale. Complainant prayed for the issuance of a temporary
restraining order and a writ of preliminary injunction to prohibit petitioner from
constructing the commercial building and/or engaging in commercial activity on the lot.
The complaint was later amended to implead Ismael G. Mathay III and J.P. Hermoso Realty
Corp., which has a ten percent (10%) interest in the lot.
In his answer, Mathay III denied any knowledge of the restrictions on the use of the lot and
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filed a cross-claim against the Hermosos.
On June 16, 1995, the trial court issued the writ of preliminary injunction. On June 29, 1995,
Mathay III moved to set aside the injunctive order, but the trial court denied the motion.
Mathay III then filed with the Court of Appeals a special civil action for certiorari, docketed
as CA-G.R. SP No. 39193, ascribing to the trial court grave abuse of discretion in issuing
the writ of preliminary injunction. He claimed that MMC Ordinance No. 81-01 classified the
area where the lot was located as commercial area and said ordinance must be read into
the August 25, 1976 Deed of Sale as a concrete exercise of police power.

Ortigas and Company averred that inasmuch as the restrictions on the use of the lot were
duly annotated on the title it issued to Emilia Hermoso, said restrictions must prevail over
the ordinance, specially since these restrictions were agreed upon before the passage of
MMC Ordinance No. 81-01.
On March 25, 1996, the appellate court disposed of the case as follows:
WHEREFORE, in light of the foregoing, the petition is hereby GRANTED. The
assailed orders are hereby nullified and set aside.
SO ORDERED. 2

In finding for Mathay III, the Court of Appeals held that the MMC Ordinance No. 81-01
effectively nullified the restrictions allowing only residential use of the property in question.
Ortigas seasonably moved for reconsideration, but the appellate court denied it on August
13, 1996.
Hence, the instant petition.
In its Memorandum, petitioner now submits that the "principal issue in this case is whether
respondent Court of Appeals correctly set aside the Order dated June 16, 1995 of the trial
court which issued the writ of preliminary injunction on the sole ground that MMC
Ordinance No. 81-01 nullified the building restriction imposing exclusive residential use on
the property in question." 3 It also asserts that "Mathay III lacks legal capacity to question
the validity of conditions of the deed of sale; and he is barred by estoppel or waiver to
raise the same question like his principals, the owners." 4 Lastly, it avers that the appellate
court "unaccountably failed to address" several questions of fact.
Principally, we must resolve the issue of whether the Court of Appeals erred in holding that
the trial court committed grave abuse of discretion when it refused to apply MMC
Ordinance No. 81-01 to Civil Case No. 64931.
But first, we must address petitioner's allegation that the Court of Appeals "unaccountably
failed to address" questions of fact. For basic is the rule that factual issues may not be
raised before this Court in a petition for review and this Court is not duty-bound to
consider said questions. 5 CA-G.R. SP No. 39193 was a special civil action for certiorari,
and the appellate court only had to determine if the trial court committed grave abuse of
discretion amounting to want or excess of jurisdiction in issuing the writ of preliminary
injunction. Thus, unless vital to our determination of the issue at hand, we shall refrain from
further consideration of factual questions.
Petitioner contends that the appellate court erred in limiting its decision to the cited
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zoning ordinance. It avers that a contractual right is not automatically discarded once a
claim is made that it conflicts with police power. Petitioner submits that the restrictive
clauses in the questioned contract is not in conflict with the zoning ordinance. For one,
according to petitioner, the MMC Ordinance No. 81-01 did not prohibit the construction of
residential buildings. Petitioner argues that even with the zoning ordinance, the seller and
buyer of the re-classified lot can voluntarily agree to an exclusive residential use thereof.
Hence, petitioner concludes that the Court of Appeals erred in holding that the condition
imposing exclusive residential use was effectively nullified by the zoning ordinance. EcHAaS

In its turn, private respondent argues that the appellate court correctly ruled that the trial
court had acted with grave abuse of discretion in refusing to subject the contract to the
MMC Ordinance No. 81-01. He avers that the appellate court properly held the police
power superior to the non-impairment of contract clause in the Constitution. He concludes
that the appellate court did not err in dissolving the writ of preliminary injunction issued by
the trial court in excess of its jurisdiction.
We note that in issuing the disputed writ of preliminary injunction, the trial court observed
that the contract of sale was entered into in August 1976, while the zoning ordinance was
enacted only in March 1981. The trial court reasoned that since private respondent had
failed to show that MMC Ordinance No. 81-01 had retroactive effect, said ordinance
should be given prospective application only, 6 citing Co vs. Intermediate Appellate Court,
162 SCRA 390 (1988).
In general, we agree that laws are to be construed as having only prospective operation.
Lex prospicit, non respicit. Equally settled, only laws existing at the time of the execution of
a contract are applicable thereto and not later statutes, unless the latter are specifically
intended to have retroactive effect. 7 A later law which enlarges, abridges, or in any manner
changes the intent of the parties to the contract necessarily impairs the contract itself 8
and cannot be given retroactive effect without violating the constitutional prohibition
against impairment of contracts. 9
But, the foregoing principles do admit of certain exceptions. One involves police power. A
law enacted in the exercise of police power to regulate or govern certain activities or
transactions could be given retroactive effect and may reasonably impair vested rights or
contracts. Police power legislation is applicable not only to future contracts, but equally to
those already in existence. 1 0 Non-impairment of contracts or vested rights clauses will
have to yield to the superior and legitimate exercise by the State of police power to
promote the health, morals, peace, education, good order, safety, and general welfare of
the people. 1 1 Moreover, statutes in exercise of valid police power must be read into every
contract. 1 2 Noteworthy, in Sangalang vs. Intermediate Appellate Court, 1 3 we already
upheld MMC Ordinance No. 81-01 as a legitimate police power measure.
The trial court's reliance on the Co vs. IAC, 1 4 is misplaced. In Co, the disputed area was
agricultural and Ordinance No. 81-01 did not specifically provide that "it shall have
retroactive effect so as to discontinue all rights previously acquired over lands located
within the zone which are neither residential nor light industrial in nature," 1 5 and stated with
respect to agricultural areas covered that "the zoning ordinance should be given
prospective operation only." 1 6 The area in this case involves not agricultural but urban
residential land. Ordinance No. 81-01 retroactively affected the operation of the zoning
ordinance in Greenhills by reclassifying certain locations therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co., 94 SCRA 533 (1979),
the contractual stipulations annotated on the Torrens Title, on which Ortigas relies, must
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yield to the ordinance. When that stretch of Ortigas Avenue from Roosevelt Street to
Madison Street was reclassified as a commercial zone by the Metropolitan Manila
Commission in March 1981, the restrictions in the contract of sale between Ortigas and
Hermoso, limiting all construction on the disputed lot to single-family residential buildings,
were deemed extinguished by the retroactive operation of the zoning ordinance and could
no longer be enforced. While our legal system upholds the sanctity of contract so that a
contract is deemed law between the contracting parties, 1 7 nonetheless, stipulations in a
contract cannot contravene "law, morals, good customs, public order, or public policy." 1 8
Otherwise such stipulations would be deemed null and void. Respondent court correctly
found that the trial court committed in this case a grave abuse of discretion amounting to
want of or excess of jurisdiction in refusing to treat Ordinance No. 81-01 as applicable to
Civil Case No. 64931. In resolving matters in litigation, judges are not only duty-bound to
ascertain the facts and the applicable laws, 1 9 they are also bound by their oath of office to
apply the applicable law. 2 0
As a secondary issue, petitioner contends that respondent Mathay III, as a mere lessee of
the lot in question, is a total stranger to the deed of sale and is thus barred from
questioning the conditions of said deed. Petitioner points out that the owners of the lot
voluntarily agreed to the restrictions on the use of the lot and do not question the validity
of these restrictions. Petitioner argues that Mathay III as a lessee is merely an agent of the
owners, and could not override and rise above the status of his principals. Petitioner
submits that he could not have a higher interest than those of the owners, the Hermosos,
and thus had no locus standi to file CA-G.R. SP No. 39193 to dissolve the injunctive writ
issued by the RTC of Pasig City.
For his part, private respondent argues that as the lessee who built the commercial
structure, it is he and he alone who stands to be either benefited or injured by the results of
the judgment in Civil Case No. 64931. He avers he is the party with real interest in the
subject matter of the action, as it would be his business, not the Hermosos', which would
suffer had not the respondent court dissolved the writ of preliminary injunction.
A real party in interest is defined as "the party who stands to be benefited or injured by the
judgment or the party entitled to the avails of the suit." "Interest" within the meaning of the
rule means material interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest. 2 1
By real interest is meant a present substantial interest, as distinguished from a mere
expectancy or a future, contingent, subordinate, or consequential interest. 2 2
Tested by the foregoing definition, private respondent in this case is clearly a real party in
interest. It is not disputed that he is in possession of the lot pursuant to a valid lease. He is
a possessor in the concept of a "holder of the thing" under Article 525 of the Civil Code. 2 3
He was impleaded as a defendant in the amended complaint in Civil Case No. 64931.
Further, what petitioner seeks to enjoin is the building by respondent of a commercial
structure on the lot. Clearly, it is private respondent's acts which are in issue, and his
interest in said issue cannot be a mere incidental interest. In its amended complaint,
petitioner prayed for, among others, judgment "ordering the demolition of all
improvements illegally built on the lot in question." 2 4 These show that it is petitioner
Mathay III, doing business as "Greenhills Autohaus, Inc.," and not only the Hermosos, who
will be adversely affected by the court's decree.

Petitioner also cites the rule that a stranger to a contract has no rights or obligations
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under it, 2 5 and thus has no standing to challenge its validity. 2 6 But in seeking to enforce
the stipulations in the deed of sale, petitioner impleaded private respondent as a
defendant. Thus petitioner must recognize that where a plaintiff has impleaded a party as
a defendant, he cannot subsequently question the latter's standing in court. 2 7
WHEREFORE, the instant petition is DENIED. The challenged decision of the Court of
Appeals dated March 25, 1996, as well as the assailed resolution of August 13, 1996, in
CA-G.R. SP No. 39193 is AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ ., concur.
Footnotes

1. Rollo, p. 92.
2. Rollo, p. 52.
3. Id. at 227.
4. Ibid.
5. First Nationwide Assurance Corp. vs. Court of Appeals, et al., G.R. No. 128797, November
18, 1999, p. 1.
6. CA Rollo, p. 26.
7. Phil. Virginia Tobacco Administration vs. Gonzales, 92 SCRA 172, 185 (1979).
8. US vs. Diaz Conde, 42 Phil. 766, 769 (1922).
9. CONST., Art. III, Sec. 10.
10. Melchor, Jr. vs. Moya, 121 SCRA 1, 6 (1983); Co Chiong vs. Cuaderno, 83 Phil. 242
(1949); Santos vs. Alvarez, 78 Phil. 503 (1947).
11. Presley vs. Bel-Air Village Association, Inc., 201 SCRA 13, 18-19 (1991).
12. Phil. American Life Insurance Co. vs. Auditor General, 22 SCRA 135, 136-137 (1968).
13. 168 SCRA 634, 669 (1988).

14. 162 SCRA 390 (1988).


15. Id. at 396.
16. Ibid.
17. CIVIL CODE, Art. 1159.
18. Supra, Art. 1306.
19. Parada vs. Veneracion, 269 SCRA 371, 378 (1997).
20. Caram Resources Corp. vs. Contreras, 237 SCRA 724, 734 (1994).
21. 1997 RULES OF CIVIL PROCEDURE, Rule 3, Sec. 2; Republic vs. Sandiganbayan, 203
SCRA 310, 324 (1991) citing Samahan ng mga Nangungupahan sa Azcarraga Textile
Market, Inc., et al. vs. Court of Appeals, 165 SCRA 598 (1988).

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22. De Leon vs. Court of Appeals, 277 SCRA 478, 486-487 (1997); Barfel Development Corp.
vs. Court of Appeals, 223 SCRA 268 (1993).
23. CIVIL CODE, Art. 525. The possession of things or rights may be had in one of two
concepts; either in the concept of owner, or in that of the holder of the thing or right to
keep or enjoy it, the ownership pertaining to another person.
24. Rollo, p. 61.
25. CIVIL CODE, Art. 1311. Contracts take effect only between the parties, their assigns and
heirs, except in case where the rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation, or by provision of law...

26. Ibaez vs. Hongkong and Shanghai Banking Corp., 22 Phil. 572, 584 (1912); Wolfson
vs. Estate of Martinez, 20 Phil. 340, 344 (1911).
27. Lao vs. Court of Appeals, 275 SCRA 237, 256 (1997).

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EN BANC

[G.R. No. 119694. May 22, 1995.]

PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139


members, represented by its President Amado P. Macasaet
and its Executive Director Ermin F. Garcia, Jr., petitioner, vs.
COMMISSION ON ELECTIONS, respondent.

SYLLABUS

1 . CONSTITUTIONAL LAW; BILL OF RIGHTS; PROHIBITION AGAINST TAKING OF


PRIVATE PROPERTY FOR PUBLIC USE WITHOUT JUST COMPENSATION;
COMPELLING PUBLISHERS TO "DONATE" COMELEC SPACE, A VIOLATION OF. To
compel print media companies to donate "Comelec space" of the dimensions
specied in Section 2 of Resolution No. 2722 (not less than one-half page),
amounts to "taking" of private personal property for public use or purposes.
Section 2 failed to specify the intended frequency of such compulsory "donation":
only once during the period from 6 March 1995 (or 21 March 1995) until 12 May
1995? or everyday or once a week? or as often as Comelec may direct during the
same period? The extent of the taking or deprivation is not insubstantial; this is
not a case of a de minimis temporary limitation or restraint upon the use of
private property. The monetary value of the compulsory "donation," measured by
the advertising rates ordinarily charged by newspaper publishers whether in
cities or in non-urban areas, may be very substantial indeed. The taking of
private property for public use is, of course, authorized by the Constitution, but
not without payment of "just compensation" (Article III, Section 9). And
apparently the necessity of paying compensation for "Comelec space" is precisely
what is sought to be avoided by respondent Commission, whether Section 2 of
Resolution No. 2772 is read as petitioner PPI reads it, as an assertion of authority
to require newspaper publishers to "donate" free print space for Comelec
purposes, or as an exhortation, or perhaps an appeal, to publishers to donate free
print space, as Section 1 of Resolution No. 2772-A attempts to suggest. The
threshold requisites for a lawful taking of private property for public use need to
be examined here: one is the necessity for the taking; another is the legal
authority to eect the taking. The element of necessity for the taking has not
been shown by respondent Comelec. It has not been suggested that the
members of PPI are unwilling to sell print space at their normal rates to Comelec
for election purposes. Indeed, the unwillingness or reluctance of Comelec to buy
print space lies at the heart of the problem. Similarly, it has not been suggested,
let alone demonstrated, that Comelec has been granted the power of eminent
domain either by the Constitution or by the legislative authority. A reasonable
relationship between that power and the enforcement and administration of
election laws by Comelec must be shown; it is not casually to be assumed. . . .
Section 2 does not constitute a valid exercise of the power of eminent domain.
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2 . ID.; ID.; ID.; ID.; PUBLIC FUNDS, NOT PUBLISHERS SOLELY, SHOULD BEAR
COSTS FOR PUBLIC INFORMATION OF ELECTORAL PROCESSES. The ruling
here laid down by the Court is entirely in line with the theory of democratic
representative government. The economic costs of informing the general public
about the qualications and programs of those seeking elective oce are most
appropriately distributed as widely as possible throughout our society by the
utilization of public funds, especially funds raised by taxation, rather than cast
solely on one small sector of society, i.e., print media enterprises. The benets
which ow from a heightened level of information on and the awareness of the
electoral process are commonly thought to be community-wide; the burdens
should be allocated on the same basis.
3 . ID.; POLICE POWER; REQUISITES FOR A VALID EXERCISE THEREOF NOT
COMPLIED WITH IN CASE AT BAR. As earlier noted, the Solicitor General also
contended that Section 2 of Resolution No. 2772, even if read as compelling
publishers to "donate" "Comelec space," may be sustained as a valid exercise of
the police power of the state. This argument was, however, made too casually to
require prolonged consideration on our part. Firstly, there was no eort (and
apparently no inclination on the part of Comelec) to show that the police power
essentially a power of legislation has been constitutionally delegated to
respondent Commission. Secondly, while private property may indeed be validly
taken in the legitimate exercise of the police power of the state, there was no
attempt to show compliance in the instant case with the requisites of a lawful
taking under the police power. Section 2 of Resolution No. 2772 is a blunt and
heavy instrument that purports, without a showing of existence of a national
emergency or other imperious public necessity, indiscriminately and without
regard to the individual business condition of particular newspapers or magazines
located in diering parts of the country, to take private property of newspaper or
magazine publishers. No attempt was made to demonstrate that a real and
palpable or urgent necessity for the taking of print space confronted the Comelec
and that Section 2 of Resolution No. 2772 was itself the only reasonable and
calibrated response to such necessity available to the Comelec. Section 2 does
not constitute a valid exercise of the police power of the State.
4. ID.; SUPREME COURT; POWER OF JUDICIAL REVIEW; CONSTITUTIONALITY OF
SEC. 8 COMELEC RESOLUTION NO. 2772, WITHOUT ACTUAL CONTROVERSY, IS
NOT RIPE FOR JUDICIAL REVIEW; CASE AT BAR. Section 8 of Resolution No.
2772 should be viewed in the context of our decision in National Press Club v.
Commission on Elections. There the Court sustained the constitutionality of
Section 11 (b) of R.A. No. 6646, known as the Electoral Reforms Law of 1987,
which prohibits the sale or donation of print space and airtime for campaign or
other political purposes, except to the Comelec. In doing so, the Court carefully
distinguished (a) paid political advertisements which are reached by the
prohibition of Section 11 (b), from (b) the reporting of news, commentaries and
expressions of belief or opinion by reporters, broadcasters, editors,
commentators or columnists which fall outside the scope of Section 11 (b) and
which are protected by the constitutional guarantees of freedom of speech and of
the press. . . . Section 8 of Resolution No. 2772 appears to represent the eort of
the Comelec to establish a guideline for implementation of the above-quoted
distinction and doctrine in National Press Club, an eort not blessed with evident
success. Section 2 of Resolution No. 2772-A while possibly helpful, does not add
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substantially to the utility of Section 8 of Resolution No. 2772. The distinction
between paid political advertisements on the one hand and news reports,
commentaries and expressions of belief or opinion by reporters, broadcasters,
editors, etc. on the other hand, can realistically be given operative meaning only
in actual cases or controversies, on a case-to-case basis, in terms of very specic
sets of facts. At all events, the Court is bound to note that PPI has failed to allege
any specic armative action on the part of Comelec designed to enforce or
implement Section 8. PPI has not claimed that it or any of its members has
sustained actual or imminent injury by reason of Comelec action under Section
8. Put a little dierently, the Court considers that the precise constitutional issue
here sought to be raised whether or not Section 8 of Resolution No. 2772
constitutes a permissible exercise of the Comelec's power under Article IX,
Section 4 of the Constitution . . . is not ripe for judicial review for lack of an
actual case or controversy involving, as the very lis mota thereof, the
constitutionality of Section 8.

RESOLUTION

FELICIANO, J : p

The Philippine Press Institute, Inc. ("PPI") is before this Court assailing
the constitutional validity of Resolution No. 2772 issued by respondent
Commission on Elections ("Comelec") and its corresponding Comelec directive
dated 22 March 1995, through a Petition for Certiorari and Prohibition.
Petitioner PPI is a non-stock, non-prot organization of newspaper and
magazine publishers. cdphil

On 2 March 1995, Comelec promulgated Resolution No. 2772, which


reads in part:
xxx xxx xxx
Sec. 2. Comelec Space. The Commission shall procure free print space
of not less than one half (1/2) page in at least one newspaper of general
circulation in every province or city for use as 'Comelec Space' from
March 6, 1995 in the case of candidates for senators and from March 21,
1995 until May 12, 1995. In the absence of said newspaper, 'Comelec
Space' shall be obtained from any magazine or periodical of said province
or city.
Sec. 3. Uses of Comelec Space. 'Comelec Space' shall be allocated by
the Commission, free of charge, among all candidates within the area in
which the newspaper, magazine or periodical is circulated to enable the
candidates to make known their qualications, their stand on public issues
and their platforms and programs of government.

'Comelec Space' shall also be used by the Commission for dissemination


of vital election information.
Sec. 4. Allocation of Comelec Space. (a) 'Comelec Space' shall be
available to all candidates during the periods stated in Section 2 hereof.
I ts allocation shall be equal and impartial among all candidates for the
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same oce. All candidates concerned shall be furnished a copy of the
allocation of 'Comelec Space' for their information, guidance and
compliance.
(b) Any candidate desiring to avail himself of 'Comelec Space' from
newspapers or publications based in the Metropolitan Manila Area shall
submit an application therefor, in writing, to the Committee on Mass
Media of the Commission. Any candidate desiring to avail himself of
'Comelec Space' in newspapers or publications based in the provinces
shall submit his application therefor, in writing, to the Provincial Election
Supervisor concerned. Applications for availment of 'Comelec Space' may
be led at any time from the date of eectivity of this Resolution.

(c) The Committee on Mass Media and the Provincial Election Supervisors
shall allocate available 'Comelec Space' among the candidates concerned
by lottery of which said candidates shall be notied in advance, in writing,
to be present personally or by representative to witness the lottery at the
date, time and place specied in the notice. Any party objecting to the
result of the lottery may appeal to the Commission.

(d) The candidates concerned shall be notied by the Committee on Mass


Media or the Provincial Election Supervisor, as the case may be,
suciently in advance and in writing of the date of issue and the
newspaper or publication allocated to him, and the time within which he
must submit the written material for publication in the 'Comelec Space'.

xxx xxx xxx


Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers.
No newspaper or publication shall allow to be printed or published in the
news, opinion, features, or other sections of the newspaper or
publication accounts or comments which manifestly favor or oppose any
candidate or political party by unduly or repeatedly referring to or
including therein said candidate or political party. However, unless the
facts and circumstances clearly indicate otherwise, the Commission will
respect the determination by the publisher and/or editors of the
newspapers or publication that the accounts or views published are
signicant, newsworthy and of public interest." (Emphasis supplied)

Apparently in implementation of this Resolution, Comelec through


Commissioner Regalado E. Maambong sent identical letters, dated 22 March
1995, to various publishers of newspapers like the Business World, the
Philippine Star, the Malaya and the Philippine Times Journal, all members of
PPI. These letters read as follows:
"This is to advise you that pursuant to Resolution No. 2772 of the
Commission on Elections, you are directed to provide free print space of
not less than one half () page for use as 'Comelec Space' or similar to
the print support which you have extended during the May 11, 1992
synchronized elections which was 2 full pages for each political party
elding senatorial candidates, from March 6, 1995 to May 6, 1995, to
make known to their qualications, their stand on public issues and their
platforms and programs of government.
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We shall be informing the political parties and candidates to submit
directly to you their pictures, biographical data, stand on key public issues
and platforms of government , either as raw data or in the form of
positives or camera-ready materials.

Please be reminded that the political parties/candidates may be


accommodated in your publications any day upon receipt of their
materials until May 6, 1995 which is the day for campaigning.

We trust you to extend your full support and cooperation in this regard."
(Emphasis supplied)

In this Petition for Certiorari and Prohibition with prayer for the issuance
of a Temporary restraining order, PPI asks us to declare Comelec Resolution
No. 2772 unconstitutional and void on the ground that it violates the
prohibition imposed by the Constitution upon the government, and any of its
agencies, against the taking of private property for public use without just
compensation. Petitioner also contends that the 22 March 1995 letter
directives of Comelec requiring publishers to give free "Comelec Space" and at
the same time process raw data to make it camera-ready, constitute
impositions of involuntary servitude, contrary to the provisions of Section 18
(2), Article III of the 1987 Constitution. Finally, PPI argues that Section 8 of
Comelec Resolution No. 2772 is violative of the constitutionally guaranteed
freedom of speech, of the press and of expression. 1
On 20 April 1995, this Court issued a Temporary Restraining Order
enjoining Comelec from enforcing and implementing Section 2 of Resolution
No. 2772, as well as the Comelec directives addressed to various print media
enterprises all dated 22 March 1995. The Court also required the respondent
to le a Comment on the Petition. prcd

The Oce of the Solicitor General led its Comment on behalf of


respondent Comelec alleging that Comelec Resolution No. 2772 does not
impose upon the publishers any obligation to provide free print space in the
newspapers as it does not provide any criminal or administrative sanction for
non-compliance with that Resolution. According to the Solicitor General, the
questioned Resolution merely established guidelines to be followed in
connection with the procurement of "Comelec space," the procedure for and
mode of allocation of such space to candidates and the conditions or
requirements for the candidate's utilization of the "Comelec space" procured.
At the same time, however, the Solicitor General argues that even if the
questioned Resolution and its implementing letter directives are viewed as
mandatory, the same would nevertheless be valid as an exercise of the police
power of the State. The Solicitor general also maintains that Section 8 of
Resolution No. 2772 is a permissible exercise of the power of supervisor or
regulation of the Comelec over the communication and information
operations of print media enterprises during the election period to safeguard
and ensure a fair, impartial and credible election. 2
At the oral hearing of this case held on 28 April 1995, respondent
Comelec through its Chairman, Hon. Bernardo Pardo, in response to inquiries
from the Chief Justice and other Members of the Court, stated that Resolution
No. 2772, particularly Section 2 thereof and the 22 March 1995 letters
dispatched to various members of petitioner PPI, were not intended to compel
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those members to supply Comelec with free print space. Chairman Pardo
represented to the Court that that Resolution and the related letter-directives
were merely designed to solicit from the publishers the same free print space
which many publishers had voluntarily given to Comelec during the election
period relating to the 11 May 1992 elections. Indeed, the Chairman stated
that the Comelec would, that very afternoon, meet and adopt an appropriate
amending or clarifying resolution, a certied true copy of which would
forthwith be led with the Court. cdrep

On 5 May 1995, the Court received from the Oce of the Solicitor
general a manifestation which attached a copy of Comelec resolution No.
2772-A dated 4 May 1995. The operative portion of this Resolution follows:
NOW THEREFORE, pursuant to the powers vested in it by the
Constitution, the Omnibus Election Code, Republic Acts No. 6646 and
7166 and other election laws, the Commission on Elections RESOLVED to
clarify Sections 2 and 8 of Res. No. 2772 as follows:
1. Section 2 of Res. No. 2772 shall not be construed to mean as
requiring publishers of the dierent mass media print
publications to provide print space under pain of prosecution,
whether administrative, civil or criminal, there being no
sanction or penalty for violation of said Section provided for
either in said Resolution or in Section 90 of Batas Pambansa
Blg. 881, otherwise known as the Omnibus Election Code, on
the grant of 'Comelec Space.'
2. Section 8 of Res. No. 2772 shall not be construed to mean as
constituting prior restraint on the part of the publishers with
respect to the printing or publication of materials in the news,
opinion, features or other sections of their respective
publications or other accounts or comments, it being clear
from the last sentence of said Section 8 that the Commission
shall, 'unless the facts and circumstances clearly indicate
otherwise . . . respect the determination by the publishers
and/or editors of the newspapers or publications that the
accounts or views published are signicant, newsworthy and
of public interest.'
This Resolution shall take eect upon approval." (Emphasis in the original)

While, at this point, the Court could perhaps simply dismiss the petition
for Certiorari and Prohibition as having become moot and academic, we
consider it not inappropriate to pass upon the rst constitutional issue raised
in this case. Our hope is to put this issue to rest and prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model of clarity in expression.
Section 1 of Resolution No. 2772-A did not try to redraft Section 2;
accordingly, Section 2 of resolution No. 2772 persists in its original form. Thus,
we must point out that, as presently worded, and in particular as interpreted
and applied by the Comelec itself in its 22 March 1995 letter-directives to
newspaper publishers, Section 2 of Resolution No. 2772 is clearly susceptible
of the reading that petitioner PPI has given it. That Resolution No. 2772 does
not, in express terms, threaten publishers who would disregard it or its
implementing letters with some criminal or other sanction, does not by itself
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demonstrate that the Comelec's original intention was simply to solicit or
request voluntary donations of print space from publishers. A written
communication ocially directing a print media company to supply free print
space, dispatched by government (here a constitutional) agency and signed by
member of the Commission presumably legally authorized to do so, is bound
to produce a coercive eect upon the company so addressed. That the agency
may not be legally authorized to impose, or cause the imposition of, criminal
or other sanctions for disregard of such direction, only aggravates the
constitutional diculties inhering in the present situation. The enactment or
addition of such sanctions by the legislative authority itself would be open to
serious constitutional objection.
To compel print media companies to donate "Comelec space" of the
dimensions specied in Section 2 of Resolution No. 2772 (not less than one-
half Page), amounts to "taking" of private personal property for public use or
purposes. Section 2 failed to specify the intended frequency of such
compulsory "donation:" only once during the period from 6 March 1995 (or 21
March 1995) until 12 May 1995? or everyday or once a week? or has often as
Comelec may direct during the same period? the extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimis temporary
limitation or restraint upon the use of private property. The monetary value of
the compulsory "donation," measured by the advertising rates ordinarily
charged by newspaper publishers whether in cities or in non-urban areas, may
be very substantial indeed. LexLib

The taking of print space here sought to be eected may rst be


appraised under the rubric of expropriation of private personal property for
public use. The threshold requisites for a lawful taking of private property for
public use need to be examined here: one is the necessity for the taking;
another is the legal authority to eect the taking. The element of necessity
for the taking has not been shown by respondent Comelec. It has not been
suggested that the members of PPI are unwilling to sell print space at their
normal rates to Comelec for election purposes. Indeed, the unwillingness or
reluctance of Comelec to buy print space lies at the heart of the problem. 3
Similarly, it has not been suggested, let alone demonstrated, that Comelec
has been granted the power of imminent domain either by the Constitution or
by the legislative authority. A reasonable relationship between that power and
the enforcement and administration of election laws by Comelec must be
shown; it is not casually to be assumed.
That the taking is designed to subserve "public use" is not contested by
petitioner PPI. We note only that, under Section 3 of Resolution No. 2772, the
free "Comelec space" sought by the respondent Commission would be used
not only for informing the public about the identities, qualications and
programs of government of candidates for elective oce but also for
"dissemination of vital election information" (including, presumably, circulars,
regulations, notices, directives, etc. issued by Comelec). It seems to the Court
a matter of judicial notice that government oces and agencies (including the
Supreme Court) simply purchase print space, in the ordinary course of events,
when their rules and regulations, circulars, notices and so forth need ocially
to be brought to the attention of the general public.
The taking of private property for public use is, of course, authorized by
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the Constitution, but not without payment of "just compensation" (Article III,
Section 9). And apparently the necessity of paying compensation for "Comelec
space" is precisely what is sought to be avoided by respondent Commission,
whether Section 2 of Resolution No. 2772 is read as petitioner PPI reads it, as
an assertion of authority to require newspaper publishers to "donate" free
print space for Comelec purposes, or as an exhortion, or perhaps an appeal, to
publishers to donate free print space, as Section 1 of Resolution No. 2772-A
attempts to suggest. There is nothing at all to prevent newspaper and
magazine publishers from voluntarily giving free print space to Comelec for
the purposes contemplated in Resolution No. 2772. Section 2 of Resolution No.
2772 does not, however, provide a constitutional basis for compelling
publishers, against their will, in the kind of factual context here present, to
provide free print space for Comelec purposes. Section 2 does not constitute a
valid exercise of the power of eminent domain. Cdpr

We would note that the ruling here laid down by the Court is entirely in
line with the theory of democratic representative government. The economic
costs of informing the general public about the qualications and programs of
those seeking elective oce are most appropriately distributed as widely as
possible throughout our society by the utilization of public funds, especially
funds raised by taxation, rather than cast solely on one small sector of society,
i.e., print media enterprises. The benets which ow from a heightened level
of information on and the awareness of the electoral process are commonly
thought to be community-wide; the burdens should be allocated on the same
basis.
As earlier noted, the Solicitor General also contended that Section 2 of
Resolution No. 2772, even if read as compelling publishers to "donate"
"Comelec space," may be sustained as a valid exercise of the police power of
the state. This argument was, however, made too casually to require
prolonged consideration on their part. Firstly, there was no eort (and
apparently no inclination on the part of Comelec) to show that the police
power essentially a power of legislation has been constitutionally
delegated to respondent Commission. 4 Secondly, while private property may
indeed be validly taken in the legitimate exercise of the police power of the
state, there was no attempt to show compliance in the instant case with the
requisites of a lawful taking under the police power. 5
Section 2 of Resolution No. 2772 is a blunt and heavy instrument that
purports, without a showing of existence of a national emergency or other
imperious public necessity, indiscriminately and without regard to the
individual business condition of particular newspapers or magazines located in
dierent parts of the country, to take private property of newspaper or
magazine publishers. No attempt was made to demonstrate that a real and
palpable or urgent necessity for the taking of print space confronted the
Comelec and that Section 2 of Resolution No. 2772 was itself the only
reasonable and calibrated response to such necessity available to Comelec.
Section 2 does not constitute a valid exercise of the police power of the State.
We turn to Section 8 of Resolution No. 2772, which needs to be quoted
in full again:
Sec. 8. Undue Reference to Candidates/Political parties in
Newspaper. No newspaper or publication shall allow to be printed or
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published in the news, opinion, features, or other sections of the
newspaper or publication accounts or comments which manifest favor or
oppose any candidate or political party by unduly or repeatedly referring
to or including therein said candidate or political party. However, unless
the facts and circumstances clearly indicates otherwise, the Commission
will respect the determination by the publisher and/or editors of the
newspapers or publications that the accounts or views published are
signicant, newsworthy and of public interest."
It is not easy to understand why Section 8 was included at all in
Resolution No 2772. In any case, Section 8 should be viewed in the context of
our decision in National Press Club v. Commission on Elections. 6 There the
Court sustained the constitutionality of Section 11 (b) of R.A. No. 6646,
known as the Electoral Reforms Law of 1987, which prohibits the sale or
donation of print space and airtime for campaign or other political purposes,
except to the Comelec. In doing so, the Court carefully distinguished (a) paid
political advertisements which are reached by the prohibition of Section 11
(b), from (b) the reporting of news, commentaries and expressions of belief or
opinion by reporters, broadcasters, editors, commentators or columnists which
fall outside the scope of Section 11 (b) and which are protected by the
constitutional guarantees of freedom of speech and of the press: LLjur

"Secondly, and more importantly, Section 11 (b) is limited in its scope of


application. Analysis of Section 11 (b) shows that it purports to apply only
to the purchase and sale, including purchase and sale disguised as a
donation, of print space and air time for campaign or other political
purposes. Section 11 (b) does not purport in any way to restrict the
reporting by newspapers or radio or television stations of news or news-
noteworthy events relating to candidates, their qualications, political
parties and programs of government. Moreover, Section 11 (b) does not
reach commentaries and expressions of belief or opinion by reporters or
broadcasters or editors or commentators or columnists in respect of
candidates, their qualications, and programs and so forth, so long at
least as such comments, opinions and beliefs are not in fact
advertisements for particular candidates covertly paid for. In sum Section
11 (b) is not to be read as reaching any report or commentary or other
coverage that, in responsible media, is not paid for by candidates for
political oce. We read Section 11 (b) as designed to cover only paid
political advertisements of particular candidates.
The above limitation in scope of application of Section 11 (b) that it
does not restrict either the reporting of or the expression of belief or
opinion or comment upon the qualications and programs and activities
of any and all candidates for oce constitutes the critical distinction
which must be made between the instant case and that of Sanidad v.
Commission on Elections. . . ."7 (Citations omitted; emphasis
supplied)

Section 8 of Resolution No. 2772 appears to represent the


eort of the Comelec to establish a guidelines for implementation of
the above-quoted distinction and doctrine in National Press Club, an
eort not blessed with evident success. Section 2 of Resolution No.
2772-A while possibly helpful, does not add substantially to the utility
of Section 8 of Resolution No. 2772. The distinction between paid
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political advertisements on the one hand and news reports,
commentaries and expressions of belief or opinion by reporters,
broadcasters, editors, etc. on the other hand, can realistically be
given operative meaning only in actual cases or controversies, on a
case-to-case basis, in terms of very specic sets of facts.
At all events, the Court is bound to note that PPI has failed to
allege any specic armative action on the part of Comelec designed
to enforce or implement Section 8. PPI has not claimed that it or any
of its members has sustained actual or imminent injury by reason of
Comelec action under Section 8. Put a little dierently, the Court
considers that the precise constitutional issue here sought to be
raised whether or not Section 8 of Resolution No. 2772 constitutes
a permissible exercise of the Comelec's power under Article IX,
Section 4 of the Constitution to
"supervise or regulate the enjoyment or utilization of all
franchise or permits for the operation of media of
communication or information [for the purpose of ensuring]
equal opportunity, time and space, and the right of reply,
including reasonable, equal rates therefor, for public-information
campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful and credible
elections "

is not ripe for judicial review for lack of an actual case or controversy
involving, as the very lis mota thereof, the constitutionality of
Section 8.
1. Section 2 of Resolution No. 2772, in its present form and as
interpreted by Comelec in its 22 March 1995 letter directives,
purports to require print media enterprises to "donate" free print
space to Comelec. As such, Section 2 suers from fatal constitutional
vice and must be set aside and nullied. cdll

2. To the extent it pertains to Section 8 of Resolution No. 2772,


the Petition for Certiorari and Prohibition must be dismissed for lack
of an actual, justiciable case or controversy.
WHEREFORE, for all the foregoing, the Petition for Certiorari and
Prohibition is GRANTED in part and Section 2 of Resolution No. 2772
in its present from and the related letter-directives dated 22 March
1995 are hereby SET ASIDE as null and void, and the Temporary
Restraining Order is hereby MADE PERMANENT. The Petition is
DISMISSED in part, to the extent it relates to Section 8 of Resolution
No. 2772. No pronouncement as to costs.
Narvasa, C.J ., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
Quiason, J., is on leave.

Footnotes
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1. Petition, pp. 6-11; Rollo, pp. 7-12.
2. Comment, pp. 5-15; Rollo, pp. 70-80.
3. As I.A. Cruz, Constitutional Law, p. 59 (1991 ed.), citing Noble v. City
of Manila, 67 Phil. 1 (1938), stressed:
"[w]here private property is needed for conversion to some public use,
the rst thing obviously that the government should do is to oer
to buy it. If the owner is willing to sell and the parties can agree on
the price and the other conditions of the sale, a voluntary
transaction can then be concluded and the transfer eected
without the necessity of judicial action.

But if the owner of the private property is unwilling to part with it, or,
being willing, cannot agree to the condition of the transfer, then it
will be necessary for the government to use its coercive authority.
By its power of eminent domain, it can then, upon payment of just
compensation, forcibly acquire the needed property in order to
devote it to the intended public use." (Emphasis supplied)

4. See, in this connection, Cruz, supra note 3 at pp. 44-45. The police
power may be delegated by the legislative authority to local
governments under the general welfare clause (Section 16, R.A. No.
7160, "Local Government Code of 1991"), to the President and
administrative agencies. See also Binay v. Domingo, 201 SCRA 508
(1991); Philippine Association of Service Exporters, Inc. v. Drilon ,
163 SCRA 386 (1988); Villacosta v. Bernardo, 143 SCRA 480 (1986).
5. See National Development Company v. Philippine Veterans Banks, 192
SCRA 257 (1990); Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343
(1989).
6. 207 SCRA 1 (1992).

7. 207 SCRA at 10-11.

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SECOND DIVISION

[G.R. No. 144681. June 21, 2004.]

PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN


HERMOGENES P. POBRE, ASSOCIATE COMMISSIONER ARMANDO
PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P. DE
GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R.
POLICARPIO, EDGARDO T. FERNANDO and RICARDO D. FULGENCIO
II , petitioners, vs . ARLENE V. DE GUZMAN, VIOLETA V. MENESES,
CELERINA S. NAVARRO, JOSE RAMONCITO P. NAVARRO, ARNEL V.
HERRERA and GERALDINE ELIZABETH M. PAGILAGAN, ELNORA R.
RAQUENO, MARISSA A. REGODON, LAURA M. SANTOS,
KARANGALAN D. SERRANO, DANILO A. VILLAVER, MARIA ROSARIO
L. LEONOR, ALICIA S. LIZANO, MARITEL M. ECHIVERRI,
BERNADETTE T. MENDOZA, FERNANDO F. MANDAPAT, ALELI A.
GOLLAYAN, ELCIN C. ARRIOLA, HERMINIGILDA E. CONEJOS, SALLY
B. BUNAGAN, ROGELIO B. ANCHETA, OSCAR H. PADUA, JR., EVELYN
D. GRAJO, EVELYN S. ACOSTA, MARGARITA BELINDA L. VICENCIO,
VALENTINO P. ARBOLEDA, EVELYN O. RAMOS, ACHILLES J.
PERALTA, CORAZON M. CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO,
MA. LUISA S. GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO,
FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO,
GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L. SERRANO,
FEDERICO L. CASTILLO, MELITA J. CAEDO, SAMUEL B. BANGOY,
BERNARDITA B. SY, GLORIA T. JULARBAL, FREDERICK D.
FRANCISCO, CARLOS M. BERNARDO, JR., HUBERT S. NAZARENO,
CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN, BERNADETTE H.
CABUHAT, NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L.
CUE, EVELYN C. CUNDANGAN, RHONEIL R. DEVERATURDA,
DERILEEN D. DORADO, SAIBZUR N. EDDING, VIOLETA C. FELIPE,
HERMINIO V. FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA,
NORMA G. LAFAVILLA, RUBY B. LANTIN, MA. ELOISA Q. MALLARI,
CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A.
SALVADOR, ROBERT B. SANCHEZ, MERLY D. STA. ANA and
YOLANDA P. UNICA , respondents.

DECISION

TINGA , J : p

This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify
the Decision, 1 dated May 16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283. The
appellate court affirmed the judgment 2 dated December 19, 1994, of the Regional Trial
Court (RTC) of Manila, Branch 52, in Civil Case No. 93-66530. The trial court allowed the
respondents to take their physician's oath and to register as duly licensed physicians.
Equally challenged is the Resolution 3 promulgated on August 25, 2000 of the Court of
Appeals, denying petitioners' Motion for Reconsideration.
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The facts of this case are as follows:
The respondents are all graduates of the Fatima College of Medicine, Valenzuela City,
Metro Manila. They passed the Physician Licensure Examination conducted in February
1993 by the Board of Medicine (Board). Petitioner Professional Regulation Commission
(PRC) then released their names as successful examinees in the medical licensure
examination.
Shortly thereafter, the Board observed that the grades of the seventy-nine successful
examinees from Fatima College in the two most difficult subjects in the medical licensure
exam, Biochemistry (Bio-Chem) and Obstetrics and Gynecology (OB-Gyne), were unusually
and exceptionally high. Eleven Fatima examinees scored 100% in Bio-Chem and ten got
100% in OB-Gyne, another eleven got 99% in Bio-Chem, and twenty-one scored 99% in OB-
Gyne. The Board also observed that many of those who passed from Fatima got marks of
95% or better in both subjects, and no one got a mark lower than 90%. A comparison of the
performances of the candidates from other schools was made. The Board observed that
strangely, the unusually high ratings were true only for Fatima College examinees. It was a
record-breaking phenomenon in the history of the Physician Licensure Examination.
On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as
physicians of all the examinees from the Fatima College of Medicine. 4 The PRC asked the
National Bureau of Investigation (NBI) to investigate whether any anomaly or irregularity
marred the February 1993 Physician Licensure Examination.
Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert
mathematician and authority in statistics, and later president of the Ateneo de Manila
University, to conduct a statistical analysis of the results in Bio-Chem and Ob-Gyne of the
said examination.
On June 10, 1993, Fr. Nebres submitted his report. He reported that a comparison of the
scores in Bio-Chem and Ob-Gyne, of the Fatima College examinees with those of
examinees from De La Salle University and Perpetual Help College of Medicine showed
that the scores of Fatima College examinees were not only incredibly high but unusually
clustered close to each other. He concluded that there must be some unusual reason
creating the clustering of scores in the two subjects. It must be a cause "strong enough to
eliminate the normal variations that one should expect from the examinees [of Fatima
College] in terms of talent, effort, energy, etc." 5
For its part, the NBI found that "the questionable passing rate of Fatima examinees in the
[1993] Physician Examination leads to the conclusion that the Fatima examinees gained
early access to the test questions." 6
On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S.
Navarro, Jose Ramoncito P. Navarro, Arnel V. Herrera, and Geraldine Elizabeth M.
Pagilagan (Arlene V. De Guzman et al., for brevity) filed a special civil action for mandamus,
with prayer for preliminary mandatory injunction docketed as Civil Case No. 93-66530 with
the Regional Trial Court (RTC) of Manila, Branch 52. Their petition was adopted by the
other respondents as intervenors.
Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents
with "immorality, dishonest conduct, fraud, and deceit" in connection with the Bio-Chem
and Ob-Gyne examinations. It recommended that the test results of the Fatima examinees
be nullified. The case was docketed as Adm. Case No. 1687 by the PRC.
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On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the
preliminary mandatory injunction sought by the respondents. It ordered the petitioners to
administer the physician's oath to Arlene V. De Guzman et al., and enter their names in the
rolls of the PRC.
The petitioners then filed a special civil action for certiorari with the Court of Appeals to
set aside the mandatory injunctive writ, docketed as CA-G.R. SP No. 31701.
On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the
dispositive portion of the Decision ordaining as follows:
WHEREFORE, this petition is GRANTED. Accordingly, the writ of preliminary
mandatory injunction issued by the lower court against petitioners is hereby
nullified and set aside.

SO ORDERED. 7

Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No.
112315. In our Resolution dated May 23, 1994, we denied the petition for failure to show
reversible error on the part of the appellate court. DcCEHI

Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pre-trial
conference in Civil Case No. 93-66530 was held. Then, the parties, agreed to reduce the
testimonies of their respective witnesses to sworn questions-and-answers. This was
without prejudice to cross-examination by the opposing counsel.
On December 13, 1993, petitioners' counsel failed to appear at the trial in the mistaken
belief that the trial was set for December 15. The trial court then ruled that petitioners
waived their right to cross-examine the witnesses.
On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the
reasons for her non-appearance and praying that the cross-examination of the witnesses
for the opposing parties be reset. The trial court denied the motion for lack of notice to
adverse counsel. It also denied the Motion for Reconsideration that followed on the
ground that adverse counsel was notified less than three (3) days prior to the hearing.
Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687,
the respondents herein moved for the issuance of a restraining order, which the lower
court granted in its Order dated April 4, 1994.
The petitioners then filed with this Court a petition for certiorari docketed as G.R. No.
115704, to annul the Orders of the trial court dated November 13, 1993, February 28,
1994, and April 4, 1994. We referred the petition to the Court of Appeals where it was
docketed as CA-G.R. SP No. 34506.
On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows:
WHEREFORE, the present petition for certiorari with prayer for temporary
restraining order/preliminary injunction is GRANTED and the Orders of December
13, 1993, February 7, 1994, February 28, 1994, and April 4, 1994 of the RTC-
Manila, Branch 52, and all further proceedings taken by it in Special Civil Action
No. 93-66530 are hereby DECLARED NULL and VOID. The said RTC-Manila is
ordered to allow petitioners' counsel to cross-examine the respondents' witnesses,
to allow petitioners to present their evidence in due course of trial, and thereafter
to decide the case on the merits on the basis of the evidence of the parties. Costs
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against respondents.
IT IS SO ORDERED. 8

The trial was then set and notices were sent to the parties.
A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent Ex-
Parte Manifestation and Motion praying for the partial reconsideration of the appellate
court's decision in CA-G.R. SP No. 34506, and for the outright dismissal of Civil Case No.
93-66530. The petitioners asked for the suspension of the proceedings.
In its Order dated September 23, 1994, the trial court granted the aforesaid motion,
cancelled the scheduled hearing dates, and reset the proceedings to October 21 and 28,
1994.
Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for
reconsideration in CA-G.R. SP No. 34506. Thus, petitioners filed with the Supreme Court a
petition for review docketed as G.R. No. 117817, entitled Professional Regulation
Commission, et al. v. Court of Appeals, et al.

On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil Case
No. 93-66530. Upon motion of the respondents herein, the trial court ruled that herein
petitioners waived their right to cross-examine the herein respondents. Trial was reset to
November 28, 1994.
On November 25, 1994, petitioners' counsel moved for the inhibition of the trial court judge
for alleged partiality. On November 28, 1994, the day the Motion to Inhibit was to be heard,
petitioners failed to appear. Thus, the trial court denied the Motion to Inhibit and declared
Civil Case No. 93-66530 deemed submitted for decision.
On December 19, 1994, the trial court handed down its judgment in Civil Case No. 93-
66530, the fallo of which reads:
WHEREFORE, judgment is rendered ordering the respondents to allow the
petitioners and intervenors (except those with asterisks and footnotes in pages 1
& 2 of this decision) [sic], 9 to take the physician's oath and to register them as
physicians.
It should be made clear that this decision is without prejudice to any
administrative disciplinary action which may be taken against any of the
petitioners for such causes and in the manner provided by law and consistent
with the requirements of the Constitution as any other professionals.
No costs.

SO ORDERED. 1 0

As a result of these developments, petitioners filed with this Court a petition for review on
certiorari docketed as G.R. No. 118437, entitled Professional Regulation Commission v.
Hon. David G. Nitafan, praying inter alia, that (1) G.R. No. 118437 be consolidated with G.R.
No. 117817; (2) the decision of the Court of Appeals dated August 31, 1994 in CA-G.R. SP
No. 34506 be nullified for its failure to decree the dismissal of Civil Case No. 93-66530,
and in the alternative, to set aside the decision of the trial court in Civil Case No. 93-66530,
order the trial court judge to inhibit himself, and Civil Case No. 93-66530 be re-raffled to
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another branch.
On December 26, 1994, the petitioners herein filed their Notice of Appeal 1 1 in Civil Case
No. 93-66530, thereby elevating the case to the Court of Appeals, where it was docketed
as CA-G.R. SP No. 37283.
In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No.
117817.
On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise:
WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for being moot. The
petition in G.R. No. 118437 is likewise DISMISSED on the ground that there is a
pending appeal before the Court of Appeals. Assistant Solicitor General Amparo
M. Cabotaje-Tang is advised to be more circumspect in her dealings with the
courts as a repetition of the same or similar acts will be dealt with accordingly.
SO ORDERED. 1 2

While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V.
Herrera, one of the original petitioners in Civil Case No. 93-66530, joined by twenty-seven
intervenors, to wit: Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza,
Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza,
Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura
M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S.
Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B.
Sanchez, Maria Rosario L. Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma,
Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio,
Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro, manifested that they were no
longer interested in proceeding with the case and moved for its dismissal. A similar
manifestation and motion was later filed by intervenors Mary Jean I. Yeban-Merlan,
Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P.
Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R.
Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V.
Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano,
Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals
ruled that its decision in CA-G.R. SP No. 37283 would not apply to them.
On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the following
fallo, to wit:
WHEREFORE, finding no reversible error in the decision appealed from, We hereby
AFFIRM the same and DISMISS the instant appeal.
No pronouncement as to costs.
SO ORDERED. 1 3

In sustaining the trial court's decision, the appellate court ratiocinated that the
respondents complied with all the statutory requirements for admission into the licensure
examination for physicians in February 1993. They all passed the said examination. Having
fulfilled the requirements of Republic Act No. 2382, 1 4 they should be allowed to take their
oaths as physicians and be registered in the rolls of the PRC. aSDHCT

Hence, this petition raising the following issues:


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I

WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF ACTION FOR


MANDAMUS AGAINST PETITIONERS IN THE LIGHT OF THE RESOLUTION OF
THIS HONORABLE COURT IN G.R. NO. 112315 AFFIRMING THE COURT OF
APPEALS' DECISION DECLARING THAT IF EVER THERE IS SOME DOUBT AS TO
THE MORAL FITNESS OF EXAMINEES, THE ISSUANCE OF LICENSE TO PRACTICE
MEDICINE IS NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL
EXAMINEES.

II

WHETHER OR NOT THE PETITION FOR MANDAMUS COULD PROCEED DESPITE


THE PENDENCY OF ADMINISTRATIVE CASE NO. 1687, WHICH WAS PRECISELY
LODGED TO DETERMINE THE MORAL FITNESS OF RESPONDENTS TO BECOME
DOCTORS. 1 5

To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in
sustaining the judgment of the trial court that respondents are entitled to a writ of
mandamus?
The petitioners submit that a writ of mandamus will not lie in this case. They point out that
for a writ of mandamus to issue, the applicant must have a well-defined, clear and certain
legal right to the thing demanded and it is the duty of the respondent to perform the act
required. Thus, mandamus may be availed of only when the duty sought to be performed is
a ministerial and not a discretionary one. The petitioners argue that the appellate court's
decision in CA-G.R. SP No. 37283 upholding the decision of the trial court in Civil Case No.
93-66530 overlooked its own pronouncement in CA-G.R. SP No. 31701. The Court of
Appeals held in CA-G.R. SP No. 31701 that the issuance of a license to engage in the
practice of medicine becomes discretionary on the PRC if there exists some doubt that the
successful examinee has not fully met the requirements of the law. The petitioners stress
that this Court's Resolution dated May 24, 1994 in G.R. No. 112315 held that there was no
showing "that the Court of Appeals had committed any reversible error in rendering the
questioned judgment" in CA-G.R. SP No. 31701. The petitioners point out that our
Resolution in G.R. No. 112315 has long become final and executory.
Respondents counter that having passed the 1993 licensure examinations for physicians,
the petitioners have the obligation to administer to them the oath as physicians and to
issue their certificates of registration as physicians pursuant to Section 20 1 6 of Rep. Act
No. 2382. The Court of Appeals in CA-G.R. SP No. 37283, found that respondents
complied with all the requirements of Rep. Act No. 2382. Furthermore, respondents were
admitted by the Medical Board to the licensure examinations and had passed the same.
Hence, pursuant to Section 20 of Rep. Act No. 2382, the petitioners had the obligation to
administer their oaths as physicians and register them.
Mandamus is a command issuing from a court of competent jurisdiction, in the name of
the state or the sovereign, directed to some inferior court, tribunal, or board, or to some
corporation or person requiring the performance of a particular duty therein specified,
which duty results from the official station of the party to whom the writ is directed, or
from operation of law. 1 7 Section 3 of Rule 65 1 8 of the 1997 Rules of Civil Procedure
outlines two situations when a writ of mandamus may issue, when any tribunal,
corporation, board, officer or person unlawfully (1) neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust, or station; or (2)
excludes another from the use and enjoyment of a right or office to which the other is
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entitled.
We shall discuss the issues successively.
1. On The Existence of a Duty of the Board of Medicine To Issue Certificates of
Registration as Physicians under Rep. Act No. 2382.
For mandamus to prosper, there must be a showing that the officer, board, or official
concerned, has a clear legal duty, not involving discretion. 1 9 Moreover, there must be
statutory authority for the performance of the act, 2 0 and the performance of the duty has
been refused. 2 1 Thus, it must be pertinently asked now: Did petitioners have the duty to
administer the Hippocratic Oath and register respondents as physicians under the Medical
Act of 1959?
As found by the Court of Appeals, on which we agree on the basis of the records:
It bears emphasizing herein that petitioner-appellees and intervenor-appellees
have fully complied with all the statutory requirements for admission into the
licensure examinations for physicians conducted and administered by the
respondent-appellants on February 12, 14, 20 and 21, 1993. Stress, too, must be
made of the fact that all of them successfully passed the same examinations. 2 2

The crucial query now is whether the Court of Appeals erred in concluding that
petitioners should allow the respondents to take their oaths as physicians and register
them, steps which would enable respondents to practice the medical profession 2 3
pursuant to Section 20 of the Medical Act of 1959?

The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in
concluding that the petitioners had the ministerial obligation to administer the Hippocratic
Oath to respondents and register them as physicians. But it is a basic rule in statutory
construction that each part of a statute should be construed in connection with every other
part to produce a harmonious whole, not confining construction to only one section. 2 4 The
intent or meaning of the statute should be ascertained from the statute taken as a whole,
not from an isolated part of the provision. Accordingly, Section 20, of Rep. Act No. 2382,
as amended should be read in conjunction with the other provisions of the Act. Thus, to
determine whether the petitioners had the ministerial obligation to administer the
Hippocratic Oath to respondents and register them as physicians, recourse must be had
to the entirety of the Medical Act of 1959.
A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the
word "shall" with respect to the issuance of certificates of registration. Thus, the
petitioners "shall sign and issue certificates of registration to those who have
satisfactorily complied with the requirements of the Board." In statutory construction the
term "shall" is a word of command. It is given imperative meaning. Thus, when an examinee
satisfies the requirements for the grant of his physician's license, the Board is obliged to
administer to him his oath and register him as a physician, pursuant to Section 20 and par.
(1) of Section 22 2 5 of the Medical Act of 1959.
However, the surrounding circumstances in this case call for serious inquiry concerning the
satisfactory compliance with the Board requirements by the respondents. The unusually
high scores in the two most difficult subjects was phenomenal, according to Fr. Nebres,
the consultant of PRC on the matter, and raised grave doubts about the integrity, if not
validity, of the tests. These doubts have to be appropriately resolved.
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Under the second paragraph of Section 22, the Board is vested with the power to conduct
administrative investigations and "disapprove applications for examination or registration,"
pursuant to the objectives of Rep. Act No. 2382 as outlined in Section 1 2 6 thereof. In this
case, after the investigation, the Board filed before the PRC, Adm. Case No. 1687 against
the respondents to ascertain their moral and mental fitness to practice medicine, as
required by Section 9 2 7 of Rep. Act No. 2382. In its Decision dated July 1, 1997, the Board
ruled:
WHEREFORE, the BOARD hereby CANCELS the respondents['] examination papers
in the Physician Licensure Examinations given in February 1993 and further
DEBARS them from taking any licensure examination for a period of ONE (1)
YEAR from the date of the promulgation of this DECISION. They may, if they so
desire, apply for the scheduled examinations for physicians after the lapse of the
period imposed by the BOARD.
SO ORDERED. 2 8

Until the moral and mental fitness of the respondents could be ascertained, according to
petitioners, the Board has discretion to hold in abeyance the administration of the
Hippocratic Oath and the issuance of the certificates to them. The writ of mandamus does
not lie to compel performance of an act which is not duly authorized.
The respondents nevertheless argue that under Section 20, the Board shall not issue a
certificate of registration only in the following instances: (1) to any candidate who has
been convicted by a court of competent jurisdiction of any criminal offense involving moral
turpitude; (2) or has been found guilty of immoral or dishonorable conduct after the
investigation by the Board; or (3) has been declared to be of unsound mind. They aver that
none of these circumstances are present in their case.
Petitioners reject respondents' argument. We are informed that in Board Resolution No.
26, 2 9 dated July 21, 1993, the Board resolved to file charges against the examinees from
Fatima College of Medicine for "immorality, dishonesty, fraud, and deceit in the Obstetrics-
Gynecology and Biochemistry examinations." It likewise sought to cancel the examination
results obtained by the examinees from the Fatima College. cHaADC

Section 8 3 0 of Rep. Act No. 2382 prescribes, among others, that a person who aspires to
practice medicine in the Philippines, must have "satisfactorily passed the corresponding
Board Examination." Section 22, in turn, provides that the oath may only be administered
"to physicians who qualified in the examinations." The operative word here is
"satisfactorily," defined as "sufficient to meet a condition or obligation" or "capable of
dispelling doubt or ignorance." 3 1 Gleaned from Board Resolution No. 26, the licensing
authority apparently did not find that the respondents "satisfactorily passed" the licensure
examinations. The Board instead sought to nullify the examination results obtained by the
respondents.
2. On the Right Of The Respondents To Be Registered As Physicians
The function of mandamus is not to establish a right but to enforce one that has been
established by law. If no legal right has been violated, there can be no application of a legal
remedy, and the writ of mandamus is a legal remedy for a legal right. 3 2 There must be a
well-defined, clear and certain legal right to the thing demanded. 3 3 It is long established
rule that a license to practice medicine is a privilege or franchise granted by the
government. 3 4

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It is true that this Court has upheld the constitutional right 3 5 of every citizen to select a
profession or course of study subject to a fair, reasonable, and equitable admission and
academic requirements. 3 6 But like all rights and freedoms guaranteed by the Charter, their
exercise may be so regulated pursuant to the police power of the State to safeguard
health, morals, peace, education, order, safety, and general welfare of the people. 3 7 Thus,
persons who desire to engage in the learned professions requiring scientific or technical
knowledge may be required to take an examination as a prerequisite to engaging in their
chosen careers. This regulation takes particular pertinence in the field of medicine, to
protect the public from the potentially deadly effects of incompetence and ignorance
among those who would practice medicine. In a previous case, it may be recalled, this
Court has ordered the Board of Medical Examiners to annul both its resolution and
certificate authorizing a Spanish subject, with the degree of Licentiate in Medicine and
Surgery from the University of Barcelona, Spain, to practice medicine in the Philippines,
without first passing the examination required by the Philippine Medical Act. 3 8 In another
case worth noting, we upheld the power of the State to upgrade the selection of applicants
into medical schools through admission tests. 3 9
It must be stressed, nevertheless, that the power to regulate the exercise of a profession
or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary,
despotic, or oppressive manner. A political body that regulates the exercise of a particular
privilege has the authority to both forbid and grant such privilege in accordance with
certain conditions. Such conditions may not, however, require giving up ones constitutional
rights as a condition to acquiring the license. 4 0 Under the view that the legislature cannot
validly bestow an arbitrary power to grant or refuse a license on a public agency or officer,
courts will generally strike down license legislation that vests in public officials discretion
to grant or refuse a license to carry on some ordinarily lawful business, profession, or
activity without prescribing definite rules and conditions for the guidance of said officials
in the exercise of their power. 4 1
In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382,
as amended, which prescribes the requirements for admission to the practice of medicine,
the qualifications of candidates for the board examinations, the scope and conduct of the
examinations, the grounds for denying the issuance of a physician's license, or revoking a
license that has been issued. Verily, to be granted the privilege to practice medicine, the
applicant must show that he possesses all the qualifications and none of the
disqualifications. Furthermore, it must appear that he has fully complied with all the
conditions and requirements imposed by the law and the licensing authority. Should doubt
taint or mar the compliance as being less than satisfactory, then the privilege will not
issue. For said privilege is distinguishable from a matter of right, which may be demanded
if denied. Thus, without a definite showing that the aforesaid requirements and conditions
have been satisfactorily met, the courts may not grant the writ of mandamus to secure
said privilege without thwarting the legislative will.
3. On the Ripeness of the Petition for Mandamus
Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the
petition for mandamus below for being premature. They argue that the administrative
remedies had not been exhausted. The records show that this is not the first time that
petitioners have sought the dismissal of Civil Case No. 93-66530. This issue was raised in
G.R. No. 115704, which petition we referred to the Court of Appeals, where it was
docketed as CA-G.R. SP No. 34506. On motion for reconsideration in CA-G.R. SP No.
34506, the appellate court denied the motion to dismiss on the ground that the prayers for
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the nullification of the order of the trial court and the dismissal of Civil Case No. 93-66530
were inconsistent reliefs. In G.R. No. 118437, the petitioners sought to nullify the decision
of the Court of Appeals in CA-G.R. SP No. 34506 insofar as it did not order the dismissal of
Civil Case No. 93-66530. In our consolidated decision, dated July 9, 1998, in G.R. Nos.
117817 & 118437, this Court speaking through Justice Bellosillo opined that:

Indeed, the issue as to whether the Court of Appeals erred in not ordering the
dismissal of Civil Case No. 93-66530 sought to be resolved in the instant petition
has been rendered meaningless by an event taking place prior to the filing of this
petition and denial thereof should follow as a logical consequence. 4 2 There is no
longer any justiciable controversy so that any declaration thereon would be of no
practical use or value. 4 3 It should be recalled that in its decision of 19 December
1994 the trial court granted the writ of mandamus prayed for by private
respondents, which decision was received by petitioners on 20 December 1994.
Three (3) days after, or on 23 December 1994, petitioners filed the instant petition.
By then, the remedy available to them was to appeal the decision to the Court of
Appeals, which they in fact did, by filing a notice of appeal on 26 December 1994.
44

The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor
will their reliance upon the doctrine of the exhaustion of administrative remedies in the
instant case advance their cause any.
Section 26 4 5 of the Medical Act of 1959 provides for the administrative and judicial
remedies that respondents herein can avail to question Resolution No. 26 of the Board of
Medicine, namely: (a) appeal the unfavorable judgment to the PRC; (b) should the PRC
ruling still be unfavorable, to elevate the matter on appeal to the Office of the President;
and (c) should they still be unsatisfied, to ask for a review of the case or to bring the case
to court via a special civil action of certiorari. Thus, as a rule, mandamus will not lie when
administrative remedies are still available. 4 6 However, the doctrine of exhaustion of
administrative remedies does not apply where, as in this case, a pure question of law is
raised. 4 7 On this issue, no reversible error may, thus, be laid at the door of the appellate
court in CA-G.R. SP No. 37283, when it refused to dismiss Civil Case No. 93-66530.
As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat,
Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa
A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H.
Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C.
Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N.
Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula,
Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla,
Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose
Ramoncito P. Navarro manifested to the Court of Appeals during the pendency of CA-G.R.
SP No. 37283, that they were no longer interested in proceeding with the case and moved
for its dismissal insofar as they were concerned. A similar manifestation and motion were
later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla,
Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa
B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C.
Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa SJ.
Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C.
Chan, and Melvin M. Usita. Following these manifestations and motions, the appellate
court in CA-G.R. SP No. 37283 decreed that its ruling would not apply to them. Thus,
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inasmuch as the instant case is a petition for review of the appellate court's ruling in CA-
G.R. SP No. 37283, a decision which is inapplicable to the aforementioned respondents
will similarly not apply to them.
As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H.
Padua, Jr., Evelyn D. Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D.
Cuaresma, Violeta C. Felipe, Percival H. Pangilinan, Corazon M. Cruz and Samuel B. Bangoy,
herein decision shall not apply pursuant to the Orders of the trial court in Civil Case No. 93-
66530, dropping their names from the suit.
Consequently, this Decision is binding only on the remaining respondents, namely: Arlene
V. de Guzman, Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal,
Hubert S. Nazareno, Nancy J. Chavez, Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria
Victoria M. Lacsamana and Merly D. Sta. Ana, as well as the petitioners.
WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the assailed decision dated
May 16, 2000, of the Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the
judgment dated December 19, 1994, of the Regional Trial Court of Manila, Branch 52, in
Civil Case No. 93-66530, ordering petitioners to administer the physician's oath to herein
respondents as well as the resolution dated August 25, 2000, of the appellate court,
denying the petitioners' motion for reconsideration, are REVERSED and SET ASIDE; and (2)
the writ of mandamus, issued in Civil Case No. 93-66530, and affirmed by the appellate
court in CA-G.R. SP No. 37283 is NULLIFIED AND SET ASIDE. EcICDT

SO ORDERED.
Puno and Callejo, Sr., JJ ., concur.
Quisumbing, J ., took no part.
Austria-Martinez, J ., took no part is on leave.
Footnotes

1. Rollo, pp. 4467. Penned by Associate Justice Cancio C. Garcia, with Associate Justices
B.A. Adefuin-De la Cruz, and Renato C. Dacudao concurring.

2. CA Rollo, pp. 140175.


3. Supra, note 1 at 408. Penned by Associate Justice Cancio C. Garcia, with Associate
Justices B.A. Adefuin-De la Cruz, and Renato C. Dacudao, concurring.

4. Id. at 69.
5. Id. at 96.
6. Id. at 92.
7. Id. at 175. Penned by Associate Justice Alfredo L. Benipayo and concurred in by
Presiding Justice Santiago M. Kapunan (later a member of the Supreme Court and now
retired) and Associate Justice Ma. Alicia Austria-Martinez (now a member of the Second
Division of the Supreme Court).

8. Rollo, pp. 199200. Penned by Associate Justice Jaime M. Lantin, with Associate
Justices Angelina S. Gutierrez (now a member of the Supreme Court), and Conchita
Carpio Morales (likewise a present member of the Supreme Court) concurring.
9. Of the intervenors in Civil Case No. 93-66530, Achilles Peralta and Evelyn Ramos were
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dropped as parties per Order of the trial court dated August 24, 1993. The case was
dismissed as to Sally Bunagan, Rogelio Ancheta, Oscar Padua, Evelyn Grajo, Valentino
Arboleda, Carlos Bernardo, Jr., Mario Cuaresma, Violeta Felipe, and Percival Pangilinan
as per Order dated November 25, 1994. Corazon Cruz and Samuel Bangoy were deemed
by the trial court no longer entitled to the avails of the suit for seeking extrajudicial relief
from the Board of Medicine, as per its Order dated November 25, 1994. See CA Rollo, pp.
140141.

10. CA Rollo, pp. 174175.

11. Id. at 205.


12. G.R. Nos. 117817 and 118437, 9 July 1998, 292 SCRA 155, 167. Penned by Associate
Justice Josue N. Bellosillo, with Associate Justices Hilario G. Davide, Jr., Jose C. Vitug,
Artemio V. Panganiban, and Leonardo A. Quisumbing concurring.
13. Rollo, p. 67.
14. The Medical Act of 1959.

15. Rollo, pp. 2829.


16. SEC. 20. Issuance of Certificates of Registration, grounds for refusal of [the] same.
The Commissioner of Civil Service (now Professional Regulation Commission) the
chairman, the members and the Secretary of the Board of Medical Examiners (now
Medical Board) shall sign and issue certificates of registration to those who have
satisfactorily complied with the requirements of the Board. They shall not issue a
certificate of registration to any candidate who has been convicted by a court of
competent jurisdiction of any criminal offense involving moral turpitude, or has been
found guilty of immoral or dishonorable conduct after the investigation by the Board of
Medical Examiners (now Medical Board), or has been declared to be of unsound mind.
(As amended by Rep. Act No. 4224, which took effect June 19, 1965).

17. See United States v. Boutwell, 17 Wall (US) 604, 21 L. Ed 721; Laizure v. Baker, 11 P. 2d
560; State ex rel Lyons v. McDowell, 57 A. 2d 94; Rader v. Burton, 122 N.E. 2d 856; Board
of Managers v. City of Wilmington, 70 S.E. 2d 833.
18. SEC. 3. Petition for mandamus. When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to
be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46.

19. See Potter v. Anderson, 392 P. 2d 650; State ex rel Jester v. Paige, 213 P. 2d 441; State
ex rel. Sharp v. Cross, 211 P. 2d 760; St. George v. Hanson, et al., 78 S.E. 2d 885; State ex
rel Vander v. Board of County Com'rs. et al., 135 N.E. 2d 701.
20. See State ex rel Jester v. Paige, supra; Pedroso v. De Walt, et al., 340 S.W. 2d 566.

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21. See State Board of Barber Examiners v. Walker, 192 P. 2d 723; State ex rel Sharp v.
Cross, supra; State ex rel Hacharedi v. Baxter, 74 N.E. 2d 242, 332 US 827, 92 L. Ed 402,
68 S. Ct 209.

22. Rollo, p. 58.


23. Id. at 59.
24. Sotto v. Sotto, No. 17768, 1 September 1922, 43 Phil. 688, 694. See also Araneta v.
Concepcion and Araneta, No. L-9667, 31 July 1956, 99 Phil. 709, 712.

25. SEC. 22. Administrative investigations. In addition to the functions provided for
in the preceding sections, the Board of Medical Examiners (now Medical Board) shall
perform the following duties: (1) to administer oath to physicians who qualified in the
examinations (stress supplied); (2) to study the conditions affecting the practice of
medicine in all parts of the Philippines; (3) to exercise the powers conferred upon it by
this article with the view of maintaining the ethical and professional standards of the
medical profession; (4) to subpoena or subpoena duces tecum witnesses for all
purposes required in the discharge of its duties; and (5) to promulgate, with the approval
of the Commissioner of Civil Service (now Professional Regulation Commission), such
rules and regulations as it may deem necessary for the performance of its duties in
harmony with the provisions of this Act and necessary for the proper practice of
medicine in the Philippines.
Administrative investigations shall be conducted by at least two members of the
Medical Board with one legal officer sitting during the investigation, otherwise the
proceedings shall be considered void. The existing rules of evidence shall be observed
during all administrative investigations. The Board may disapprove applications for
examination or registration, reprimand erring physicians, or suspend or revoke
registration certificates, if the respondents are found guilty after due investigation. (As
amended by Rep. Act No. 4224, effective June 19, 1965.)

26. SEC. 1. Objectives. This Act provides for and shall govern (a) the standardization
and regulation of medical education; (b) the examination for registration of physicians;
and (c) the supervision, control, and regulation of the practice of medicine in the
Philippines.
27. SEC. 9. Candidates for board examinations. Candidates for Board examinations
shall have the following qualifications:

(1) He shall be a citizen of the Philippines or a citizen of any foreign country who
has submitted competent and conclusive documentary evidence, confirmed by the
Department of Foreign Affairs, showing that his country's existing laws permit citizens
of the Philippines to practice medicine under the same rules and regulations governing
citizens thereof;

(2) He shall be of good moral character;


(3) He shall be of sound mind;

(4) He shall not have been convicted by a court of competent jurisdiction of any
offense involving moral turpitude;
(5) He shall be a holder of the Degree of Doctor of Medicine or its equivalent
conferred by a college of medicine duly recognized by the Government; and
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(6) He must have completed a calendar year of technical training known as
internship the nature of which shall be prescribed by the Board of Medical Education
undertaken in hospitals and health centers approved by the Board. (As amended by Rep.
Act No. 5946, approved June 21, 1969).
28. Rollo, p. 419.
29. Id. at 99.
30. SEC. 8. Prerequisite to the practice of medicine. No person shall engage in the
practice of medicine in the Philippines unless he is at least twenty-one years of age, has
satisfactorily passed the corresponding Board Examination, and is a holder of a valid
Certificate of Registration duly issued to him by the Board of Medical Examiners (now
Medical Board).
31. WEBSTER'S NEW INTERNATIONAL DICTIONARY 2017 (1993 ed.).

32. See Fosdick v. Terry , 117 So. 2d 397, 398; Puritan Coal Corp. v. Davis, 42 S.E. 2d 807,
813.

33. Lemi v. Valencia, No. L-20768, 29 November 1968, 26 SCRA 203, 210; Ocampo v.
Subido, No. L-28344, 27 August 1976, 72 SCRA 443, 452453.
34. See Morse v. State Board of Medical Examiners, 122 S.W. 446, 448 (1909).

35. CONST. Art. XIV, Sec. 5 (3).


36. Reyes v. Court of Appeals, G.R. Nos. 94961 and 96491, 25 February 1991, 194 SCRA
402, 409410.

37. Primicias v. Fugoso, No. L-1800, 27 January 1948, 80 Phil. 71, 75.
38. Philippine Medical Association v. Board of Medical Examiners, No. L-25135, 21
September 1968, 25 SCRA 29.

39. Tablarin v. Judge Angelina S. Gutierrez, No. L-78164, 31 July 1987, 152 SCRA 730, 743.
40. See Manchester Press Club v. State Liquor Commission, 200 A. 407, 116 ALR 1093.

41. See Yick Wo v. Hopkins, 118 US 356, 30 L.Ed. 220, 6 S. Ct. 1064; City Council of
Montgomery v. West, 42 So. 1000; In Re Porterfield, 168 P. 2d 706, 167 ALR 675;
Anderson v. City of Wellington, 19 P. 719; State v. Harris, 6 S.E. 2d 854.
42. Citing Bautista v. Board of Energy , G.R. No. 75016, 13 January 1989, 169 SCRA 167.

43. Citing Gancho-on v. Secretary of Labor and Employment, G.R. No. 108033, 14 April
1997, 271 SCRA 204, 208.
44. Rollo, pp. 340341.
45. SEC. 26. Appeal from judgment. The decision of the Board of Medical Examiners
(now Medical Board) shall automatically become final thirty days after the date of its
promulgation unless the respondent, during the same period, has appealed to the
Commissioner of the Civil Service (now Professional Regulation Commission) and later
to the Office of the President of the Philippines. If the final decision is not satisfactory,
the respondent may ask for a review of the case, or may file in court a petition for
certiorari.
46. Ang Tuan Kai & Co. v. Import Control Commission, No. L-4427, 21 April 1952, 91 Phil.
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143, 145; Peralta v. Salcedo, etc., No. L-10771, 30 April 1957, 101 Phil. 452, 454.

47. See Madrigal v. Lecaroz, G.R. No. 46218, 23 October 1990, 191 SCRA 20, 26.

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FIRST DIVISION

[G.R. No. 120095. August 5, 1996.]

JMM PROMOTION AND MANAGEMENT, INC., and KARY


INTERNATIONAL, INC. , petitioners, vs . HON. COURT OF APPEALS,
HON. MA. NIEVES CONFESSOR, then Secretary of the Department of
Labor and Employment, HON. JOSE BRILLANTES, in his capacity as
acting Secretary of the Department of Labor and Employment and
HON. FELICISIMO JOSON, in his capacity as Administrator of the
Philippine Overseas Employment Administration , respondents.

Don P. Porciuncula for petitioner.


Ma. Bezen Ringpis Liban/Solicitor General for respondents.

SYLLABUS

1. POLITICAL LAW; INHERENT POWERS OF THE STATE; POLICE POWER; NATURE


AND SCOPE. The latin maxim salus populi est suprema lex embodies the character of
the entire spectrum of public laws aimed at promoting the general welfare of the people
under the State's police power. As an inherent attribute of sovereignty which virtually
"extends to all public needs," this "least limitable" of governmental powers grants a wide
panoply of instruments through which the state, as parens patriae gives effect to a host of
its regulatory powers. Describing the nature and scope of the police power, Justice
Malcolm, in the early case of Rubi v. Provincial Board of Mindoro (89 Phil. 660, 708, [1919])
wrote: "The police power of the State," one court has said . . . 'is a power coexistensive with
self-protection, and is not inaptly termed 'the law of overruling necessity.' It may be said to
be that inherent and plenary power in the state which enables it to prohibit all things hurtful
to the comfort, safety and welfare of society." Carried onward by the current of legislature.
the judiciary rarely attempts to dam the onrushing power of legislative discretion, provided
the purposes of the law do not go beyond the great principles that mean security for the
public welfare or do not arbitrarily interfere with the right of the individual."
2. ID.; ID.; ID.; EXERCISE THEREOF ENJOYS A PRESUMED VALIDITY UNLESS IT IS
SHOWN THAT IT DOES NOT ENHANCE THE PUBLIC WELFARE OR WAS EXERCISED
ARBITRARILY OR UNREASONABLY. Thus, police power concerns government
enactments which precisely interfere with personal liberty or property in order to promote
the general welfare or the common good. As the assailed Department Order enjoys a
presumed validity, it follows that the burden rests upon petitioners to demonstrate that
the said order, particularly its ARB requirement, does not enhance the public welfare or
was exercised arbitrarily or unreasonably.
3. ID.; ID.; ID.; THE PROPER REGULATION OF A PROFESSION, CALLING, BUSINESS OR
TRADE IS A VALID EXERCISE THEREOF. Nevertheless, no right is absolute, and the
proper regulation of a profession, calling business or trade has always been upheld as a
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legitimate subject of a valid exercise of the police power by the state particularly when
their conduct affects either the execution of legitimate governmental functions, the
preservation of the State, the public health and welfare and public morals. According to the
maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range
of legislative action to define the mode and manner in which every one may so use his own
property so as not to pose injury to himself or others.
4. ID.; ID.; ID.; WHERE THE LIBERTY CURTAILED AFFECTS AT MOST THE RIGHT TO
PROPERTY, THE PERMISSIBLE SCOPE OF REGULATORY MEASURES IS MUCH WIDER. In
any case, where the liberty curtailed affects at most the rights of property, the permissible
scope of regulatory measures is certainly much wider. To pretend that licensing or
accreditation requirements violates the due process clause is to ignore the settled
practice, under the mantle of the police power, of regulating entry to the practice of various
trades or professions. Professionals leaving for abroad are required to pass rigid written
and practical exams before they are deemed fit to practice their trade. Seamen are
required to take tests determining their seamanship. Locally, the Professional Regulation
Commission has began to require previously licensed doctors and other professionals to
furnish documentary proof that they had either re-trained or had undertaken continuing
education courses as a requirement for renewal of their licenses. It is not claimed that
these requirements pose an unwarranted deprivation of a property right under the due
process clause. So long as professionals and other workers meet reasonable regulatory
standards no such deprivation exists.
5. CONSTITUTIONAL LAW; STATE POLICIES; THE STATE SHALL AFFORD FULL
PROTECTION TO LABOR; ELUCIDATED. Protection to labor does not indicate promotion
of employment alone. Under the welfare and social justice provisions of the Constitution,
the promotion of full employment, while desirable, cannot take a backseat to the
government's constitutional duty to provide mechanisms for the protection of our work-
force, local or overseas. As this Court explained in Philippine Association of Service
Exporters (PASEI) v. Drilon, in reference to the recurring problems faced by our overseas
workers: what concerns the Constitution more paramountly is that such an employment be
above all, decent, just, and humane. It is bad enough that the country has to send its sons
and daughters to strange lands because it cannot satisfy their employment needs at
home. Under these circumstances, the Government is duty-bound to insure that our toiling
expatriates have adequate protection, personally and economically, while away from home.
A profession, trade or calling is a property right within the meaning of our constitutional
guarantees. One cannot be deprived of the right to work and the right to make a living
because these rights are property rights, the arbitrary and unwarranted deprivation of
which normally constitutes an actionable wrong.
6. ID.; BILL OF RIGHTS; NON-IMPAIRMENT OF OBLIGATIONS OF CONTRACTS; MUST
YIELD TO THE STATE'S POLICE POWER. It is a futile gesture on the part of petitioners to
invoke the non-impairment clause of the Constitution to support their argument that the
government cannot enact the assailed regulatory measures because they abridge the
freedom to contract. In Philippine Association of Service Exporters, Inc. vs. Drilon, we held
that "(t)he non-impairment clause of the Constitution . . . must yield to the loftier purposes
targeted by the government." Equally important, into every contract is read provisions of
existing law, and always, a reservation of the police power for so long as the agreement
deals with a subject impressed with the public welfare.
7. ID.; ID.; EQUAL PROTECTION CLAUSE; MERELY REQUIRES THAT ALL PERSONS BE
TREATED ALIKE UNDER LIKE CONDITIONS. The equal protection clause is directed
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principally against undue favor and individual or class privilege. It is not intended to
prohibit legislation which is limited to the object to which it is directed or by the territory in
which it is to operate. It does not require absolute equality, but merely that all persons be
treated alike under like conditions both as to privileges conferred and liabilities imposed.
We have held, time and again, that the equal protection clause of the Constitution does not
forbid classification for so long as such classification is based on real and substantial
differences having a reasonable relation to the subject of the particular legislation. If
classification is germane to the purpose of the law, concerns all members of the class, and
applies equally to present and future conditions, the classification does not violate the
equal protection guarantee.

DECISION

KAPUNAN , J : p

This limits of government regulation under the State's police power are once again at the
vortex of the instant controversy. Assailed is the government's power to control
deployment of female entertainers to Japan by requiring an Artist Record Book (ARB) as a
precondition to the processing by the POEA of any contract for overseas employment. By
contending that the right to overseas employment is a property right within the meaning of
the Constitution, petitioners vigorously aver that deprivation thereof allegedly through the
onerous requirement of an ARB violates the due process clause and constitutes an invalid
exercise of the police power.
The factual antecedents are undisputed.
Following the much-publicized death of Maricris Sioson in 1991, former President Corazon
C. Aquino ordered a total ban against the deployment of performing artists to Japan and
other foreign destinations. The ban was, however, rescinded after leaders of the overseas
employment industry promised to extend full support for a program aimed at removing
kinks in the system of deployment. In its place, the government, through the Secretary of
Labor and Employment, subsequently issued Department Order No. 28 creating the
Entertainment Industry Advisory Council (EIAC). which was tasked with issuing guidelines
on the training, testing certification and deployment of performing artists abroad.
Pursuant to the EIAC's recommendations, 1 the Secretary of Labor, on January 6, 1994,
issued Department Order No. 3 establishing various procedures and requirements for
screening performing artists under a new system of training, testing, certification and
deployment of the former. Performing artists successfully hurdling the test, training and
certification requirement were to be issued an Artist's Record Book (ARB), a necessary
prerequisite to processing of any contract of employment by the POEA. Upon request of
the industry, implementation of the process, originally scheduled for April 1, 1994, was
moved to October 1, 1994.
Thereafter, the Department of Labor, following the EIAC's recommendation, issued a series
of orders fine-tuning and implementing the new system. Prominent among these orders
were the following issuances:
1. Department Order No. 3-A, providing for additional guidelines on the
training, testing, certification and deployment of performing artists.
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2. Department Order No. 3-B, pertaining to the Artist Record Book (ARB)
requirement, which could be processed only after the artist could show proof of
academic and skills training and has passed the required tests.

3. Department Order No. 3-E, providing the minimum salary a performing


artist ought to receive (not less than US$600.00 for those bound for Japan) and
the authorized deductions therefrom.
4. Department Order No. 3-F, providing for the guidelines on the issuance and
use of the ARB by returning performing artists who, unlike new artists, shall only
undergo a Special Orientation Program (shorter than the basic program) although
they must pass the academic test.

In Civil No. 95-72750, the Federation of Entertainment Talent Managers of the Philippines
(FETMOP), on January 27, 1995 filed a class suit assailing these department orders,
principally contending that said orders 1) violated the constitutional right to travel; 2)
abridged existing contracts for employment; and 3) deprived individual artists of their
licenses without due process of law. FETMOP, likewise, averred that the issuance of the
Artist Record Book (ARB) was discriminatory and illegal and "in gross violation of the
constitutional right . . . to life liberty and property." Said Federation consequently prayed for
the issuance of a writ of preliminary injunction against the aforestated orders.
On February 2, 1992, JMM Promotion and Management, Inc. and Kary International, Inc.,
herein petitioners, filed a Motion for Intervention in said civil case, which was granted by
the trial court in an Order dated 15 February, 1995.
However, on February 21, 1995, the trial court issued an Order denying petitioners' prayer
for a writ of preliminary injunction and dismissed the complaint.
On appeal from the trial court's Order, respondent court, in CA G.R. SP No. 36713
dismissed the same. Tracing the circumstances which led to the issuance of the ARB
requirement and the assailed Department Order, respondent court concluded that the
issuances constituted a valid exercise by the state of the police power.
We agree.
The latin maxim salus populi est suprema lex embodies the character of the entire
spectrum of public laws aimed at promoting the general welfare of the people under the
State's police power. As an inherent attribute of sovereignty which virtually "extends to all
public needs," 2 this "least limitable" 3 of governmental powers grants a wide panoply of
instruments through which the state, as parens patriae gives effect to a host of its
regulatory powers.
Describing the nature and scope of the police power, Justice Malcolm, in the early case of
Rubi v. Provincial Board of Mindoro 4 wrote:
"The police power of the State," one court has said . . . 'is a power coextensive
with self-protection, and is not inaptly termed 'the law of overruling necessity.' It
may be said to be that inherent and plenary power in the state which enables it to
prohibit all things hurtful to the comfort, safety and welfare of society." Carried
onward by the current of legislature, the judiciary rarely attempts to dam the
onrushing power of legislative discretion, provided the purposes of the law do not
go beyond the great principles that mean security for the public welfare or do not
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arbitrarily interfere with the right of the individual." 5

Thus, police power concerns government enactments which precisely interfere with
personal liberty or property in order to promote the general welfare or the common good.
As the assailed Department Order enjoys a presumed validity, it follows that the burden
rests upon petitioners to demonstrate that the said order, particularly, its ARB requirement,
does not enhance the public welfare or was exercised arbitrarily or unreasonably.
A through review of the facts and circumstances leading to the issuance of the assailed
orders compels us to rule that the Artist Record Book requirement and the questioned
Department Order related to its issuance were issued by the Secretary of Labor pursuant
to a valid exercise of the police power.
In 1984, the Philippines emerged as the largest labor sending country in Asia dwarfing the
labor export of countries with mammoth populations such as India and China. According
to the National Statistics Office, this diaspora was augmented annually by over 450,000
documented and clandestine or illegal (undocumented) workers who left the country for
various destinations abroad, lured by higher salaries, better work opportunities and
sometimes better living conditions.
Of the hundreds of thousands of workers who left the country for greener pastures in the
last few years, women composed slightly close to half of those deployed, constituting 47%
between 1987-1991, exceeding this proportion (58%) by the end of 1991, 6 the year former
President Aquino instituted the ban on deployment of performing artists to Japan and
other countries as a result of the gruesome death of Filipino entertainer Maricris Sioson.
It was during the same period that this Court took judicial notice not only of the trend, but
also of the fact that most of our women, a large number employed as domestic helpers
and entertainers, worked under exploitative conditions "marked by physical and personal
abuse." 7 Even then, we noted that "[t]he sordid tales of maltreatment suffered by migrant
Filipina workers, even rape and various forms of torture, confirmed by testimonies of
returning workers" compelled "urgent government action." 8
Pursuant to the alarming number of reports that a significant number of Filipina
performing artists ended up as prostitutes abroad (many of whom were beaten, drugged
and forced into prostitution), and following the deaths of a number of these women, the
government began instituting measures aimed at deploying only those individuals who
met set standards which would qualify them as legitimate performing artists. In spite of
these measures, however, a number of our countrymen have nonetheless fallen victim to
unscrupulous recruiters, ending up as virtual slaves controlled by foreign crime syndicates
and forced into jobs other than those indicated in their employment contracts. Worse,
some of our women have been forced into prostitution.
Thus, after a number of inadequate and failed accreditation schemes, the Secretary of
Labor issued on August 16, 1993, D.O. No. 28, establishing the Entertainment Industry
Advisory Council (EIAC), the policy advisory body of DOLE on entertainment industry
matters. 9 Acting on the recommendations of the said body, the Secretary of Labor, on
January 6, 1994, issued the assailed orders. These orders embodied EIAC's Resolution No.
1, which called for guidelines on screening, testing and accrediting performing overseas
Filipino artists. Significantly, as the respondent court noted, petitioners were duly
represented in the EIAC, 1 0 which gave the recommendations on which the ARB and other
requirements were based.

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Clearly, the welfare of Filipino performing artists, particularly the women was paramount in
the issuance of Department Order No. 3. Short of a total and absolute ban against the
deployment of performing artists to "high-risk" destinations, a measure which would only
drive recruitment further underground, the new scheme at the very least rationalizes the
method of screening performing artists by requiring reasonable educational and artistic
skills from them and limits deployment to only those individuals adequately prepared for
the unpredictable demands of employment as artists abroad. It cannot be gainsaid that
this scheme at least lessens the room for exploitation by unscrupulous individuals and
agencies.
Moreover, here or abroad, selection of performing artists is usually accomplished by
auditions, where those deemed unfit are usually weeded out through a process which is
inherently subjective and vulnerable to bias and differences in taste. The ARB requirement
goes one step further, however, attempting to minimize the subjectivity of the process by
defining minimum skills required from entertainers and performing artists. As the Solicitor
General observed, this should be easily met by experienced artists possessing merely
basic skills. The tests are aimed at segregating real artists or performers from those
passing themselves off as such, eager to accept any available job and therefore exposing
themselves to possible exploitation.
As to the other provisions of Department Order No. 3 questioned by petitioners, we see
nothing wrong with the requirement for document and booking confirmation (D.O. 3-C), a
minimum salary scale (D.O. 3-E), or the requirement for registration of returning
performers. The requirement for a venue certificate or other documents evidencing the
place and nature of work allows the government closer monitoring of foreign employers
and helps keep our entertainers away from prostitution fronts and other worksites
associated with unsavory, immoral, illegal or exploitative practices. Parenthetically, none of
these issuances appear to us, by any stretch of the imagination, even remotely
unreasonable or arbitrary. They address a felt need of according greater protection for an
oft-exploited segment of our OCW's. They respond to the industry's demand for clearer
and more practicable rules and guidelines. Many of these provisions were fleshed out
following recommendations by, and after consultations with, the affected sectors and non-
government organizations. On the whole, they are aimed at enhancing the safety and
security of entertainers and artists bound for Japan and other destinations, without stifling
the industry's concerns for expansion and growth.
In any event, apart from the State's police power, the Constitution itself mandates
government to extend the fullest protection to our overseas workers. The basic
constitutional statement on labor, embodied in Section 18 of Article II of the Constitution
provides:

Sec. 18. The State affirms labor as a primary social economic force. It shall
protect the rights of workers and promote their welfare.

More emphatically, the social justice provision on labor of the 1987 Constitution in its first
paragraph states:
The State shall afford full protection to labor, local and overseas, organized and
unorganized and promote full employment and equality of employment
opportunities for all.

Obviously, protection to labor does not indicate promotion of employment alone. Under
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the welfare and social justice provisions of the Constitution, the promotion of full
employment, while desirable, cannot take a backseat to the government's constitutional
duty to provide mechanisms for the protection of our workforce, local or overseas. At this
Court explained in Philippine Association of Service Exporters (PASEI) v. Drilon, 11 in
reference to the recurring problems faced by our overseas workers:
What concerns the Constitution more paramountly is that such an employment be
above all, decent, just, and humane. It is bad enough that the country has to send
its sons and daughters to strange lands because it cannot satisfy their
employment needs at home. Under these circumstances, the Government is duty-
bound to insure that our toiling expatriates have adequate protection, personally
and economically, while away from home.

We now go to petitioners' assertion that the police power cannot, nevertheless, abridge the
right of our performing workers to return to work abroad after having earlier qualified
under the old process, because, having previously been accredited, their accreditation
became a "property right," protected by the due process clause. We find this contention
untenable.
A profession, trade or calling is a property right within the meaning of our constitutional
guarantees. One cannot be deprived of the right to work and the right to make a living
because these rights are property rights, the arbitrary and unwarranted deprivation of
which normally constitutes an actionable wrong. 1 2
Nevertheless, no right is absolute, and the proper regulation of a profession, calling,
business or trade has always been upheld as a legitimate subject of a valid exercise of the
police power by the state particularly when their conduct affects either the execution of
legitimate governmental functions, the preservation of the State, the public health and
welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it
must of course be within the legitimate range of legislative action to define the mode and
manner in which every one may so use his own property so as not to pose injury to himself
or others. 1 3
In any case, where the liberty curtailed affects at most the rights of property, the
permissible scope of regulatory measures is certainly much wider. 14 To pretend that
licensing or accreditation requirements violates the due process clause is to ignore the
settled practice, under the mantle of the police power, of regulating entry to the practice of
various trades or professions. Professionals leaving for abroad are required to pass rigid
written and practical exams before they are deemed fit to practice their trade. Seamen are
required to take tests determining their seamanship. Locally, the Professional Regulation
Commission has began to require previously licensed doctors and other professionals to
furnish documentary proof that they had either re-trained or had undertaken continuing
education courses as a requirement for renewal of their licenses. It is not claimed that
these requirements pose an unwarranted deprivation of a property right under the due
process clause. So long as professionals and other workers meet reasonable regulatory
standards no such deprivation exists.
Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause
of the Constitution to support their argument that the government cannot enact the
assailed regulatory measures because they abridge the freedom to contract. In Philippine
Association of Service Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment clause
of the Constitution . . . must yield to the loftier purposes targeted by the government." 1 5
Equally important, into every contract is read provisions of existing law, and always, a
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reservation of the police power for so long as the agreement deals with a subject
impressed with the public welfare.
A last point. Petitioners suggest that the singling out of entertainers and performing
artists under the assailed department orders constitutes class legislation which violates
the equal protection clause of the Constitution. We do not agree.
The equal protection clause is directed principally against undue favor and individual or
class privilege. It is not intended to prohibit legislation which is limited to the object to
which it is directed or by the territory in which it is to operate. It does not require absolute
equality, but merely that all persons be treated alike under like conditions both as to
privileges conferred and liabilities imposed. 1 6 We have held, time and again, that the equal
protection clause of the Constitution does not forbid classification for so long as such
classification is based on real and substantial differences having a reasonable relation to
the subject of the particular legislation. 1 7 If classification is germane to the purpose of
the law, concerns all members of the class, and applies equally to present and future
conditions, the classification does not violate the equal protection guarantee.
In the case at bar, the challenged Department Order clearly applies to all performing artists
and entertainers destined for jobs abroad. These orders, we stressed hereinbefore, further
the Constitutional mandate requiring government to protect our workforce, particularly
those who may be prone to abuse and exploitation as they are beyond the physical reach
of government regulatory agencies. The tragic incidents must somehow stop, but short of
absolutely curtailing the right of these performers and entertainers to work abroad, the
assailed measures enable our government to assume a measure of control.
WHEREFORE, finding no reversible error in the decision sought to be reviewed, petition is
hereby DENIED.
SO ORDERED.
Padilla, Bellosillo, Vitug and Hermosisima, Jr., JJ ., concur.

Footnotes

1. EIAC, Res. No. 1.


2. Noble State Bank v. Haskel, 219 US 112 (1911).
3. Smith, Bell and Co v. Natividad, 40 Phil 136 (1919).
4. 39 Phil 660, 708 (1919).
5. Id, at 708-709.
6. Source: National Statistics Office, 1992.
7. Philippine Association of Service Exporters, Inc. v. Drilon 163 SCRA 386, 392 (1988).
8. Id.
9. Department Order No. 28 vests the EIAC with the following principal functions:
a) recommend to the DOLE policies, plans and programs for the development of
the entertainment industry, local and overseas, including but not limited to talent training
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and upgrading, employment standards and other internationally acceptable trade
practices;
b) promote ethical business standards and dignified workplaces;
c) act as the coordinating body for all training programs and technical assistance
to the entertainment industry;
d) advise the DOLE on the institutionalization of an internationally acceptable
system of manpower development, talent protection and welfare;
e) assist the appropriate agencies, private or public in the implementation of a
trainors training and upgrading program;
f) review existing issuances on the industry including the system of training,
testing and accreditation of performing artists/talents and recommend to the Secretary
such measures or schemes as are deemed necessary for its proper compliance . . .

10. The EIAC is chaired by an Undersecretary of Labor and is composed of 3


representatives from the government, 2 representatives from the employers' sector, one
representative from the talent developers, 2 representatives from the workers' sector and
one representative from the Non-government Organizations.
11. Id.
12. Phil. Movie Workers' Assn. v. Premier Productions, Inc., 92 Phil 8423 (1953); National
Labor Union vs. Court of Industrial Relations, 68 Phil 732 (1939).
13. Case vs. Board of Health, 24 Phil 250, 280 (1913).
14. Ermita Malate Hotel and Motel Operators vs. City of Manila, 20 SCRA 849 (1967).

15. Supra, note 6, at 397.


16. Itchong, etc., et al, vs. Hernandez, 101 Phil 1155 (1957).
17. Villegas vs. Hiu Chiong Tsai Pao Hao, 86 SCRA 272 (1978).

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EN BANC

[G.R. No. 213948. April 25, 2017.]

KNIGHTS OF RIZAL , petitioner, vs. DMCI HOMES, INC., DMCI


PROJECT DEVELOPERS, INC., CITY OF MANILA, NATIONAL
COMMISSION FOR CULTURE AND THE ARTS, NATIONAL MUSEUM,
and NATIONAL HISTORICAL COMMISSION OF THE PHILIPPINES ,
respondents.

DECISION

CARPIO , J : p

Bury me in the ground, place a stone and a 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.
- Jose Rizal
The Case
Before this Court is a Petition for Injunction, with Applications for Temporary
Restraining Order, Writ of Preliminary Injunction, and Others 1 led by the Knights of
Rizal (KOR) seeking, among others, for an order to stop the construction of respondent
DMCI Homes, Inc.'s condominium development project known as the Torre de Manila.
In its Resolution dated 25 November 2014, the Court resolved to treat the petition as
one for mandamus. 2
The Facts
On 1 September 2011, DMCI Project Developers, Inc. (DMCI-PDI) 3 acquired a
7,716.60-square meter lot in the City of Manila, located near Taft Avenue, Ermita, beside
the former Manila Jai-Alai Building and Adamson University. 4 The lot was earmarked
for the construction of DMCI-PDI's Torre de Manila condominium project. HTcADC

On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the


construction of its project. It then obtained a Zoning Permit from the City of Manila's
City Planning and Development Office (CPDO) on 19 June 2012. 5
Then, on 5 July 2012, the City of Manila's O ce of the Building O cial granted
DMCI-PDI a Building Permit, allowing it to build a "Forty-Nine (49) Storey w/Basement &
2 penthouse Level Res'l./Condominium" on the property. 6
On 24 July 2012, the City Council of Manila issued Resolution No. 121 enjoining
the O ce of the Building O cial to temporarily suspend the Building Permit of DMCI-
PDI, citing among others, that "the Torre de Manila Condominium, based on their
development plans, upon completion, will rise up high above the back of the national
monument, to clearly dwarf the statue of our hero, and with such towering heights,
would certainly ruin the line of sight of the Rizal Shrine from the frontal Roxas Boulevard
vantage point[.]" 7
Building O cial Melvin Q. Balagot then sought the opinion of the City of Manila's
City Legal O cer on whether he is bound to comply with Resolution No. 121. 8 In his
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letter dated 12 September 2012, City Legal O cer Renato G. Dela Cruz stated that
there is "no legal justi cation for the temporary suspension of the Building Permit
issued in favor of [DMCI-PDI]" since the construction "lies outside the Luneta Park" and
is "simply too far to be a repulsive distraction or have an objectionable effect on the
artistic and historical signi cance" of the Rizal Monument. 9 He also pointed out that
"there is no showing that the [area of] subject property has been o cially declared as
an anthropological or archeological area. Neither has it been categorically designated
by the National Historical Institute as a heritage zone, a cultural property, a historical
landmark or even a national treasure."
Subsequently, both the City of Manila and DMCI-PDI sought the opinion of the
National Historical Commission of the Philippines (NHCP) on the matter. In the letter 1 0
dated 6 November 2012 from NHCP Chairperson Dr. Maria Serena I. Diokno addressed
to DMCI-PDI and the letter 1 1 dated 7 November 2012 from NHCP Executive Director III
Ludovico D. Badoy addressed to then Manila Mayor Alfredo S. Lim, the NHCP
maintained that the Torre de Manila project site is outside the boundaries of the Rizal
Park and well to the rear of the Rizal Monument, and thus, cannot possibly obstruct the
frontal view of the National Monument.
On 26 November 2013, following an online petition against the Torre de Manila
project that garnered about 7,800 signatures, the City Council of Manila issued
Resolution No. 146, reiterating its directive in Resolution No. 121 enjoining the City of
Manila's building officials to temporarily suspend DMCI-PDI's Building Permit. 1 2
In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, DMCI-PDI
President Alfredo R. Austria sought clari cation on the controversy surrounding its
Zoning Permit. He stated that since the CPDO granted its Zoning Permit, DMCI-PDI
continued with the application for the Building Permit, which was granted, and did not
deem it necessary to go through the process of appealing to the local zoning board. He
then expressed DMCI-PDI's willingness to comply with the process if the City of Manila
deemed it necessary. 1 3
On 23 December 2013, the Manila Zoning Board of Adjustments and Appeals
(MZBAA) issued Zoning Board Resolution No. 06, Series of 2013, 1 4 recommending the
approval of DMCI-PDI's application for variance. The MZBAA noted that the Torre de
Manila project "exceeds the prescribed maximum Percentage of Land Occupancy
(PLO) and exceeds the prescribed Floor Area Ratio (FAR) as stipulated in Article V,
Section 17 of City Ordinance No. 8119[.]" However, the MZBAA still recommended the
approval of the variance subject to the five conditions set under the same resolution. CAIHTE

After some clari cation sought by DMCI-PDI, the MZBAA issued Zoning Board
Resolution No. 06-A, Series of 2013, 1 5 on 8 January 2014, amending condition (c) in
the earlier resolution. 1 6
On 16 January 2014, the City Council of Manila issued Resolution No. 5, Series of
2 0 1 4 , 1 7 adopting Zoning Board Resolution Nos. 06 and 06-A. The City Council
resolution states that "the City Council of Manila nd[s] no cogent reason to deny
and/or reverse the aforesaid recommendation of the [MZBAA] and hereby ratif[ies] and
con rm[s] all previously issued permits, licenses and approvals issued by the City
[Council] of Manila for Torre de Manila[.]"
Arguments of the KOR
On 12 September 2014, the KOR, a "civic, patriotic, cultural, non-partisan, non-
sectarian and non-pro t organization" 1 8 created under Republic Act No. 646, 1 9 led a
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Petition for Injunction seeking a temporary restraining order, and later a permanent
injunction, against the construction of DMCI-PDI's Torre de Manila condominium
project. The KOR argues that the subject matter of the present suit is one of
"transcendental importance, paramount public interest, of overarching signi cance to
society, or with far-reaching implication" involving the desecration of the Rizal
Monument.
The KOR asserts that the completed Torre de Manila structure will "[stick] out
like a sore thumb, [dwarf] all surrounding buildings within a radius of two kilometer/s"
and "forever ruin the sightline of the Rizal Monument in Luneta Park: Torre de Manila
building would loom at the back and overshadow the entire monument, whether up
close or viewed from a distance." 2 0
Further, the KOR argues that the Rizal Monument, as a National Treasure, is
entitled to "full protection of the law" 2 1 and the national government must abate the act
or activity that endangers the nation's cultural heritage "even against the wishes of the
local government hosting it." 2 2 aScITE

Next, the KOR contends that the project is a nuisance per se 2 3 because "[t]he
despoliation of the sight view of the Rizal Monument is a situation that 'annoys or
offends the senses' of every Filipino who honors the memory of the National Hero Jose
Rizal. It is a present, continuing, worsening and aggravating status or condition. Hence,
the PROJECT is a nuisance per se. It deserves to be abated summarily, even without
need of judicial proceeding." 2 4
The KOR also claims that the Torre de Manila project violates the NHCP's
Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and Other
Personages, which state that historic monuments should assert a visual "dominance"
over its surroundings, 2 5 as well as the country's commitment under the International
Charter for the Conservation and Restoration of Monuments and Sites, otherwise
known as the Venice Charter. 2 6
Lastly, the KOR claims that the DMCI-PDI's construction was commenced and
continues in bad faith, and is in violation of the City of Manila's zoning ordinance. 2 7
Arguments of DMCI-PDI
In its Comment, DMCI-PDI argues that the KOR's petition should be dismissed on
the following grounds:
I.
THIS HONORABLE COURT HAS NO JURISDICTION OVER THIS ACTION.
II.
KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR PROSECUTE THIS ACTION.
III.
TORRE DE MANILA IS NOT A NUISANCE PER SE.
IV.
DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING TORRE DE MANILA; AND
V.
KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER AND/OR A WRIT OF
PRELIMINARY INJUNCTION. 2 8
First, DMCI-PDI asserts that the Court has no original jurisdiction over actions for
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injunction. 2 9 Even assuming that the Court has concurrent jurisdiction, DMCI-PDI
maintains that the petition should still have been led with the Regional Trial Court
under the doctrine of hierarchy of courts and because the petition involves questions of
fact. 3 0 DETACa

DMCI-PDI also contends that the KOR's petition is in actuality an opposition or


appeal from the exemption granted by the City of Manila's MZBAA, a matter which is
also not within the jurisdiction of the Court. 3 1 DMCI-PDI claims that the proper forum
should be the MZBAA, and should the KOR fail there, it should appeal the same to the
Housing and Land Use Regulatory Board (HLURB). 3 2
DMCI-PDI further argues that since the Rizal Monument has been declared a
National Treasure, the power to issue a cease and desist order is lodged with the
"appropriate cultural agency" under Section 25 of Republic Act No. 10066 or the
National Cultural Heritage Act of 2009. 3 3 Moreover, DMCI-PDI asserts that the KOR
availed of the wrong remedy since an action for injunction is not the proper remedy for
abatement of a nuisance. 3 4
Second, DMCI-PDI maintains that the KOR has no standing to institute this
proceeding because it is not a real party in interest in this case. The purposes of the
KOR as a public corporation do not include the preservation of the Rizal Monument as a
cultural or historical heritage site. 3 5 The KOR has also not shown that it suffered an
actual or threatened injury as a result of the alleged illegal conduct of the City of Manila.
If there is any injury to the KOR at all, the same was caused by the private conduct of a
private entity and not the City of Manila. 3 6
Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per se. DMCI-
PDI reiterates that it obtained all the necessary permits, licenses, clearances, and
certi cates for its construction. 3 7 It also refutes the KOR's claim that the Torre de
Manila would dwarf all other structures around it, considering that there are other tall
buildings even closer to the Rizal Monument itself, namely, the Eton Baypark Tower at
the corner of Roxas Boulevard and T.M. Kalaw Street (29 storeys; 235 meters from the
Rizal Monument) and Sunview Palace at the corner of M.H. Del Pilar and T.M. Kalaw
Streets (42 storeys; 250 meters from the Rizal Monument). 3 8
Fourth, DMCI-PDI next argues that it did not act in bad faith when it started
construction of its Torre de Manila project. Bad faith cannot be attributed to it since it
was within the "lawful exercise of [its] rights." 3 9 The KOR failed to present any proof
that DMCI-PDI did not follow the proper procedure and zoning restrictions of the City of
Manila. Aside from obtaining all the necessary permits from the appropriate
government agencies, 4 0 DMCI-PDI also sought clari cation on its right to build on its
site from the O ce of the City Legal O cer of Manila, the Manila CPDO, and the NHCP.
4 1 Moreover, even if the KOR proffered such proof, the Court would be in no position to
declare DMCI-PDI's acts as illegal since the Court is not a trier of facts. 4 2
HEITAD

Finally, DMCI-PDI opposes the KOR's application for a Temporary Restraining


Order (TRO) and writ of preliminary injunction. DMCI-PDI asserts that the KOR has failed
to establish "a clear and unmistakable right to enjoin the construction of Torre de
Manila, much less request its demolition." 4 3 DMCI-PDI further argues that it "has
complied with all the legal requirements for the construction of Torre de Manila x x x
[and] has violated no right of KOR that must be protected. Further, KOR stands to suffer
no damage because of its lack of direct pecuniary interest in this petition. To grant the
KOR's application for injunctive relief would constitute an unjust taking of property
without due process of law." 4 4
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Arguments of the City of Manila
In its Comment, the City of Manila argues that the writ of mandamus cannot
issue "considering that no property or substantive rights whatsoever in favor of [the
KOR] is being affected or x x x entitled to judicial protection[.]" 4 5
The City of Manila also asserts that the "issuance and revocation of a Building
Permit undoubtedly fall under the category of a discretionary act or duty performed by
the proper o cer in light of his meticulous appraisal and evaluation of the pertinent
supporting documents of the application in accordance with the rules laid out under the
National Building Code [and] Presidential Decree No. 1096," 4 6 while the remedy of
mandamus is available only to compel the performance of a ministerial duty. 4 7
Further, the City of Manila maintains that the construction of the Torre de Manila
did not violate any existing law, since the "edi ce [is] well behind (some 789 meters
away) the line of sight of the Rizal Monument." 4 8 It adds that the City of Manila's
"prevailing Land Use and Zoning Ordinance [Ordinance No. 8119] x x x allows an
adjustment in Floor Area Ratios thru the [MZBAA] subject to further final approval of the
City Council." 4 9 The City Council adopted the MZBAA's favorable recommendation in
its Resolution No. 5, ratifying all the licenses and permits issued to DMCI-PDI for its
Torre de Manila project. aDSIHc

In its Position Paper dated 15 July 2015, the City of Manila admitted that the
Zoning Permit issued to DMCI-PDI was "in breach of certain provisions of City
Ordinance No. 8119." 5 0 It maintained, however, that the de ciency is "procedural in
nature and pertains mostly to the failure of [DMCI-PDI] to comply with the stipulations
that allow an excess in the [FAR] provisions." 5 1 Further, the City of Manila argued that
the MZBAA, when it recommended the allowance of the project's variance, imposed
certain conditions upon the Torre de Manila project in order to mitigate the possible
adverse effects of an excess FAR. 5 2
The Issue
The issues raised by the parties can be summed up into one main point: Can the
Court issue a writ of mandamus against the o cials of the City of Manila to stop the
construction of DMCI-PDI's Torre de Manila project?
The Court's Ruling
The petition for mandamus lacks merit and must be dismissed.
There is no law prohibiting the construction of the Torre de Manila.
In Manila Electric Company v. Public Service Commission , 5 3 the Court held that
"what is not expressly or impliedly prohibited by law may be done, except
when the act is contrary to morals, customs and public order. " This principle is
fundamental in a democratic society, to protect the weak against the strong, the
minority against the majority, and the individual citizen against the government. In
essence, this principle, which is the foundation of a civilized society under the rule of
law, prescribes that the freedom to act can be curtailed only through law. Without this
principle, the rights, freedoms, and civil liberties of citizens can be arbitrarily and
whimsically trampled upon by the shifting passions of those who can shout the loudest,
or those who can gather the biggest crowd or the most number of Internet trolls. In
other instances, 5 4 the Court has allowed or upheld actions that were not expressly
prohibited by statutes when it determined that these acts were not contrary to morals,
customs, and public order, or that upholding the same would lead to a more equitable
solution to the controversy. However, it is the law itself Articles 1306 5 5 and 1409 (1)
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56of the Civil Code which prescribes that acts not contrary to morals, good customs,
public order, or public policy are allowed if also not contrary to law. ATICcS

In this case, there is no allegation or proof that the Torre de Manila project is
"contrary to morals, customs, and public order" or that it brings harm, danger, or hazard
to the community. On the contrary, the City of Manila has determined that DMCI-PDI
complied with the standards set under the pertinent laws and local ordinances to
construct its Torre de Manila project.
There is one fact that is crystal clear in this case. There is no law prohibiting the
construction of the Torre de Manila due to its effect on the background "view, vista,
sightline, or setting" of the Rizal Monument.
Zoning, as well as land use, in the City of Manila is governed by Ordinance No.
8119. The ordinance provides for standards and guidelines to regulate development
projects of historic sites and facilities within the City of Manila.
Specifically, Section 47 reads:
SEC. 47. Historical Preservation and Conservation Standards. Historic sites
and facilities shall be conserved and preserved. These shall, to the extent
possible, be made accessible for the educaional and cultural enrichment of the
general public.
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to conserve and
enhance their heritage values.
2. Historic sites and facilities shall be adaptively re-used.
3. Any person who proposes to add, to alter, or partially demolish a designated
heritage property will require the approval of the City Planning and Development
O ce (CPDO) and shall be required to prepare a heritage impact statement that
will demonstrate to the satisfaction of CPDO that the proposal will not adversely
impact the heritage signi cance of the property and shall submit plans for review
by the CPDO in coordination with the National Historical Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage properties
shall be evaluated based on criteria established by the heritage signi cance of
the particular property or site.
5. Where an owner of a heritage property applies for approval to demolish a
designated heritage property or properties, the owner shall be required to provide
evidence to satisfaction that demonstrates that rehabilitation and re-use of the
property is not viable.
6. Any designated heritage property which is to be demolished or signi cantly
altered shall be thoroughly documented for archival purposes with a history,
photographic records, and measured drawings, in accordance with accepted
heritage recording guidelines, prior to demolition or alteration.
7. Residential and commercial in ll in heritage areas will be sensitive to the
existing scale and pattern of those areas, which maintains the existing landscape
and streetscape qualities of those areas, and which does not result in the loss of
any heritage resources. ETHIDa

8. Development plans shall ensure that parking facilities (surface lots,


residential garages, stand-alone parking garages and parking components as
parts of larger developments) are compatibly integrated into heritage areas,
and/or are compatible with adjacent heritage resources.
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9. Local utility companies (hydro, gas, telephone, cable) shall be required to
place metering equipment, transformer boxes, power lines, conduit, equipment
boxes, piping, wireless telecommunication towers and other utility equipment and
devices in locations which do not detract from the visual character of heritage
resources, and which do not have a negative impact on its architectural integrity.
10. Design review approval shall be secured from the CPDO for any alteration
of the heritage property to ensure that design guidelines and standards are met
and shall promote preservation and conservation of the heritage property.
(Emphasis supplied)
It is clear that the standards laid down in Section 47 of Ordinance No. 8119 only
serve as guides, as it expressly states that "the following shall guide the development
of historic sites and facilities." A guide simply sets a direction or gives an instruction to
be followed by property owners and developers in order to conserve and enhance a
property's heritage values.
On the other hand, Section 48 states:
SEC. 48. Site Performance Standards. The City considers it in the public
interest that all projects are designed and developed in a safe, e cient and
aesthetically pleasing manner. Site development shall consider the environmental
character and limitations of the site and its adjacent properties. All project
elements shall be in complete harmony according to good design principles and
the subsequent development must be visually pleasing as well as e ciently
functioning especially in relation to the adjacent properties and bordering streets.
The design, construction, operation and maintenance of every facility shall be in
harmony with the existing and intended character of its neighborhood. It shall not
change the essential character of the said area but will be a substantial
improvement to the value of the properties in the neighborhood in particular and
the community in general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with regard
to safety, e ciency and high standards of design. The natural environmental
character of the site and its adjacent properties shall be considered in the site
development of each building and facility.
2. The height and bulk of buildings and structures shall be so designed that it
does not impair the entry of light and ventilation, cause the loss of privacy and/or
create nuisances, hazards or inconveniences to adjacent developments. TIADCc

3. Abutments to adjacent properties shall not be allowed without the


neighbor's prior written consent which shall be required by the City Planning and
Development O ce (CPDO) prior to the granting of a Zoning Permit (Locational
Clearance).
4. The capacity of parking areas/lots shall be per the minimum requirements
of the National Building Code. These shall be located, developed and landscaped
in order to enhance the aesthetic quality of the facility. In no case, shall parking
areas/lots encroach into street rights-of-way and shall follow the Tra c Code as
set by the City.
5. Developments that attract a signi cant volume of public modes of
transportation, such as tricycles, jeepneys, buses, etc., shall provide on-site
parking for the same. These shall also provide vehicular loading and unloading
bays so as street traffic flow will not be impeded.
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6. Buffers, silencers, mufflers, enclosures and other noise-absorbing materials
shall be provided to all noise and vibration-producing machinery. Noise levels
shall be maintained according to levels speci ed in DENR DAO No. 30
Abatement of Noise and Other Forms of Nuisance as Defined by Law.
7. Glare and heat from any operation or activity shall not be radiated, seen or
felt from any point beyond the limits of the property.
8. No large commercial signage and/or pylon, which will be
detrimental to the skyline, shall be allowed.
9. Design guidelines, deeds of restriction, property management plans and
other regulatory tools that will ensure high quality developments shall be required
from developers of commercial subdivisions and condominiums. These shall be
submitted to the City Planning and Development O ce (CPDO) for review and
approval. (Emphasis supplied)
Section 47 of Ordinance No. 8119 speci cally regulates the "development of
historic sites and facilities. " Section 48 regulates "large commercial signage
and/or pylon. " There is nothing in Sections 47 and 48 of Ordinance No. 8119 that
disallows the construction of a building outside the boundaries of a historic site
or facility, where such building may affect the background of a historic site. In this
case, the Torre de Manila stands 870 meters outside and to the rear of the Rizal
Monument and "cannot possibly obstruct the front view of the [Rizal] Monument." 5 7
Likewise, the Torre de Manila is not in an area that has been declared as an
"anthropological or archeological area" or in an area designated as a heritage zone,
cultural property, historical landmark, or a national treasure by the NHCP. 5 8
Section 15, Article XIV of the Constitution, which deals with the subject of arts
and culture, provides that "[t]he State shall conserve, promote and popularize the
nation's historical and cultural heritage and resources x x x." Since this provision is not
self-executory, Congress passed laws dealing with the preservation and conservation
of our cultural heritage. cSEDTC

One such law is Republic Act No. 10066, 5 9 or the National Cultural Heritage Act
of 2009, which empowers the National Commission for Culture and the Arts and other
cultural agencies to issue a cease and desist order "when the physical integrity of the
national cultural treasures or important cultural properties [is] found to be in danger
of destruction or signi cant alteration from its original state. " 6 0 This law
declares that the State should protect the "physical integrity " of the heritage property
or building if there is "danger of destruction or signi cant alteration from its original
state." Physical integrity refers to the structure itself how strong and sound
the structure is. The same law does not mention that another project, building, or
property, not itself a heritage property or building, may be the subject of a cease and
desist order when it adversely affects the background view, vista, or sightline of a
heritage property or building. Thus, Republic Act No. 10066 cannot apply to the Torre
de Manila condominium project.
Mandamus does not lie against the City of Manila.
The Constitution states that "[n]o person shall be deprived of life, liberty or
property without due process of law x x x." 6 1 It is a fundamental principle that no
property shall be taken away from an individual without due process, whether
substantive or procedural. The dispossession of property, or in this case the stoppage
of the construction of a building in one's own property, would violate substantive due
process.
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The Rules on Civil Procedure are clear that mandamus only issues when there is a
clear legal duty imposed upon the o ce or the o cer sought to be compelled to
perform an act, and when the party seeking mandamus has a clear legal right to the
performance of such act.
In the present case, nowhere is it found in Ordinance No. 8119 or in any law,
ordinance, or rule for that matter, that the construction of a building outside the Rizal
Park is prohibited if the building is within the background sightline or view of the Rizal
Monument. Thus, there is no legal duty on the part of the City of Manila "to consider,"
in the words of the Dissenting Opinion, "the standards set under Ordinance No.
8119" in relation to the applications of DMCI-PDI for the Torre de Manila since under
the ordinance these standards can never be applied outside the boundaries of
Rizal Park. While the Rizal Park has been declared a National Historical Site, the area
where Torre de Manila is being built is a privately-owned property that is "not part of the
Rizal Park that has been declared as a National Heritage Site in 1995," and the Torre de
Manila area is in fact "well-beyond" the Rizal Park, according to NHCP Chairperson Dr.
Maria Serena I. Diokno. 6 2 Neither has the area of the Torre de Manila been designated
as a "heritage zone, a cultural property, a historical landmark or even a national
treasure." 6 3
Also, to declare that the City of Manila failed to consider the standards under
Ordinance No. 8119 would involve making a nding of fact. A nding of fact requires
notice, hearing, and the submission of evidence to ascertain compliance with the law or
regulation. In such a case, it is the Regional Trial Court which has the jurisdiction to hear
the case, receive evidence, make a proper nding of fact, and determine whether the
Torre de Manila project properly complied with the standards set by the ordinance. In
Meralco v. Public Service Commission , 6 4 we held that it is the cardinal right of a party
in trials and administrative proceedings to be heard, which includes the right of the
party interested or affected to present his own case and submit evidence in support
thereof and to have such evidence presented considered by the proper court or
tribunal. AIDSTE

To compel the City of Manila to consider the standards under Ordinance No.
8119 to the Torre de Manila project will be an empty exercise since these standards
cannot apply outside of the Rizal Park and the Torre de Manila is outside the Rizal
Park. Mandamus will lie only if the o cials of the City of Manila have a ministerial duty
to consider these standards to buildings outside of the Rizal Park. There can be no
such ministerial duty because these standards are not applicable to buildings outside
of the Rizal Park.
The KOR also invokes this Court's exercise of its extraordinary certiorari power of
review under Section 1, Article VIII 6 5 of the Constitution. However, this Court can only
exercise its extraordinary certiorari power if the City of Manila, in issuing the required
permits and licenses, gravely abused its discretion amounting to lack or excess
of jurisdiction. Tellingly, neither the majority nor minority opinion in this case has
found that the City of Manila committed grave abuse of discretion in issuing the
permits and licenses to DMCI-PDI. Thus, there is no justi cation at all for this Court to
exercise its extraordinary certiorari power.
Moreover, the exercise of this Court's extraordinary certiorari power is limited to
actual cases and controversies that necessarily involve a violation of the Constitution or
the determination of the constitutionality or validity of a governmental act or issuance.
Speci c violation of a statute that does not raise the issue of constitutionality or
validity of the statute cannot, as a rule, be the subject of the Court's direct exercise of
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its expanded certiorari power. Thus, the KOR's recourse lies with other judicial remedies
or proceedings allowed under the Rules of Court.
I n Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved
Medical Centers Association, Inc., 6 6 we held that in cases where the question of
constitutionality of a governmental action is raised, the judicial power that the courts
exercise is likewise identi ed as the power of judicial review the power to review the
constitutionality of the actions of other branches of government. As a rule, as required
by the hierarchy of courts principle, these cases are led with the lowest court with
jurisdiction over the subject matter. The judicial review that the courts undertake
requires: SDAaTC

1) there be an actual case or controversy calling for the exercise of


judicial power;
2) the person challenging the act must have "standing" to challenge; he
must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its
enforcement;
3) the question of constitutionality must be raised at the earliest
possible opportunity; and
4) the issue of constitutionality must be the very lis mota of the case.
The lower court's decision under the constitutional scheme reaches the Supreme
Court through the appeal process, through a petition for review on certiorari under Rule
45 of the Rules of Court.
In the present case, the KOR elevated this case immediately to this Court in an
original petition for injunction which we later on treated as one for mandamus under
Rule 65. There is, however, no clear legal duty on the City of Manila to consider the
provisions of Ordinance No. 8119 for applications for permits to build outside the
protected areas of the Rizal Park. Even if there were such legal duty, the determination
of whether the City of Manila failed to abide by this legal duty would involve factual
matters which have not been admitted or established in this case. Establishing factual
matters is not within the realm of this Court. Findings of fact are the province of the trial
courts.
There is no standard in Ordinance No. 8119 for de ning or determining the
background sightline that is supposed to be protected or that is part of the "physical
integrity" of the Rizal Monument. How far should a building like the Torre de Manila be
from the Rizal Monument one, two, three, four, or ve kilometers? Even the Solicitor
General, during the Oral Arguments, conceded that the ordinance does not prescribe
how sightline is determined, neither is there any way to measure by metes and bounds
whether a construction that is not part of the historic monument itself or is
outside the protected area can be said to violate the Rizal Monument's physical
integrity, except only to say "when you stand in front of the Rizal Monument, there can
be no doubt that your view is marred and impaired." This kind of a standard has no
parameters and can include a sightline or a construction as far as the human eyes can
see when standing in front of the Rizal Monument. Obviously, this Court cannot apply
such a subjective and non-uniform standard that adversely affects property rights
several kilometers away from a historical sight or facility.
The Dissenting Opinion claims that "the City, by reason of a mistaken or
erroneous construction of its own Ordinance, had failed to consider its duties under
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[Ordinance No. 8119] when it issued permits in DMCI-PDI's favor." However, MZBAA
Zoning Board Resolution Nos. 06 and 06-A 6 7 easily dispel this claim. According to the
resolutions, the City of Manila, through the MZBAA, acted on DMCI-PDI's application for
variance under the powers and standards set forth in Ordinance No. 8119. AaCTcI

Without further proof that the MZBAA acted whimsically, capriciously, or


arbitrarily in issuing said resolution, the Court should respect MZBAA's exercise of
discretion. The Court cannot "substitute its judgment for that of said o cials who are
in a better position to consider and weigh the same in the light of the authority
speci cally vested in them by law." 6 8 Since the Court has "no supervisory power over
the proceedings and actions of the administrative departments of the government," it
"should not generally interfere with purely administrative and discretionary functions."
6 9 The power of the Court in mandamus petitions does not extend "to direct the
exercise of judgment or discretion in a particular way or the retraction or
reversal of an action already taken in the exercise of either. " 7 0
Still, the Dissenting Opinion insists on directing the re-evaluation by the City of
Manila, through the CPDO, of the permits previously issued in favor of the Torre de
Manila project to determine compliance with the standards under Ordinance No. 8119.
It also declares that the circumstances in this case warrant the pro hac vice conversion
of the proceedings in the issuance of the permits into a "contested case" necessitating
notice and hearing with all the parties involved.
Pro hac vice means a speci c decision does not constitute a precedent because
the decision is for the speci c case only, not to be followed in other cases. A pro hac
vice decision violates statutory law Article 8 of the Civil Code which states that
"judicial decisions applying or interpreting the laws or the Constitution shall form part
of the legal system of the Philippines." The decision of the Court in this case cannot be
pro hac vice because by mandate of the law every decision of the Court forms part of
the legal system of the Philippines. If another case comes up with the same facts as
the present case, that case must be decided in the same way as this case to comply
with the constitutional mandate of equal protection of the law. Thus, a pro hac vice
decision also violates the equal protection clause of the Constitution.
It is the policy of the courts not to interfere with the discretionary executive acts
of the executive branch unless there is a clear showing of grave abuse of discretion
amounting to lack or excess of jurisdiction. Mandamus does not lie against the
legislative and executive branches or their members acting in the exercise of their
o cial discretionary functions. This emanates from the respect accorded by the
judiciary to said branches as co-equal entities under the principle of separation of
powers.
In De Castro v. Salas , 7 1 we held that no rule of law is better established than the
one that provides that mandamus will not issue to control the discretion of an o cer or
a court when honestly exercised and when such power and authority is not abused. acEHCD

In exceptional cases, the Court has granted a prayer for mandamus to compel
action in matters involving judgment and discretion, only "to act, but not to act one way
or the other," 7 2 and only in cases where there has been a clear showing of
grave abuse of discretion, manifest injustice, or palpable excess of authority.
73

In this case, there can be no determination by this Court that the City of Manila
had been negligent or remiss in its duty under Ordinance No. 8119 considering that this
determination will involve questions of fact. DMCI-PDI had been issued the proper
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permits and had secured all approvals and licenses months before the actual
construction began. Even the KOR could not point to any law that respondent City of
Manila had violated and could only point to declarations of policies by the NHCP and
the Venice Charter which do not constitute clear legal bases for the issuance of a writ
of mandamus.
The Venice Charter is merely a codi cation of guiding principles for the
preservation and restoration of ancient monuments, sites, and buildings. It brings
together principles in the eld of historical conservation and restoration that have been
developed, agreed upon, and and laid down by experts over the years. Each country,
however, remains "responsible for applying the plan within the framework of its own
culture and traditions." 7 4
The Venice Charter is not a treaty and therefore does not become enforceable as
law. The Philippines is not legally bound to follow its directive, as in fact, these are not
directives but mere guidelines a set of the best practices and techniques that have
been proven over the years to be the most effective in preserving and restoring
historical monuments, sites and buildings.
The City of Manila concedes that DMCI-PDI's Zoning Permit was granted without
going through the process under Ordinance No. 8119. However, the same was properly
recti ed when, faced with mounting opposition, DMCI-PDI itself sought clari cation
from the City of Manila and immediately began complying with the procedure for
applying for a variance. The MZBAA did subsequently recommend the approval of the
variance and the City Council of Manila approved the same, ratifying the licenses and
permits already given to DMCI-PDI. Such rati cation was well within the right of the City
Council of Manila. The City Council of Manila could have denied the application had it
seen any reason to do so. Again, the rati cation is a function of the City Council of
Manila, an exercise of its discretion and well within the authority granted it by law and
the City's own Ordinance No. 8119.
The main purpose of zoning is the protection of public safety, health,
convenience, and welfare. There is no indication that the Torre de Manila project brings
any harm, danger, or hazard to the people in the surrounding areas except that the
building allegedly poses an unsightly view on the taking of photos or the visual
appreciation of the Rizal Monument by locals and tourists. In fact, the Court must take
the approval of the MZBAA, and its subsequent rati cation by the City Council of
Manila, as the duly authorized exercise of discretion by the city o cials. Great care
must be taken that the Court does not unduly tread upon the local government's
performance of its duties. It is not for this Court to dictate upon the other branches of
the government how their discretion must be exercised so long as these branches do
not commit grave abuse of discretion amounting to lack or excess of jurisdiction.
Likewise, any violation of Ordinance No. 8119 must be determined in the proper
case and before the proper forum. It is not within the power of this Court in this case to
make such determination. Without such determination, this Court cannot simply declare
that the City of Manila had failed to consider its duties under Ordinance No. 8119 when
it issued the permits in DMCI-PDI's favor without making a nding of fact how the City
of Manila failed "to consider" its duties with respect to areas outside the boundaries of
the Rizal Park. In the rst place, this Court has no jurisdiction to make ndings of fact in
an original action like this before this Court. Moreover, the City of Manila could not
legally apply standards to sites outside the area covered by the ordinance that
prescribed the standards. With this, taken in light of the lack of nding that there was
grave abuse of discretion on the part of the City of Manila, there is no basis to issue the
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writ of mandamus against the City of Manila.
During the Oral Arguments, it was established that the granting of a variance is
neither uncommon nor irregular. On the contrary, current practice has made granting of
a variance the rule rather than the exception: EcTCAD

JUSTICE CARPIO:
Let's go to Ordinance 8119. For residential condominium that stand alone,
in other words not part of a commercial complex or an industrial complex .
..
ATTY. FLAMINIANO:
Yes, Your Honor.
JUSTICE CARPIO:
The [Floor Area Ratio (FAR)] is uniform for the entire City of Manila, the FAR
4, correct?
ATTY. FLAMINIANO:
I believe so, Your Honor, it's FAR 4.
JUSTICE CARPIO:
So it's FAR 4 for all residential condominium complex or industrial projects.
ATTY. FLAMINIANO:
There might be, the FAR might be different when it comes to condominiums
in commercial areas, Your Honor.
JUSTICE CARPIO:
Yes, I'm talking of stand-alone. . .
ATTY. FLAMINIANO:
Yes, Your Honor.
JUSTICE CARPIO:
. . . residential condominiums. . .
ATTY. FLAMINIANO:
Uniform at FAR 4, Your Honor.
JUSTICE CARPIO:
And the percentage of land occupancy is always 60 percent.
ATTY. FLAMINIANO:
60 percent, correct, Your Honor.
JUSTICE CARPIO:
Okay. . .how many square meters is this Torre de Manila?
xxx xxx xxx
ATTY. FLAMINIANO:
The land area, Your Honor, it's almost 5,000. . .5,556.
JUSTICE CARPIO: SDHTEC

So, it's almost half a hectare.

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ATTY. FLAMINIANO:
Yes, Your Honor.
JUSTICE CARPIO:
And at FAR 4, it can only build up to 18 storeys, I mean at FAR 4, is that
correct?
ATTY. FLAMINIANO:
If the 60 percent of the lot. . .
JUSTICE CARPIO:
Yes, but that is a rule.
ATTY. FLAMINIANO:
That is a rule, that's the rule. Your Honor.
JUSTICE CARPIO:
60 percent of. . .
ATTY. FLAMINIANO:
Of the land area.
JUSTICE CARPIO:
. . .buildable, the rest not buildable.
ATTY. FLAMINIANO:
Yes, Your Honor.
JUSTICE CARPIO:
Okay, so if you look around here in the City of Manila anywhere you go, you
look at stand alone residential condominium buildings. . .
ATTY. FLAMINIANO:
There's a lot of them, Your Honor. HSAcaE

JUSTICE CARPIO:
It's always not FAR 4, it's more than FAR 4.
ATTY. FLAMINIANO:
Yes, Your Honor.
JUSTICE CARPIO:
And the buildable area is to the edge of the property. . .it's not 60 percent,
correct?
ATTY. FLAMINIANO:
Yes, Your Honor.
JUSTICE CARPIO:
So, if you look at all the . . . residential buildings in the last ten
years, they [have] all variances. They did not follow the original
FAR 4 or the 60 percent (of land occupancy). Every residential
building that stand alone was a variance.
ATTY. FLAMINIANO:

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That's correct, Your Honor.
JUSTICE CARPIO:
So the rule really in the City of Manila is variance, and the
exception which is never followed is FAR 4.
ATTY. FLAMINIANO:
FAR 4, it appears to be that way, Your Honor.
xxx xxx xxx
JUSTICE CARPIO:
Every developer will have to get a variance because it doesn't
make sense to follow FAR 4 because the land is so expensive and
if you can build only two storeys on a 1,000-square meter lot, you
will surely lose money, correct?
ATTY. FLAMINIANO:
Exactly, Your Honor. 75 (Emphasis supplied)
Thus, the MZBAA's grant of the variance cannot be used as a basis to
grant the mandamus petition absent any clear nding that said act amounted
to "grave abuse of discretion, manifest injustice, or palpable excess of
authority."
The KOR is Estopped from Questioning the
Torre de Manila Construction.
The KOR is now estopped from questioning the construction of the Torre de
Manila project. The KOR itself came up with the idea to build a structure right behind
the Rizal Monument that would dwarf the Rizal Monument. AScHCD

In the mid-1950s, the Jose Rizal National Centennial Commission (JRNCC)


formulated a plan to build an Educational Center within the Rizal Park. In July 1955, the
KOR proposed the inclusion of a national theater on the site of the Educational Center.
The JRNCC adopted the proposal. The following year, a law Republic Act No. 1427 7 6
authorized the establishment of the Jose Rizal National Cultural Shrine consisting of
a national theater, a national museum, and a national library on a single site. 7 7
To be built on the open space right behind the 12.7 meter high Rizal Monument
were: the KOR's proposed national theater, standing 29.25 meters high and 286 meters
in distance from the Rizal Monument; the national library, standing 25.6 meters high and
180 meters in distance from the Rizal Monument, with its rear along San Luis Street
(now T.M. Kalaw Street); and facing it, the national museum, at 19.5 meters high and
190 meters in distance from the Rizal Monument, with its back along P. Burgos Street.
78

However, several sectors voiced their objections to the construction for various
reasons. Among them, the need to preserve the open space of the park, the high cost of
construction, the desecration of the park's hallowed grounds, and the fact that the
proposed cultural center including the 29.25 meter high national theater
proposed by the KOR would dwarf the 12.7 meter high Rizal Monument. 7 9 The
JRNCC revised the plan and only the National Library which still stands today was
built. 8 0
According to the NHCP, the KOR even proposed to build a Rizal Center on the
park as recently as 2013. 8 1 The proposal was disapproved by the NHCP and the
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Department of Tourism.
Surely, as noble as the KOR's intentions were, its proposed center would have
dwarfed the Rizal Monument with its size and proximity.
In contrast, the Torre de Manila is located well outside the Rizal Park, and to the
rear of the Rizal Monument approximately 870 meters from the Rizal Monument and
30 meters from the edge of Rizal Park. 8 2
It is a basic principle that "one who seeks equity and justice must come to court
with clean hands." 8 3 In Jenosa v. Delariarte , 8 4 the Court reiterated that he who seeks
equity must do equity, and he who comes into equity must come with clean hands. This
"signi es that a litigant may be denied relief by a court of equity on the ground that his
conduct has been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the
controversy in issue." 8 5 Thus, the KOR, having earlier proposed a national theater a
mere 286 meters in distance from the back of the Rizal Monument that would have
dwarfed the Rizal Monument, comes to this Court with unclean hands. It is now
precluded from "seeking any equitable refuge" 8 6 from the Court. The KOR's petition
should be dismissed on this ground alone. HESIcT

Torre de Manila is Not a Nuisance Per Se .


In its petition, the KOR claims that the Torre de Manila is a nuisance per se that
deserves to be summarily abated even without judicial proceedings. 8 7 However, during
the Oral Arguments, counsel for the KOR argued that the KOR now believes that the
Torre de Manila is a nuisance per accidens and not a nuisance per se. 8 8
Article 694 of the Civil Code de nes a nuisance as any act, omission,
establishment, business, condition of property, or anything else which: (1) injures or
endangers the health or safety of others; (2) annoys or offends the senses; (3) shocks,
de es or disregards decency or morality; (4) obstructs or interferes with the free
passage of any public highway or street, or any body of water; or (5) hinders or impairs
the use of property.
The Court recognizes two kinds of nuisances. The rst, nuisance per se, is one
"recognized as a nuisance under any and all circumstances, because it constitutes a
direct menace to public health or safety, and, for that reason, may be abated summarily
under the unde ned law of necessity." 8 9 The second, nuisance per accidens, is that
which "depends upon certain conditions and circumstances, and its existence being a
question of fact, it cannot be abated without due hearing thereon in a tribunal
authorized to decide whether such a thing in law constitutes a nuisance." 9 0
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The
Torre de Manila project cannot be considered as a "direct menace to public health or
safety." Not only is a condominium project commonplace in the City of Manila, DMCI-
PDI has, according to the proper government agencies, complied with health and safety
standards set by law. DMCI-PDI has been granted the following permits and clearances
prior to starting the project: (1) Height Clearance Permit from the Civil Aviation
Authority of the Philippines; 9 1 (2) Development Permit from the HLURB; 9 2 (3) Zoning
Certi cation from the HLURB; 9 3 (4) Certi cate of Environmental Compliance
Commitment from the Environment Management Bureau of the Department of
Environment and Natural Resources; 9 4 (5) Barangay Clearance; 9 5 (6) Zoning Permit; 9 6
(7) Building Permit; 9 7 (8) and Electrical and Mechanical Permit. 9 8
Later, DMCI-PDI also obtained the right to build under a variance recommended
by the MZBAA and granted by the City Council of Manila. Thus, there can be no doubt
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that the Torre de Manila project is not a nuisance per se.
On the other hand, the KOR now claims that the Torre de Manila is a nuisance per
accidens. AcICHD

By de nition, a nuisance per accidens is determined based on its surrounding


conditions and circumstances. These conditions and circumstances must be well
established, not merely alleged. The Court cannot simply accept these conditions and
circumstances as established facts as the KOR would have us do in this case. 9 9 The
KOR itself concedes that the question of whether the Torre de Manila is a nuisance per
accidens is a question of fact. 1 0 0
The authority to decide when a nuisance exists is an authority to nd facts, to
estimate their force, and to apply rules of law to the case thus made. 1 0 1 This Court is
no such authority. It is not a trier of facts. It cannot simply take the allegations in the
petition and accept these as facts, more so in this case where these allegations are
contested by the respondents.
The task to receive and evaluate evidence is lodged with the trial courts. The
question, then, of whether the Torre de Manila project is a nuisance per accidens must
be settled after due proceedings brought before the proper Regional Trial Court. The
KOR cannot circumvent the process in the guise of protecting national culture and
heritage.
The TRO must be lifted.
Injunctive reliefs are meant to preserve substantive rights and prevent further
injury until nal adjudication on the merits of the case. In the present case, since the
102
legal rights of the KOR are not well-de ned, clear, and certain, the petition for
mandamus must be dismissed and the TRO lifted.
The general rule is that courts will not disturb the ndings of administrative
agencies when they are supported by substantial evidence. In this case, DMCI-PDI
already acquired vested rights in the various permits, licenses, or even variances it had
applied for in order to build a 49-storey building which is, and had been, allowed by the
City of Manila's zoning ordinance.
As we have time and again held, courts generally hesitate to review discretionary
decisions or actions of administrative agencies in the absence of proof that such
decisions or actions were arrived at with grave abuse of discretion amounting to lack
or excess of jurisdiction.
I n JRS Business Corp. v. Montesa , 1 0 3 we held that mandamus is the proper
remedy if it could be shown that there was neglect on the part of a tribunal in the
performance of an act which the law speci cally enjoins as a duty, or there was an
unlawful exclusion of a party from the use and enjoyment of a right to which he is
clearly entitled. Only speci c legal rights may be enforced by mandamus if they are
clear and certain. If the legal rights of the petitioner are not well-de ned, de nite, clear,
and certain, 1 0 4 the petition must be dismissed. Stated otherwise, the writ never issues
in doubtful cases. It neither confers powers nor imposes duties. It is simply a
command to exercise a power already possessed and to perform a duty already
imposed. 1 0 5
In sum, bearing in mind the Court does not intervene in discretionary acts of the
executive department in the absence of grave abuse of discretion, 1 0 6 and considering
that mandamus may only be issued to enforce a clear and certain legal right, 1 0 7 the
present special civil action for mandamus must be dismissed and the TRO issued
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earlier must be lifted. caITAC

A FINAL WORD
It had been Rizal's wish to die facing the rising sun. In his Mi Ultimo Adios, the
poem he left for his family the night before he was executed, Rizal wrote:
Yo muero cuando veo que el cielo se colora
Y al fin anuncia el da tras lbrego capuz 108
[Ako'y mamamatay, ngayong namamalas
na sa Silanganan ay namamanaag
yaong maligayang araw na sisikat
sa likod ng luksang nagtabing na ulap.] 109
[I die just when I see the dawn break,
Through the gloom of night, to herald the day] 110
Yet at the point of his execution, he was made to stand facing West towards
Manila Bay, with his back to the ring squad, like the traitor the colonial government
wished to portray him. He asked to face his executioners, facing the East where the sun
would be rising since it was early morning, but the Spanish captain did not allow it. As
he was shot and a single bullet struck his frail body, Rizal forced himself, with his last
remaining strength, to turn around to face the East and thus he fell on his back with his
face to the sky and the rising sun. Then, the Spanish captain approached Rizal and
finished him off with one pistol shot to his head.
Before his death, Rizal wrote a letter to his family. He asked for a simple tomb,
marked with a cross and a stone with only his name and the date of his birth and death;
no anniversary celebrations; and interment at Paang Bundok (now, the Manila North
Cemetery). Rizal never wanted his grave to be a burden to future generations.
The letter never made it to his family and his wishes were not carried out. The
letter was discovered many years later, in 1953. By then, his remains had been
entombed at the Rizal Monument, countless anniversaries had been celebrated, with
memorials and monuments built throughout the world.
Rizal's wish was unmistakable: to be buried without pomp or pageantry, to the
point of reaching oblivion or obscurity in the future. 1 1 1 For Rizal's life was never about
fame or vainglory, but for the country he loved dearly and for which he gave up his life.
The Rizal Monument is expressly against Rizal's own wishes. That Rizal's statue
now stands facing West towards Manila Bay, with Rizal's back to the East, adds salt to
the wound. If we continue the present orientation of Rizal's statue, with Rizal facing
West, we would be like the Spanish captain who refused Rizal's request to die facing the
rising sun in the East. On the other hand, if Rizal's statue is made to face East, as Rizal
had desired when he was about to be shot, the background the blue sky above Manila
Bay would forever be clear of obstruction, and we would be faithful to Rizal's dying
wish. TAIaHE

WHEREFORE, the petition for mandamus is DISMISSED for lack of merit. The
Temporary Restraining Order issued by the Court on 16 June 2015 is LIFTED effective
immediately.
SO ORDERED.
Sereno, C.J., Bersamin, Del Castillo and Reyes, JJ., concur.
Velasco, Jr., J., please see concurring opinion.
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Leonardo-de Castro, Peralta, Caguioa and Martires, JJ., join the dissent of Justice
Jardeleza.
Mendoza, J., I join separate opinion of J. Jardeleza.
Perlas-Bernabe and Tijam JJ., please see separate concurring opinion.
Leonen, J., I concur. See separate opinion.
Jardeleza, J., please see dissenting opinion.

Separate Opinions
VELASCO, JR. , J., concurring :
I concur with the majority decision. I submit this opinion only to articulate the
nuances of my position and to address several points raised by the minority through
the dissent of Justice Francis H. Jardeleza (Justice Jardeleza).
I
This case started out as a petition for injunction led directly before us by the
petitioner Knights of Rizal against the respondent DMCI Project Developers, Inc. (DMCI-
PDI). 1 In it, petitioner primarily prayed for the following reliefs: 2
1. The issuance of an order enjoining the DMCI-PDI from continuing
with the construction of the Torre de Manila building; and
2. The issuance of an order directing the demolition of so much of
the said building already erected by the DMCI-PDI.
Subsequently, however, we issued a resolution: 3 (a) treating the instant case as a
mandamus petition and (b) impleading as public respondents herein the City of
Manila, the National Commission for Culture and the Arts (NCCA), the National Museum
(NM) and the National Historical Commission of the Philippines (NHCP).
The conversion of the instant case to a mandamus petition and the addition of
public respondents, to my mind, made clear what ought to be the central issue of the
case: whether any or all of the respondents may be compelled to perform one
or both acts sought to be enjoined in the original petition for injunction . The
main inquiry, in other words, is whether any or all of the respondents may be compelled
(1) to stop or prohibit the continued construction of the Torre de Manila building and/or
(2) to demolish so much of the said building that already stands. ICHDca

In order to answer the foregoing query, it is necessary to make a parallel


determination on whether any of the respondents has the legal duty to perform one or
both of the mentioned acts. It is rudimentary, after all, that a writ of mandamus will only
lie to compel the performance of an act if such act is one "which the law speci cally
enjoins as a duty resulting from an o ce, trust or station " 4 on the part of the
respondent/s.
During the course of this case, various arguments were proffered in favor of the
view that the respondents have the legal duties to stop or prohibit the continued
construction of the Torre de Manila building and/or to demolish it in its present state. I
find that these arguments may generally be subdivided into three (3) kinds.
The first argument is premised on the claim that the Torre de Manila building
visible as it is in the backdrop of the Rizal Monument to anyone facing such monument
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at or from a certain distance had impaired the view of dominance of the Rizal
Monument in relation to its background (view of dominance), which view is
supposedly protected by the following laws and guidelines:
1. Sections 15 and 16, Article XIV of the Constitution,
2. Republic Act (RA) Nos. 4846, 7356 and 10066,
3. the Venice Charter, and
4. the 2012 NHCP Guidelines on Monuments Honoring National Heroes,
Illustrious Filipinos and Other Personages (NHCP Guidelines).
The theory of the rst argument is that the illegal impairment of the view of
dominance of the Rizal Monument gives rise to the duty of the respondents
particularly the DMCI-PDI (as the builder of the offending structure), as well as the
NCCA, NM and NHCP (as the cultural agencies tasked by RA No. 10066 to protect the
nation's cultural properties) 5 to perform the subject acts.
T h e second argument, on the other hand, rests on the notion that the
construction of the Torre de Manila was carried out by DMCI-PDI in bad faith with the
use of void permits, viz.:
1. The zoning permit issued to DMCI-PDI for the construction of the
Torre de Manila is void for exceeding the maximum number of oors
allowed for buildings within the Institutional University Cluster per
Section 17 of Ordinance No. 8119 of the City of Manila.
2. The building permit for the Torre de Manila is also void as a necessary
consequence of the nullity of the zoning permit, pursuant to Section
69 of Ordinance No. 8119.
3. The variance granted to DMCI-PDI by the Sangguniang Panglungsod
of the City of Manila, which exempted the Torre de Manila from the
oor and height limits of Ordinance No. 8119, is also void due to it not
being obtained in accordance with the procedure prescribed under
Section 61 of the same ordinance.
4. All of the foregoing irregularities in its permits were known to DMCI-
PDI yet it still pushed through with the construction of the Torre de
Manila.
The theory of the second argument is that the nullity of the permits coupled by
the bad faith of DMCI-PDI gives rise to the duty of the DMCI-PDI and of the City of
Manila to perform the subject acts. cDHAES

Lastly, the third argument is premised on the assumption that the Torre de
Manila building constitutes as a nuisance for it apparently annoys or offends the
senses of anyone viewing the Rizal Monument.
The theory of the third argument is that the character of the Torre de Manila
building as a nuisance gives rise to the duty of DMCI-PDI and the City of Manila to
cause the summary abatement of the said building.
II
The minority, through the dissent of Justice Jardeleza, con ned themselves in
addressing only the first argument. 6
As to the rst argument, the minority essentially held that the view of dominance
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of the Rizal Monument is not afforded any legal protection under: (a) Sections 15 and
16 of Article XIV of the Constitution, (b) RA Nos. 4846, 7356 and 10066, (c) the Venice
Charter or (d) the NHCP Guidelines. The minority elucidated thusly: 7
a. Sections 15 and 16 of Article XIV of the Constitution are not self-
executing provisions; both are mere expressions of general state
policies and so, by themselves and without the aid of any enabling
law, they cannot be the source of any enforceable right or claim of
protection.
b. Though RA Nos. 4846, 7356 and 10066 all implement to some extent
the broad policies of Sections 15 and 16 of Article XIV of the
Constitution, none of the said statutes provides any clear and de nite
protection to a view of dominance for any of the country's historical
and cultural sites, let alone one for the Rizal Monument.
c. The Venice Charter does not rise to the level of enforceable law. There
is no showing that the Philippines has legally committed to observe
such charter. Neither was it established that the principles contained
therein are norms of general or customary international law. At any
rate, the Venice Charter, by its own words, only seems to be hortatory.
d. The NHCP Guidelines is neither law nor an enforceable regulation. It
appears that it has never been published nor led with the Law Center
of the University of the Philippines. Moreover, like the Venice Charter,
the NHCP Guidelines appears to be merely hortatory.
The inquiry of the minority, however, did not stop there.
According to the minority, even though no national law categorically guarantees a view of
dominance to any of the nation's cultural properties, there exists a local Manila legislation
that actually extends such a guarantee to at least the city's historical sites and facilities. 8
To this end, they cited Sections 47 and 48 of Ordinance No. 8119 of the City of Manila. As
the minority explained: 9
1. Section 47 of Ordinance No. 8119 provides standards that aim to
protect Manila's historical sites and facilities from impairment that
may be caused by development projects. The protection afforded by
Section 47 extends even to the view of the city's historical sites and
facilities, as two of the standards therein make explicit reference to:
(a) the maintenance of the "landscape and streetscape" qualities of
such sites and facilities as well as (b) the preservation of the "visual
character" of the same. TCAScE

2. Section 48 of Ordinance No. 8119, on the other hand, prescribes


standards that aim to protect properties and neighborhoods that are
adjacent to a proposed development project. Two standards therein
make explicit reference to: (a) an obligation of property developers to
consider, in the design of their projects, the " natural environmental
character" of adjacent properties as well as (b) a prohibition against
certain projects that could be detrimental to the "skyline."
Be that as it may, the minority withheld themselves from determining: (a) whether
the Rizal Monument and Park is a historical site or facility in contemplation of
Ordinance No. 8119, (b) whether the abovementioned standards in Sections 47 and 48
apply to the DMCI-PDI and the Torre de Manila building and, if so, (c) whether DMCI-PDI,
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in erecting the said building, had breached or impaired any of such standards. They
implicitly considered the City of Manila as the entity in the best position to make such
determinations; pointing out that it was supposedly the latter's duty do so, as, in fact, it
should have already done so, prior to issuing permits to DMCI-PDI.
In this case, however, the minority found that the City of Manila had failed to
consider the abovementioned standards in Sections 47 and 48 of Ordinance No. 8119
when it issued the permits for the construction of the Torre de Manila to DMCI-PDI. 1 0
And so, the minority posited that to a writ of mandamus compelling the City of
Manila to re-evaluate the permits it issued to DMCI-PDI ought to be issued in the
present case.
III
I share the minority's disregard of the second and third arguments. The second
and third arguments actually pose factual questions that are more properly settled in
the rst instance, not by the Court, but by an appropriate o ce, administrative agency
or trial court.
I even agree with their position that the Rizal Monument's view of dominance is
neither protected nor guaranteed by: (a) Sections 15 and 16 of Article XIV of the
Constitution, (b) RA Nos. 4846, 7356 and 10066, (c) the Venice Charter or (d) the NHCP
Guidelines.
I disagree, however, with the minority's interpretation that the view that is, the
view of dominance of Manila's historical sites and facilities are protected by Sections
47 and 48 of Ordinance No. 8119. A careful reading of both sections, in their proper
contexts, easily disproves such interpretation.
Hence, I cannot but disagree with the minority's proposition compelling the City
of Manila, through a writ of mandamus, to re-evaluate the permits of DMCI-PDI. Such a
re-evaluation will serve no useful purpose given that none of the standards enumerated
under Sections 47 and 48 of Ordinance No. 8119 can have any application to the
present dispute.
I remain convinced that there is no law, whether national or local, that protects
the view of dominance of the Rizal Monument. Verily, I am constrained to follow the
only logical conclusion of that nding, i.e., there is no compellable duty on the part
of any of the respondents to stop or prohibit the construction of the Torre de
Manila building or to otherwise destroy so much of the said building already
constructed .
I, therefore, join the majority and vote to dismiss the mandamus petition.
A. Sections 47 and 48 of Ordinance No. 8119 Do Not Protect View of
Dominance of Rizal Monument
Contrary to the minority's nding, Sections 47 and 48 do not protect the view
particularly, the view of dominance of Manila's historical sites and facilities.
View of Dominance
The view of dominance of a property, at least for purposes of the dispute at
hand, refers to a characteristic of a property that permits it to be viewed as the sole or
most prominent element vis--vis its background. This is the attribute of the Rizal
Monument that was supposedly impaired by the construction of the Torre de Manila ,
per the proponents of the first argument.
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An inviolable view of dominance is not an inherent attribute of any kind of
property not even of our monuments and national shrines. 1 1 To merit inviolability,
there must be a law that guarantees and protects it.
A law that purports to protect the view of dominance of a particular property,
such as a historical site or facility, must necessarily be a law that either prohibits the
construction of buildings and other structures within a certain area outside of the
premises of the site or facility or prescribes speci c limitations on any such
construction. Without such express prohibition or limitation, there can be no effective
assurance that the view of dominance of a historical site or facility would not be
impaired. cTDaEH

The nature of a law protecting a view of dominance, therefore, is similar to one


that establishes an easement; it imposes a burden (in this case, a building prohibition
or restriction) upon certain properties so as to ensure that the prominent view of
another property in relation to its background remains unimpaired.
Section 47 Does Not Prohibit or Regulate the
Construction of Buildings and Other
Structures Outside of the Premises of
Manila's Historical Sites and Facilities; Its
Standards Do Not Apply to DMCI-PDI and
the Torre de Manila
Section 47 of Ordinance No. 8119, true enough, enumerates standards that aim
to protect Manila's historical sites and facilities from impairment. Those standards,
however, do not extend protection to the view of dominance of such sites and facilities.
A reading of Section 47 reveals that the standards enumerated thereunder only
apply to construction projects involving the "development of historic sites and
facilities themselves, to wit:
SEC. 47. Historical Preservation and Conservation Standards. Historic sites
and facilities shall be conserved and preserved. These shall, to the extent
possible, be made accessible for the educational and cultural enrichment of the
general public.
The following shall guide the development of historic sites and facilities :
xxx xxx xxx (emphasis supplied)
The clear import of the foregoing is that Section 47 only applies to development
projects that are implemented within the historical sites or facilities. The section, in
other words, has absolutely no application to projects that are constructed outside of
such site or facility. ITAaHc

Since Section 47 does not regulate, much less prohibit, construction projects
that surrounds the city's historical sites and facilities, it cannot be said that the said
section provides any protection or guarantee to the view of dominance of such sites
and facilities. The standards under Section 47 could not be invoked so as to prohibit a
building standing on private land and without the premises of a historical site or
facility from rising and becoming visible in the background of such site or facility.
Hence, even assuming that the Rizal Monument is a historical site or facility in
contemplation of Ordinance No. 8119, it is manifest that none of the standards under
Section 47 much less those pointed out by the minority can conceivably apply to
the case of the DMCI-PDI and the Torre de Manila . Indeed, a thorough look at some of
those standards will quickly expose their inaptness:
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First . Section 47 (3) of the ordinance, which requires the submission of a
heritage impact statement and of construction plans to the City Planning and
Development O ce and the NHCP for review, only applies to property developers who
propose to "to add, to alter or partially demolish" a heritage property. This cannot apply
to the DMCI-PDI because the Torre de Manila building is built on private property well
outside the premises of the Rizal Monument and even of the Rizal Park, and does not
add to, alter or partially demolish the said monument and park.
Second . Section 47 (7) of the ordinance, which requires residential and
commercial in ll in heritage areas to maintain the existing "landscape and streetscape"
qualities of such area, cannot apply to DMCI-PDI simply because the Torre de Manila
does not stand on any such "heritage area."
Apropos to this point is the uncontroverted fact that the Torre de Manila building
stands on an area that has not been declared as an "anthropological or archeological
area," nor designated as a " heritage zone, cultural property, historical landmark or a
national treasure" by the NHCP. 1 2
Third . Section 47 (9) of the ordinance, which requires power and communication
equipment 1 3 to be placed in locations that do not detract from the "visual character" of
the heritage resources and which do not have negative impact on its architectural
integrity, can never apply to DMCI-PDI because it is not a " local utility company" and its
Torre de Manila project is not involved with the installation of any power and
communication equipment in or within the Rizal Monument and Park.
Verily, none of the standards under Section 47 of Ordinance No. 8119 may be
considered as protective of the view of dominance of any of Manila's historical sites
and facilities. Such standards are clearly meant to apply only to development projects
within the historical sites or facilities themselves. None of them, consequently, can have
any possible application to DMCI-PDI and the Torre de Manila.
Standards Under Section 48 Cited by the
Majority are Mere General Norms on
Construction Projects that Do Not
Guarantee the View of Dominance of
Adjacent Properties
Section 48 of Ordinance No. 8119, on the other hand, enumerates standards that
aim to protect the character, environmental limitation, convenience and safety of
properties and neighborhoods that are adjacent to a construction project. The section,
by its terms, is meant to have universal application, i.e., its standards apply to all
construction projects within the city (such as the Torre de Manila ) and are intended to
protect any kind of properties or neighborhoods adjacent thereto (such as the Rizal
Monument). cSaATC

Be that as it may, Section 48 does not prescribe any concrete building prohibition
or restriction on construction projects that are specially geared towards the
preservation of the view of dominance of properties or neighborhoods adjacent
thereto. The standards under Section 48 that were invoked by the majority are mere
general norms that, per se, are insu cient to guarantee such view. The said standards
do not establish operable norms by themselves and so, to gain substance, should be
read with other provisions of the ordinance or of other laws:
First . The second paragraph of Section 48, which requires every construction
project to be "in harmony with the existing and intended character of its
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neighborhoods," obviously has reference to the provisions of Ordinance No. 8119 that
demarcates the different zoning areas of the City of Manila. 1 4 This does not guarantee
the view of dominance of neighborhoods adjacent to a construction project, but only
requires the latter to adhere to the "character" of such neighborhoods as "intended" by
the zoning regulations.
Second . Section 48 (1), which requires construction projects to consider the
"natural environmental character" of adjacent properties, has perceptible reference to
the provisions of the National Building Code on sanitation 1 5 as well as to our different
environmental laws and regulations. This provision actually has no connection
whatsoever with protecting the view of dominance of a property adjacent to a
construction project.
Third . Section 48 (7), which prohibits large commercial signages that are
detrimental to the "skyline," is an adjunct of Section 36 of Ordinance No. 8119 that, in
turn, states that all "advertising, business signs and billboards" must comply with
"existing laws, rules and regulations." 1 6 This is not a direct guarantee of the view of
dominance of any property, but a general prohibition against certain kinds of signages.
Moreover, for obvious reasons, this provision cannot apply to the Torre de Manila.
Verily, none of the standards under Section 48 of Ordinance No. 8119 may be
considered as protective of the view of dominance of any of property within the city,
much less of the Rizal Monument.
B. Mandamus to Compel Re-evaluation Does Not Lie
The minority's proposition compelling the City of Manila to re-evaluate the
permits it issued to DMCI-PDI is premised on the claim that the former, in so issuing
the said permits, overlooked certain standards under Sections 47 and 48 of Ordinance
No. 8119 that supposedly protects the view of dominance of Manila's historical sites
and facilities. The underlying purpose of the re-evaluation was to allow the City of
Manila to determine, in essence, the following: (a) whether the Rizal Monument and
Park is a historical site or facility in contemplation of Ordinance No. 8119, (b) whether
the abovementioned standards in Sections 47 and 48 apply to the DMCI-PDI and the
Torre de Manila building and, if so, (c) whether DMCI-PDI, in erecting the said building,
had breached or impaired any of such standards. CHTAIc

My discussion in the immediately preceding segment, however, established that


none of the standards under Sections 47 and 48 of Ordinance No. 8119 actually
extends protection to the view of dominance of any property within Manila. It cannot be
said, therefore, that the City of Manila had overlooked, misinterpreted or misapplied any
pertinent standards when it issued the permits to DMCI-PDI. The need for a re-
evaluation is thereby also negated as the possibility that the same would yield an
outcome different from the original evaluation is but reduced to nil.
Hence, the directive compelling the City of Manila to re-evaluate the permits of
DMCI-PDI must fail. A re-evaluation will only waste resources, further delay the nal
resolution of the case and defeat the very purpose why we took cognizance of the
petition in the first place. The compulsion of such an act is certainly not the office of the
writ of mandamus.
IV
This case has been pending with us for more than two (2) years. In that time I
certainly had ample opportunity to scour our statute books for any pertinent law or
regulation that could be considered as protective of the Rizal Monument's view of
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dominance. And scour I did. Yet, I found none.
The absence of law protecting the view of dominance of the Rizal Monument
strips the rst argument of any semblance it might have rst had as a bona fide legal
dispute. Without the backing of law, the only query the argument actually brings to the
fore is whether the Rizal Monument is still pleasing to look at or to take picture of in
light of the Torre de Manila looming in its background. To my mind, that is not a
question that the Court may dabble into, much less settle in the exercise of its judicial
power.
For whatever it is worth, however, may I just add that not all viewing and
photographic opportunities 1 7 of the Rizal Monument have been lost as a consequence
of the construction of the Torre de Manila . From my own personal observation, the
visibility of Torre de Manila building in the backdrop of the Rizal Monument is highly
dependent on the distance and angle from which the monument is viewed.
Thus, while one vantage point does expose the Torre de Manila in the
background of the Rizal Monument:

Other vantage points permit a view of the Rizal Monument with only a minimum
of, if not totally without, the Torre de Manila building in sight:

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Hence, even from a lay perspective, it cannot be gainsaid that the construction of
the Torre de Manila building had deprived anyone of the chance to view or photograph
the Rizal Monument without the said building looming in the background.
V
Now, I vote.
It has been said that a writ of mandamus only lies in the enforcement of a clear
legal right on the part of the petitioner and in the compulsion of a clear legal duty on the
part of the respondent. 1 8 Here, it has been established that there is no law, whether
national or local, that protects the view of dominance of the Rizal Monument or
prohibits DMCI-PDI from constructing in its land a building such as the Torre de Manila .
The conclusion, to my mind, is inevitable petitioner is not entitled to the writ
inasmuch as there is no compellable duty on the part of any of the respondents to stop
or prohibit the construction of the Torre de Manila building or to otherwise destroy so
much of the said building already constructed.
IN VIEW WHEREOF , I vote to DISMISS the instant petition for mandamus.
PERLAS-BERNABE , J., concurring :
Before this Court is a petition for injunction 1 subsequently and uncontestedly
converted by this Court into one for mandamus led by herein petitioner Knights of
Rizal (petitioner), seeking to compel respondents 2 to stop the construction of the
Torre de Manila, a high-rise condominium project situated about 870 meters outside
and to the rear of the Rizal Park, as it allegedly obstructs the sightline, setting, or
backdrop of the Rizal Monument, which is claimed to be a historical or cultural heritage
or resource protected by the Constitution and various laws. Owing to the nature of the
action, the resolution of this case therefore depends on whether or not petitioner has
satisfied the requirements necessary for a writ of mandamus to issue. cHDAIS

"Mandamus is de ned as a writ commanding a tribunal, corporation, board or


person to do the act required to be done when it or he unlawfully neglects the
performance of an act which the law speci cally enjoins as a duty resulting from an
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o ce, trust or station, or unlawfully excludes another from the use and enjoyment of a
right or o ce or which such other is entitled, there being no other plain, speedy, and
adequate remedy in the ordinary course of law." 3
Section 3, Rule 65 of the Rules of Court lays down under what circumstances a
petition for mandamus may be filed:
SEC. 3. Petition for mandamus. When any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to be done to protect
the rights of the petitioner, and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.
xxx xxx xxx
Based on jurisprudence, the peremptory writ of mandamus is characterized as
"an extraordinary remedy that is issued only in extreme necessity, and [because] the
ordinary course of procedure is powerless to afford an adequate and speedy relief to
one who has a clear legal right to the performance of the act to be compelled." 4 Thus, it
is a basic principle that "[a] writ of mandamus can be issued only when
petitioner's legal right to the performance of a particular act which is sought
to be compelled is clear and complete . A clear legal right is a right which is
indubitably granted by law or is inferable as a matter of law . " 5 Stated
otherwise, "mandamus will issue only when the petitioner has a clear legal
right to the performance of the act sought to be compelled and the
respondent has an imperative duty to perform the same ." 6
As a corollary, it is fundamental that "[t]he remedy of mandamus lies [only]
to compel the performance of a ministerial duty . A purely ministerial act or duty
is one that an o cer 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 . If the law imposes a duty upon a public o cer, and gives him the right
to decide how or when the duty shall be performed, such duty is discretionary
and not ministerial ." 7
In this case, the clarity and completeness of petitioner's legal right to the
compulsion prayed for i.e., to stop the construction of the Torre de Manila remains
suspect in view of the present lack of established and binding legal standards
on the protection of sightlines and vistas of historical monuments, as well as
heritage sites and/or areas . EATCcI

Primarily, petitioner cites Sections 15 8 and 16, 9 Article XIV of the 1987
Constitution as basis for the relief prayed for. 1 0 However, it is quite apparent that
these are not self-executing provisions; thus, Congress must rst enact a law that
would provide guidelines for the regulation of heritage conservation, as well as the
penalties for violations thereof. Otherwise stated, there is a need for supplementary
statutory implementation to give effect to these provisions.
In this light, I join the ponencia in nding that there is currently no such law which
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speci cally prohibits the construction of any structure that may obstruct the sightline,
setting, or backdrop of a historical or cultural heritage or resource. 1 1 This prohibition is
neither explicit nor deducible from any of the statutory laws discussed in the present
petition. 1 2 There are several laws which consistently reiterate the State's policy to
protect and conserve the nation's historical and cultural heritage and resources.
However, none of them adequately map out the boundaries of protection and/or
conservation, at least to the extent of providing this Court with a reasonable impression
that sightlines, vistas, and the like of historical monuments are indeed covered by
compulsive limitations.
The closest to a statutory regulation of this kind would appear to be Section 25
of Republic Act No. (RA) 10066, which provides that:
SEC. 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 signi cant
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. (Emphasis and underscoring supplied)
However, it is unclear whether "physical integrity," as used in this provision,
covers sightlines, vistas, settings, and backdrops. The concept of "physical integrity" is
glaringly unde ned in the law, and in fact, as the ponencia aptly points out, the
reasonable inference is that "physical integrity [equates] to the structure itself how
strong and sound it is." 1 3
For another, petitioner claims that the Torre de Manila project violates the
National Historical Commission of the Philippines (NHCP) Guidelines on Monuments
Honoring National Heroes, Illustrious Filipinos and Other Personages, as well as the
International Charter for the Conservation and Restoration of Monuments and Sites,
otherwise known as the Venice Charter. 1 4 However, the NHCP Guidelines is neither a
law nor an enforceable rule or regulation, considering the lack of showing that the
requirements of publication and ling with the Law Center of the University of the
Philippines were complied with. Meanwhile, as the ponencia aptly points out, the Venice
Charter is not a treaty but "merely a codi cation of guiding principles for preservation
and restoration of ancient monuments, sites[,] and buildings[,]" which, however, defers
to each country the "responsib[ility] for applying the plan within the framework of its
own culture and traditions." 1 5 Hence, the guidelines stated therein have no binding
effect in this jurisdiction. ISHCcT

Neither can Manila Ordinance No. 8119 be considered as an existing local


legislation that provides a clear and speci c duty on the part of respondent City of
Manila (the City of Manila) to regulate development projects insofar as these may
adversely affect the view, vista, sightline or setting of a cultural property within the city.
While I nd this ordinance to be a binding regulation which not merely sets forth a
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tentative direction or instruction for property development within the city, 1 6 it is my
view that none of its provisions justify the issuance of a writ of mandamus in favor of
petitioner.
The minority proposes that a writ of mandamus be issued to re-evaluate with
dispatch the permits and variance issued in favor of DMCI Project Developers, Inc.
(DMCI-PDI)'s Torre de Manila project, and thereby determine the applicability and/or
compliance with the standards under Sections 45, 53, 47, 48, and 60 (in relation
to the grant of a variance) of Ordinance No. 8119 , and eventually, grant the
appropriate reliefs and sanctions under the law. 1 7
However, Sections 45 and 53 of Ordinance No. 8119 respectively pertain to
environmental conservation and protection standards, and the requirement of
Environmental Compliance Certi cates, and thus, are only relevant when there is an
alleged violation of an environmental law affecting the natural resources within the
City's premises:
SEC. 45. Environmental Conservation and Protection Standards. It is the
intent of the City to protect its natural resources. In order to achieve this objective,
all development shall comply with the following regulations:
1. Views shall be preserved for public enjoyment especially in sites with
high scenic quality by closely considering building orientation,
height, bulk, fencing and landscaping.
xxx xxx xxx
SEC. 53. Environmental Compliance Certi cate (ECC). Notwithstanding the
issuance of zoning permit (locational clearance) Section 63 of this Ordinance, no
environmentally critical projects nor projects located in environmentally critical
areas shall be commenced, developed or operated unless the requirements of ECC
have been complied with.
In this case, the Rizal Monument is not claimed to be a natural resource whose
view should be preserved in accordance with Section 45 (1) above. Neither was it
claimed that the Torre de Manila project is covered by and/or has breached the ECC
requirement under Section 53. Therefore, none of these provisions should apply to this
case. DHITCc

In the same vein, Section 48 of Ordinance No. 8119 provides for site
performance standards, which, among others, only require that developments within
the City be designed in a safe, efficient, and aesthetically pleasing manner:
SEC. 48. Site Performance Standards. The City considers it in the public
interest that all projects are designed and developed in a safe, e cient and
aesthetically pleasing manner . Site development shall consider the
environmental character and limitations of the site and its adjacent properties. All
project elements shall be in complete harmony according to good design
principles and the subsequent development must be visually pleasing as well as
e ciently functioning especially in relation to the adjacent properties and
bordering streets.
The design, construction, operation and maintenance of every facility shall be in
harmony with the existing and intended character of its neighborhood. It shall not
change the essential character of the said area but will be a substantial
improvement to the value of the properties in the neighborhood in particular and
the community in general.

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Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with
regard to safety, e ciency and high standards of design. The
natural environmental character of the site and its adjacent
properties shall be considered in the site development of
each building and facility .
2. The height and bulk of buildings and structures shall be so designed
that it does not impair the entry of light and ventilation, cause the
loss of privacy and/or create nuisances, hazards or inconveniences
to adjacent developments.
xxx xxx xxx
8. No large commercial signage and/or pylon, which will be
detrimental to the skyline, shall be allowed.
9. Design guidelines, deeds of restriction, property management plans
and other regulatory tools that will ensure high quality
developments shall be required from developers of commercial
subdivisions and condominiums. These shall be submitted to the
City Planning and Development O ce (CPDO) for review and
approval. (Emphases and underscoring supplied)
It is not inferable whether the "aesthetics" requirement under this provision
precludes any form of obstruction on the sightline and vista of any historical monument
within the City. It also does not account for a situation where the assailed development
and historical monument are located in different cluster zones.
It has not also been claimed that the natural environmental character of the
adjacent properties within the Torre de Manila's cluster zone, per Section 48, paragraph
3 (1) above, has been negatively impacted by the latter's construction. As worded, this
provision regulates only environmental and not historical considerations; thus, it is
premised with the requirement that "[s]ites, buildings and facilities [be] designed and
developed with regard to safety, efficiency and high standards of design."
Likewise, Section 48, paragraph 3 (8) is inapplicable, considering that the Torre
de Manila project is not a large commercial signage and/or pylon (or claimed to be an
equivalent thereof) that would prove to be detrimental to the City's skyline. CAacTH

Meanwhile, Section 60 of Ordinance No. 8119 governs the grant of variances


from the prescribed Land Use Intensity Control (LUIC) standards (among others, the
Floor Area Ratio [FAR]) on buildings within a specific zone:
SEC. 60. Deviations. Variances and exceptions from the provisions of this
Ordinance may be allowed by the Sangguniang Panlungsod as per
recommendation from the Manila Zoning Board of Adjustment and Appeals
(MZBAA) through the Committee on Housing, Urban Development and
Resettlements only when all the following terms and conditions are
obtained/existing:
1. Variance all proposed projects which do not conformed [sic] with
the prescribed allowable Land Use Intensity Control (LUIC) in the
zone.
a. The property is unique and different from other properties in
the adjacent locality and, because of its uniqueness, the
owner/s cannot obtain a reasonable return on the property.
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This condition shall include at least three (3) of the following provisions:
Conforming to the provisions of the Ordinance will cause undue
hardship on the part of the owner or occupant of the property due to
physical conditions of the property (topography, shape, etc.), which
is not self-created.
The proposed variance is the minimum deviation necessary to permit
reasonable use of the property.
The variance will not alter the physical character of the district/zone
where the property for which the variance sought is located, and will
not substantially or permanently injure the use of the other
properties in the same district or zone.
That the variance will not weaken the general purpose of the Ordinance
and will not adversely affect the public health, safety, and welfare.
The variance will be in harmony with the spirit of this Ordinance.
xxx xxx xxx
In this case, the City of Manila had already exercised its discretion to grant a
variance in favor of DMCI-PDI's Torre de Manila project. The factors taken into account
by the City of Manila in the exercise of such discretion are beyond the ambit of a
mandamus petition. As above-mentioned, "[t]he remedy of mandamus lies [only]
to compel the performance of a ministerial duty " which is "one that an o cer 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 ." 1 8 It is settled that
"[m]andamus is employed to compel the performance, when refused, of a ministerial
duty, this being its chief use and not a discretionary duty. It is nonetheless likewise
available to compel action, when refused, in matters involving judgment and discretion,
but not to direct the exercise of judgment or discretion in a particular way or
the retraction or reversal of an action already taken in the exercise of either ."
1 9 Further, while it has not been shown whether the conditions stated in Section 60
were complied with, it remains unclear whether or not these provisions can be as it
has been previously been suspended due to justifiable reasons. 2 0
What remains undisputed is the fact that DMCI-PDI applied for a variance, which
application, upon due deliberation of the City's MZBAA, has been granted. Again,
whether proper or not, the fact remains that discretion has already been exercised by
the City of Manila. Thus, mandamus is not the appropriate remedy to enjoin compliance
with the provisions on variance. Needless to state, erring public o cials who are found
to have irregularly exercised their functions may, however, be subjected to
administrative/criminal sanctions in the proper proceeding therefor. cEaSHC

Finally, Section 47 of Ordinance No. 8119, which enumerates several historical


preservation and conservation standards, was supposedly not considered by the City
of Manila when it allowed the construction of the Torre de Manila:
SEC. 47. Historical Preservation and Conservation Standards. Historic sites
and facilities shall be conserved and preserved. These shall, to the extent
possible, be made accessible for the educational and cultural enrichment of the
general public.
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to
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conserve and enhance their heritage values.
2. Historic sites and facilities shall be adaptively re-used.
3. Any person who proposes to add, to alter, or partially demolish
a designated heritage property will require the approval of the
City Planning and Development O ce (CPDO) and shall be required
to prepare a heritage impact statement that will demonstrate to
the satisfaction of CPDO that the proposal will not
adversely impact the heritage signi cance of the property
and shall submit plans for review by the CPDO in
coordination with the National Historical Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage
properties shall be evaluated based on criteria established by the
heritage significance of the particular property or site.
5. Where an owner of a heritage property applies for approval to
demolish a designated heritage property or properties, the owner
shall be required to provide evidence to satisfaction [sic] that
demonstrates that rehabilitation and re-use of the property is not
viable.
6. Any designated heritage property which is to be demolished or
signi cantly altered, shall be thoroughly documented for archival
purposes with a history, photographic records, and measured
drawings, in accordance with accepted heritage recording
guidelines, prior to demolition or alteration.
7. Residential and commercial in ll in heritage areas will be sensitive
to the existing scale and pattern of those areas, which maintains
the existing landscape and streetscape qualities of those
areas , and which does not result in the loss of any heritage
resources.
8. Development plans shall ensure that parking facilities (surface lots,
residential garages, stand-alone parking garages and parking
components as parts of larger developments) are compatibly
integrated into heritage areas, and/or are compatible with adjacent
heritage resources.IAETDc

9. Local utility companies (hydro, gas, telephone, cable) shall be


required to place metering equipment, transformer boxes, power
lines, conduit, equipment boxes, piping, wireless telecommunication
towers and other utility equipment and devices in locations which
do not detract from the visual character of heritage
resources, and which do not have a negative impact on its
architectural integrity .
10. Design review approval shall be secured from the CPDO for any
alteration of the heritage property to ensure that design guidelines
and standards are met and shall promote preservation and
conservation of the heritage property. (Emphases and underscoring
supplied)
However, the fact that Section 47 speaks of the preservation of existing
landscape and streetscape qualities (Section 47, paragraph 2 [7]), or conveys a
mandate to local utility companies not to detract from the visual character of heritage
resources (Section 47, paragraph 2 [9]) should not be enough for this Court to conclude
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that Ordinance No. 8119 imposes a prohibition against the obstruction of sightlines
and vistas of a claimed heritage property via the construction of buildings at a
particular distance therefrom. The operable norms and standards of protecting vistas
and sightlines are not only unde ned; it is also doubtful whether or not the phrases
"landscape or streetscape qualities" and "visual character of heritage resources" as
used in the provision even include the aspects of vistas and sightlines, which connote
regulation beyond the boundaries of a heritage site, building or place, as in this
case. CTIEac

In the same light, it is also unclear whether or not a purported obstruction of a


heritage property's vista and sightline would mean an "addition," "alteration," and/or
"demolition" of the said property so as to trigger the application of Section 47,
paragraph 2 (3) (which requires the prior submission of a heritage impact statement
and the approval of the CPDO) and Section 47, paragraph 2 (4) (requiring evaluation
based on the criteria of heritage signi cance) of Ordinance No. 8119. In fact, it would
be sensible to conclude that these concepts of "addition," "alteration," and/or
"demolition" relate to the concept of "physical integrity" in Section 25 of RA 10066,
which as above-discussed pertains only to the architectural stability of the structure.
Plainly speaking, there is no discernible reference from our existing body of laws
from which we can gather any legal regulation on a heritage property's vista and
sightline. After a careful study of this case, it is my conclusion that the realm of setting
preservation is a new frontier of law that is yet to be charted by our lawmakers. It is
therefore a political question left for Congress and not for this Court to presently
decide. Verily, our function as judges is to interpret the law; it is not for us to conjure
legal niceties from general policies yet unde ned by legislature. Until such time that our
legal system evolves on this subject, I believe that this Court is unprepared to grant a
mandamus petition to compel the stoppage of the Torre De Manila project simply on
the premise that the Torre de Manila "visually obstructs the vista and adds an
unattractive sight to what was once a lovely public image." 2 1 In fact, this bare claim
even appears to be in serious dispute, considering that the NHCP itself con rmed that
the Torre de Manila was "outside the boundaries of the Rizal Park and well to the rear x
x x of the Rizal National Monument; hence, it cannot possibly obstruct the front
view of the said National Monument ." 2 2 Likewise, the City Legal O cer of Manila
City con rmed that the area on which the Torre de Manila is situated "lies outside the
Luneta Park" and that it was "simply too far from the Rizal Monument to be a
repulsive distraction or have an objectionable effect on the artistic and
historical signi cance of the hallowed resting place of the national hero ." 2 3
And nally, DMCI-PDI had demonstrated that the Rizal Monument can be
viewed/photographed at certain angles to avoid or at least minimize the Torre de
Manila's presence; 2 4 thus, the obstructive effects of the building on the monument's
sightline are not only questionable but at most, insubstantial.
To reiterate, case law exhorts that for mandamus to issue, it must be shown that
the petitioner has a clear legal right to the performance of the act sought to be
compelled and the respondent has an imperative duty to perform the same . 2 5
The jurisprudential attribution is, in fact, exacting: "[a] clear legal right is a right
which is indubitably granted by law or is inferable as a matter of law ." 2 6 No
such right of petitioner exists in this case. Neither do any of the respondents have the
imperative duty to stop the Torre de Manila's construction. DcHSEa

Accordingly, for the reasons discussed herein, I vote to DISMISS the mandamus
petition.
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LEONEN , J., concurring :
"To my family,
I ask you for forgiveness for the pain I caused you, but some day I shall have to
die and it is better that I die now in the plentitude of my conscience.
Dear parents and brothers: Give thanks to God that I may preserve my tranquility
before my death. I die resigned, hoping that with my death you will be left in
peace. Ah! It is better to die than to live suffering. Console yourself.
I enjoin you to forgive one another the little meanness of life and try to live united
in peace and good harmony. Treat your old parents as you would like to be
treated by your children later. Love them very much in my memory.
Bury me in the ground. Place a stone and a cross over it. My name, the date of my
birth and of my death. Nothing more. If later you wish to surround my grave with
a fence, you can do it. No anniversaries. I prefer Paang Bundok.
Have pity on poor Josephine."
Jose Rizal 1
The soul of this nation and the story of the gallantry of our many peoples are
more resilient than a bad photograph.
The Rizal Monument will not be physically altered. Adjoining properties owned by
others have not been declared as national shrines.
Together with the Solicitor General, the petitioners argue that a speci c view of
the Rizal Monument is a legally protected right. They insist that even if the Rizal
Monument is clearly in the foreground, the existence of the building of private
respondents in the background violates that legally protected right. They insist that that
background amounts to an alteration of the monument. They, however, fail to point to
any clear text found in the Constitution, a statute, or an ordinance which contains this
prestation. They have not succeeded in convincing this Court that there is precedent
supporting their aesthetic propositions. SaCIDT

The dissent also acknowledges this. They agree that the temporary restraining
order should be lifted. The dissent, however, insists that the matter be remanded to the
Sangguniang Panlungsod of Manila to allow them, again, to deliberate as to whether to
allow the construction or to cause its demolition.
I concur with the ponencia of Senior Associate Justice Antonio T. Carpio. There is
no such law which mandates that the Rizal Monument, at a speci c angle, should have
only a specific background.
The Solicitor General and the petitioners are motivated by their passion, which
can be summed up in a statement and which they want this Court to believe as a truism:
a view of the monument with a tall building as background destroys the "soul of our
nation." They claim that this gaze with a "photobomber" so undermines every
conceivable narrative we can have of Rizal that there will be no way that our collective
history as a people can be redeemed if we do not order the building to be torn down.
They wish this Court of 15 unelected public servants to read this speci c version of
history into the Constitution of this Republic. They want us to declare that the
monument of Rizal is so sacred that it should dwarf any other human structure without
any other judicially discernible standard.
I do not agree.

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There is no law which inscribes such narrative. There is no law that empowers
any majority of the 15 members of this Supreme Court to impose our own narrative of
our country's own history. SCaITA

History, like every other cultural understanding of who we are, is the dynamic
product of constant democratic deliberation. To impose only a single version is akin to
installing a dictatorship or disempowering present and future generations. Our history
as a people is always in flux: always being written and always being reread in the light of
contemporary challenges.
The Petition for Injunction, amended by this Court into a Petition for Mandamus,
should fail.
I
This Petition should have been dismissed outright. The petitioners did not have
standing and this Court had no jurisdiction over the subject matter of this case that the
Petition, originally for injunction, had to be converted to mandamus.
Section 1, Article VIII of the Constitution provides:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
For this Court to exercise its power of judicial review, four (4) requisites must be
satis ed. First, there must exist "an actual and appropriate case." 2 Second, the party
bringing suit must have a "personal and substantial interest . . . in raising the
constitutional question." 3 Third, "the exercise of judicial review is pleaded at the earliest
opportunity." 4 Lastly, "the constitutional question is the lis mota of the case." 5
The second requisite is absent in this case.
Legal standing requires that the party bringing suit has "sustained or will sustain
direct injury as a result of the governmental act that is being challenged." 6 There must
be "a personal stake in the outcome of the controversy" 7 on the part of the petitioner
so as not to unnecessarily impede the judicial process. "For courts to indiscriminately
open their doors to all types of suits and suitors is for them to unduly overburden their
dockets, and ultimately render themselves ineffective dispensers of justice." 8
There are exceptions to the rule on standing. Non-traditional suitors taxpayers,
9 voters, 1 0 concerned citizens, 1 1 and legislators 1 2 have been granted standing to
question the constitutionality of governmental acts. The "transcendental importance" 1 3
of the issues raised is often cited as basis for granting standing.
Petitioner Knights of Rizal anchors its legal standing on its charter, Republic Act
No. 646, Section 2 of which provides:
SECTION 2. The purposes of this corporation shall be to study the teachings
of Dr. Jose Rizal, to inculcate and propagate them in and among all classes of
the Filipino people, and by words and deeds to exhort our citizenry to emulate and
practice the examples and teachings of our national hero; to promote among the
associated knights the spirit of patriotism and Rizalian chivalry; to develop a
perfect union among the Filipinos in revering the memory of Dr. Jose Rizal; and to
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organize and hold programs commemorative of Rizal's nativity and martyrdom.
Petitioner further cites as basis Section 7 of Republic No. 7356 or the Law
Creating the National Commission for Culture and the Arts:
SECTION 7. Preservation of the Filipino Heritage. It is the duty of every
citizen to preserve and conserve the Filipino historical and cultural heritage and
resources. The retrieval and conservation of artifacts of Filipino culture and
history shall be vigorously pursued.cHECAS

However, like any other corporation, petitioner Knights of Rizal may only exercise
its corporate powers, speci cally, its power to sue, 1 4 through its Board of Directors. 1 5
There must be a duly issued Secretary's Certi cate attached to the petition stating that
the corporation's board allowed the filing of the suit in behalf of the corporation. 1 6
Here, the Secretary's Certi cate was not duly accomplished. There was no
indication of petitioner's Corporate Secretary Maximo Salazar's community tax
certi cate number and competent evidence of identity. These were left blank in the
Acknowledgment page. 1 7 The date of the alleged special meeting when Diosdado
Santos, Deputy Supreme Commander of petitioner, was authorized by the Board to le
the case, was also left blank. 1 8
Moreover, there was no showing of a direct injury to petitioner or a speci c
member of Knights of Rizal caused by the construction of Torre de Manila. "[Losing] its
moral authority and capacity 'to inculcate and propagate. . .[the teaching of] Dr. Jose
Rizal'" 1 9 is too general and vague an interest to grant Knights of Rizal legal standing to
sue. Further, Knights of Rizal is not a citizen with the duty to preserve and conserve
historical and cultural heritage.
In Integrated Bar of the Philippines v. Zamora , 2 0 this Court denied legal standing
to the Integrated Bar of the Philippines (IBP) for the organization's lack of direct and
personal injury in the deployment of the Marines in select areas in Metro Manila. "[The
IBP's] alleged responsibility to uphold the rule of law and the Constitution," 2 1 this Court
said, was not su cient an interest considering the lack of allegation that the civil
liberties of any of its individual members were violated. Explained the Court:
In the case at bar, the IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its locus standi.
The mere invocation by the IBP of its duty to preserve the rule of law and nothing
more, while undoubtedly true, is not su cient to clothe it with standing in this
case. This is too general an interest which is shared by other groups and the
whole citizenry. Based on the standards above-stated, the IBP has failed to
present a speci c and substantial interest in the resolution of the case. Its
fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is
to elevate the standards of the law profession and to improve the administration
of justice is alien to, and cannot be affected by the deployment of the Marines. It
should also be noted that the interest of the National President of the IBP who
signed the petition, is his alone, absent a formal board resolution authorizing him
to le the present action. To be sure, members of the BAR, those in the judiciary
included, have varying opinions on the issue. Moreover, the IBP, assuming that it
has duly authorized the National President to le the petition, has not shown any
speci c injury which it has suffered or may suffer by virtue of the questioned
governmental act. Indeed, none of its members, whom the IBP purportedly
represents, has sustained any form of injury as a result of the operation of the
joint visibility patrols. Neither is it alleged that any of its members has been
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arrested or that their civil liberties have been violated by the deployment of the
Marines. What the IBP projects as injurious is the supposed "militarization" of law
enforcement which might threaten Philippine democratic institutions and may
cause more harm than good in the long run. Not only is the presumed "injury" not
personal in character, it is likewise too vague, highly speculative and uncertain to
satisfy the requirement of standing. Since petitioner has not successfully
established a direct and personal injury as a consequence of the questioned act, it
does not possess the personality to assail the validity of the deployment of the
Marines. This Court, however, does not categorically rule that the IBP has
absolutely no standing to raise constitutional issues now or in the future. The IBP
must, by way of allegations and proof, satisfy this Court that it has su cient
stake to obtain judicial resolution of the controversy. 2 2
With petitioner Knights of Rizal having no direct and personal interest in this case,
it has no legal standing. On this ground alone, this Petition should have been dismissed
outright. aTHCSE

The liberality in granting legal standing to those who have none should be
tempered especially when the party suing is a corporation, the composition and nature
of which inherently make the determination of direct and personal interest di cult. This
is especially true in cases involving alleged violations of provisions under the Bill of
Rights, which primarily involves "fundamental individual rights." 2 3
The constitutional issue raised here is indeed novel. This Court has yet to decide
on the extent of protection the State has to afford to our nation's historical and cultural
heritage and resources, speci cally, whether a declared national cultural treasure's
sightlines and settings are part of its physical integrity.
Nevertheless, novelty, in it itself, does not equate to the transcendental
importance of the issues involved. Constitutional issues, however novel, may likewise
be resolved by regional trial courts at the rst instance. Regional trial courts and this
Court share concurrent original jurisdiction over issues involving constitutional
questions. 2 4
As pointed out in the majority opinion, factual issues 2 5 were raised in this
Petition. 2 6 This Court, not being a trier of facts, 2 7 the Petition should have been led
before the regional trial court. This is also consistent with the doctrine of hierarchy of
courts. Recourse must rst be obtained from lower courts sharing concurrent
jurisdiction with a higher court. 2 8
Clarifying this concept in Diocese of Bacolod v. Commission on Elections , 2 9 we
said:
The doctrine that requires respect for the hierarchy of courts was created by this
court to ensure that every level of the judiciary performs its designated roles in an
effective and e cient manner. Trial courts do not only determine the facts from
the evaluation of the evidence presented before them. They are likewise
competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution.
To effectively perform these functions, they are territorially organized into regions
and then into branches. Their writs generally reach within those territorial
boundaries. Necessarily, they mostly perform the all-important task of inferring
the facts from the evidence as these are physically presented before them. In
many instances, the facts occur within their territorial jurisdiction, which properly
present the 'actual case' that makes ripe a determination of the constitutionality
of such action. The consequences, of course, would be national in scope. There
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are, however, some cases where resort to courts at their level would not be
practical considering their decisions could still be appealed before the higher
courts, such as the Court of Appeals. AHDacC

The Court of Appeals is primarily designed as an appellate court that reviews the
determination of facts and law made by the trial courts. It is collegiate in nature.
This nature ensures more standpoints in the review of the actions of the trial
court. But the Court of Appeals also has original jurisdiction over most special
civil actions. Unlike the trial courts, its writs can have a nationwide scope. It is
competent to determine facts and, ideally, should act on constitutional issues that
may not necessarily be novel unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or
further reiterating in the light of new circumstances or in the light of some
confusions of bench or bar existing precedents. Rather than a court of rst
instance or as a repetition of the actions of the Court of Appeals, this court
promulgates these doctrinal devices in order that it truly performs that role. 3 0
(Citation omitted)
II
This Court also has no subject matter jurisdiction over this case.
Jurisdiction over the subject matter is the "power to hear and determine cases of
the general class to which the proceedings in question belong." 3 1 For this Court, its
subject matter jurisdiction is provided in the rst paragraph of Section 5 of Article VIII
of the Constitution:
SECTION 5. The Supreme Court shall have the following powers: (1) Exercise
original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto,
and habeas corpus.
As for cases for injunction such as that originally led by petitioner Knights of
Rizal, this Court has no jurisdiction. Actions for injunction have subject matters
incapable of pecuniary estimation. 3 2 Therefore, such actions are under the exclusive
original jurisdiction of regional trial courts. 3 3 Actions for injunction cannot be
commenced before any other court.
The present Petition was converted into mandamus as a matter of "[relaxing]
procedural rules." 3 4 The dissent of Justice Francis H. Jardeleza cites as legal bases
Gamboa v. Teves , 3 5 Salvacion v. Central Bank of the Philippines , 3 6 and Alliance of
Government Workers v. Minister of Labor and Employment 3 7 where the petitions, as
originally led, were for declaratory relief. Despite lack of jurisdiction to take
cognizance of the petitions, 3 8 this Court resolved the purely legal questions involved in
Gamboa, Salvacion, and Alliance of Government Workers because of the issues' alleged
"far-reaching implications." 3 9
Gamboa, Salvacion, and Alliance of Government Workers should be the exception
rather than the rule. Subject matter jurisdiction is a matter of law. 4 0 It cannot be
"conferred by the acquiescence of the courts." 4 1 A court must not change the relief and
remedy to accommodate a pe
tition over which it has no subject matter jurisdiction the same way that parties
cannot choose, consent to, or agree as to which court or tribunal should decide their
disputes. 4 2 Accommodating a petition which, on its face, this Court cannot resolve for
lack of jurisdiction, undermines the impartiality and independence of this Court. It
ultimately erodes the public trust in our court system. cAaDHT

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III
Even if the present Petition is treated as one for mandamus, it does not satisfy
the requirements under Rule 65, Section 3 of the Rules of Court. There is no law that
"speci cally enjoins as a duty" the protection of sightlines and settings of historical or
cultural properties.
Rule 65, Section 3 of the Rules of Court provides:
SECTION 3. Petition for Mandamus. When any tribunal, corporation, board,
o cer or person unlawfully neglects the performance of an act which the law
speci cally enjoins as a duty resulting from an o ce, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or o ce to
which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may le a
veri ed petition in the proper court, alleging the facts with certainty and praying
that the judgment be rendered commanding the respondent, immediately or at
some other time to be speci ed by the court, to do the act required to be done to
protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certi cation of non-forum shopping as
provided in the third paragraph of Section 3, Rule 46.
The following are required for mandamus to lie: rst, "the plaintiff has a clear
legal right to the act demanded"; 4 3 second, "it must be the duty of the defendant to
perform the act, because it is mandated by law"; 4 4 third, "the defendant unlawfully
neglects the performance of the duty enjoined by law"; 4 5 fourth, "the act to be
performed is ministerial, not discretionary"; 4 6 and, lastly, "there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law." 4 7
IV
The rst requisite is absent in this case. Petitioner Knights of Rizal has no clear
legal right to an injunction against the construction of Torre de Manila. Petitioners
failed to point to a law that speci cally prohibits the construction of any structure that
may obstruct the sightline, setting, or backdrop of a historical or cultural heritage or
resource.
Petitioner Knights of Rizal mainly argues that the sightlines and setting of the
Rizal Monument are protected under Sections 15 and 16, Article XIV of the
Constitution: IDSEAH

SECTION 15. Arts and letters shall enjoy the patronage of the State. The State
shall conserve, promote, and popularize the nation's historical and cultural
heritage and resources, as well as artistic creations.
SECTION 16. All the country's artistic and historic wealth constitutes the
cultural treasure of the nation and shall be under the protection of the State which
may regulate its disposition.
It is argued that Sections 15 and 16, Article XIV of the Constitution are not self-
executing provisions and, therefore, cannot be made basis to stop the construction of
Torre de Manila. The dissenting opinion considers that Sections 15 and 16 "do not
create any judicially enforceable right and obligation for the preservation, protection or
conservation of the 'prominence, dominance, vista points, vista corridors, sightlines and
setting of the Rizal Park and the Rizal Monument." 4 8 It adds that Sections 15 and 16
are "mere statements of principles and policy" 4 9 and that "[t]he constitutional
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exhortation to 'conserve, promote, and popularize the nation's historical and cultural
heritage and resources' lacks 'speci c, operable norms and standards' by which to
guide its enforcement." 5 0
As examples of other non-self-executing provisions in the Constitution, the
dissent enumerates Sections 11, 5 1 12, 5 2 and 13, 5 3 Article II; Sections 1 5 4 and 13, 5 5
Article XIII; and Sections 1 5 6 and 2, 5 7 Article XIV. Further cited is Kilosbayan v. Morato
5 8 where, according to the dissent, this Court held that the provisions in Article II on the
Declaration of Principles and State Policies were not self-executing.
Sections 15 and 16, Article XIV of the Constitution are not legal bases for
stopping the construction of Torre de Manila. Textually, nothing in Sections 15 and 16
indicates that the sightlines and setting surrounding a historical and cultural heritage or
resource is subject to protection. Sections 15 and 16 contain substantive standards
too general to serve as basis for courts to grant any relief to petitioner Knights of Rizal.
To attempt to operate with these general substantive standards will "propel courts into
uncharted ocean of social and economic policy making," 5 9 encroaching on the
functions properly belonging to the legislative and executive branches.
I do not agree, however, in making distinctions between self-executing and non-
self-executing provisions.
A self-executing provision of the Constitution is one "complete in itself and
becomes operative without the aid of supplementary or enabling legislation." 6 0 It
"supplies [a] su cient rule by means of which the right it grants may be enjoyed or
protected." 6 1 "[I]f the nature and extent of the right conferred and the liability imposed
are xed by the constitution itself, so that they can be determined by an examination
and construction of its terms, and there is no language indicating that the subject is
referred to the legislature for action," 6 2 the provision is self-executing.
On the other hand, if the provision "lays down a general principle," 6 3 or an
enabling legislation is needed to implement the provision, it is not self-executing.
To my mind, the distinction creates false second-order constitutional provisions.
It gives the impression that only self-executing provisions are imperative.
All constitutional provisions, even those providing general standards, must be
followed. Statements of general principles and policies in the Constitution are
frameworks within which branches of the government are to operate. The key is to
examine if the provision contains a prestation and to which branch of the government it
is directed. If addressed either to the legislature or the executive, the obligation is not
for this Court to fulfill.
V
There are no second-order provisions in the Constitution. We create this category
when we classify the provisions as "self-executing" and "non-self executing." Rather, the
value of each provision is implicit in their normative content.
For instance, Sections 14, 15, 16, and 17, Article XIV of the Constitution must be
read as provisions that contribute to each other's coherence. That is, we must interpret
them holistically to understand the concepts labeled as culture and history. None of
these provisions deserve to be read in isolation. HCaDIS

Section 14 reads:
SECTION 14. The State shall foster the preservation, enrichment, and
dynamic evolution of a Filipino national culture based on the principle of unity in
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diversity in a climate of free artistic and intellectual expression.
The object of the provision is a "Filipino national culture." In relation to this object,
it is the State's duty to foster its "preservation, enrichment," and development. Our
Filipino national culture should be based on the "principle of unity in diversity." It grows
"in a climate of free artistic and intellectual expression."
Clearly, the Constitution acknowledges that culture exists at various levels and
with many dimensions. In terms of social space, there is a "national" culture and local
ones. There is diversity also among cultures. Ours is a multi-ethnic, multi-vocal, and
multi-lingual state.
The Constitutional provision further implies that there can be unity both in the
diversity of our culture as well as in their commonalities. Thus, the cultures that vary in
terms of their spatial, ethnic, or linguistic applications are not mutually exclusive of
each other. They interact and reflect each other.
Signi cantly, culture evolves. It is not only to be preserved; it should also be
enriched. It is not to archaically retard; it must develop. Intrinsic in the very concept of
culture is that it is dynamic. "Free artistic and intellectual expression" ensures its
malleability so that it becomes appropriate to the contemporary world while at the
same time maintaining the values embedded in a common framework that de nes the
implicit ways of life that we transmit through generations. aCIHcD

Section 15 provides:
SECTION 15. Arts and letters shall enjoy the patronage of the State. The State
shall conserve, promote, and popularize the nation's historical and cultural
heritage and resources, as well as artistic creations.
Section 16 provides:
SECTION 16. All the country's artistic and historic wealth constitutes the
cultural treasure of the nation and shall be under the protection of the State which
may regulate its disposition.
These provisions recognize the importance of arts and letters as cultural artifact.
This provision, thus, acknowledges the State's duty to "conserve, promote, and
popularize" ve (5) artifacts: (a) historical heritage, (b) historical resources, (c) cultural
heritage, (d) cultural resources, and (e) artistic creations.
Section 15 distinguishes between history and culture. History is a narrative of our
past. Culture, on the other hand, encompasses the implicit social understanding of the
ways of life that we transmit from generation to generation. While history is a
contemporary narration of our past, culture is always contemporary with inspiration
from both our past and our ambitions towards a common future.
History can explain or re ect on our culture. Culture, on the other hand, provides
the frame for understanding our history. They both relate to each other. Being aspects
of social consciousness, they also both evolve. AHCETa

History and culture produce material things which can be preserved because
they serve the purpose of symbolism. Historical heritage may consist of the
monuments that will cause collective re ection. Historical resources are the materials
which can be used to understand and perhaps clarify narratives of our past.
Of course, Section 16 also acknowledges artistic creations, which may not be the
product of historical narrative or of culture. It thus provides an opening for the
introduction of present understandings of culture. Artists are not necessarily bound by
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a view of the past. Art can also be an insight to our future.
Section 17 provides for acknowledgement of indigenous culture, thus:
SECTION 17. The State shall recognize, respect, and protect the rights of
indigenous cultural communities to preserve and develop their cultures, traditions,
and institutions. It shall consider these rights in the formulation of national plans
and policies.
This provision implies that culture may be indigenous, but not entirely so. By
giving protection to the culture of indigenous communities in terms of their traditions
and institutions, it impliedly also acknowledges that there are portions of our culture
borrowed from our interaction with the outside world. In this view, culture is assumed
to be dynamic. It is not unchanging.
In a democracy, dominant social, historical, and even cultural understanding is
and will always be contested. Present generations are imbued with intrinsic rights to
give their own reading of past events. They are not passive receptacles of cultural
transmissions of their ancestors. It is they who live through the challenges of their
generation and it is they, who armed with their variations on culture and their reading of
history, contribute to our sense of nationhood.
Thus, our Constitution acknowledges the importance of freedom of expression.
Nuance and dissent provide a rich but continuous stream of contestation. Dominant
understanding is always challenged by newer ones. It is through these challenges to
understanding of the past that history and culture undergo constant enrichment and
development. There is the constant problem of the real signi cance of events as well
as personalities that animate our history. History becomes more contemporarily legible
to the present generation.
Historians constantly discover more evidence and factual detail in past events
which produce better insights of ourselves.
In this context, no hero can be venerated as unchanging nor as eternal god. No
narrative of a hero should be accepted as more impervious than religious truth. No hero
should be venerated exclusively as the "soul of the nation."
Similarly, no monument is so sacred that the way that it is seen and the meaning
of such gaze should be kept unchanging. cHaCAS

The argument that the background of the Rizal Monument should be unchanging
would be to attempt to impose several layers of inference that cumulate into an
unreasonable view of how we should understand Jose Rizal, the extent that he was a
protagonist during his historical period, and the signi cance of the events for us at
present.
For instance, Jose Rizal's humility can be inferred through a letter he wrote and
which was discovered posthumously. In a letter to his brother, he expressed his desire
to be buried in an unmarked grave in a cemetery in Paco, Manila. This humility in public
service may be lost when we insist that a monument, which Jose Rizal never imagined,
commissioned to a Swiss artist, depicting him as dominant over all others who bled for
our freedom, is profusely venerated.
This veneration amounts to a dominant narrative that petitioner wishes to
impose. More troubling is that the petitioner wants to do so undemocratically: through
a judicial writ.
Symbols mark a consensus which can change through time. By itself, it has no
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intrinsic value. It is not the material that should be protected. Rather, it is the values
implicit in the symbolism which take part in a narrative.
Jose Rizal fought for a democratic society where every citizen could be educated
and therefore critical of the dominant understandings imposed by the powerful. We
deny him that vision when we impose on others a view of the aesthetic by judicial fiat.
VI
Before Rizal was executed on December 30, 1896, he wrote his family expressing
his wishes for his burial. The letter reads, in part:
Bury me in the ground. Place a stone and a cross over it. My name, the date of my
birth and of my death. Nothing more. If later you wish to surround my grave with
a fence, you can do it. No anniversaries. I prefer Paang Bundok. 6 4
After his execution, his body was secretly buried in Paco Cemetery. His sister,
Narcisa, was able to convince the gravedigger to place a small marble slab on the
gravesite. 6 5
Rizal's family had his body exhumed on August 17, 1898 and placed in an ivory
urn. The urn was kept in his mother's house in Binondo. 6 6
It was on September 28, 1901 when Act No. 243 6 7 was passed. Act No. 243
authorized the use of Luneta for the building of a monument in honor of Rizal. The cost
would be from publicly-raised funds and supervised by a committee composed of
Paciano Rizal, Pascual Poblete, Juan Tuason, Teodoro Yangco, Mariano Limjap,
Maximino Paterno, Ramon Genato, Tomas del Rosario, and Ariston Bautista. The
Philippine Commission then passed Act No. 893 6 8 in 1903, appropriating
US$15,000.00 to augment the fund. 6 9 ScHADI

The committee was also tasked to oversee the international design competition
from 1905 to 1907. European and American sculptors were invited to join the
competition. The materials, however, would be produced in the Philippines. The
estimated cost of the project was P100,000.00. 7 0
There were 40 entries for the competition. On January 8, 1908, another
committee composed of Governor-General James F. Smith, John T. Macleod, and
Maximino M. Paterno announced their decision to the press and declared the Al Martir
de Bagumbayan (To the Martyr of Bagumbayan) by Carlos Nicoli of Carrara, Italy as the
winner of the competition. 7 1
The committee was dominated by foreigners. The top two winners were
foreigners.
Carlos Nicoli could not post the required bond during the construction period.
Thus, the second prize winner, the Motto Stella (Guiding Star) by Richard Kissling of
Switzerland, was instead built. It consisted of a bronze statue of Rizal dressed in an
overcoat facing west and holding a book, two boys reading a book facing south, a
mother and child facing north, and a granite obelisk in the middle. 7 2
The monument was constructed 100 meters southeast from Rizal's execution
site. On December 29, 1912, the urn of Rizal's remains was brought to the Marble Hall
of the Ayuntamiento de Manila. "After lying in state for a day, [it] was carried by funeral
procession to Luneta." "The remains were buried at the base of the monument." The
monument was inaugurated the following year. 7 3
In the year of Rizal's centenary in 1961, Kissling's original design was altered by
Juan Nakpil and commissioned by the Jose Rizal National Centennial Commission, in
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response to the concern that new structures in Luneta would dwarf the monument. A
stainless steel pylon was superimposed over the obelisk, increasing the structure's
height from 41 feet and 8 inches to 100 feet. 7 4
The stainless steel pylon, however, divided public opinion. Some artists, such as
Napoleon Abueva, supported it, while others were critical of it. 7 5 The pylon was
removed two (2) years later "to avoid a temporary restraining order from a court that
shared Nakpil's aesthetic sense." 7 6 The design of the monument remains unchanged
to this day.
In 2013, the Rizal Monument was declared a National Monument 7 7 and a
National Cultural Treasure. 7 8
The value we now put on a monument designed by a Swiss, and chosen by a
panel dominated by our American colonialists was weaved as part of our narrative. The
monument is not a material artifact that was created by the hands of our anti-
imperialist revolutionaries. DACcIH

It would be reasonable to consider that the signi cance of the Rizal Monument is
a postcolonial reflection of those in power.
VII
The statutes cited by petitioner Knights of Rizal are Republic Act No. 4846 or the
"Cultural Properties Preservation and Protection Act"; Republic Act No. 7356 or the
"Law Creating the National Commission for Culture and the Arts"; and Republic Act No.
10066 or the "National Cultural Heritage Act of 2009."
Enacted in 1966, Republic Act No. 4846 declares it the policy of the State "to
preserve and protect the cultural properties of the nation and to safeguard their
intrinsic value." 7 9 With respect to Republic Act No. 7356, it provides:
SECTION 7. Preservation of the Filipino Heritage. It is the duty of every
citizen to preserve and conserve the Filipino historical and cultural heritage and
resources. The retrieval and conservation of artifacts of Filipino culture and
history shall be vigorously pursued.
Similar to the State policy declared in Republic Act No. 4846, Section 2 of
Republic Act No. 10066 more elaborately provides:
SECTION 2. Declaration of Principles and Policies. Sections 14, 15, 16 and
17, Article XIV of the 1987 Constitution declare that the State shall foster the
preservation, enrichment and dynamic evolution of a Filipino culture based on the
principle of unity in diversity in a climate of free artistic and intellectual
expression. The Constitution likewise mandates the State to conserve, develop,
promote and popularize the nation's historical and cultural heritage and
resources, as well as artistic creations. It further provides that all the country's
artistic and historic wealth constitutes the cultural treasure of the nation and shall
be under the protection of the State, which may regulate its disposition.
In the pursuit of cultural preservation as a strategy for maintaining Filipino
identity, this Act shall pursue the following objectives:
(a) Protect, preserve, conserve and promote the nation's cultural
heritage, its property and histories, and the ethnicity of local
communities;
(b) Establish and strengthen cultural institutions; and
(c) Protect cultural workers and ensure their professional development
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and well-being.
The State shall likewise endeavor to create a balanced atmosphere where the
historic past coexists in harmony with modern society. It shall approach the
problem of conservation in an integrated and holistic manner, cutting across all
relevant disciplines and technologies. The State shall further administer the
heritage resources in a spirit of stewardship for the inspiration and bene t of the
present and future generations. aICcHA

VIII
In case the physical integrity of a national cultural treasure or important cultural
property is in danger of destruction or signi cant alteration from its original state,
Republic Act No. 10066 grants the "appropriate cultural agency" the power to issue a
cease and desist order. Section 25 of Republic Act No. 10066 provides:
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 signi cant 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.
Petitioner Knights of Rizal argues that a national cultural treasure's "physical
integrity" includes its "vista points" and "visual corridors" as well as its "site" or its
"surrounding areas." As basis for its argument, petitioner Knights of Rizal cites the
National Historical Commission of the Philippines' Guidelines on Monuments Honoring
National Heroes, Illustrious Filipinos and Other Personages:
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 signi cance. 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 . . .
xxx xxx xxx
Faade of buildings around a monument, particularly on a rotunda or circle can
be retrofitted with a uniform design to enhance the urban renewal of the site and
the prominence and dominance of the monument. Likewise, building heights,
volume and design should be regulated.
Measures by which dominance could be achieved are the following:
a. Maintain a clean and neat environment;
b. Keep vista points and visual corridors to monuments clear for
unobstructed viewing appreciation and photographic opportunities;
c. Maintain a simple and environmental-friendly landscape. Provide
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plants and trees wherever appropriate, to enhance and soften the
built areas;
d. Commercial billboards should not proliferate in a town center where
a dominant monument is situated; Limit building signage
throughout the second level of buildings around the monument;
Cities, municipalities and provinces shall adopt these billboard and
building signage regulations by passing local ordinances;
e. Introduce creative design devices such as paved walkways,
attractive ground cover and rows of tall trees to make the
monument the main attraction of the site;
f. The monument may be elevated on a mound or a platform to
emphasize its importance;
g. Use strong contrast between the monument and its background.
This will enhance the monument as a focal point of site; and,
h. Enclosing structures may be used to emphasize and protect the
monument. HSCATc

The scale of the figure of an outdoor monument should be kept to an ideal


standard, which may be governed by the following:
Minimum : Life-size
Maximum : Twice the life-size
Landmark/Monumental : More than the life-size
structures
The scale would depend on the size of the open space where the monument shall
be placed in relation to human perception. The larger the open space, the taller the
monument. As a rule of thumb, no full-bodied monument must be smaller than
life-size. The scales used by sculptors are usually one-and-a-half times the life-
size or twice the life-size. These sizes, when placed on corresponding proportional
pedestals, would appear life-size at an appropriate viewing distance. The over-all
effect of the site should be an overwhelming experience. This feeling, thus,
contributes to the effectiveness of the learning message the monument conveys.
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 de ned by the traditional or juridical expanse
of the property. EHaASD

Articles 1 and 6 of the International Charter for the Conservation and Restoration
of Monuments and Sites or the Venice Charter, petitioner argues, also require the
conservation of a monument's setting:
ARTICLE 1. The concept of a 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 signi cant development or a 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.
xxx xxx xxx
ARTICLE 6. The conservation of a monument implies preserving a setting
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which is not out of scale. Wherever the traditional setting exists, it must be kept.
No new construction, demolition or modi cation which would alter the relations
of mass and colour must be allowed.
Again, textually, nothing in Republic Act Nos. 4846, 7356, and 10066 provides
that the "physical integrity" of a historical or cultural property includes its sightlines and
settings. As for the National Historical Commission of the Philippines' Guidelines on
Monuments Honoring National Heroes, Illustrious Filipinos and Other Personages, they
do not have any legal effect. It has not been shown that these Guidelines were
published 8 0 or that a copy was deposited in the University of the Philippines Law
Center. 8 1
Assuming that these Guidelines have the force of law, they allow for "urban
renewal" of the site surrounding a monument. In this case, there is resistance against
this "urban renewal" considering that Torre de Manila is the rst high-rise building
visible at the Rizal Monument's backdrop. However, as submitted by the National
Historical Commission of the Philippines during the hearing on August 27, 2014
conducted by the Senate Committee on Education, Arts and Culture, there is no law
prohibiting the construction of Torre de Manila.
Further, the Venice Charter has not been concurred in by at least two-thirds of all
the members of the Senate. 8 2 Hence, its provisions have no legal effect in this
jurisdiction.
IX
Curiously, however, in spite of an acknowledgement that neither the National
Historical Commission of the Philippines' Guidelines nor the Venice Charter has legal
effect, the dissent of Justice Jardeleza suggests that the Venice Charter should be
given weight in legal interpretation. Thus:
Similarly, neither can the Venice Charter be invoked to prohibit the construction of
the Torre de Manila project. The Venice Charter provides, in general terms, the
steps that must be taken by State Parties for the conservation and restoration of
monuments and sites, including these properties' setting. It does not, however, rise
to a level of enforceable law. There is no allegation that the Philippines has
legally committed to observe the Venice Charter. Neither are we prepared to
declare that its principles are norms of general or customary international law
which are binding on all states. We further note that the terms of both the NHCP
Guidelines and the Venice Charter appear hortatory and do not claim to be
sources of legally enforceable rights. These documents only urge (not require)
governments to adopt the principles they espouse through implementing laws. IDTSEH

Nevertheless, the Venice Charter and the NHCP Guidelines, along with various
conservation conventions, recommendations and resolutions contained in
multilateral cooperation and agreements by State and non-state entities, do
establish a signi cant fact: At the time of the enactment of our
Constitution in 1987, there has already been a consistent understanding
of the term "conservation" in the culture, history and heritage context as
to cover not only a heritage property's physical/tangible attributes, but
also its settings ( e.g. , its surrounding neighborhood, landscapes, sites,
sight lines, skylines, visual corridors and vista points).
The setting of a heritage culture, site or area is de ned as "the immediate and
extended environment that is part of, or contributes to, its signi cance and
distinctive character." It is also referred to as "the surroundings in which a place is
experienced, its local context, embracing present and past relationships to the
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adjacent landscape." It is further acknowledged as one of the sources from which
heritage structures, sites and areas "derive their signi cance and distinctive
character." Thus, any change to the same can "substantially and irretrievably
affect" the significance of the heritage property.
The concept of settings was rst formalized with the Xi'an Declaration on the
Conservation of the Settings of Heritage Structures, Sites and Areas adopted by
the 15th General Assembly of ICOMOS on October 21, 2005. The concept itself,
however, has been acknowledged decades before, with references to settings,
landscapes, and surroundings appearing as early as 1962.
To reiterate, our examination of the various multilateral and international
documents on the matter shows a generally-accepted and oft-repeated
understanding of "heritage conservation" as covering more than a cultural
property's physical attributes to include its surroundings and settings. This
"understanding" had, unarguably, already acquired "term of art" status even before
the enactment of our Constitution in 1987. Verba artis ex arte. Terms of art should
be explained from their usage in the art to which they belong.
We hold, absent proof of a clear constitutional expression to the contrary, that the
foregoing understanding of heritage conservation provide more than su cient
justi cation against a priori limiting the plenary power of Congress to determine,
through the enactment of laws, the scope and extent of heritage conservation in
our jurisdiction. Otherwise put, the Congress can choose to legislate that
protection of a cultural property extends beyond its physical attributes to include
its surroundings, settings, view, landscape, dominance and scale. This ows from
the fundamental principle that the Constitution's grant of legislative power to
Congress is plenary, subject only to certain de ned limitations, such as those
found in the Bill of Rights and the due process clause of the Constitution. 8 3
(Emphasis in the original, citations omitted)
Unless we are ready to supplant the Congress or the National Historical
Commission of the Philippines' efforts to discharge their legal process, we cannot
impose an interpretation which precisely has not ripened into a legal obligation. Neither
can we create international norm of a binding character. We are not the part of the State
that participates in the articulation of opinio juris for purposes of international
customary law. Neither do we, as a Court, participate in the crafting or concurrence of
treaties. To do all these in the guise of the Latin principle verba artis in arte is to
misplace the use of that canon. Terms of art will apply only when there is an art or
profession to which it belongs. "Terms of art" is jargon to a profession or art mediums.
It does not apply for a normative interpretation that is still contested.
X
The core of the dissent is built on the interpretation that the Comprehensive Land
Use Plan and Zoning Ordinance, or Ordinance No. 8119, "provides for a clear speci c
duty on the part of the City of Manila to regulate development projects insofar as these
may adversely affect the view, vista, sightline or setting of a cultural property within the
city." 8 4 Speci cally cited were Sections 47 and 48 of Ordinance No. 8119, which
allegedly require that the sightlines and settings of a "heritage resource" be free from
visual obstruction, as well as Sections 45 and 53 dealing with environmental
conservation and protection standards. DaIAcC

I disagree.
Section 47 provides:

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SEC. 47. Historical Preservation and Conservation Standards. Historic sites
and facilities shall be conserved and preserved. These shall, to the extent
possible, be made accessible for the educational and cultural enrichment of the
general public.
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to conserve and
enhance their heritage values.
2. Historic sites and facilities shall be adaptively re-used.
3. Any person who proposes to add, to alter, or partially demolish a
designated heritage property will require the approval of the City Planning
and Development Office (CPDO) and shall be required to prepare a heritage
impact statement that will demonstrate to the satisfaction of CPDO that
the proposal will not adversely impact the heritage signi cance of the
property and shall submit plans for review by the CPDO in coordination
with the National Historical Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage properties
shall be evaluated based on criteria established by the heritage
significance of the particular property or site.
5. Where an owner of a heritage property applies for approval to demolish a
designated heritage property or properties, the owner shall be required to
provide evidence to satisfaction that demonstrates that rehabilitation and
re-use of the property is not viable.
6. Any designated heritage property which is to be demolished or signi cantly
altered, shall be thoroughly documented for archival purposes with a
history, photographic records, and measured drawings, in accordance with
accepted heritage recording guidelines, prior to demolition or alteration.
SICDAa

7. Residential and commercial in ll in heritage areas will be sensitive to the


existing scale and pattern of those areas, which maintains the existing
landscape and streetscape qualities of those areas, and which does not
result in the loss of any heritage resources.
8. Development plans shall ensure that parking facilities (surface lots,
residential garages, stand-alone parking garages and parking components
as parts of larger developments) are compatibly integrated into heritage
areas, and/or are compatible with adjacent heritage resources.
9. Local utility companies (hydro, gas, telephone, cable) shall be required to
place metering equipment, transformer boxes, power lines, conduit,
equipment boxes, piping, wireless telecommunication towers and other
utility equipment and devices in locations which do not detract from the
visual character of heritage resources, and which do not have a negative
impact on its architectural integrity.
10. Design review approval shall be secured from the CPDO for any alteration
of the heritage property to ensure that design guidelines and standards are
met and shall promote preservation and conservation of the heritage
property.
Section 47, paragraph 7 does not apply in this case. The provision requires that
"residential and commercial in ll in heritage areas will be sensitive to the existing scale
and pattern of those areas which maintains the existing landscape and streetscape
qualities of those areas, and which does not result in the loss of any heritage
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resources." Torre de Manila is not within a heritage area but within a university cluster
zone.
Neither does Section 47, paragraph 9 apply. It is addressed to "local utility
companies (hydro, gas, telephone, cable)" who are "required to place metering
equipment, transformer boxes, power lines, conduit, equipment boxes, piping, wireless
telecommunication towers and other utility equipment and devices in locations which
do not detract from the visual character of heritage resources, and which do not have
negative impact on its architectural integrity." DMCI Project Developers, Inc. is not a
local utility company. Neither is it placing any equipment within a historic site or facility.
TAacHE

Section 48, on the other hand, provides:


SEC. 48. Site Performance Standards. The City considers it in the public
interest that all projects are designed and developed in a safe, e cient and
aesthetically pleasing manner. Site development shall consider the environmental
character and limitations of the site and its adjacent properties. All project
elements shall be in complete harmony according to good design principles and
the subsequent development must be visually pleasing as well as e ciently
functioning especially in relation to the adjacent properties and bordering streets.
The design, construction, operation and maintenance of every facility shall be in
harmony with the existing and intended character of its neighborhood. It shall not
change the essential character of the said area but will be a substantial
improvement to the value of the properties in the neighborhood in particular and
the community in general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with regard
to safety, e ciency and high standards of design. The natural
environmental character of the site and its adjacent properties shall be
considered in the site development of each building and facility.
2. The height and bulk of buildings and structures shall be so designed that it
does not impair the entry of light and ventilation, cause the loss of privacy
and/or create nuisances, hazards or inconveniences to adjacent
developments.
3. Abutments to adjacent properties shall not be allowed without the
neighbor's prior written consent which shall be required by the City
Planning and Development O ce (CPDO) prior to the granting of a Zoning
Permit (Locational Clearance).
4. The capacity of parking areas/lots shall be per the minimum requirements
of the National Building Code. These shall be located, developed and
landscaped in order to enhance the aesthetic quality of the facility. In no
case, shall parking areas/lots encroach into street rights-of-way and shall
follow the Traffic Code as set by the City.
5. Developments that attract a signi cant volume of public modes of
transportation, such as tricycles, jeepneys, buses, etc., shall provide on-site
parking for the same. These shall also provide vehicular loading and
unloading bays so as street traffic flow will not be impeded.
6. Buffers, silencers, mufflers, enclosures and other noise-absorbing materials
shall be provided to all noise and vibration-producing machinery. Noise
levels shall be maintained according to levels speci ed in DENR DAO No.
30 Abatement of Noise and Other Forms of Nuisance as Defined by Law.
DHIcET
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7. Glare and heat from any operation or activity shall not be radiated, seen or
felt from any point beyond the limits of the property.
8. No large commercial signage and/or pylon, which will be detrimental to the
skyline, shall be allowed.
9. Design guidelines, deeds of restriction, property management plans and
other regulatory tools that will ensure high quality developments shall be
required from developers of commercial subdivisions and condominiums.
These shall be submitted to the City Planning and Development O ce
(CPDO) for review and approval.
With respect to Section 48, it sets standards for project development to be
followed within a "speci c site" and its "adjacent properties," i.e., within a speci c
cluster zone. Torre de Manila and the Rizal Monument are not adjacent or contiguous
properties, nor do they belong to the same cluster zone. Neither is there an existing
complaint that DMCI Project Developers, Inc. violated the "environmental character or
limitations" of the cluster zone where Torre de Manila is constructed. Section 48,
therefore, is inapplicable.
The dissent also adds as legal bases for granting mandamus paragraph 1 of
Section 45 as well as Section 53 of Ordinance No. 8119 which allegedly provide for
"speci c operable norms and standards that protect 'views' with 'high scenic quality'":
85

SEC. 45. Environmental Conservation and Protection Standards. It is the


intent of the City to protect its natural resources. In order to achieve this objective,
all development shall comply with the following regulations:
1. Views shall be preserved for public enjoyment especially in sites with
high scenic quality by closely considering building orientation,
height, bulk, fencing and landscaping.
xxx xxx xxx
SEC. 53. Environmental Compliance Certificate (ECC). Notwithstanding the
issuance of zoning permit (locational clearance) Section 63 of this Ordinance, no
environmentally critical projects nor projects located in environmentally critical
areas shall be commenced, developed or operated unless the requirements of ECC
have been complied with.
Sections 45 and 53 of Ordinance No. 8119 concern environmental conservation
and protection standards, speci cally, the protection of natural resources. Section 45,
paragraph 1 relates to protecting views of natural resources. Section 53 requires
project developers to secure environmental compliance certi cates before
commencing or developing environmentally critical projects or projects located in
environmentally critical areas. HDICSa

The Rizal Monument is not a natural resource. There is no allegation that Torre de
Manila is an environmentally critical project or is located in an environmentally critical
area. To apply Sections 45 and 53 of Ordinance No. 8119, as the dissent suggests, is
patently strained.
XI
The second and third requisites for the issuance of a writ of mandamus are
likewise absent in this case. Respondents have no legal duty to petitioner Knights of
Rizal.
The respondent, DMCI Project Developers, Inc. is a private corporation with no
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legal obligation to petitioner Knights of Rizal. As for public respondents National
Historical Commission of the Philippines, the National Museum, the National
Commission for Culture and the Arts, and the City of Manila, they are under no legal
obligation to stop the construction of Torre de Manila for, as discussed, there is no law
requiring the protection of a historical or cultural property's sightline or setting.
XII
Likewise absent is the fourth requisite. The act sought to be performed in this
case is not ministerial.
An act is ministerial if the "duty is one which an o cer 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 his [or her] own judgment upon the
propriety or impropriety of the act done." 8 6 On the other hand, an act is discretionary if
it "gives [the public o cer] the right to decide how or when the duty shall be
performed." 8 7
For respondent DMCI Project Developers, Inc., it is a private corporation not
legally or contractually bound to perform any act in favor of petitioner Knights of Rizal.
For respondents National Historical Commission of the Philippines, National
Commission for Culture and the Arts, and the National Museum, they have no duty
under our present laws to stop the construction of any structure that obstructs the
sightline, setting, or backdrop of a historical or cultural heritage or resource. There is no
act, whether ministerial or discretionary, that can be required of them.
For respondent City of Manila, the act sought to be performed is discretionary,
not ministerial. Under Ordinance No. 8119, the City of Manila is empowered to decide
whether or not to grant project developers, such as DMCI Project Developers, Inc., a
variance allowing the construction of a structure beyond the prescribed oor-to-area
ratio for a speci c cluster zone. 8 8 Here, the City of Manila, through its Sangguniang
Panlungsod, decided to grant DMCI Homes, Inc. a variance that allowed the developer
to construct a building beyond the oor-to-area ratio of four (4) for structures within a
university cluster zone. HcDSaT

Therefore, I disagree with the proposed disposition of this case by the dissent.
Justice Jardeleza proposed to dispose of the case with this fallo:
WHEREFORE, let a writ of mandamus be issued in this case. Public respondent
City of Manila, through its representatives, is directed to RE-EVALUATE WITH
DISPATCH the permits and variance issued in favor of DMCI-PDI's Torre de
Manila project, DETERMINE APPLICABILITY AND/OR COMPLIANCE WITH
the standards under Sections 45, 53, 47 and 48, and the provisions under Section
60 (in relation to the grant of a variance), of Ordinance No. 8119 and GRANT
THE APPROPRIATE RELIEFS/SANCTIONS under the law. The TRO issued by
this Court shall REMAIN EFFECTIVE until the issuance of the nal decision in
the re-evaluation proceeding to be conducted by the appropriate o cials of the
City of Manila. 8 9
First, ordering the City of Manila to "re-evaluate with dispatch the permits issued
in favor of [DMCI Project Developers, Inc.]" is a futile exercise. It does not solve the
constitutional issue presented in this case: whether the sightlines and settings of
historical or cultural heritage or resources are protected under Sections 15 and 16,
Article XIV of the Constitution.
Second, the grant of a building permit or variance is a discretionary act and, in
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this case, the discretion has already been exercised.
Third, in awaiting the nal decision on the re-evaluation process, we are leaving to
the City of Manila the effectivity of the temporary restraining order we issued. We are
effectively delegating our power to a local government unit, in avoidance of our duty to
finally decide this case.
XIII
There were other plain, speedy, and adequate remedies in the ordinary course of
law available to petitioner Knights of Rizal. As earlier discussed, the Petition should
have been led before the regional trial court to resolve the factual issues involved and
for a more adequate and exhaustive resolution of this case.
For instance, questions that can be raised regarding the approval of the variance
of the construction from the standard Floor Area Ratio were contained in existing
ordinances. These questions were revealed during the oral arguments in this case.
Thus:
JUSTICE LEONEN:
You are not aware. Okay, now, in the zoning permit if you look at the floor
area, it says, "97,549 square meters," do you confirm this Counsel?
ATTY. LAZATIN:
I confirm that, Your Honor.
JUSTICE LEONEN:
And the land area is 7,475 square meters. I understand that this includes
right of way?
ATTY. LAZATIN:
That's correct. Your Honor, until an additional lot was added that made the
total project area to be 7,556.
JUSTICE LEONEN:
Okay. So, the floor area divided by the land area is 13.05, is that correct?
You can get a calculator and compute it, it's 13.05 correct?
ATTY. LAZATIN:
That's correct. Your Honor.
JUSTICE LEONEN:
That is called the FAR?
ATTY. LAZATIN:
Yes, Your Honor.
JUSTICE LEONEN:
Yes, and therefore, when the zoning permit was issued, there was already a
variance that was acknowledged by the City Planning Development Office
of the City of Manila, is that correct?
ATTY. LAZATIN:
That's right, Your Honor.
JUSTICE LEONEN: IDaEHC

So, in other words, Mr. Resty Rebong approved the application because it
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fell within four and the variance, is this correct?
ATTY. LAZATIN:
That's our impression, Your Honor.
JUSTICE LEONEN:
May I know what the Ordinance No. or resolution was that authorized Resty
Rebong to approve the variance?
ATTY. LAZATIN:
My recollection, Your Honor, it is Section 77 of the . . .
JUSTICE LEONEN:
No, I'm sorry, June 19, 2012, is there a Sangguniang Panlungsod Resolution
as of June 19, 2012 because Resty Rebong already said that the variance
is okay. Is there a resolution from the City Council on June 19, 2012
approving the variance?
ATTY. LAZATIN:
There was none, Your Honor.
JUSTICE LEONEN:
Again, here, I'm confused. The City Planning and Development Officer
approved 97,549 which already includes a variance, but [o]n June 19 when
he approved it in 2012, there was no resolution, nor ordinance from the City
Council allowing the variance.
ATTY. LAZATIN:
There was none yet at that time, Your Honor.
JUSTICE LEONEN:
As a matter of fact the variance was not there the following month, correct?
ATTY. LAZATIN:
No, Your Honor.
JUSTICE LEONEN:
In November 2012, there was no variance approval, correct?
ATTY. LAZATIN:
None . . .
JUSTICE LEONEN:
When DMCI was building the building there was no variance, was that not
correct? ASTcaE

ATTY. LAZATIN:
That's correct, Your Honor.
JUSTICE LEONEN:
And the only time that there was a variance that was granted, was in 2013, I
am sorry 20 . . . ?
ATTY. LAZATIN:
2014, Your Honor . . .

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JUSTICE LEONEN:
2014?
ATTY. LAZATIN:
Yes, Your Honor.
JUSTICE LEONEN:
So, two years after this Resty Rebong approved the zoning permit with the
variance but the approval of the variance came later?
ATTY. LAZATIN:
That's correct, Your Honor. If I may be allowed to explain . . .
JUSTICE LEONEN:
Can we go to Section 62 of the Ordinance, I am sorry Section 63, you
mentioned 62 awhile ago but I think you meant Section 63 of the Manila
Comprehensive Land Use Plan and Zoning Ordinance of 2006. There it is,
it's projected counsel, because I was confused based upon the questioning
of Justice Dado Peralta and I am always confused when he asked
questions, that's why I am asking. Now in Section 63 of the Ordinance, it
clearly says there, "City Planning Development O cer provides a clearance
for all conforming uses and, in cases of variances and exception from the
Sangguniang Panlungsod as per recommendation from the MZBAA
through the committee on Housing Urban Development and Resettlement
prior to conducting any business activity or construction on their
property/land." So, in other words, the Ordinance, said that it will not only
be forthcoming from the Sangguniang Panlungsod, there has to be a
recommendation from the Manila Zoning Board of Adjustment Appeals
who in turn will get a recommendation through the Committee on Housing
Urban Development and Resettlement, is this not correct?
ATTY. LAZATIN:
That's correct, Your Honor.
JUSTICE LEONEN:
And prior to means "prior to," "before," "antecedent to," conducting any
business activity or construction on their property or lot, correct, Counsel?
ATTY. LAZATIN:
Yes, Your, Honor, may I be? DTCSHA

JUSTICE LEONEN:
Did you sell your property before the action of the Sangguniang
Panlungsod?
ATTY. LAZATIN:
Your Honor, there is a difference between the approval of the . . .
(interrupted)
JUSTICE LEONEN:
Did you build prior to the approval of the Sangguniang Panlungsod as per
recommendation of the Manila Zoning Board of Adjustment Appeals?
ATTY. LAZATIN:
Your Honor, if I may be allowed to . . . ?
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JUSTICE LEONEN:
No, I have a pending question, did you build prior to the issuance of that
resolution or ordinance allowing the variance?
ATTY. LAZATIN:
We build, Your Honor, in accordance with what was permitted, Your Honor.
JUSTICE LEONEN:
I am again a bit curious. Section 3(J) of Republic Act 3019, the Anti-Graft
and Corruption Practices Law, it says, "knowingly approving or granting
any license, permit, privilege or bene t in favor of any person not quali ed
for or not legally entitled to such license, permit, privilege or advantage,"
that's a crime, correct?
ATTY. LAZATIN:
Your Honor, may I be allowed to explain?
JUSTICE LEONEN:
No, I'm just confirming if there is such a Section 3, paragraph (J)?
ATTY. LAZATIN:
Your Honor, right now I cannot confirm that, Your Honor.
JUSTICE LEONEN:
Okay.
ATTY. LAZATIN:
May I just be allowed to explain, Your Honor. . .
JUSTICE LEONEN:
Just to clarify the way it went, there was a zoning clearance, on June 2012,
the zoning clearance granted a variance, that variance had not yet been
approved by the MZBAA, nor the Sangguniang Panlungsod, and DMCI sold
property, mobilized in October, pre-sold. And you built starting November,
but the Ordinance approving the variance only came in 2013, is that
correct? cDSAEI

ATTY. LAZATIN:
That's correct, Your Honor, but may I be allowed to explain, Your Honor,
please?
JUSTICE LEONEN:
Yes.
ATTY. LAZATIN:
Your Honor, one, you only go to the MZBAA, Your Honor, when your permit
request for zoning permit or locational clearance is denied. In this case, it
was granted so, there was no opportunity for us to go to the MZBAA . . .
(interrupted)
JUSTICE LEONEN:
Counsel . . . (interrupted)
ATTY. LAZATIN:
Secondly, allow me to complete, Your Honor, allow me to complete, please,
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very important, Your Honor.
JUSTICE LEONEN:
Allow me to ask questions because I am the one that is going to vote on
this case. Now, the second part of Section 63 it says there, "prior to
conducting any business activity," can you [c]ite to me an ordinance or a
section in an Ordinance which says, "the only time that you go to the
MZBAA, is when the zoning permit is denied" because I am showing you
Section 63?
ATTY. LAZATIN:
Your Honor, you appeal to the MZBAA, Your Honor, for a variance. So if it is
granted, what will you appeal? And here, in addition, Your Honor, if I may
be allowed to complete my answer, Your Honor, also the records that we
have submitted it was the position of the City Planning Development
O cer that the executive branch of Manila suspended the Ordinance and
they were implementing the Building Code and in fact, Your Honor, they
submitted and gave us a copy, Your Honor, of the opinion of the City Legal
O cer that it was not necessary and at that time, Your Honor, all the
objections to the project were based on heritage, Your Honor. 9 0
However, due process requires that these matters be properly pleaded, alleged,
and traversed in the proper action. CScTED

Petitioner Knights of Rizal could not effectively assail the issuance of a variance
to DMCI Project Developers, Inc. in an action in the Supreme Court. Under Section 77 of
Ordinance No. 8119, the remedy of ling an opposition to the application for variance
before the Manila Zoning Board of Adjustments and Appeals was available to petitioner
Knights of Rizal. Section 77 of the Manila Zoning Ordinance provides:
SEC. 77. Action on Complaints and Opposition. A veri ed complaint for any
violations of any provision of the Zoning Ordinance or of any clearance or permits
issued pursuant thereto shall be led with the [Manila Zoning Board of
Adjustments and Appeals].
However, oppositions to application for clearance, variance or exception shall be
treated as a complaint and dealt with in accordance with the provision of this
section.
Given the foregoing, a writ of mandamus against the construction of Torre de
Manila does not lie.
With petitioner having no clear legal right to the relief sought, there can be no
great or irreparable injury 9 1 to petitioners and the temporary restraining order issued
by this Court has no solid ground. Thus, the temporary restraining order must be lifted.
EDCcaS

XIV
Even with the consciousness of his impending death, Jose Rizal did not want to
be aggrandized. He did not want to be buried and remembered in the way that the
petitioner wants him remembered. He wanted a simple grave in Paang Bundok marked
with his name, a simple cross and possibly a fence. He did not give instructions for
foreign artists to erect his likeness. He probably did not want that likeness to be
clothed in an overcoat so that we remember him in the bosom of our colonial masters.
He did not leave instructions that his name be used for a national shrine.
Jose Rizal did not even want his death anniversary celebrated.
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Like Elias in El Filibusterismo, Rizal wanted to be remembered as an ordinary
person, whose death was meaningful because it was the result of his courage to do
what was right no matter how fatal the consequences.
Rizal should be valorized because of his humility. He should not be venerated like
a saint or a god whose shrines erected in his honor is so sacred that it is protected by
putative knights in a country that prohibits titles of royalty or nobility.
I suspect that Jose Rizal would have been uncomfortable being in a pantheon of
heroes and with a stature that, in the submissions of the petitioner and the Solicitor
General, approaches that of a divinity.
The memory of our heroes symbolized by shrines erected in their honor should
not be granted so imperial a status so as to arbitrarily waste the material and physical
spaces and natural resources of adjoining properties. This is inconsistent with the
egalitarian society they may have imagined. It does not square with a more egalitarian
view of social justice.
We cannot immortalize our heroes by privileging an angle for a photograph of our
shrines while sacri cing the value of the rule of law for the society at present. Good
citizenship requires that we never venerate our heroes without any understanding of
their context. Rizal was a Filipino, whose principles and convictions gave them the
courage to speak truth to power no matter how fatal the consequences. He will still
only be one among many.
It is this courage and this humility that we should remember from Rizal's life.
These values should be lived. They should persist and survive beyond the frame of a
bad photograph. cDCEIA

ACCORDINGLY, I vote to LIFT the Temporary Restraining Order and DISMISS


the Petition.
JARDELEZA , J., dissenting :
Heritage is our legacy from the past, what we live with today, and what we pass
on to future generations. Our cultural and natural heritage are both irreplaceable
sources of life and inspiration. 1
The concept of the public welfare is broad and inclusive. The values it represents
are spiritual as well as physical, aesthetic as well as monetary. It is within the
power of the legislature to determine that the community should be beautiful as
well as healthy, spacious as well as clean, well-balanced as well as carefully
patrolled. Justice William O. Douglas in Berman v. Parker 2
To make us love our country, our country ought to be lovely. Edmund Burke
The Rizal Park and the Rizal Monument lie at the heart of this controversy.
Petitioner Knights of Rizal (KOR) instituted this original action for injunction to stop
what it views as "an impending permanent desecration of a National Cultural Treasure
that is the Rizal Monument and a historical, political, socio-cultural landmark that is the
Rizal Park." 3 According to KOR, once nished at its highest level, the Torre de Manila
will dwarf all surrounding buildings within a radius of two kilometers and "completely
dominate the vista and consequently, substantially diminish in scale and
importance the most cherished monument to the National Hero. " 4 Further
alleging that the project is a nuisance per se and constructed in bad faith and in
violation of the zoning ordinance of the City of Manila, KOR prayed, among others, for
the issuance of an injunction to restrain construction of the Torre de Manila, and for an
order for its demolition. 5
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In this case of rst impression, the Court was asked to determine the
constitutional dimensions of Sections 15 and 16, Article XIV of the Constitution. These
Sections mandate the State to conserve and protect our nation's historical and cultural
heritage and resources. We should decide this case conscious that we here exercise
our symbolic function as an aspect of our power of judicial review. 6 Ours is a heavy
burden; how we decide today will de ne our judicial attitude towards the constitutional
values of historic and cultural preservation and protection, involving as they often do
fragile and irreplaceable sources of our national identity.
The majority has voted to dismiss the petition.
With respect, I dissent.
I
I shall first discuss the procedural issues.
A.
Petitioner KOR led a petition for injunction, an action not embraced within our
original jurisdiction. 7 As correctly pointed out by DMCI-PDI, actions for injunction lie
within the jurisdiction of the RTC pursuant to Sections 19 and 21 of Batas Pambansa
Blg. 129, otherwise known as the "Judiciary Reorganization Act of 1980," as amended. 8
Nevertheless, I submit that the circumstances of this case warrant a relaxation of
the rule. ISHaCD

First. KOR's petition appears to make a case for mandamus.


Section 3, Rule 65 of the Rules of Court provides:
Sec. 3. Petition for mandamus. When any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to be done to protect
the rights of the petitioner, and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.
A writ of mandamus is a command issuing from a court of law of competent
jurisdiction, directed to some inferior court, tribunal, or board, requiring the
performance of a particular duty therein speci ed, which duty results from the o cial
station of the party to whom the writ is directed or from operation of law. 9 For a
petition for mandamus to prosper, petitioner must establish the existence of a clear
legal right to the thing demanded and it must be the imperative duty of the respondent
to perform the act required. 1 0 In University of San Agustin, Inc. v. Court of Appeals , 1 1
we stated:
While it may not be necessary that the duty be absolutely expressed, it
must however, be clear. The writ will not issue to compel an official to do
anything which is not his duty to do or which is his duty not to do, or give to the
applicant anything to which he is not entitled by law. The writ neither confers
powers nor imposes duties. It is simply a command to exercise a power already
possessed and to perform a duty already imposed. 1 2 (Emphasis supplied). DHESca

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Here, KOR's case is essentially founded on Sections 15 and 16, Article XIV of the
Constitution giving rise to an alleged duty on the part of respondent DMCI-PDI to
protect (or, at the very least, refrain from despoiling) the nation's heritage. In Uy Kiao
Eng v. Lee , we held that mandamus is a "proper recourse for citizens who seek to
enforce a public right and to compel the performance of a public duty, most especially
when the public right involved is mandated by the Constitution." 1 3
More importantly, a relaxation of procedural rules is warranted considering the
signi cance of the threshold and purely legal question involved in this case. As
identi ed in the Court's Advisory, this threshold and purely legal question is: "whether
the de nition of the Constitutional mandate to conserve, promote and
popularize the nation's historical and cultural heritage and resources,
includes, in the case of the Rizal Monument, the preservation of its
prominence, dominance, vista points, vista corridors, sightlines and setting."
1 4 Apropos to this, I proposed that the Court also decide: (2) whether there are laws,
statutes, ordinances, and international covenants that implement this mandate and
which were breached as a result of the construction of the Torre de Manila; and (3)
whether mandamus lies against public respondents.
In Gamboa v. Teves , 1 5 an original petition for prohibition, injunction, declaratory
relief, and declaration of nullity was led to stop the sale of shares of Philippine
Telecommunications Investment Corporation (PTIC) stock to Metro Paci c Assets
Holdings, Inc. (MPAH), a foreign owned corporation. The sale, if allowed, would
increase to 81% the common shareholdings of foreigners in Philippine Long Distance
Telephone Company (PLDT), beyond the allowed constitutional limit on foreign
ownership of a public utility. In Gamboa, this Court acknowledged that it had no original
jurisdiction over the petition for declaratory relief, injunction, and annulment of sale led
by petitioners therein. 1 6 Nevertheless, in view of the threshold and purely legal issue on
the definition of the term "capital" in Section 11, Article XII of the Constitution which had
far-reaching implications to the national economy, this Court treated the petition
as one for mandamus. 1 7
Gamboa cited two other precedents where we had relaxed procedural rules and
assumed jurisdiction over a petition for declaratory relief Salvacion v. Central Bank of
the Philippines 1 8 and Alliance of Government Workers v. Minister of Labor and
Employment. 1 9
Salvacion presented the issue of whether the protection afforded to foreign
currency deposits can be made applicable to a foreign transient. Alliance of
Government Workers, on the other hand, involved the issue of whether government
agencies are considered "employers" under a law requiring payment of 13th month pay
to certain employees. As in Gamboa, in both cases, we ruled that while we had no
original jurisdiction over the petitions as filed, "exceptions to this rule have been
recognized." In Salvacion, we declared: "where the petition has far-reaching implications
and raises questions that should be resolved, it may be treated as one for mandamus."
2 0 More, as in Alliance of Government Workers, "considering the important issues
propounded and the fact that constitutional principles are involved," we decided "to give
due course to the petition, to consider the various comments as answers and to
resolve the questions raised through a full length decision in the exercise of this Court's
symbolic function as an aspect of the power of judicial review." 2 1 Alliance of
Government Workers, in turn, cited as precedent the earlier cases Nacionalista Party v.
Bautista 2 2 and Aquino, Jr. v. Commission on Elections . 2 3 There we also relaxed the
application of procedural rules and treated the petition for prohibition led as one for
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quo warranto in view of "peculiar and extraordinary circumstances" and "far-reaching
implications" attendant in both cases.
Here, the Court's judicial power has been invoked to determine the extent of
protection afforded by the Constitution and our laws, if any, over cultural heritage
properties. Our resolution of this issue will settle whether the Constitution's heritage
conservation provisions are self-executing, and if not, whether the State has translated
them into judicially enforceable norms through enabling legislation. Similar to Gamboa,
Salvacion, and Alliance of Government Workers, I nd that this case presents serious
constitutional issues of far-reaching implications and signi cance warranting a liberal
application of procedural rules. cDTACE

B.
Legal standing (locus standi) is de ned as "a right of appearance in a court of
justice on a given question." 2 4 In Belgica v. Ochoa , Jr., we explained that "[t]he gist of
the question of standing is whether a party alleges such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of di cult
constitutional questions." 2 5
While rules on standing in public suits have in some cases been relaxed
especially in relation to non-traditional plaintiffs like citizens, taxpayers, and legislators,
2 6 we have generally adopted the "direct injury test" to determine whether a party has
the requisite standing to le suit. Under this test, for a party to have legal standing, it
must be shown that he has suffered or will suffer a direct injury as a result of the act
being challenged, 2 7 that is, he must show that: (1) he has personally suffered some
actual or threatened injury because of the allegedly illegal conduct of the government;
(2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be
redressed by a favorable action. 2 8
I am of the view that petitioner KOR su ciently meets the requirements of the
direct injury test.
Petitioner KOR is a public, non-pro t organization created under Republic Act No.
646, 2 9 one of whose main purposes include the organization and holding of programs
to commemorate Rizal's nativity and martyrdom. 3 0 These programs honoring the birth
and death of our national hero are held by KOR at the Rizal Park at least twice a year. 3 1
During oral arguments, counsel for KOR asserted that there is a violation of KOR's legal
mandate, as stated in its articles of incorporation, to celebrate the life of Jose Rizal at
the Rizal Park insofar as the Torre de Manila mars the Park's previously "unhampered"
and "unobstructed" panorama. 3 2
Sierra Club v. Morton 3 3 recognized that "[a]esthetic and environmental wellbeing,
like economic wellbeing, are important ingredients of the quality of life in our society,"
similarly deserving of legal protection such that direct injury may be rooted on the
destruction of "the scenery, natural and historic objects and wildlife of the park, and
would impair the enjoyment of the park for future generations." 3 4 While the US
Supreme Court refused to grant standing to Sierra Club due to the latter's failure to
allege that "it or its members would be affected in any of their activities or pastimes by
the [challenged] Disney development," 3 5 the same is not true here. KOR has su ciently
demonstrated that it has suffered (or stands to suffer) a direct injury on account of the
allegedly "illegal" condominium project insofar as KOR's regular commemorative
activities in the Park have been (and continues to be) marred by the allegedly unsightly
view of the Torre de Manila.
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In any case, where compelling reasons exist, such as when the matter is of
common and general interest to all citizens of the Philippines; 3 6 when the issues are of
paramount importance and constitutional signi cance; 3 7 when serious constitutional
questions are involved; 3 8 or there are advance constitutional issues which deserve our
attention in view of their seriousness, novelty, and weight as precedents, 3 9 this Court,
in the exercise of its sound discretion, has brushed aside procedural barriers and taken
cognizance of the petitions before us. The signi cant legal issues raised in this case far
outweigh any perceived impediment in the legal personality of petitioner KOR to bring
this suit. 4 0 TEHIaD

II
I shall now discuss the substantive issues raised in the petition.
A.
Petitioner KOR invokes Sections 15 and 16, Article XIV of the Constitution as
bases for its claim that there is a constitutional "obligation of the State" to protect the
Rizal Monument. 4 1 The Court has consequently identi ed the threshold legal issue to
be whether Sections 15 and 16, Article XIV of the Constitution extend protection to the
Rizal Monument and/or its prominence, dominance, vista points, vista corridors,
sightlines, and setting. To me, the resolution of this issue largely depends on whether
these sections are self-executing and thus judicially enforceable "in their present form."
4 2 I will thus discuss these issues together. cCHITA

Sections 15 and 16, Article XIV of the Constitution read:


Sec. 15. Arts and letters shall enjoy the patronage of the State. The State
shall conserve, promote, and popularize the nation's historical and cultural
heritage and resources, as well as artistic creations.
Sec. 16. All the country's artistic and historic wealth constitutes the cultural
treasure of the nation and shall be under the protection of the State which may
regulate its disposition.
In constitutional construction, it is presumed that constitutional provisions are
self-executing. The reason is that "[i]f the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power to
ignore and practically nullify the mandate of the fundamental law." 4 3 This, however,
does not make all constitutional provisions immediately self-executing.
I n Basco v. Philippine Amusement and Gaming Corporation , 4 4 we held that
Sections 11 (Personal Dignity), 12 (Family), and 13 (Role of Youth) of Article II; Section
12 (Social Justice and Human Rights) of Article XIII and Section 2 (Educational Values)
of Article XIV of the 1987 Constitution are merely statements of principles and policies.
They are not self-executing and would need a law to be passed by Congress to clearly
define and effectuate such principles.
Three years later, in the 1994 case of Tolentino v. Secretary of Finance, 4 5 we held
that the constitutional directives under Section 1, Article XIII (Social Justice and Human
Rights) and Section 1, Article XIV (Education) to give priority to the enactment of laws
for the enhancement of human dignity, the reduction of social, economic and political
inequalities, and the promotion of the right to "quality education" were put in the
fundamental law "as moral incentives to legislation, not as judicially enforceable rights."
4 6 In the subsequent case of Kilosbayan, Inc. v. Morato , 4 7 we held that the provisions
under Article II (Declaration of State Principles and Policies) of the Constitution are not
self-executing provisions, "the disregard of which can give rise to a cause of action in
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the courts. They do not embody judicially enforceable constitutional rights but
guidelines for legislation." 4 8 In Taada v. Angara , 4 9 we a rmed that far from being
provisions ready for enforcement through the courts, the sections found under Article II
are there to be "used by the judiciary as aids or as guides in the exercise of its power of
judicial review, and by the legislature in its enactment of laws." 5 0
To determine whether a provision is self-executory, the test is to see whether the
provision is "complete in itself as a de nitive law, or if it needs future legislation for
completion and enforcement." 5 1 In other words, the provision must set forth "a
speci c, operable legal right, rather than a constitutional or statutory policy." 5 2 Justice
Feliciano, in his Separate Opinion in the landmark case of Oposa v. Factoran , explained:
DETACa

It seems to me important that the legal right which is an essential component of a


cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy , for at least two (2) reasons. One is that unless the legal right
claimed to have been violated or disregarded is given specification in operational
terms, defendants may well be unable to defend themselves intelligently and
effectively; in other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration where a specific violation of law
or applicable regulation is not alleged or proved, petitioners can be expected to
fall back on the expanded conception of judicial power in the second paragraph
of Section 1 of Article VIII of the Constitution x x x.
When substantive standards as general as "the right to a balanced and
healthy ecology" and "the right to health" are combined with remedial
standards as broad ranging as "a grave abuse of discretion amounting
to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area of environmental
protection and management, our courts have no claim to special technical
competence and experience and professional quali cation. Where no speci c,
operable norms and standards are shown to exist, then the policy
making departments the legislative and executive departments
must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them before
the courts should intervene. 5 3 (Emphasis supplied.)
Following this test, I am of the view that Sections 15 and 16, Article XIV of the
Constitution invoked by petitioner KOR are not self-executing provisions. These
provisions relied upon by KOR, textually and standing alone, do not create any judicially
enforceable right and obligation for the preservation, protection or conservation of the
"prominence, dominance, vista points, vista corridors, sightlines and setting" of the Rizal
Park and the Rizal Monument.
Similar to those constitutional provisions we have previously declared to be non-
self-executing, Sections 15 and 16 are mere statements of principle and policy. The
constitutional exhortation to "conserve, promote, and popularize the nation's historical
and cultural heritage and resources," lacks "speci c, operable norms and standards" by
which to guide its enforcement. 5 4 Enabling legislation is still necessary to de ne, for
example, the scope, permissible measures, and possible limitations of the State's
heritage conservation mandate. Congress, in the exercise of its plenary power, is alone
empowered to decide whether and how to conserve and preserve historical and cultural
property. As in the situation posed by Justice Feliciano, Sections 15 and 16, by
themselves, will be of no help to a defendant in an actual case for purposes of
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preparing an intelligent and effective defense. These sections also lack any
comprehensible standards by which to guide a court in resolving an alleged violation of
a right arising from the same. CScaDH

The view that Sections 15 and 16 are not self-executing provisions is, in fact,
supported by the deliberations of the Constitutional Commission, insofar as they reveal
an intent to direct Congress to enact a law that would provide guidelines for the
regulation as well as penalties for violations thereof. 5 5 In particular, during the
interpellation of Commissioner Felicitas Aquino, one of the proponents of the provision
on heritage conservation, she conceded that there is a need for supplementary
statutory implementation of these provisions. 5 6
Petitioner KOR also claimed that the Torre de Manila project (1) "violates" the
National Historical Commission of the Philippines (NHCP) "Guidelines on Monuments
Honoring National Heroes, Illustrious Filipinos and Other Personages" which "guidelines
have the force of law" and (2) "runs afoul" an "international commitment" of the
Philippines under the International Charter for the Conservation and Restoration of
Monuments and Sites, otherwise known as the Venice Charter. 5 7
I disagree.
The NHCP Guidelines is neither law nor an enforceable rule or regulation.
Publication 5 8 and ling with the Law Center of the University of the Philippines 5 9 are
indispensable requirements for statutes, including administrative implementing rules
and regulations, to have binding force and effect. 6 0 As correctly pointed out by
respondent DMCI-PDI, no showing of compliance with these requirements appears in
this case. The NHCP Guidelines cannot thus be held as binding against respondent.
Similarly, neither can the Venice Charter be invoked to prohibit the construction
of the Torre de Manila project. The Venice Charter provides, in general terms, the steps
that must be taken by State Parties for the conservation and restoration of monuments
and sites, including these properties' setting. It does not, however, rise to a level of an
enforceable law. There is no allegation that the Philippines has legally committed to
observe the Venice Charter. Neither am I prepared to declare that its principles are
norms of general or customary international law which are binding on all states. 6 1 I
further note that the terms of both the NHCP Guidelines and the Venice Charter appear
hortatory and do not claim to be sources of legally enforceable rights. These
documents only urge (not require) governments to adopt the principles they espouse
through implementing laws. 6 2
Nevertheless, the Venice Charter and the NHCP Guidelines, along with various
conservation conventions, recommendations, and resolutions contained in multilateral
cooperation and agreements by State and non-state entities, do establish a signi cant
fact: At the time of the enactment of our Constitution in 1987, there has
already been a consistent understanding of the term "conservation" in the
culture, history, and heritage context as to cover not only a heritage
property's physical/tangible attributes, but also its settings ( e.g. , its
surrounding neighborhood, landscapes, sites, sight lines, skylines, visual
corridors, and vista points). TaDCEc

The setting of a heritage structure, site, or area is de ned as "the immediate and
extended environment that is part of, or contributes to, its signi cance and distinctive
character." 6 3 It is also referred to as "the surroundings in which a place is experienced,
its local context, embracing present and past relationships to the adjacent landscape."
6 4 It is further acknowledged as one of the sources from which heritage structures,
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sites, and areas "derive their signi cance and distinctive character." 6 5 Thus, any change
to the same can "substantially or irretrievably affect" the signi cance of the heritage
property. 6 6
The concept of settings was rst formalized with the Xi'an Declaration on the
Conservation of the Setting of Heritage Structures, Sites and Areas adopted by the 15th
General Assembly of International Council on Monuments and Sites (ICOMOS) on
October 21, 2005. The concept itself, however, has been acknowledged decades
before, with references to settings, landscapes, and surroundings appearing as early
as 1962. 6 7
To reiterate, my examination of the various multilateral and international
documents on the subject shows a generally-accepted and oft-repeated understanding
of "heritage conservation" as covering more than a cultural property's physical
attributes to include its surroundings and settings. 6 8 This "understanding" had,
unarguably, already acquired "term of art" status even before the enactment of our
Constitution in 1987. Verba artis ex arte. Terms of art should be explained from their
usage in the art to which they belong. 6 9
To me, absent proof of a clear constitutional expression to the contrary, the
foregoing understanding of heritage conservation provide more than su cient
justi cation against a priori limiting the plenary power of Congress to determine,
through the enactment of laws, the scope and extent of heritage conservation in our
jurisdiction. Otherwise put, the Congress can choose to legislate that protection of a
cultural property extends beyond its physical attributes to include its surroundings,
settings, view, landscape, dominance, and scale. This ows from the fundamental
principle that the Constitution's grant of legislative power to Congress is plenary,
subject only to certain de ned limitations, such as those found in the Bill of Rights and
the due process clause of the Constitution. 7 0
B.
Having established that Sections 15 and 16, Article XIV of the Constitution
invoked by petitioner KOR are not self-executing constitutional provisions, I will discuss
the existing laws or statutes that can be sources of judicially demandable rights for
purposes of the ends sought to be attained by petitioner.
a.
Over the years, Congress has passed a number of laws to carry out the
constitutional policy expressed in Sections 15 and 16, Article XIV of the Constitution.
Conservation and preservation have, notably, been recurring themes in Philippine
heritage laws. aHSTID

Republic Act No. 4368, 7 1 enacted in 1965 and which created the National
Historical Commission, declared it the duty, among others, of the Commission to
"identify, designate, and appropriately mark historic places in the Philippines and x x x
to maintain and care for national monuments, shrines and historic markets x x x." 7 2 A
year later, Republic Act No. 4846, otherwise known as the "Cultural Properties
Preservation and Protection Act," was passed declaring it an explicit state policy to
"preserve and protect the important x x x cultural properties x x x of the nation and to
safeguard their intrinsic value." 7 3
Republic Act No. 7356 7 4 (RA 7356) later declared that culture is a "manifestation
of the freedom of belief and of expression," and "a human right to be accorded due
respect and allowed to flourish." 7 5 Thus, it was provided that:
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Sec. 3. National Identity. Culture reflects and shapes values, beliefs,
aspirations, thereby defining a people's national identity. A Filipino national
culture that mirrors and shapes Philippine economic, social and
political life shall be evolved, promoted and conserved .
Sec. 7. Preservation of the Filipino Heritage. It is the duty of every
citizen to preserve and conserve the Filipino historical and cultural
heritage and resources. The retrieval and conservation of artifacts of Filipino
culture and history shall be vigorously pursued. (Emphasis and underscoring
supplied.)
With RA 7356, Congress created the National Commission for Culture and the
Arts (NCCA) which had, among its principal mandates, the conservation and
promotion of the nation's historical and cultural heritage. 7 6 Later on, Republic Act No.
8492 7 7 (RA 8492) was enacted, converting the National Museum (NM) into a trust of
the government whose primary mission includes the acquisition, preservation , and
exhibition of works of art, specimens and cultural and historical artifacts. 7 8 Our
National Building Code also prohibits the construction of signboards which will
"obstruct the natural view of the landscape x x x or otherwise de le, debase, or offend
the aesthetic and cultural values and traditions of the Filipino people." 7 9
Republic Act No. 10066 8 0 (RA 10066) and Republic Act No. 10086 8 1 (RA
10086) are heritage laws of recent vintage which further a rm the mandate to protect,
preserve, co ns er ve, and promote the nation's historical and cultural heritage and
resources. 8 2 Section 2 of RA 10066, for example, reads:
Sec. 2. Declaration of Principles and Policies. Sections 14, 15, 16 and 17,
Article XIV of the 1987 Constitution declare that the State shall foster the
preservation, enrichment and dynamic evolution of a Filipino culture based on the
principle of unity in diversity in a climate of free artistic and intellectual
expression. The Constitution likewise mandates the State to conserve, develop,
promote and popularize the nation's historical and cultural heritage and
resources, as well as artistic creations. It further provides that all the country's
artistic and historic wealth constitutes the cultural treasure of the nation and shall
be under the protection of the State, which may regulate its disposition. cDEHIC

In the pursuit of cultural preservation as a strategy for maintaining


Filipino identity , this Act shall pursue the following objectives:
(a) Protect, preserve, conserve and promote the nation's
cultural heritage , its property and histories, and the
ethnicity of local communities;
(b) Establish and strengthen cultural institutions; and
(c) Protect cultural workers and ensure their professional development
and well-being.
The State shall likewise endeavor to create a balanced atmosphere where the
historic past coexists in harmony with modern society. It shall approach the
problem of conservation in an integrated and holistic manner , cutting
across all relevant disciplines and technologies. The State shall further
administer the heritage resources in a spirit of stewardship for the inspiration
and benefit of the present and future generations. (Emphasis and underscoring
supplied.)
According to the City of Manila, "[u]nobstructed viewing appreciation and
photographic opportunities have not risen to the level of a legislated right or an
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imposable obligation in connection with engineering works or even cultural creations."
8 3 The NHCP, for its part, claims that there is "no law or regulation [which] imposes a
speci c duty on [the part of] the NHCP to issue a Cease and Desist Order (CDO) to
protect the view of the Rizal Monument and Rizal Park." 8 4 Even assuming that views
are protected, the NHCP claims that it is the City of Manila in the exercise of its police
power not the NHCP that should pass legislation to protect the Rizal Park and Rizal
Monument. 8 5
DMCI-PDI maintains that there is "absolutely no law, ordinance or rule prohibiting
the construction of a building, regardless of height, at the background of the Rizal
Monument and the Rizal Park." 8 6 It argues that RA 10066, the law passed by Congress
to implement the constitutional mandate of heritage conservation, "does not include
provisions on the preservation of the prominence, dominance, vista points, vista
corridors, sightlines, and settings of historical monuments like the Rizal Monument." 8 7
It further claims that what RA 10066 protects is merely the physical integrity of national
cultural treasures and important cultural properties "by authorizing the issuance of
CDOs pursuant to Section 25 of the law." 8 8
In my view, respondents are only PARTLY correct.
My reading of the foregoing statutes shows no clear and specific duty on the
part of public respondents NCCA, NM, or NHCP to regulate, much less, prohibit the
construction of the Torre de Manila project on the ground that it adversely affects the
view, vista, sightline, or setting of the Rizal Monument and the Rizal Park. 8 9
Nevertheless, there is to me existing local legislation implementing the
constitutional mandate of heritage conservation. Ordinance No. 8119
provides for a clear and speci c duty on the part of the City of Manila to
regulate development projects insofar as these may adversely affect the
view, vista, sightline, or setting of a cultural property within the city.
b.
Republic Act No. 7160, otherwise known as the Local Government Code, vests
local government units with the powers to enact ordinances to promote the general
welfare, which it defines to include: CDHaET

Sec. 16. General Welfare. Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of
culture , promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals,
enhance economic prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants. (Emphasis supplied.)
It also provides that zoning ordinances serve as the primary and dominant bases for
the use of land resources. 9 0 These are enacted by the local legislative council as part
of their power and duty to promote general welfare, 9 1 which includes the division of a
municipality/city into districts of such number, shape, and area as may be deemed best
suited to carry out the stated purposes, and within such districts "regulate and restrict
the height, number of stories, and size of buildings and other structures, the percentage
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of lot that may be occupied x x x." 9 2
Ordinance No. 8119 is a general zoning ordinance similar to the one upheld by
the United States Supreme Court in the case of Village of Euclid v. Ambler Realty Co . 9 3
as a valid exercise of police power. The validity of a municipal ordinance dividing the
community into zones was challenged in that case on the ground that "it violates the
constitutional protection 'to the right of property x x x by attempted regulations under
the guise of the police power, which are unreasonable and con scatory." 9 4 The US
Supreme Court there stated that: ISCDEA

Building zone laws are of modern origin. They began in this country about twenty-
ve years ago. Until recent years, urban life was comparatively simple; but with
the great increase and concentration of population, problems have developed,
and constantly are developing, which require, and will continue to require,
additional restrictions in respect of the use and occupation of private lands in
urban communities. Regulations the wisdom, necessity and validity of which, as
applied to existing conditions, are so apparent that they are now uniformly
sustained a century ago, or even half a century ago, probably would have been
rejected as arbitrary and oppressive. Such regulations are sustained, under the
complex conditions of our day, for reasons analogous to those which justify
tra c regulations, which, before the advent of automobiles and rapid transit
street railways, would have been condemned as fatally arbitrary and
unreasonable. And in this there is no inconsistency, for, while the meaning of
constitutional guaranties never varies, the scope of their application must expand
or contract to meet the new and different conditions which are constantly coming
within the eld of their operation. In a changing world, it is impossible that it
should be otherwise. x x x 9 5
This Court has similarly validated the constitutionality of zoning ordinances in
this jurisdiction. 9 6 In Victorias Milling Co., Inc. v. Municipality of Victorias , Negros
Occidental, 9 7 we held that an ordinance carries with it the presumption of validity. In
any case, the validity of Ordinance No. 8119, while subsequently raised by petitioner
KOR as an issue, can be challenged only in a direct action and not collaterally. 9 8 While
the question of its reasonableness may still be subject to a possible judicial inquiry in
the future, 9 9 Ordinance No. 8119 is presumptively valid and must be applied.
Ordinance No. 8119, by its terms, contains speci c, operable norms and
standards that implement the constitutional mandate to conserve historical and
cultural heritage and resources. A plain reading of the Ordinance would show that
it sets forth speci c historical preservation and conservation standards
w h i c h textually reference "landscape and streetscape," 1 0 0 and "visual
charact er" 1 0 1 in speci c relation to the conservation of historic sites and
facilities located within the City of Manila. We quote:
Sec. 47. Historical Preservation and Conservation Standards. Historic
sites and facilities shall be conserved and preserved . These shall, to the
extent possible, be made accessible for the educational and cultural enrichment
of the general public.
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to conserve
and enhance their heritage values.
2. Historic sites and facilities shall be adaptively re-used.
3. Any person who proposes to add, to alter, or partially demolish a
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designated heritage property will require the approval of the City
Planning and Development O ce (CPDO) and shall be required to prepare
a heritage impact statement that will demonstrate to the satisfaction
of the CPDO that the proposal will not adversely impact the
heritage signi cance of the property and shall submit plans for
review by the CPDO in coordination with the National Historical
Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage properties
shall be evaluated based on criteria established by the heritage
significance of the particular property or site.
5. Where an owner of a heritage property applies for approval to demolish a
designated heritage property or properties, the owner shall be required to
provide evidence to satisfaction that demonstrates that rehabilitation and
re-use of the property is not viable.
TaCEHA

6. Any designated heritage property which is to be demolished or signi cantly


altered shall be thoroughly documented for archival purposes with a
history, photographic records, and measured drawings, in accordance with
accepted heritage recording guidelines, prior to demolition or alteration.
7. Residential and commercial in ll in heritage areas will be sensitive to the
existing scale and pattern of those areas, which maintains the existing
landscape and streetscape qualities of those areas , and which does
not result in the loss of any heritage resources.
8. Development plans shall ensure that parking facilities (surface lots,
residential garages, stand-alone parking garages and parking components
as parts of larger developments) are compatibly integrated into heritage
areas, and/or are compatible with adjacent heritage resources.
9. Local utility companies (hydro, gas, telephone, cable) shall be required to
place metering equipment, transformer boxes, power lines, conduit,
equipment boxes, piping, wireless telecommunication towers and other
utility equipment and devices in locations which do not detract from
the visual character of heritage resources , and which do not have
negative impact on its architectural integrity.
10. Design review approval shall be secured from the CPDO for any
alteration of the heritage property to ensure that design guidelines and
standards are met and shall promote preservation and conservation of the
heritage property. (Emphasis and underscoring supplied.)
Section 47, by its terms, provides the standards by which to "guide the
development of historic sites and facilities," which include, among others, consideration
of the "existing landscape, streetscape and visual character" of heritage properties and
resources. Under Section 47, the following matters are issues for consideration: (1)
whether a certain property is considered a historic site, area and facility which has
heritage value and signi cance; (2) whether the proposed development adds to or
alters a historic site, area and facility; (3) whether a proposed development adversely
impacts the heritage signi cance of a historic site, area or facility; (4) whether a project
proponent needs to submit a heritage impact statement (HIS) and plans for review; and
(5) whether the CPDO is required to coordinate with the respondent NHCP in assessing
a proposed development's adverse impact, if any, to the heritage signi cance of a
historic site, area, and facility. EDCTIa

Petitioner KOR asserted that the Rizal Park is "sacred ground in the historic
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struggle for freedom" 1 0 2 and the Rizal Monument is a "National Cultural Treasure." 1 0 3
It alleged that respondent DMCI-PDI's Torre de Manila condominium project will have
an "adverse impact" by ruining the sightline of the Rizal Park and Rizal Monument
thereby diminishing its value, 1 0 4 scale, and importance. 1 0 5 To my mind, petitioner's
foregoing allegations should be su ciently addressed by the City upon due
consideration of the standards expressed under Section 47.
In fact, Ordinance No. 8119 contains another provision that declares it in "the
public interest" that all projects be designed in an "aesthetically pleasing" manner. It
makes express and speci c reference to "existing and intended character of [a]
neighborhood," 1 0 6 "natural environmental character" of its neighborhood, and "skyline,"
1 0 7 among others. Section 48 mandates consideration of skylines as well as "the
existing and intended character of the neighborhood" where the proposed facility is to
be located, thus:
Sec. 48. Site Performance Standards. The City considers it in the public
interest that all projects are designed and developed in a safe, e cient and
aesthetically pleasing manner . Site development shall consider the
environmental character and limitations of the site and its adjacent properties. All
project elements shall be in complete harmony according to good design
principles and the subsequent development must be pleasing as well as
e ciently functioning especially in relation to the adjacent properties and
bordering streets.
The design, construction, operation and maintenance of every facility shall be in
harmony with the existing and intended character of its neighborhood. It shall not
change the essential character of the said area but will be a substantial
improvement to the value of the properties in the neighborhood in particular and
the community in general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with
regard to safety, e ciency and high standards of design. The natural
environmental character of the site and its adjacent properties
shall be considered in the site development of each building and
facility.
1. * The height and bulk of buildings and structures shall be so
designed that it does not impair the entry of light and ventilation, cause the
loss of privacy and/or create nuisances, hazards or inconveniences to
adjacent developments.
xxx xxx xxx
8. No large commercial signage and/or pylon, which will be
detrimental to the skyline , shall be allowed.
9. Design guidelines, deeds of restriction, property management plans
and other regulatory tools that will ensure high quality developments shall
be required from developers of commercial subdivisions and
condominiums. These shall be submitted to the City Planning and
Development Office (CPDO) for review and approval. (Emphasis and
underscoring supplied.) acHTIC

Under the pertinent provisions of Section 48, the following items must be
considered: (1) whether a proposed development was designed in an aesthetically
pleasing manner in relation to the environmental character and limitations of its site,
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adjacent properties, and bordering streets; (2) whether the proposed development's
design (including height, bulk and orientation) is in harmony with the existing and
intended character of its neighborhood; (3) whether the development will change the
essential character of the area; and (4) whether the development would be akin to a
large commercial signage and/or pylon that can be detrimental to the skyline.
I nd that Section 48 appears relevant especially considering petitioner KOR's
allegations that the Torre de Manila sticks out "like a sore thumb" 1 0 8 and respondent
NHCP's statement to the Senate that "the Commission does nd that the condominium
structure (Torre de Manila) "look[s] ugly," 1 0 9 and "visually obstructs the vista and adds
an unattractive sight to what was once a lovely public image x x x." 1 1 0 The foregoing
allegations should likewise be su ciently addressed by the City of Manila upon due
consideration of the standards stated under Section 48.
Finally, Ordinance No. 8119, by its terms, contains speci c operable norms and
standards that protect "views" with "high scenic quality," separately and
independently of the historical preservation, conservation, and aesthetic standards
discussed under Sections 47 and 48. Sections 45 and 53 obligate the City of Manila to
protect views of "high scenic quality" which are the objects of "public enjoyment," under
explicit "environmental conservation and protection standards:"
Sec. 45. Environmental Conservation and Protection Standards. It is the
intent of the City to protect its natural resources . In order to achieve this
objective, all development shall comply with the following regulations:
1. Views shall be preserved for public enjoyment especially in sites
with high scenic quality by closely considering building
orientation, height, bulk, fencing and landscaping .
xxx xxx xxx
Sec. 53. Environmental Compliance Certificate (ECC).
Notwithstanding the issuance of zoning permit (locational clearance)
Section 63 of this Ordinance, no environmentally critical projects nor
projects located in environmentally critical areas shall be commenced,
developed or operated unless the requirements of ECC have been complied
with. (Emphasis and italics supplied.)
I note that the Torre de Manila is in a University Cluster Zone (INS-U), which is
assigned a permissible maximum Percentage Land Occupancy (PLO) of 0.6 and a
maximum Floor-Area Ratio (FAR) of 4. Applying these Land Use Intensity Controls
(LUICs), petitioner KOR claims that the City of Manila violated the zoning restrictions of
Ordinance No. 8119 when it: (1) permitted respondent DMCI-PDI to build a structure
beyond the seven- oor limit allowed within an "institutional university cluster;" and (2)
granted respondent DMCI-PDI a variance to construct a building "almost six times the
height limit." 1 1 1 Petitioner KOR asserts that even at 22.83% completion, or at a height
of 19 oors as of August 20, 2014, the Torre de Manila already obstructs the "view" of
the "background of blue sky" and the "vista" behind the Rizal Park and the Rizal
Monument. 1 1 2
I am aware that KOR does not in its petition invoke the constitutional right of the
people to a balanced and healthful ecology, 1 1 3 other environmental protection
statutes, or Sections 45 and 53 of Ordinance No. 8119. Considering, however, the
language of the petition's allegations, the texts of Sections 45 and 53, and the greater
public interest in the just and complete determination of all issues relevant to the
disposition of this case, I include the following consideration of Sections 45 and 53 in
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my analysis. ADCIca

In my view, Section 45 in relation to Section 53, by their terms, provide standards


by which "views" with "high scenic quality" enjoyed by the public should be preserved,
i.e., "all developments shall comply with x x x regulations" including those relating to
"building orientation, height, [and] bulk x x x."
To me, these Sections thus present the following questions for the City of Manila
to consider and decide: (1) whether the Rizal Park and the Rizal Monument generate a
view of high scenic quality that is enjoyed by the public; 1 1 4 (2) whether this view comes
within the purview of the term "natural resources;" (3) whether the orientation, height,
and bulk of the Torre de Manila, as prescribed in its LUIC rating under the University
Cluster Zone, or as approved by the variance granted by the City of Manila, will impair
the protection of this view; and (4) whether the Torre de Manila is an environmentally
critical project or is a project located in an environmentally critical area, as to require
compliance with the requirements of an ECC. 1 1 5
C.
The majority states that the main purpose of zoning is the protection of public
safety, health, convenience, and welfare. It is argued that there is no indication that the
Torre de Manila project brings any harm, danger or hazard to the people in the
surrounding areas except that the building allegedly poses an unsightly view on the
taking of photos or the visual appreciation of the Rizal Monument by locals and
tourists. ScaCEH

I disagree.
The modern view is that health and public safety do not exhaust or limit the
police power purposes of zoning. It is true that the concept of police power (in general)
and zoning (in particular) traditionally developed alongside the regulation of nuisance
and dangers to public health or safety. The law on land development and control,
however, has since dramatically broadened the reach of the police power in relation to
zoning.
The protection of cultural, historical, aesthetic, and architectural assets as an
aspect of the public welfare that a State is empowered to protect pursuant to the
police power would nd its strongest support in Berman v. Parker . 1 1 6 This 1954
landmark case broke new and important ground when it recognized that public safety,
health, morality, peace and quiet, law and order which are some of the more
conspicuous examples of the traditional application of the police power merely
illustrate the scope of the power and do not limit it. 1 1 7 Justice William O. Douglas in his
opinion famously said:
We deal, in other words, with what traditionally has been known as the police
power. An attempt to define its reach or trace its outer limits is fruitless, for each
case must turn on its own facts. The definition is essentially the product of
legislative determinations addressed to the purposes of government, purposes
neither abstractly nor historically capable of complete definition. Subject to
specific constitutional limitations, when the legislature has spoken, the public
interest has been declared in terms well nigh conclusive. x x x
The concept of public welfare is broad and inclusive. The values it
represents are spiritual as well as physical, aesthetic as well as
monetary. It is within the power of the legislature to determine that the
community should be beautiful as well as healthy, spacious as well as
clean, well-balanced as well as carefully patrolled. 1 1 8 (Emphasis
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supplied. Citations omitted.)
Building on Berman and later statutes, courts would, over time, accept newer
de nitions of the public welfare in support of expansive zoning laws. Some of the most
signi cant applications of this expansion will occur in the use of zoning to effect public
welfare interests in historical preservation, protection of the environment and ecology,
and aesthetics. 1 1 9
At this juncture, I would like to put into historical perspective the development of,
and inter-relation between, town planning, police power and zoning.
a.
Town planning, at least in the United States, traces its origins from early colonial
days. Civil engineers and land surveyors dominated the design of frontier settlements.
1 2 0 The advent of widespread land speculation then triggered the era of city-building.
When unplanned growth led to disease, poor sanitation, and problems of drainage and
disposal of waste, the "water-carriage sewerage system" was invented, paving the way
for what we now know as the era of the Sanitary Reform Movement. 1 2 1
After the Civil War, American cities rapidly grew, leading to "an increased
awareness of the need for civic beauty and amenities in America's unplanned urban
areas." 1 2 2 With the growing agitation for "greater attention to aesthetics in city
planning" came the City Beautiful Movement, whose debut is commonly attributed to
the Chicago World Fair of 1893. 1 2 3 This Movement is considered the precursor to
modern urban planning whose hallmarks include "[w]ell-kept streets, beautiful parks,
attractive private residences, fresh air and sanitary improvements." 1 2 4 In the 1890s,
townspeople formed ad hoc "village improvement associations" to propagate the
movement. 1 2 5 Over time, the village improvement associations would give way to
planning commissions. Much later, local governments adopted city plans which they
eventually incorporated into comprehensive zoning ordinances. 1 2 6 Thereafter, the
United States Supreme Court in 1926 would uphold the constitutionality of a general
zoning ordinance in Village of Euclid. ACTIHa

b.
Historic preservation and conservation has a long history. It is said to have
started in the United States in the mid 1800's, with efforts to save Mt. Vernon, the home
of George Washington. Before the Civil War, the United States (US) Congress initially
harbored "strong doubts" as to the constitutional basis of federal involvement in
historic preservation. 1 2 7 Since the government at the time was not nancing the
acquisition of historic property, 1 2 8 a group of ladies organized a private effort to
acquire the property and save it from ruin. 1 2 9 The US Congress injected itself into the
preservation eld only when it began purchasing Civil War battle eld sites. Sometime in
1893, the US Congress passed a law which provided for, among others, the acquisition
of land to preserve the lines of the historic Battle of Gettysburg. This law was
challenged on constitutional grounds and gave rise to the landmark decision in United
States v. Gettysburg Elec. Ry. Co. 1 3 0
Gettysburg Electric Railway Co., a railroad company which acquired property for
its railroad tracks that later became subject of condemnation, led a case questioning
the kind of public use for which its land is being condemned. In unanimously ruling in
favor of the federal government, the United States Supreme Court held that the taking
of the property "in the name and for the bene t of all the citizens of the country x x x
seems x x x not only a public use, but one so closely connected with the welfare of the
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republic itself x x x" 1 3 1 With this Decision, historic preservation law was "canonized by
the legislative, executive, and judicial branches of the Federal Government" 1 3 2 and
given "a constitutional foundation." 1 3 3
On the other hand, environmental aspects of land use control were scarcely a
concern before the 1960s. 1 3 4 This, however, would change in 1969 with the passage
of the federal National Environmental Policy Act 1 3 5 (NEPA) which mandated that
federal agencies consider the environmental effects of their actions. The policy goals
as speci ed in the NEPA include "responsibilities of each generation as trustee of the
environment for succeeding generations" 1 3 6 and to "assure for all Americans safe,
healthful, productive, and aesthetically and culturally pleasing surroundings" 1 3 7 through
the preparation of environmental impact statements on major federal actions which
may have a significant impact on the environment, natural or built. 1 3 8
The NEPA later led to the adoption of similar laws in over 75 countries. 1 3 9 In the
Philippines, President Marcos in 1977 issued Presidential Decree No. 1151, entitled
"Philippine Environmental Policy," declaring it the responsibility of the government to,
among others, "preserve important historic and cultural aspects of the Philippine
heritage." It declared that an impact statement shall be led in every action, project, or
undertaking that significantly affects the quality of the environment. Presidential Decree
No. 1586, 1 4 0 issued in 1978, then authorized the President to declare certain projects,
undertaking, or areas in the country as "environmentally critical." Pursuant to this
authority, President Marcos, under Proclamation No. 1586, declared areas of unique
historic, archaeological, or scienti c interests as among the areas declared to be
environmentally critical and within the scope of the Environmental Impact Statement
System. 1 4 1
The broadening concept of the public welfare would also extend to
considerations of aesthetics. The traditional rule has been that the authority for
statutes and ordinances is the state's police power to promote the public safety, health,
morals, or general welfare. 1 4 2 Aesthetic considerations as a "primary motivation" to
the enactment of ordinances are "insu cient" where they are only "auxiliary or
incidental" to the interests in health, morals and safety. 1 4 3
TIEHDC

In early court decisions concerning aesthetic regulation, the US Supreme Court


viewed aesthetics as "not su ciently important in comparison with traditional police
power uses." 1 4 4 At that time, the US Supreme Court would hold that aesthetic values
were not important enough to warrant an infringement of more highly valued property
rights. 1 4 5 Aesthetic regulations were perceived to carry "great a danger of unbridled
subjectivity, unlike other areas of state regulation, where objective evaluation of the
governmental purpose is possible." 1 4 6 The lack of any objective standard to determine
what is aesthetically pleasing created a real danger that the state will end up imposing
its values upon the society which may or may not agree with it.
As earlier noted, this would change in 1954 with Berman. Courts would thereafter
take a more liberal and hospitable view towards aesthetics. 1 4 7 "The modern trend of
judicial decision x x x is to sanction aesthetic considerations as the sole justi cation for
legislative regulation x x x." 1 4 8 Writers and scholars would articulate the bases for
extending to aesthetic stand-alone acceptance as a public welfare consideration.
Newton D. Baker, a noted authority in zoning regulations, argued that beauty is a
valuable property right. 1 4 9 Professor Paul Sayre argued that since "aesthetics
maintains property values," the greater the aesthetic value of property the more it is
worth, therefore it will generate more taxes to fund public needs "thereby making
aesthetics a community need worthy of the protection of the police power." 1 5 0 DiCello
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would make the formulation thus: "consequently, the general welfare may be de ned as
the health, safety and morals or aesthetics of the public." 1 5 1 Costonis 1 5 2 proposed
that the legal justi cation for aesthetic laws is not beauty but rather our individual and
group psychological well-being. 1 5 3 Bobrowski argued that visual resource protection
supports tourism which has undeniable economic bene ts to the society; the
protection of the visual resource is related to the preservation of property values. 1 5 4
"Scenic quality is an important consideration for prospective purchasers. Obstruction
of views, and noxious or unaesthetic uses of land plainly decrease market value." 1 5 5
Coletta explained that "an individual's aesthetic response to the visual environment is
founded on the cognitive and emotional meanings that the visual patterns convey." 1 5 6
c.
In the Philippines, this Court, in the 1915 seminal case of Churchill v. Rafferty , 1 5 7
declared that objects which are offensive to the sight fall within the category of things
which interfere with the public safety, welfare, and comfort, and therefore, within the
reach of the State's police power. Thus:
Without entering into the realm of psychology, we think it quite demonstrable that
sight is as valuable to a human being as any of his other senses, and that the
proper ministration to this sense conduces as much to his contentment as the
care bestowed upon the senses of hearing or smell, and probably as much as
both together. x x x Man's [a]esthetic feelings are constantly being appealed to
through his sense of sight. x x x 1 5 8
Forty years later, in People v. Fajardo , 1 5 9 we would hold that "the State may not,
under the guise of police power, permanently divest owners of the bene cial use of
their property and practically con scate them solely to preserve or assure the
aesthetic appearance of the community." 1 6 0 In that case, we invalidated an ordinance
that empowered the Municipal Mayor to refuse to grant a building permit to a proposed
building that "destroys the view of the public plaza." In the more recent case of
Fernando v. St. Scholastica's College , 1 6 1 this Court struck down a Marikina City
ordinance which provided, among others, a six-meter setback requirement for
beauti cation purposes. There, we held: "the State may not, under the guise of police
power, permanently divest owners of the bene cial use of their property solely to
preserve or enhance the aesthetic appearance of the community." 1 6 2
Of course, Churchill and Fajardo were decided under the 1935 Constitution which
simply provided that arts and letters shall be under the State's patronage. 1 6 3 The 1973
and 1987 Constitutions would change this. The 1973 Constitution provided that
"Filipino culture shall be preserved and developed for national identity." 1 6 4 Then, in
1987, the Constitution devoted a whole new sub-section to arts and culture, including
Sections 15 and 16 of Article XIV, which are subjects of this case. More than that, it
provided for a right of the people to a balanced and healthy ecology, which spawned
Oposa v. Factoran, Jr. 1 6 5 HCSAIa

As also previously noted, Congress in 1991 enacted the Local Government Code
which speci cally de ned as concerns of the public welfare, the preservation and
enrichment of culture and enhancing the rights of the people to a balanced ecology.
Then in 2006, the City of Manila enacted Ordinance No. 8119, which amended
Ordinance No. 81-01 1 6 6 of the Metropolitan Manila Commission. A "City Beautiful
Movement," appears as one of the ve-item "Plan Hi-Lights" of Ordinance No. 8119 and
includes, among others, "city imageability." 1 6 7 I quote:
This promotes the visual "imageability" of the City according to the Burnham Plan
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of 1905. As per plan recommendation from Daniel Burnham, it gives emphasis on
the creation and enhancement of wide boulevards, public buildings, landscaped
parks and pleasant vistas . It also encourages the connectivity of spaces and
places through various systems/networks (transport/parkways). But most of all,
it is the establishment of a symbolic focus that would identify the City
of Manila as well as become its unifying element. These are the main
themes for Place Making revolving around creating a "sense of place" and
distinction within the City. (Emphasis and underscoring supplied.)
I have compared the provisions of Ordinance No. 8119 with those of Ordinance
No. 81-01 and nd that they are both general zoning ordinances. Both similarly divide
the City of Manila into zones, prescribe height, bulk and orientation standards
applicable to the zones, and provide for a procedure for variance in case of non-
conforming uses. They, however, differ in one very signi cant respect relevant to the
determination of this case. Ordinance No. 8119 provides for three completely
new standards not found in Ordinance No. 81-01, or for that matter, in any of
the other current zoning ordinances of major cities within Metro Manila, such
as Marikina, 1 6 8 Makati, 1 6 9 or Quezon City. 1 7 0 These, as discussed, are: (a) the
historical preservation and conservation standards under Section 47; (b) the
environmental conservation and protection standards under Sections 45 and 53; and
(c) the aesthetic/site performance standards under Section 48. To my mind, these
sets of distinctive provisions introduced into Ordinance No. 8119 constitute
indubitable and irrefutable proof that the City of Manila has aligned itself
with jurisdictions that have embraced the modern view of an expanded
concept of the public welfare. For this reason, I cannot accept the majority's view
that zoning as an aspect of police power covers only "traditional" concerns of public
safety, health, convenience, and welfare. ACcaET

I am also of the view that mandamus lies against respondents.


Generally, the writ of mandamus is not available to control discretion nor compel
the exercise of discretion. 1 7 1 The duty is ministerial only when its discharge requires
neither the exercise of o cial discretion nor judgment. 1 7 2 Indeed, the issuance of
permits per se is not a ministerial duty on the part of the City. This act involves the
exercise of judgment and discretion by the CPDO who must determine whether a
project should be approved in light of many considerations, not excluding its possible
impact on any protected cultural property, based on the documents to be submitted
before it.
Performance of a duty which involves the exercise of discretion may, however, be
compelled by mandamus in cases where there is grave abuse of discretion, manifest
injustice, or palpable excess of authority. 1 7 3 In De Castro v. Salas , 1 7 4 a writ of
mandamus was issued against a lower court which refused to go into the merits on an
action "upon an erroneous view of the law or practice. " 1 7 5 There, it was held:
No rule of law is better established than the one that provides that mandamus will
not issue to control the discretion of an o cer or a court, when honestly exercised
and when such power and authority is not abused. A distinction however must be
made between a case where the writ of mandamus is sought to control the
decision of a court upon the merits of the cause, and cases where the court has
refused to go into the merits of the action, upon an erroneous view of the law or
practice. If the court has erroneously dismissed an action upon a preliminary
objection and upon an erroneous construction of the law, then mandamus is the
proper remedy to compel it to reinstate the action and to proceed to hear it upon
its merits. 1 7 6
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I n Association of Beverage Employees v. Figueras , 177 the Court en banc
explained: CaSAcH

That mandamus is available may be seen from the following summary in 38 C. J.


598-600, of American decisions on the subject, including a U. S. Supreme Court
decision:
While the contrary view has been upheld, the great weight of authority is to
the effect that an exception to the general rule that discretionary acts will
not be reviewed or controlled exists when the discretion has been abused.
The discretion must be exercised under the established rules of
law, and it may be said to be abused within the foregoing rule
where the action complained of has been arbitrary or capricious,
or based on personal, sel sh, or fraudulent motives, or on false
information, or on a total lack of authority to act, or where it
amounts to an evasion of a positive duty, or there has been a
refusal to consider pertinent evidence, hear the parties when so
required, or to entertain any proper question concerning the
exercise of the discretion, or where the exercise of the discretion
is in a manner entirely futile and known by the o cer to be so
and there are other methods which if adopted would be effective.
If by reason of a mistaken view of the law or otherwise there has
been in fact no actual and bona fide exercise of judgment and
discretion , as, for instance, where the discretion is made to turn upon
matters which under the law should not be considered, or where the action
is based upon reasons outside the discretion imposed, mandamus will
lie. So where the discretion is as to the existence of the facts entitling the
relator to the thing demanded, if the facts are admitted or clearly proved,
mandamus will issue to compel action according to law. x x x 1 7 8
(Emphasis and underscoring supplied.)
I nd that the aforementioned provisions of Ordinance No. 8119 set out clear
duties on the part of public respondent City of Manila for purposes of resolving
whether the Torre de Manila construction project should be allowed and that the City,
by reason of a mistaken or erroneous construction of its own Ordinance, had failed to
consider its duties under this law when it issued permits in DMCI-PDI's favor. 1 7 9 Thus,
while a writ of mandamus generally only issues to compel the performance of a
ministerial duty, where, as in this case, there is a neglect or failure on the part of the City
to consider the standards and requirements set forth under the law and its own
comprehensive land use plan and zoning ordinance, mandamus may lie to compel it to
consider the same for purposes of the exercise of the City's discretionary power to
issue permits.
I have earlier shown that Ordinance No. 8119 contains three provisions which, by
their terms, must be considered in relation to the determination by the City of Manila of
the issue of whether the Torre de Manila condominium project should be allowed to
stand as is. Article VII (Performance Standards) of Ordinance No. 8119 provides the
standards under which "[a]ll land uses, developments or constructions shall conform to
x x x." The Ordinance itself provides that in the construction or interpretation of its
provisions, "the term 'shall' is always mandatory." 1 8 0 These standards, placed in the
Ordinance for speci c, if not already expressed, reasons must be seriously considered
for purposes of issuance of building permits by the City of Manila. SaIEcA

Sections 43 in relation to 53, and 47 and 48, however, were not considered by the
City of Manila when it decided to grant the different permits applied for by DMCI-PDI.
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The City has, in fact, adamantly maintained that there is no law which regulates, much
less prohibits, such construction projects. 1 8 1 While I hesitate to nd grave abuse of
discretion on the part of the City of Manila in its actuations relating to its issuance of
the permits and the variance, this is due to the disputed facts respecting these issues.
There is, for example, a serious allegation of non-compliance with FAR and variance
requirements under the Ordinance; this issue was, in fact, discussed and debated at
great length during oral arguments. 1 8 2 While I believe that the Court should refrain
from making a determination of this particular issue, involving as it does ndings of
fact and technical matters, I do not hesitate to nd that the City was mistaken in its
view that there was no law which regulates development projects in relation to views,
vista points, landscape, and settings of certain properties.
This law, as I have earlier sought to demonstrate, is Ordinance No. 8119, whose
purposes include the protection of the "character" of areas within the locality and the
promotion of the general welfare of its inhabitants. 1 8 3 The standards and
requirements under Ordinance No. 8119 were included in the law to ensure that any
proposed development to be approved be mindful of the numerous public welfare
considerations involved. Ordinance No. 8119 being the primary and dominant
basis for all uses of land resources within the locality, the City of Manila,
through the CPDO, knows or ought to know the existence of these standards
and ought to have considered the same in relation to the application of DMCI-
PDI to construct the Torre de Manila project.
Worse, the City has apparently been "suspending" the application of several
provisions of the Ordinance purportedly to follow the more desirable standards under
the National Building Code. In a letter dated October 10, 2012, the Manila CPDO wrote
DMCI-PDI stating that while Torre de Manila exceeded the FAR allowed under the
Manila Zoning Ordinance, it granted DMCI-PDI a zoning permit "because the FAR
restriction was suspended by the executive branch, for the City Planning O ce opted
to follow the National Building Code." 1 8 4 Neither does it appear that compliance was
made pursuant to the requirements of Section 47 (b) of Ordinance No. 8119 on the
submission of a heritage impact statement (i.e., that the project will not adversely
impact the heritage signi cance of the cultural property) for review by the CPDO in
coordination with the NHCP.
Ordinance No. 8119's inclusion of standards respecting historic
preservation, environmental protection, and aesthetics puts the City of
Manila at the forefront of local governments that have embraced the
expanded application of the public welfare. It is thus a major source of
ba ement for me as to how the City of Manila could have missed these
distinctive features of Ordinance No. 8119 when it processed DMCI-PDI's
applications, up to and including its grant of the variance. The City of Manila's
selective attitude towards the application of its own rules reminds of Justice Brion's
statement in Jardeleza v. Sereno: 1 8 5
The JBC, however, has formulated its own rules, which even commanded that a
higher standard for procedural process be applied to Jardeleza. But even so, by
opting to selectively apply its own rules to the prejudice of Jardeleza, the JBC not
only violated the precepts of procedural due process; it also violated the very rules
it has set for itself and thus violated its own standards.
IaHDcT

This kind of violation is far worse than the violation of an


independently and externally imposed rule, and cannot but be the
violation contemplated by the term grave abuse of discretion. The JBC
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cannot be allowed to create a rule and at the same time and without
justifiable reason, choose when and to whom it shall apply, particularly
when the application of these rules affects third persons who have
relied on it . 1 8 6 (Emphasis and underscoring supplied.)
The City of Manila may have been of the honest belief that there was no law
which requires it to regulate developments within the locality following the standards
under Sections 45, 47, and 48. Still, the Court, without offending its bounden duty to
interpret the law and administer justice, should not permit a disregard of an Ordinance
by diminishing the duty imposed by Congress, through the local legislature, to
effectuate the general welfare of the citizens of the City of Manila. The protection of
general welfare for all citizens through the protection of culture, health and safety,
among others, is "an ambitious goal but over time, x x x something that is attainable."
1 8 7 To me, such mandate is as much addressed to this Court, as it is to the other
branches of Government. For this reason, I hesitate for the Court to allow the resulting
effective disregard of the Ordinance (on the guise of technicalities) and be ourselves a
stumbling block to the realization of such a laudable state goal.
Under Section 75 of Ordinance No. 8119, responsibility for the administration
and enforcement of the same shall be with the City Mayor, through the CPDO. 1 8 8 For as
long as it has not been repealed by the local sanggunian or annulled by the courts,
Ordinance No. 8119 must be enforced. 1 8 9 The City of Manila cannot simply, and
without due justi cation, disregard its obligations under the law and its own zoning
ordinance. O cers of the government from the highest to the lowest are creatures of
the law and are bound to obey it. 1 9 0 In this specific sense, enforcement of the
ordinance has been held to be a public duty, 1 9 1 not only ministerial, 1 9 2 the
performance of which is enforceable by a writ of mandamus. CcSTHI

I hasten to clarify that, by so doing, the Court would not be directing the City of
Manila to exercise its discretion in one way or another. That is not the province of a writ
of mandamus. 1 9 3 Lest I be misconstrued, I propose that the writ of mandamus issued
in this case merely compel the City of Manila, through the CPDO, to consider the
standards set out under Ordinance No. 8119 in relation to the applications of DMCI-PDI
for its Torre de Manila project. It may well be that the City of Manila, after exercising its
discretion, nds that the Torre de Manila meets any or all of the standards under the
Ordinance. The Court will not presume to preempt the action of the City of Manila,
through the CPDO, when it re-evaluates DMCI-PDI's application with particular
consideration to the guidelines provided under the standards.
The majority makes much of the grant of a variance in respondent DMCI-PDI's
favor and views the same as the exercise of discretion by the City of Manila which can
only be corrected where there is a showing of grave abuse of discretion. This is
inaccurate on two counts. DEIHAa

First , the rule that mandamus only lies to compel the performance of a
ministerial duty has several exceptions; it is not limited to a case of grave abuse of
discretion. As I have tried to discuss in detail, where respondent's exercise of discretion
was based on an erroneous or mistaken view of the law, mandamus may be the proper
remedy to compel it to reinstate the action and to proceed to hear it upon its merits.
194

Second , the majority's view fails to appreciate the province of a variance, which
is, essentially an exemption, under certain speci ed and stringent conditions, from
compliance with the corresponding land use intensity controls (LUICs) provided for a
specific zone, in this case, an institutional university cluster zone.
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Ordinance No. 8119 seeks to "[p]rotect the character and stability of residential,
commercial, industrial, institutional, urban, open spaces and other functional areas
within the locality" 1 9 5 and "[p]romote and protect public health, safety, peace, morals,
comfort, convenience and general welfare of the inhabitants of the City." 1 9 6 It divided
the City of Manila into 11 types of zones or districts, 1 9 7 each assigned with their
corresponding LUIC ratings. 1 9 8 LUICs, in turn, speci cally relate/pertain to
percentages of land occupancy (PLO), oor-area ratios (FAR), and building height limits
(BHL).
At this point, some discussion of the zoning concepts of orientations, height, and
bulk of buildings will be helpful.
Building height limits can be regulated in several ways. One involves the
prescription of maximum building heights in terms of feet or stories or both:
Height regulations state maximum heights either in terms of feet or number of
stories or both. Their general validity was accepted by Welch v. Swasey , and most
litigation questions their validity as applied. The regulations are imposed to
effectuate some of the purposes, as stated in the Standard Act, namely "to secure
safety from fire," "to provide adequate light and air" and "to prevent the
overcrowding of land." They also are adopted for aesthetic reasons." 1 9 9 (Citation
omitted.)
Building height can also be regulated through a combination of bulk and oor
limits. The PLO, for example, sets the maximum bulk of the building, or how much of the
land a proposed building can occupy. The FAR, on the other hand, provides the
maximum number of oors a building can have relative to its area. The zoning control
devices for bulk (PLO) and oor (FAR) limits jointly determine height. These concepts
are explained as follows: SDTIaE

Bulk zone regulations are those which provide a zoning envelope for buildings by
horizontal measurement. They include such regulations as minimum lot size,
minimum frontage of lots, the area of a lot that may be covered, yard
requirements and setbacks. FAR, meaning floor-area ratio, is a device that
combines height and bulk provisions.
xxx xxx xxx
Under the FAR, the ordinance designates a oor-area ratio for a particular zone. If
the ratio is 1:1, for example, a one-story building can cover the entire buildable
area of the lot, a two-story building can cover one-half of the buildable area, a
four-story building can cover one-fourth of the buildable area and so on. In
commercial o ce building areas in large cities the ratios may be 10:1, which
would permit a twenty[-]story building on half of the buildable area of the lot.
FAR may be used in conjunction with maximum height limits and other bulk
controls, so that in a 10:1 area, it may not be possible to build a 200-story building
on 1/20th of the buildable area of a lot or to eliminate yards entirely and build a
10-story building up to all lot lines. Nevertheless, FAR does give the builder some
exibility. In effect[,] it provides an inducement to the builder to leave more of his
lot open by permitting him to build higher." 2 0 0
Following this, a zoning ordinance can prescribe a maximum height for buildings:
(1) directly, that is, by expressly providing for height limits in terms of feet or number of
stories or both; or (2) indirectly, by employing a combination of bulk and floor limits.
Ordinance No. 8119 does not provide for an express BHL. 2 0 1 Neither, for that
matter, does the Building Code. 2 0 2 Instead, Ordinance No. 8119 sets up a system
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whereby building height is controlled by the combined use of a prescribed maximum
FAR and a prescribed maximum PLO. Theoretically, a property owner can maximize the
allowed height of his building by reducing the area of the land which the building will
occupy (PLO). This process, however, can only achieve an allowed height up to a certain
point as the allowable number of oors is, at the same time, limited by the FAR. Beyond
the allowable maximum PLO or FAR, the property owner must avail of a mitigating
device known in zoning parlance as a variance.
Variances are provided under zoning ordinances to meet challenges posed by
so-called "nonconforming uses," a generic term covering both nonconforming buildings
and nonconforming activities. 2 0 3 A nonconforming building, in the context of
Ordinance No. 8119, is one that exceeds the LUIC rating, i.e., PLO and FAR limits,
assigned to its zone. The Ordinance allows the City of Manila to grant a variance,
provided the project proponent complies with the stringent conditions and the
procedure prescribed by Sections 60 to 62. 2 0 4 Section 60 provides in pertinent part:
DcHSEa

Sec. 60. Deviations. Variances and exceptions from the provisions of this
Ordinance may be allowed by the Sangguniang Panlungsod as per
recommendation from the Manila Zoning Board of Adjustment and Appeals
(MZBAA) through the Committee on Housing, Urban Development and
Resettlements only when all the following terms and conditions are
obtained/existing:
1. Variance all proposed projects which do not conformed (sic) with
the prescribed allowable Land Use Intensity Control (LUIC) in the
zone.
a. The property is unique and different from other properties in
the adjacent locality and because of its uniqueness, the
owner/s cannot obtain a reasonable return on the property.
This condition shall include at least three (3) of the following provisions:
- Conforming to the provisions of the Ordinance will cause undue hardship on the
part of the owner or occupant of the property due to physical conditions of
the property (topography, shape, etc.), which is not self created.
- The proposed variance is the minimum deviation necessary to permit reasonable
use of the property.
- The variance will not alter the physical character of the district/zone where the
property for which the variance sought is located, and will not substantially
or permanently injure the use of the other properties in the same district or
zone.
- That the variance will not weaken the general purpose of the Ordinance and will
not adversely affect the public health, safety, and welfare.
- The variance will be in harmony with the spirit of this Ordinance.
Thus, "deviations," "variances and exceptions" from the standard LUICs of the
Ordinance may be allowed by the Sangguniang Panlungsod as per "recommendation"
from the Manila Zoning Board of Adjustment and Appeals (MZBAA) through the
Committee on Housing, Urban Development and Resettlements only when speci ed
conditions are obtained.
As earlier explained, LUICs speci cally relate and pertain to PLOs, FARs, and
BHLs. Variances, on the other hand, are essentially exemptions from the prescribed
LUICs within a speci c zone. By their terms, these standards and the considerations for
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the grant of a variance from the same are starkly different from the heritage,
environmental, and aesthetic factors for consideration under Section 45 in relation to
Sections 53, 47, and 48. AacCIT

The rst set of considerations governs the determination of the question of


whether a property, in the rst instance, is so physically "unique" in terms of its
topography and shape that a strict enforcement of the standard LUICs in the area will
deprive its owner from obtaining a "reasonable return" on the property. The second set
of considerations, on the other hand, pertains to the standards of heritage
conservation, environmental protection, and aesthetics required from a developer as
conditions to the issuance of a zoning and building permit. Compliance with one does
not necessarily presuppose compliance with the other. For these reasons, I cannot
accept the majority's view that the grant of a variance in this case should be treated as
the City's exercise of discretion insofar as the standards under Section 45 in relation to
Section 53, and Sections 47 and 48 are concerned.
Nevertheless, I wish to emphasize that while different, these two sets of
considerations work to further general welfare concerns as seen t by the local
legislature. To my mind, these standards are inextricably intertwined and mutually
reinforcing zoning concepts that operate as enforcement mechanisms of Ordinance
No. 8119. Where the standards contained under these Sections represent the rule, a
variance de nes the exception. In the context of an actual case, such as the litigation
before us, where a deviation (i.e., variance) from prescribed standards is invoked, its
legality as based on the facts must be established. Variances exist to mitigate the
harsh application of the rule, but they were not invented to operate as ruses to render
the rule inutile. The determination of how the balance is struck between law and equity
will require a judicious appreciation of the attendant facts.
The record, however, is absolutely bereft of evidence supporting the City of
Manila's approval of the variance. By its terms, Section 60 of Ordinance No. 8119
allows for only a single instance when a variance from the prescribed LUICs can be
allowed: the property must be "unique and different from other properties in the
adjacent locality and because of its uniqueness, the owners cannot obtain a reasonable
return on the property." To hurdle this, an applicant for the variance must show at least
three of the express quali cations under Section 60. These quali cations, we reiterate,
are as follows: (1) conforming to the provisions of the Ordinance will cause undue
hardship on the part of the property owner or occupant due to physical conditions of
the property (i.e., topography, shape, etc.) which are not self-created; (2) the proposed
variance is the minimum deviation necessary to permit reasonable use of the property;
(3) the variance will not alter the physical character of the district/zone where the
property for which the variance sought is located, and will not substantially or
permanently injure the use of the other properties in the same district or zone; (4) that
the variance will not weaken the general purpose of the Ordinance and will not
adversely affect the public health, safety, and welfare; and (5) the variance will be in
harmony with the spirit of this Ordinance.
Signi cantly, none of the documents submitted by DMCI-PDI show compliance
with any of the foregoing quali cations. The record does not refer to any piece of
evidence to show how: (1) the DMCI-PDI's property is physically "different" in
topography and shape from the other properties in its zone; and (2) the DMCI-PDI
cannot obtain a "reasonable return" on its property if it was compelled to comply with
the prescribed LUICs in the area. CTHaSD

While I hesitate, at this time, to nd the City of Manila's grant of the zoning and
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building permits and the variance to be unlawful or made in grave abuse of discretion, I
do not endorse a nding that the City of Manila, under the facts of the case, acted in
compliance with the requirements of Ordinance No. 8119. On the contrary, I would like
to note a concern raised by Justice Peralta, during the oral arguments, that the grant of
the permits for the Torre de Manila development may have violated the LUIC
requirements of Ordinance No. 8119 from the very beginning. His concern is expressed
in the following exchanges he had with respondent DMCI-PDI's counsel:
(a) On the allowance seven-storey building based on FAR 4 without a
variance:
JUSTICE PERALTA:
Allowable storeys, so, you have gross floor area divided by building
footprint or 29,900 square meter in slide number 4, over 4,485 square
meters, you are only allowed to build 6.6 storeys rounded up to 7 storeys.
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.
xxx xxx xxx
JUSTICE PERALTA:
That's correct. That's why I'm saying your maximum building footprint is
4,845. So, your gross floor area of 29,000 over 4,000. . . 'yun na nga ang
maximum, eh, unless you want to rewrite it down, where will you get the
figure? Yan na nga ang maximum, eh. So, you got 6.6 storeys rounded up
to 7 storeys. That's 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. 2 0 5
(b) On the resulting 49-storey building based on FAR 13, with the
variance:
JUSTICE PERALTA:
So, the building permit official here knew already from the very beginning
that he was constructing, that DMCI was constructing a 49-storey?
ATTY. LAZATIN:
That's correct, Your Honor.
xxx xxx xxx
JUSTICE PERALTA:
It's even bigger no. So, your FAR, your FAR is 13, based on [these]
documents, I'm basing this from your own documents, eh, because the
zoning permit is based on the application of the builder, eh, diba? Am I
correct, Atty. Lazatin?
ATTY. LAZATIN: TIEHSA

That's correct, Your Honor, except that . . .


JUSTICE PERALTA:

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So your FAR exceeded the prescribed FAR of 4 because your FAR is now
[13.05]? 2 0 6
ATTY. LAZATIN:
Without any variance, that is correct, Your Honor. 2 0 7
(c) How adjusting the building footprint enables a developer, by means
of variance, to increase height of a building from FAR 4 to FAR 13:
JUSTICE PERALTA:
I think there is no prohibition to build a 30-storey as long as you do not
violate the FAR.
ATTY. LAZATIN:
That is correct, Your Honor. The height will be dependent on the so called
building footprint. We can have like in the example that we gave, Your
Honor, if you have a building of what they call the maximum allowable
footprint, then the building that you will build is short and squat. But if you
have a smaller building footprint, then you can have a thin and tall
building, Your Honor.
JUSTICE PERALTA:
A higher building?
ATTY. LAZATIN:
Yes, Your Honor. That's exactly . . .
JUSTICE PERALTA:
So, it's not accurate to say that just because there is a proposed 30-storey
building, we will be violating this ordinance, is it right?
ATTY. LAZATIN:
That's exactly our point, Your Honor. 2 0 8
Certainly, the variance cannot be declared legal simply because it was already
issued. On the contrary, the circumstances thus far shown appear to support a view
that the general presumption of regularity in the performance of o cial duties should
not be applied here:
JUSTICE PERALTA: TacSAE

You include that in the memorandum. It should be able to convince me that


your computation is accurate and correct. Now, so, after all, from the
zoning permit up to the building permit, the public officials here already
knew that the DMCI was actually asking for permission to build 49-storeys
although it is covered by the university cluster zone?
ATTY. LAZATIN:
Yes, Your Honor. All the plans submitted to all the regulatory agencies show
that it was for a 49-storey building, Your Honor.
JUSTICE PERALTA:
But using the computation in the building code, I mean, in the city
ordinance, it could seem that the application should not have been
approved from the very beginning because it violates the zoning law of the
[C]ity of Manila?

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ATTY. LAZATIN:
The client DMCI was aware, Your Honor, that there have been other
developers who have been able to get a variance, Your Honor.
JUSTICE PERALTA:
You know I'm not talking about the variance . . . .
ATTY. LAZATIN:
That's why there are so many buildings in Manila, Your Honor, that are
almost 50-storeys high, Your Honor.
JUSTICE PERALTA:
I will go into that. I will go into the variance later. My only concern is this,
presumption of regularity in the performance of duty is not conclusive, you
understand that, right? Presumption of regularity in the performance of
duty is not conclusive, that is always disputable.
ATTY. LAZATIN:
Agree, Your Honor, but . . . .
JUSTICE PERALTA:
If the public officials themselves do not follow the procedure, the law or the
ordinance, are they presumed to [] have performed their duties in the
regular manner? 2 0 9
Justice Leonen would have even stronger words, suggesting that the grant of the
permits, long prior to the grant of the variance, violated not only Ordinance No. 8119
but even Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act. 2 1 0
More importantly, I would like to emphasize the difference in opinions as to the
correct application of the FAR provisions of Ordinance No. 8119. For example,
respondent DMCI-PDI, during the oral arguments, claimed that it is allowed to build up
to 66 storeys under the National Building Code and 18 storeys under the Ordinance
even without a variance. 2 1 1 Amicus curiae Architect Emmanuel Cuntapay posits that
with the maximum FAR of 4, respondent DMCI-PDI "is allowed to construct 18.24
habitable stories or oors for Torre de Manila" or up to 25 actual oors if we add the
seven oors allotted as parking areas, even without a variance. 2 1 2 The OSG, on the
other hand, would argue that DMCI-PDI is entitled to build only up to seven oors
without a variance. 2 1 3 Meanwhile, Acting Executive Director Johnson V. Domingo of the
Department of Public Works and Highways computes the BHL at 7, 19, or 56 storeys,
depending on the factors to be considered. 2 1 4 All told, the issue as to the correct
application of the FAR provisions and the resulting maximum allowable building height
of the Torre de Manila sans variance is a technical issue which this Court is not
equipped to answer at this time. This issue is separate and distinct (albeit, admittedly
related) to the issue regarding the propriety of the grant of the variance, which as earlier
explained also involves the resolution of certain factual issues attending its grant. Thus,
I nd that a remand to the City of Manila is all the more appropriate and necessary in
view of the critical questions of fact and technical issues still to be resolved. TDAcCa

In any case, the City of Manila would be well advised to note that many of the
textual prescriptions of Sections 45, 53, 47, and 48 are also textually imbedded in the
terms of Section 60.
The rst condition requires a showing that conforming to the provisions of the
Ordinance will cause "undue hardship" on the part of the owner due to the physical
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conditions of the property, e.g., topography, shape, etc., which are not "self-created."
Petitioner KOR has alleged that the Torre de Manila, because of its height, will have an
"adverse impact" on the Rizal Park and the Rizal Monument by "diminishing its value,"
"scale and importance." Section 47 of Ordinance No. 8119, on the other hand, prohibits
any development that will "adversely impact" the heritage signi cance of a property.
Correlating the foregoing to this rst condition of Section 60, the City of Manila should
consider what is it in the physical (and not self-created) conditions of the lot on which
the Torre de Manila stands will cause undue hardship to DMCI-PDI unless a variance is
granted. The City of Manila should also consider whether granting the variance will be
consistent with the heritage, environmental and aesthetic standards of the Ordinance,
including Section 47.
The second condition requires a showing that the proposed variance is the
"minimum deviation necessary to permit reasonable use of the property." Petitioner
KOR alleges that the Torre de Manila, at 19 oors, obstructs the view of the Rizal
Monument, among its other allegations relating to the height of the Torre de Manila.
The City of Manila should thus consider what the minimum deviation from the
prescribed FAR 4 may be allowed the project, again consistent with the heritage,
environmental, and aesthetic standards of Ordinance No. 8119. This includes a
determination of the maximum number of storeys Torre de Manila may be allowed to
have that would cause: (1) minimum deviation from the prescribed FAR; and (2)
minimal to no adverse effect on the heritage significance of nearby cultural properties.
The third condition requires a showing that the variance will not "alter the
physical character of the zone, or substantially or permanently injure the use of the
other properties in the zone." Petitioner KOR has alleged that the Torre de Manila has
diminished the scale and importance of the Rizal Park and the Rizal Monument. Section
48, on aesthetic considerations, requires that all projects be designed in an
"aesthetically pleasing manner" and that their "natural environmental character" be
considered especially in relation to "adjacent properties." In these lights, the City of
Manila should consider the FAR variance that may be allowed the Torre of Manila, if any,
which will not injure or alter the physical character of the zone and its adjacent
properties, pursuant to the standards both laid down by Section 48.
The fourth condition requires a showing that the variance will not "weaken the
general purpose of the Ordinance" or "adversely affect the public health, safety, and
welfare." The fth condition requires that the variance will be in "harmony with the spirit
of the Ordinance." These two conditions encapsulate my view that the City of Manila
has purposively embraced the modern, expanded concept of police power in the
context of zoning ordinances. To my mind, they stand as shorthand instructions to the
City of Manila in deciding the balance between enforcing the standards set forth in
Sections 45, 53, 47 and 48; and Sections 60 to 62, to consider the Ordinance's
overriding heritage, environmental, and aesthetic objectives.
Further, I would like to emphasize that my view and proposed disposition of the
case do not entail a nding that Section 45, in relation to Section 53, and Sections 47
and 48, are already applicable for purposes of prohibiting the Torre de Manila
construction project. On the contrary, the proposed ruling is limited to this: that Section
45 in relation to Sections 53, 47, and 48, by their terms and express intent, must be
considered by the City of Manila in making its decisions respecting the challenged
development. I propose that the City of Manila must consider DMCI-PDI's proposal
against the standards clearly set by the provisions before it makes its decisions. The
standard under Section 47 is clear: that the proposed development will not adversely
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impact the heritage signi cance of the heritage property. Section 48 is also clear when
it states that it is "in the public interest that all projects are designed and developed in a
safe, e cient and aesthetically pleasing manner ." Section 53 also clearly
characterizes the protection of view enjoyed by the public as a "regulation." These are
standards textually operating as regulations and not mere guidelines. SDHacT

To clarify, I do not propose that the Court rule on the legality or propriety of the
variance granted to DMCI-PDI under Section 60. Rather, I propose that the ruling be
limited thus: the City of Manila must consider whether DMCI-PDI's proposed project
meets the de nition and conditions of a "unique" property under Section 60, standing
alone by the terms of Section 60, but also in relation to the heritage, environmental, and
aesthetic standards of Sections 45, 53, 47 and 48. Without controlling how its
discretion will thereafter be exercised, I vote that the Court direct the re-evaluation by
the City of Manila, through the CPDO, of the permits previously issued in favor of the
Torre de Manila project, including conducting a hearing, receiving evidence, and
deciding compliance with the foregoing standards/requirements under Ordinance No.
8119.
I also do not propose a pro hac vice conversion of the proceedings into a
"contested case" under the terms of the Administrative Code. 2 1 5 I do, however, believe
that notice and hearing requirements 2 1 6 must be observed, with all concerned parties
given the opportunity to present evidence and argument on all issues. 2 1 7 Section 77 of
Ordinance No. 8119 allows for the ling of a veri ed complaint before the MZBAA for
any violation of any provision of the Ordinance or of any clearance or permits issued
pursuant thereto, including oppositions to applications for clearances, variance, or
exception. Otherwise put, I believe that the requirements of Ang Tibay v. Court of
Industrial Relations 2 1 8 and Alliance for the Family Foundation, Philippines, Inc. v. Garin
2 1 9 are deemed written into Section 77.

With these clari cations, I vote that the City, through the Mayor and his
representatives, be compelled by mandamus to consider its own conservation
standards and LUIC requirements.
I nd the concern about estoppel irrelevant inasmuch as petitioner KOR's alleged
development proposals appear to have been made more than ve decades ago, and
long before either the 1987 Constitution or Ordinance No. 8119 were ever conceived. EDATSI

Finally, it may well have been Rizal's wish to be buried a certain place and in a
certain way. If we were to pursue this line of reasoning to its logical conclusion, this
argument would forbid the establishment of a Rizal Monument, a Rizal Park, and
celebration of Rizal Day. In any case, and while not blind to history, we must be
reminded that this Court, in the words of Justice Tinga, is a judge not of history but of
the Constitution and the law. 2 2 0
To reiterate, I do not propose to resolve the factual issues raised by the parties
regarding DMCI-PDI's alleged violation of existing regulations under Ordinance No.
8119 (including compliance with the FAR and variance requirements), whether the Torre
de Manila is a nuisance, and whether DMCI-PDI acted in good faith in the construction
of the project. The constitutional guarantee of due process requires that such matters
rst be heard and resolved by the City of Manila, the appropriate administrative agency,
or the courts.
I realize that, for all the debates during the oral arguments, it was only after the
case has been submitted for resolution that the Court was rst made aware, through
the writer of this Dissenting Opinion, of the existence of Section 45 in relation to 53, and
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Sections 47 and 48 of Ordinance No. 8119, and their relevance in the resolution of this
case. No party to the case or member of this Court had previously raised the
applicability of these Sections of Ordinance No. 8119. I argued to remand the
case to the City of Manila precisely for it to re-evaluate the grant of the permits to
DMCI-PDI in light of the cited Sections and to hear the parties thereon.
A careful reading of the Decision would show that the majority concedes that
there is a law that "provides for standards and guidelines to regulate development
projects x x x within the City of Manila." 2 2 1 However, instead of a remand, they went on
to nd that the standards and guidelines do not apply to "the construction of a building
outside the boundaries of a historic site or facility, where such building may affect the
background of a historic site." 2 2 2 With respect, I disagree with the majority's
peremptory dismissal of the case on the basis of such nding, considering that none
of the parties were ever heard on this speci c issue, i.e., the application of Section 45 in
relation to 53, and Sections 47 and 48 of Ordinance No. 8119 based on the facts of the
case.
The constitutional guarantee of due process dictates that parties be given an
opportunity to be heard before judgment is rendered. Here, the parties were not heard
on the speci c subject of the performance standards prescribed by Ordinance No.
8119, insofar as they appear relevant to this case. A remand would have been the just
course of action. The absence of such a hearing, I would like to emphasize, is precisely
the reason why I hesitate to attribute bad faith or grave abuse of discretion, at this
point, on the part of any one party. A remand would have allowed for the building of a
factual foundation of record with respect to underlying questions of fact (and even
policy) not appropriate to be decided, in the rst instance, by the Court. I imagine that a
remand would provide the opportune venue to hear and receive evidence over
alternate/moderate views, including, as I said, the maximum number of storeys the
Torre de Manila may be allowed that would pose minimal deviation from the prescribed
LUICs and still be considered consistent with the other performance standards under
the Ordinance. ACETID

Furthermore, while the majority insists on according respect to the City of


Manila's exercise of discretion, it seems to me that their nding at this point that
the standards provided under Ordinance No. 8119 are not applicable does
more to preempt the City of Manila in the exercise of its discretion than an
order requiring it to merely consider their application . This, despite clear
indications that they have not been considered at all during the processing of DMCI-
PDI's application. That the City of Manila has not considered these standards is a
nding of fact that the Court can make because this was admitted as much by the
local government itself when, based on its erroneous reading of its own zoning
ordinance, it claimed that there is no law which regulates constructions alleged to have
impaired the sightlines of a historical site/facility. At the risk of sounding repetitive, I
believe a remand would, at the very least, allow the City of Manila to consider and settle,
at the rst instance, the matter of whether the Sections in question are applicable or
not.
To end, I am reminded of the view, rst expressed in Taada v. Angara , 2 2 3 that
even non-self-executing provisions of the Constitution may be "used by the judiciary as
aids or as guides in the exercise of its power of judicial review." 2 2 4 More than anything,
this case presented an opportunity for the Court to recognize that aspirational
provisions contained in Article II (Declaration of Principles and State Policies) and many
more similar provisions spread in the Constitution, such as Sections 14 and 15, Article
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XIV, are not , in the words of Chief Justice Reynato Puno, "meaningless constitutional
patter." 2 2 5 These provisions have constitutional worth. They de ne our values and
embody our ideals and aspirations as a people. The command under Section 15, Article
XIV of the Constitution for the State to conserve the nation's historical and cultural
heritage is as much addressed to this Court, as it is to Congress and to the Executive.
We should heed this command by ordering a remand, more so where there is an
obvious intent on the part of the City of Manila, in the exercise of its delegated police
power from Congress, to incorporate heritage conservation, aesthetics, and
environment protection of views into its zoning ordinance. TaDSCA

In this modern world, heritage conservation has to constantly compete with


other equally important values such as property and property development. In
litigations involving such clash of values, this Court sets the tone on the judicial
solicitude it is duty-bound to display towards aspirational constitutional values,
especially when implemented by speci c and operable legislation. Here, we had the
unique opportunity to give the value of heritage conservation, involving as it does the
preservation of fragile and vulnerable resources, all the breathing space 2 2 6 to make its
case. This Decision, however, seems to have achieved the complete opposite.
For all the foregoing reasons, I vote to PARTIALLY GRANT the petition.
TIJAM , J., concurring :
On 12 September 2014, the Knights of Rizal led a petition for injunction directly
with the Supreme Court to halt the construction of the Torre de Manila and have it
demolished. Petitioner averred that once nished, said structure would completely
dominate the vista of the Rizal Park and substantially diminish in scale and importance
our national hero's monument. It asserted that the project is a nuisance per se,
constructed in bad faith and in violation of the City of Manila's zoning ordinance.
Private respondent, however, argued that there is absolutely no law, ordinance or
rule prohibiting the construction of a building, regardless of height, at the background
of the Rizal Park and Rizal Monument, and that Republic Act No. 10066 (National
Cultural Heritage Act of 2009) protects merely the physical integrity of national cultural
treasures. It denied acting in bad faith and that the Torre de Manila is a nuisance per se.
On 25 November 2014, the Supreme Court resolved to treat the petition as one
for mandamus, and to implead the City of Manila, the National Historical Commission
of the Philippines, the National Museum and the National Commission on Culture and
the Arts as public respondents.
For the reasons hereinafter set forth, I concur in the result reached by
my distinguished colleague, J. Carpio, in his ponencia .
No clear legal right for mandamus to issue.
Mandamus is a command issuing from a court of law of competent jurisdiction,
in the name of the state or the sovereign, directed to some inferior court, tribunal, or
board, or to some corporation or person requiring the performance of a particular duty
therein speci ed, which duty results from the o cial station of the party to whom the
writ is directed or from operation of law. 1 Mandamus will lie if the tribunal, corporation,
board, officer, or person unlawfully neglects the performance of said duty. 2
It is, thus, essential to the issuance of a writ of mandamus that the applicant
should have a clear, certain and well-de ned legal right to the thing demanded,
and it must be the clear and imperative duty of the respondent to perform the act
required. 3
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Accordingly, for mandamus to issue in this case, it must be shown that petitioner
has a well-de ned legal right to judicially demand, and public respondents or any of
them has the concomitant legal duty to carry out, the preservation of the vista, sightline
and setting of the Rizal Park and the Rizal Monument.
Petitioner anchored its petition on Sections 15 and 16, Article XIV 4 of the 1987
Constitution which read: SDHCac

Section 15. Arts and letters shall enjoy the patronage of the State. The State
shall conserve, promote, and popularize the nation's historical and cultural
heritage and resources, as well as its artistic creations.
Section 16. All the country's artistic and historic wealth constitutes the
cultural treasure of the nation and shall be under the protection of the State which
may regulate its disposition.
The foregoing constitutional provisions mandate the conservation, promotion
and protection of historical and cultural heritage and resources, but do not specify a
clear legal right to the protection of the vista, sightline and setting thereof.
Broadly written, the provisions use the words "conserve," "promote," "popularize"
and "protect" which are open to different interpretations, as demonstrated no less by
the parties' con icting positions on their breadth and scope when applied to the
construction of the Torre de Manila. The provisions further refer to but do not de ne
what constitutes the nation's "historical and cultural heritage and resources," "artistic
creations," and "artistic and historic wealth." The authority given to the State to regulate
the disposition of the country's artistic and historic wealth also indicates that further
government action is intended to enforce the constitutional policy of conserving and
protecting our heritage resources.
Legislation is, thus, necessary to supply the norms and standards and de ne the
parameters for the implementation of the constitutional protection of historical and
cultural heritage and resources.
In this regard, J. Florentino P. Feliciano's separate concurring opinion 5 in the
landmark case of Oposa v. Factoran, Jr. 6 is illuminating:
It seems to me important that the legal right which is an essential component of a
cause of action be a specific, operable legal right, rather than a constitutional
or statutory policy , for at least two (2) reasons. One is that unless the legal right
claimed to have been violated or disregarded is given speci cation in operational
terms, defendants may well be unable to defend themselves intelligently and
effectively; in other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration where a speci c violation of law
or applicable regulation is not alleged or proved, petitioners can be expected to
fall back on the expanded conception of judicial power in the second paragraph
of Section 1 of Article VIII of the Constitution which reads: EADSIa

Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy
ecology" and "the right to health" are combined with remedial standards as broad
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ranging as "a grave abuse of discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully submitted, to propel courts into
the uncharted ocean of social and economic policy making. At least in
respect of the vast area of environmental protection and management, our courts
have no claim to special technical competence and experience and professional
quali cation. Where no speci c, operable norms and standards are
shown to exist, then the policy making departments the legislative
and executive departments must be given a real and effective
opportunity to fashion and promulgate those norms and standards, and
to implement them before the courts should intervene. (Emphasis
supplied.)
Similarly, in his Separate Opinion 7 in Agabon v. National Labor Relations
Commission, 8 J. Dante O. Tinga explained why "the right to security of tenure, while
recognized in the Constitution, cannot be implemented uniformly absent a law
prescribing concrete standards for its enforcement," thus:
x x x However, to declare that the constitutional provisions are enough to
guarantee the full exercise of the rights embodied therein, and the realization of
ideals therein expressed, would be impractical, if not unrealistic. The espousal of
such view presents the dangerous tendency of being overbroad and
exaggerated. The guarantees of "full protection to labor" and "security of tenure,"
when examined in isolation, are facially unquali ed, and the broadest
interpretation possible suggests a blanket shield in favor of labor against any
form of removal regardless of circumstance. This interpretation implies an
unimpeachable right to continued employment a utopian notion, doubtless
but still hardly within the contemplation of the framers. Subsequent legislation
is still needed to de ne the parameters of these guaranteed rights to
ensure the protection and promotion, not only the rights of the labor sector, but of
the employers' as well. Without specific and pertinent legislation, judicial bodies
will be at a loss, formulating their own conclusion to approximate at
least the aims of the Constitution. SETAcC

Thus, the constitutional mandate expressed in Sections 15 and 16, Article XIV of
the Constitution cannot, on its own, be the source of the avowed right to the
preservation of the vista, sightline and setting of the Rizal Park and Rizal Monument. 9
The ensuing question, therefore, is whether legislation enacted pursuant to said
mandate provide for speci c and operable norms and standards that extend the
constitutional protection to the vista, sightline and setting of historical and cultural
heritage and resources. An examination of Philippine statutes relating to heritage
preservation reveals no such norms or standards.
Republic Act No. (RA) 10066, known as the National Cultural Heritage Act of
2009, involves the protection of the physical integrity of the heritage property or site.
This is evident from Sections 25 and 48 of the Act.
Section 25 of RA 10066 authorizes the appropriate cultural agency to issue a
Cease and Desist Order ex parte "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." 1 0
Furthermore, Section 48 of RA 100066, which enumerates the prohibited acts
under the law, provides:
Section 48. Prohibited Acts. To the extent that the offense is not
punishable by a higher punishment under another provision of law, violations of
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this Act may be made by whoever intentionally:
(a) Destroys, demolishes, mutilates or damages any world heritage
site , national cultural treasures, important cultural property and
archaeological and anthropological sites;
(b) Modifies, alters, or destroys the original features of or undertakes
construction or real estate development in any national shrine,
monument, landmark and other historic edi ces and structures,
declared, classi ed, and marked by the National Historical Institute
as such, without the prior written permission from the Commission.
This includes the designated security or buffer zone, extending ve
(5) meters from the visible perimeter of the monument or site;
xxx xxx xxx
Demolition, destruction and mutilation are acts applied upon something physical
rather than non-physical such as the view, dominance, vista or sightline of a heritage
site or property. Furthermore, the prohibited acts referred to in paragraph (b) applies to
the original features of the monument or shrine itself or any real estate development
therein. It will likewise be noted that the security or buffer zone protected under the
provision extends only to five (5) meters from the visible perimeter of the monument or
site. Records show that the Torre de Manila is located about 870 meters outside and to
the rear of Rizal Park. SEDICa

RA 10086 (Strengthening Peoples' Nationalism Through Philippine History Act)


empowers the National Historical Commission of the Philippines (NHCP) to "
(d)etermine the manner of identi cation, maintenance, restoration, conservation and
preservation of historical sites, shrines, structures and monuments," and to (r)egulate
activities pertaining to the preservation, restoration and conservation of historical
property or resources." 1 1 The law, however, does not indicate speci c and operable
norms and standards for the protection of the vista, sightline or setting of historic
monuments and sites.
Invoked by petitioner, the NHCP's Guidelines on Monuments Honoring National
Heroes, Illustrious Filipinos and other Personages (Guidelines) provide that monuments
should be given due prominence since they symbolize national signi cance. 1 2 As a
measure to achieve the monument's dominance, the Guidelines state that vista points
and visual corridors to monuments should be kept clear for unobstructed viewing
appreciation and photographic opportunities. 1 3 Citing the International Charter for the
Conservation and Restoration of Monuments and Sites (Venice Charter), the Guidelines
further declare that the conservation of a monument implies preserving a setting which
is not out of scale, de ning "setting" as not only limited to the exact area directly
occupied by the monument, but also to surrounding areas whether open space or
occupied by other structures as may be de ned by the traditional or juridical expanse
of the property. 1 4
However, as noted by my esteemed colleagues, J. Leonen and J. Jardeleza, it has
not been shown that these Guidelines had been published and a copy thereof deposited
with the O ce of the National Administrative Register in the University of the
Philippines' Law Center. Thus, they cannot be considered effective and binding. 1 5 Both
the requirements of publication and ling of administrative issuances intended to
enforce existing laws are mandatory for the effectivity of said issuances. 1 6 These
requirements of publication and ling were put in place as safeguards against abuses
on the part of lawmakers and as guarantees to the constitutional right to due process
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and to information on matters of public concern and, therefore, require strict
compliance. 1 7
In any event, the language of the NHCP Guidelines do not appear to rule out the
presence or construction of buildings within the sightline or setting of the historic
monument. Thus, the Guidelines provide that: "(t)he monument should preferably be the
focal point of a city or town center," and the (f)aade of buildings around a monument,
particularly on a rotunda or circle can be retro tted with a uniform design to enhance
the urban renewal of the site and the prominence and dominance of the monument." 1 8
Furthermore, the Guidelines allow for urban renewal projects and adaptation of historic
sites to contemporary life. 1 9 It also looks to regulation by the local government of the
design, volume and height of buildings surrounding or in the immediate vicinity of the
monument/site to enhance the prominence, dominance and dignity of the monument.
2 0 Such local regulation was notably made to apply to development in the vicinity, both
"existing and future." 2 1 In relation to the monument's setting, the Guidelines also state
that new construction would not be allowed but only if it would alter the relations of
mass and color. 2 2 What it speci cally rejects is the encroachment or "direct abutment
of structures" into the monument site. 2 3 ITCcAD

Thus, assuming the Guidelines are effective, they may not be deemed to impose
an absolute prohibition against structures erected within the monument's vicinity,
sightline or setting, subject only to the structures' compliance with the local
government's regulatory restrictions on height, design and volume, and to urban
renewal standards.
RA 8492 (National Museum Act of 1998), which tasked the National Museum to
supervise the restoration, preservation, reconstruction, demolition, alteration, relocation
and remodeling of immovable properties and archaeological landmarks and sites, 2 4
contains no indication that such duty extended to the preservation of the vista, sightline
and setting of cultural properties. RA 8492 was also amended by RA 10066 which
distributed the responsibilities over cultural properties among several cultural agencies
based on the categorization of the property, and assigned to the National Museum the
responsibility for signi cant movable and immovable cultural and natural property
pertaining to collections of ne arts, archaeology, anthropology, botany, geology,
zoology and astronomy, including its conservation aspect. 2 5
RA 7356 or the Law Creating the National Commission for the Culture and the
Arts (NCCA) mandated the NCCA to "support and promote the establishment and
preservation of cultural and historical monuments, markers, names and sites," 2 6 and
empowered it to "regulate activities inimical to preservation/conservation of national
cultural heritage/properties." It designated the NCCA as the over-all policy-making and
coordinating body that will harmonize the policies of national cultural agencies. 2 7 RA
7356 was amended by RA 10066 which, among others, expanded the authority and
responsibility of the NCCA. As previously noted, RA 10066 refers to the protection of
the physical integrity of the heritage property or site, and does not specify operable
norms and standards indicating that the protection extends to its vista, sightline or
setting. TIEHSA

The Venice Charter, also invoked by petitioner, provides:


Article 1.
The concept of a 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 a historic event. This applies
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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.
xxx xxx xxx
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 colour
must be allowed.
The Venice Charter indeed declares that preservation of the setting is integrated
in conservation efforts involving historic monuments. However, as pointed out by J.
Jardeleza, the Charter does not rise to the level of enforceable law absent any showing
of the country's commitment thereto.
In any event, it cannot be said that the Venice Charter provides speci c, operable
norms and standards, or su cient parameters, to hold that the setting of the Rizal
Monument, in particular, was not preserved by reason of the subject building. By its
language, the Charter merely laid down basic and guiding "principles," "with each
country being responsible for applying the plan within the framework of its own culture
and traditions." Thus, even assuming that the Philippines committed to adhere to said
principles, the Charter cannot, by itself, be the basis for the mandamus sought.
In ne, a clear legal right to the protection of the vista, sightline and setting of the
Rizal Monument and the Rizal Park has not been established in legislation as an aspect
of the constitutional policy to conserve, promote and protect historical and cultural
heritage and resources. It is settled that legislative failure to pursue state policies
cannot give rise to a cause of action in the courts. 2 8
During the deliberations on this case, it was posited that while existing statutes
show no clear and speci c duty on the part of public respondents to regulate, much
less, prohibit the construction of structures that obstruct the view, sightline or setting
of the Rizal Monument, Manila's zoning ordinance (Ordinance No. 8119) imposes such
duty on the City Government of Manila under the guidelines and standards prescribed in
Sections 47 and 48 thereof. aHECST

Sections 47 and 48 of Ordinance No. 8119, in pertinent part, state:


Sec. 47. Historical Preservation and Conservation Standards.
Historical sites and facilities shall be conserved and preserved. x x
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to
conserve and enhance their heritage values.
2. xx
3. Any person who proposes to add, to alter, or partially demolish a
designated heritage property will require the approval of the City Planning and
Development O ce (CDPO) and shall be required to prepare a heritage impact
statement that will demonstrate to the satisfaction of the CPDO that the proposal
will not adversely impact the heritage signi cance of the property and shall
submit plans for review by the CPDO in coordination with the National Historical
Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage
properties shall be evaluated based on criteria established by the
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heritage significance of the particular property or site.
5. xx
6. xx
7. Residential and commercial in ll in heritage areas will be sensitive
to the existing scale and pattern of those areas, which maintains the
existing landscape and streetscape qualities of those areas, and
which does not result in the loss of any heritage resources.
8. Development plans shall ensure that parking facilities (surface lots,
residential garages, stand-alone parking garages and parking
components as part of larger developments) are compatibly
integrated into heritage areas, and/or are compatible with adjacent
heritage resources.
9. Local utility companies (hydro-gas, telephone, cable) shall be
required to place metering equipment, transformer boxes, power
lines, conduit, equipment boxes, piping, wireless telecommunication
towers and other utility equipment and devices in locations which
do not detract from the visual character of heritage resources, and
which do not have negative impact on its architectural integrity.
ADTEaI

10. Design review approval shall be secured from the CPDO for any
alteration of heritage property to ensure that design guidelines and
standards are met and shall promote preservation and conservation
of the heritage property. (Underscoring supplied.)
Sec. 48. Site Performance Standards . The City considers it in the public
interest that all projects are designed and developed in a safe, e cient and
aesthetically pleasing manner. Site development shall consider the environmental
character and limitations of the site and its adjacent properties. All project
elements shall be in complete harmony according to good design principles and
the subsequent development must be pleasing as well as e ciently functioning
especially in relation to the adjacent properties and bordering streets.
The design, construction, operation and maintenance of every facility shall be in
harmony with the existing and intended character of its neighborhood. It shall not
change the essential character of the said area but will be a substantial improvement to
the value of the properties in the neighborhood in particular and the community in
general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with
regard to safety, e ciency and high standards of design. The
natural environmental character of the site and its adjacent
properties shall be considered in the site development of each
building and facility.
2. The height and bulk of buildings and structures shall be so designed
that it does not impair the entry of light and ventilation, cause the
loss of privacy and/or create nuisances, hazards or inconveniences
to adjacent developments.
3. xx
4. xx
5. xx
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6. xx
7. xx
8. No large commercial signage or pylon, which will be detrimental to
the skyline, shall be allowed.
9. Design guidelines, deeds of restriction, property management plans
and other regulatory tools that will ensure high quality
developments shall be required from developers of commercial
subdivisions and condominiums. These shall be submitted to the
City Planning and Development O ce (CPDO) for review and
approval. (Underscoring supplied.)
An examination of Section 47 of Ordinance No. 8119, however, will reveal that the
guidelines set therein refer to the historical site or the heritage area itself, or to the
physical integrity of the designated heritage property. Thus, Section 47 speaks of the
conservation and enhancement of the heritage value of the historical site; it also refers
to the alteration, demolition and re-use of designated heritage properties, and
development plans within the heritage area. In fact, it is expressly prefaced by a
statement alluding to the enumeration as guidelines in the "development of historic
sites and facilities." EHACcT

Records show that Torre de Manila is located in the University Cluster Zone, 870
meters outside and to the rear of Rizal Park. The zone is not a historical site, a heritage
area, or a designated heritage property. Thus, Section 47 of Ordinance No. 8119 will not
apply.
Section 48 of Ordinance No. 8119, which enumerates the "Site Performance
Standards," appears to apply to all development projects in the City of Manila. It
requires that the development project should be "aesthetically pleasing" and "in
harmony with the existing and intended character of its neighborhood," and that it
should consider the "natural environmental character of the site and its adjacent
properties."
The neighborhood within which the Torre de Manila is situated is the University
Cluster Zone. Furthermore, the building is not adjacent to or adjoining the Rizal Park or
the Rizal Monument. By the language of Section 48, the "adjacent properties" mentioned
therein would refer to properties adjoining the Torre de Manila site within the University
Cluster Zone, such that "harmony with the existing and intended character of the
neighborhood" would be achieved. It is, thus, doubtful that Section 48 provides norms
and standards intended to preserve the sightline or setting of the Rizal Monument.
It has been held that mandamus will not issue to enforce a right which is in
substantial dispute or as to which a substantial doubt exists. 2 9
Even assuming that Ordinance No. 8119 extends protection to the vista, sightline
or setting of a historical site or property, it does not specify the parameters by which
the City Development and Planning O ce (CDPO) shall determine compliance, thereby
giving the CDPO wide discretion in ascertaining whether or not a project preserves the
heritage site or area. acADIT

Under the guidelines and standards of Sections 47 and 48 of Ordinance No.


8119, development projects: should conserve and enhance the heritage value of the
historic site; should not adversely impact the heritage signi cance of the heritage
property; should not result in the loss of any heritage resources; should not detract
from the visual character of heritage resources; and should be aesthetically pleasing.
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There are no parameters, de nitions or criteria to ascertain how heritage value is
deemed to have been conserved and enhanced, what adversely impacts the heritage
signi cance of a property, what su ciently detracts from the visual character of a
heritage property, and what is aesthetically pleasing. The absence of such parameters
creates considerable room for subjective interpretation and use of discretion that
could amount to an undue delegation of legislative power.
Two tests determine the validity of delegation of legislative power: (1) the
completeness test and (2) the su cient standard test. Under the rst test or the so-
called completeness test, the law must be complete in all its terms and conditions
when it leaves the legislature such that when it reaches the delegate, the only thing he
will have to do is to enforce it. The second test or the su cient standard test,
mandates that there should be adequate guidelines or limitations in the law to
determine the boundaries of the delegate's authority and prevent the delegation from
running riot. 3 0
By their language and provisions, Sections 47 and 48 of Ordinance No. 8119 fail
to comply with the completeness test.
A writ of mandamus can be issued only when petitioner's legal right to the
performance of a particular act which is sought to be compelled is clear and
complete. A clear legal right is a right which is indubitably granted by law or is
inferable as a matter of law. 3 1 No clear and complete legal right to the protection of
the vista, sightline and setting of the Rizal Park and Rizal Monument has been shown to
exist.
The Court cannot, in the guise of interpretation, enlarge the scope of a statute or
insert into a statute what the legislature omitted, whether intentionally or
unintentionally. 3 2 To read into an ordinance objects which were neither speci cally
mentioned nor enumerated would be to run afoul of the dictum that where a statute, by
its terms, is expressly limited to certain matters, it may not, by interpretation or
construction, be extended to other matters. 3 3 Thus, in Canet v. Mayor Decena , 3 4 the
Court explained:
Even on the assumption that there is in fact a legislative gap caused by such an
omission, neither could the Court presume otherwise and supply the details
thereof, because a legislative lacuna cannot be lled by judicial at .
Indeed, courts may not, in the guise of interpretation, enlarge the scope
of a statute and include therein situations not provided nor intended by
the lawmakers . An omission at the time of the enactment, whether careless or
calculated, cannot be judicially supplied however after later wisdom may
recommend the inclusion. Courts are not authorized to insert into the law
what they think should be in it or to supply what they think the
legislature would have supplied if its attention has been called to the
omission.
Courts should not, by construction, revise even the most arbitrary and unfair
action of the legislature, nor rewrite the law to conform with what they think
should be the law. Nor may they interpret into the law a requirement which
the law does not prescribe. Where a statute contains no limitations in its
operation or scope, courts should not engraft any. And where a provision of law
expressly limits its application to certain transactions, it cannot be extended to
other transactions by interpretation. To do any of such things would be to do
violence to the language of the law and to invade the legislative sphere.
(Emphasis supplied.) EacHCD

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In the absence of a clear legal right to the protection of the vista, sightline and
setting of the Rizal Monument, and the concomitant legal duty to enforce such right,
mandamus will not lie. The writ of mandamus will not issue to compel an o cial to do
anything which is not his duty to do or which it is his duty not to do, or to give to the
applicant anything to which he is not entitled by law. 3 5
Direct recourse to the Supreme Court was improper.
An important principle followed in the issuance of the writ of mandamus is that
there should be no plain, speedy and adequate remedy in the ordinary course of
law other than the remedy of mandamus being invoked. In other words, mandamus can
be issued only in cases where the usual modes of procedure and forms of remedy are
powerless to afford relief. 3 6
Petitioner brought this case to the Supreme Court, arguing that that the Torre de
Manila was being constructed in violation of the zoning ordinance. Petitioner claims
that the City of Manila violated the height restrictions under Ordinance No. 8119 when it
granted private respondent a variance almost six (6) times the seven (7)- oor height
limit in a University Cluster Zone. Petitioner notes that at 22.83% completion, or at the
height of nineteen (19) floors, as of 20 August 2014, the structure already obstructs the
vista of the Rizal Park and the Rizal Monument.
Section 77 of Ordinance No. 8119, however, expressly provides for a remedy in
case of violation of its provisions; it allows for the ling of a veri ed complaint before
the Manila Zoning Board of Assessment and Appeals for any violation of the Ordinance
or of any clearance or permits issued pursuant thereto, including oppositions to
applications for clearances, variance or exception.
The general rule is that before a party is allowed to seek the intervention of the
court, he or she should have availed himself or herself of all the means of administrative
processes afforded him or her. Hence, if resort to a remedy within the administrative
machinery can still be made by giving the administrative o cer concerned every
opportunity to decide on a matter that comes within his or her jurisdiction, then such
remedy should be exhausted rst before the courts' judicial power can be sought. The
premature invocation of the intervention of the court is fatal to one's cause of action.
The doctrine of exhaustion of administrative remedies is based on practical and legal
reasons. The availment of administrative remedy entails lesser expenses and provides
for a speedier disposition of controversies. Furthermore, the courts of justice, for
reasons of comity and convenience, will shy away from a dispute until the system of
administrative redress has been completed and complied with, so as to give the
administrative agency concerned every opportunity to correct its error and dispose of
the case. 3 7
An exception to said rule is when the issue raised is a purely legal question, well
within the competence and the jurisdiction of the court and not the administrative
agency. 3 8
It is clear, however, that factual issues are involved in this case. The calculation of
the maximum allowable building height, the alleged violation of existing regulations
under Ordinance No. 8119, and the existence or non-existence of the conditions 3 9 for
approval of a variance by reason of non-conformity with the height restrictions, are
questions of fact which the City of Manila could pass upon under Section 77 of
Ordinance No. 8119.
Likewise, whether or not the Torre de Manila is a nuisance, and whether or not
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private respondent acted in good faith, are factual issues that should not have been
raised at the first instance before this Court. DaCTcA

The Supreme Court is not a trier of facts and it is not duty-bound to analyze and
weigh again the evidence considered in the proceedings below. More so, this Court is
not duty-bound to analyze and weigh evidence pertaining to factual issues which have
not been subject of any proper proceedings below. 4 0
Any judicial intervention should have been sought at the rst instance from the
Regional Trial Court which has the authority to resolve constitutional issues, 4 1 more so
where questions of fact are involved.
A direct recourse to this Court is highly improper for it violates the established
policy of strict observance of the judicial hierarchy of courts. While we have concurrent
jurisdiction with the Regional Trial Courts and the Court of Appeals to issue the
extraordinary writs, this concurrence is not to be taken as an unrestrained freedom of
choice as to which court the application for the writ will be directed. There is after all a
hierarchy of courts. That hierarchy is determinative of the venue of appeals and should
also serve as a general determinant of the appropriate forum for petitions for the
extraordinary writs. This Court is a court of last resort and must so remain if it is to
satisfactorily perform the functions assigned to it by the Constitution and immemorial
tradition. 4 2
Mandamus cannot compel the
performance of a discretionary act.
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 o cer 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 o cial discretion or judgment.
43

In issuing permits to developers and in granting variances from height


restrictions, the City of Manila exercises discretion and judgment upon a given set of
facts. Such acts are not purely ministerial functions that can be compelled by
mandamus. cIECaS

Petitioner failed to comply with


requisites for judicial review.
Like almost all powers conferred by the Constitution, the power of judicial review
is subject to limitations. The following requisites must be complied with before this
Court can take cognizance of the case: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the person challenging the act must have
the standing to question the validity of the subject act or issuance; otherwise stated, he
must have a personal and substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case. 4 4
Petitioner failed to show its legal standing to file the case.
This Court, in determining locus standi, has applied the "direct injury" test which
requires that for a private individual to invoke the judicial power to determine the
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validity of an executive or legislative action, he must show that he has sustained a
direct injury as a result of that action. It is not su cient that he has a general
interest common to all members of the public. 4 5
Accordingly, locus standi or legal standing has been de ned as a personal and
substantial interest in a case such that the party has sustained or will sustain direct
injury as a result of the governmental act that is being challenged. 4 6
Jurisprudence de nes interest as "material interest, an interest in issue and to be
affected by the decree, as distinguished from mere interest in the question involved, or
a mere incidental interest. By real interest is meant a present substantial interest , as
distinguished from a mere expectancy or a future, contingent, subordinate, or
consequential interest." 4 7
By the foregoing standards, petitioner cannot be considered to have satis ed the
"direct injury" test.
Petitioner alleged that it is a public, non-profit organization created under RA 646,
and pursuant to its mandate, it conducts activities at the Rizal Park to commemorate
Jose Rizal's birth and martyrdom at least twice a year. Petitioner asserted that its legal
mandate to celebrate Rizal's life was violated on account of private respondent's Torre
de Manila project which continue to mar the previously unobstructed view of the Rizal
Park. Such interest, however, cannot be said to be personal and substantial enough to
infuse petitioner with the requisite locus standi. It certainly is not a present or
immediate interest, as petitioner's commemorative activities are not constantly
conducted in the Rizal Park. ACIEaH

The experience of looking at the vista of the Rizal Park and the Rizal Monument
and nding it marred by the subject structure does not give rise to a substantial and
personal injury that will give locus standi to petitioner to le this case. It is what can be
considered as an incidental, if not a generalized, interest. Generalized interests, albeit
accompanied by the assertion of a public right, do not establish locus standi. 4 8
Evidence of a direct and personal interest is key. 4 9
The rule on locus standi is not a plain procedural rule but a constitutional
requirement derived from Section 1, Article VIII of the Constitution, which mandates
courts of justice to settle only "actual controversies involving rights which are legally
demandable and enforceable." 5 0 This Court, in Lozano v. Nograles, 5 1 explained:
x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps
nor are they free to open their doors to all parties or entities claiming a grievance.
The rationale for this constitutional requirement of locus standi is by no means
tri e. It is intended "to assure a vigorous adversary presentation of the case, and,
perhaps more importantly to warrant the judiciary's overruling the determination
of a coordinate, democratically elected organ of government." It thus goes to the
very essence of representative democracies.
xxx xxx xxx
A lesser but not insigni cant reason for screening the standing of persons who
desire to litigate constitutional issues is economic in character. Given the
sparseness of our resources, the capacity of courts to render e cient judicial
service to our people is severely limited. For courts to indiscriminately open their
doors to all types of suits and suitors is for them to unduly overburden their
dockets, and ultimately render themselves ineffective dispensers of justice. To be
sure, this is an evil that clearly confronts our judiciary today.

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Petitioner has likewise failed to justify an exemption from the locus standi rule on
grounds of "transcendental importance."
In Galicto v. Aquino , 5 2 this Court held that "even if (it) could have exempted the
case from the stringent locus standi requirement, such heroic effort would be futile
because the transcendental issue could not be resolved any way, due to procedural
in rmities and shortcomings. " The Court explained that giving due course to a
petition saddled with such formal and procedural in rmities would be "an exercise in
futility that does not merit the Court's liberality." 5 3
As hereinbefore discussed, it was error for petitioner to have led this case
directly before the Supreme Court, as other plain, speedy and adequate remedies were
still available and the case indubitably involves questions of fact. Thus, the resolution of
any transcendental issue in this case will be rendered futile by reason of these
procedural in rmities. Furthermore, it could not escape this Court's attention that what
petitioner led before this Court was, in fact, a petition for injunction over which the
Court does not exercise original jurisdiction. 5 4
While the Court has taken an increasingly liberal approach to the rule of locus
standi, evolving from the stringent requirements of personal injury to the broader
transcendental importance doctrine, such liberality is not to be abused. 5 5
Indeed, the "transcendental importance" doctrine cannot be loosely invoked or
broadly applied, for as this Court previously explained: SAHITC

In the nal scheme, judicial review is effective largely because it is not


available simply at the behest of a partisan faction, but is exercised only to
remedy a particular, concrete injury. When warranted by the presence of
indispensable minimums for judicial review, this Court shall not shun the duty to resolve
the constitutional challenge that may confront it. (Emphasis supplied.)
Thus, this Court, in the recent case of Roy v. Herbosa , 5 6 held that an
indiscriminate disregard of the requisites for this Court's judicial review, every time
"transcendental or paramount importance or signi cance" is invoked would result in
unacceptable corruption of the settled doctrine of locus standi as every worthy cause
is an interest shared by the general public.
Petitioner has also failed to present a justiciable controversy.
An actual case or controversy involves a con ict of legal rights, an assertion of
opposite legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute. There must be a contrariety of legal
rights that can be interpreted and enforced on the basis of existing law and
jurisprudence. The Court can decide the constitutionality of an act or treaty only when
a proper case between opposing parties is submitted for judicial determination. 5 7
The existence of an actual case or controversy, thus, presupposes the presence
of legally enforceable rights. In this case, petitioner asserts that it has the right to stop
the construction of the Torre de Manila on the strength of Sections 15 and 16, Article
XIV of the Constitution, which requires the State to conserve and protect the nation's
historical and cultural heritage and resources. Petitioner argues that heritage
preservation includes the sightline and setting of the Rizal Park and Rizal Monument.
However, as hereinbefore shown, neither the Constitution nor existing legislation,
including Manila's Ordinance No. 8119, provides for speci c and operable norms and
standards that give rise to a judicially enforceable right to the protection of the vista,
sightline and setting of the Rizal Park and Rizal Monument.
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Furthermore, related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it. For a case to
be considered ripe for adjudication, it is a prerequisite that something had then been
accomplished or performed by either branch before a court may come into the picture,
and the petitioner must allege the existence of an immediate or threatened
injury to itself as a result of the challenged action. It must show that it has
sustained or is immediately in danger of sustaining some direct injury as a
result of the act complained of. 5 8
As previously discussed, petitioner has failed to show that it has sustained or is
immediately in danger of sustaining a direct injury as a result of the construction of the
Torre de Manila. cDCSET

In sum, absent a clear legal right to the protection of the vista, sightline and
setting of the Rizal Park and Rizal Monument, and for petitioner's failure to establish its
legal standing and the existence of an actual controversy ripe for judicial adjudication,
mandamus will not lie.
Accordingly, I vote to DISMISS the petition.
Footnotes

1. Rollo, Vol. I, pp. 3-28.


2. Id. at 418-C-418-D.
3. In a Manifestation dated 14 October 2014, DMCI-PDI informed the Court that it is the owner
and developer of the Torre de Manila project and requested to substitute for DMCI
Homes. Inc. as respondent in this case. Id. at 240-242.
The Court, in its 11 November 2014 Resolution, resolved to implead DMCI-PDI as
respondent in this case. Id. at 281-282.
4. Id. at 300.
5. Id. at 301.
6. Id. at 376.
7. Rollo, Vol. III, pp. 1371-1373.
8. Id. at 1374.
9. Id. at 1375-1376.
10. Rollo, Vol. I, pp. 404-405.

11. Rollo, Vol. III, p. 1377.


12. Id. at 1381-1383.
13. Id. at 1384-1385.
14. Id. at 1386-1387.
15. Id. at 1388-1389.
16. Condition (c) in the 23 December 2013 resolution reads:

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(c) The Project shall continuously be socially acceptable to the Barangay Council and
nearby residents by assuring that its operations shall not adversely affect the
community heritage, traffic condition, public health, safety and welfare x x x. Id. at 1387.
It was amended in the 8 January 2014 resolution to read:
(c) The proponent shall ensure that its operations shall not adversely affect community
heritage, traffic condition, public health, safety and welfare x x x. Id. at 1389.
17. Rollo, Vol. III, pp. 1390-1392.
18. Rollo, Vol. I, p. 5.
19. Id. at 4.
20. Id. at 13.
21. Id. at 16.
22. Id. at 17.
23. During the Oral Arguments on 21 July 2015, the counsel for the KOR asserted that the KOR
has changed its position on the matter and now considers the Torre de Manila project a
nuisance per accidens. TSN, 21 July 2015, p. 106.
24. Rollo, Vol. I, p. 18.
25. Id. at 19.
26. Id. at 20.
27. Id. at 21.
28. Id. at 307.
29. Id. at 308.
30. Id. at 311-312.
31. Id. at 314.
32. Id. at 315.
33. Id. at 317.

34. Id. at 318.


35. Id. at 320.
36. Id. at 321.
37. Id. at 329.
38. Id.
39. Id. at 338.
40. Id. at 336.
41. Id. at 337.
42. Id. at 339.
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43. Id. at 346.
44. Id. at 346-347.
45. Id. at 434.
46. Id.
47. Id. at 433.
48. Id. at 434.
49. Id. at 436.
50. Rollo, Vol. III, p. 1363.
51. Id.
52. Id. at 1365.
53. 60 Phil. 658, 661 (1934).

54. See In the Matter of the Adoption of Stephanie Nathy Astroga Garcia, 494 Phil. 515 (2005);
Summerville General Merchandising Co. v. Court of Appeals, 552 Phil. 668 (2007).
55. Art. 1306. The contracting parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not contrary to law, morals,
good customs, public order, or public policy.
56. Art. 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs,
public order or public policy;
57. Rollo, Vol. III, p. 1377.
58. Id. at 1376.
59. An Act Providing for the Protection and Conservation of the National Cultural Heritage,
Strengthening the National Commission for Culture and the Arts (NCCA) and its
Affiliated Cultural Agencies, and for Other Purposes. Approved on 26 March 2010.
60. Section 25, Republic Act No. 10066.

61. Section 1, Article III, Constitution.


62. TSN, 1 September 2015, p. 34.
63. Rollo, Vol. III, p. 1376.
64. 120 Phil. 321, 337 (1964).
65. Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
66. G.R. No. 207132, 6 December 2016.
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67. Rollo, Vol. III, pp. 1386-1389.
Zoning Board Resolution No. 06, Series of 2013, 23 December 2013.
WHEREAS, Section 78 of the Ordinance No. 8119, otherwise known as the Manila
Comprehensive Land Use Plan and Zoning Ordinance of 2006, mandates the Manila
Zoning Board of Adjustments and Appeals (MZBAA) to act on the applications for
zoning appeals on the following nature: variances, exceptions, non-conforming uses,
complaints and oppositions;
WHEREAS, the City Planning and Development O ce (CPDO) elevated the application for
Zoning Appeal regarding the Special Use Permit of the above-captioned Project to the
MZBAA in its Fourth Meeting held on December 23, 2013;
WHEREAS, the CPDO Evaluation Worksheet for Zoning Permit Processing reveals that the
Project exceeds the prescribed maximum Percentage of Land Occupancy (PLO) and
exceeds the prescribed Floor Area Ratio (FAR) as stipulated in Article V, Section 17 of
City Ordinance No. 8119;
WHEREAS, the Owner requested for favorable endorsement to the City Council; x x x
WHEREAS, the Owner, Designer and Developer through their respective pro les present
track record in the design, construction and operations/management of similar
projects[;] x x x|

WHEREAS, through Barangay Resolutions and an A davit, the Barangay Council


together with the owners and residents of the adjacent surrounding properties interpose
no objection; x x x
WHEREAS, through Certi cations from respective utility companies, the supplies of water,
power and communications are assured to be continuous and su cient to the
community vis-a-vis supplying the utility demands of the proposed Project; x x x
NOW, THEREFORE, the MZBAA, by virtue of the powers vested in us by law hereby
RECOMMENDS APPROVAL FOR VARIANCE to the City Council of Manila, the herein
Proposed Project, TORRE DE MANILA: 49-Storey High-Rise Residential Condominium
located at TAFT AVENUE, ERMITA x x x.
xxx xxx xxx
68. Lianga Bay Logging Co., Inc. v. Enage, 236 Phil. 84, 95 (1987).
69. Board of Medical Education v. Alfonso, 257 Phil. 311, 321 (1989). Citations omitted.
70. Angchangco, Jr. v. Ombudsman, 335 Phil. 766, 771-772 (1997). Emphasis supplied.
71. 34 Phil. 818, 823 (1916).
72. M.A. Jimenez Enterprises, Inc. v. Ombudsman , 665 Phil. 523, 540-541 (2011), citing Albay
Accredited Constructors Association, Inc. v. Desierto, 516 Phil. 308, 326 (2006).
73. See Angchangco, Jr. v. Ombudsman , supra note 70; Kant Kwong v. PCGG , 240 Phil. 219,
230 (1987).
7 4 . The Preamble of the International Charter for the Conservation and Restoration of
Monuments and Sites (1964), otherwise known as the Venice Charter, reads:
Imbued with a message from the past, the historic monuments of generations of people
remain to the present day as living witnesses of their age-old traditions. People are
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becoming more and more conscious of the unity of human values and regard ancient
monuments as a common heritage. The common responsibility to safeguard them for
future generations is recognized. It is our duty to hand them on in the full richness of
their authenticity.

It is essential that the principles guiding the preservation and restoration of ancient
buildings should be agreed and be laid down on an international basis, with each
country being responsible for applying the plan within the framework of its own culture
and traditions.
By de ning these basic principles for the rst time, the Athens Charter of 1931
contributed towards the development of an extensive international movement which has
assumed concrete form in national documents, in the work of ICOM and UNESCO and in
the establishment by the latter of the International Centre for the Study of the
Preservation and the Restoration of Cultural Property. Increasing awareness and critical
study have been brought to bear on problems which have continually become more
complex and varied; now the time has come to examine the Charter afresh in order to
make a thorough study of the principles involved and to enlarge its scope in a new
document.
xxx xxx xxx
75. TSN, 25 August 2015, pp. 18-22, 24.
76. An Act Appropriating Funds to Carry Out the Purposes of Jose Rizal National Centennial
Commission Created by Executive Order No. Fifty-two, dated August Ten, Nineteen
Hundred and Fifty-four. Approved on 14 June 1956.
77. Rollo, Vol. V, p. 2497.

78. Id. at 2500.


79. Id. at 2493.
80. Id. at 2500.
81. Id. at 2502.
82. Rollo, Vol. III. p. 1283.
83. Bank of the Philippine Islands v. Fernandez, G.R. No. 173134, 2 September 2015, 768 SCRA
563, 582, citing Roque v. Lapuz, 185 Phil. 525 (1980).
84. 644 Phil. 565 (2010).
85. Id. at 573, citing University of the Philippines v. Hon. Catungal, Jr., 338 Phil. 728, 744 (1997);
In re: Petition for Separation of Property Elena Buenaventura Muller v. Helmut Muller,
531 Phil. 460, 468 (2006).
86. Beumer v. Amores, 700 Phil. 90, 98 (2012).
87. Rollo, Vol. I, p. 18.
88. TSN, 21 July 2015, p. 105.

89. Aquino v. Municipality of Malay, Aklan, G.R. No. 211356, 29 September 2014, 737 SCRA
145, 163; Salao v. Santos, 67 Phil. 547, 550 (1939). Citations omitted.
90. Id.
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91. Rollo, Vol. I, p. 371.
92. Id. at 382.
93. Id. at 372.
94. Id. at 385-392.
95. Id. at 373.
96. Rollo, Vol. III, p. 1369.
97. Id. at 1370.
98. Id. at 1366.
99. TSN, 21 July 2015, p. 107.
100. Id. at 106.
101. Iloilo Ice and Cold Storage Co. v. Municipal Council of Iloilo, 24 Phil. 471, 475 (1913).
Citations omitted.
102. See Garcia, Jr. v. Court of Appeals, 604 Phil. 677 (2009).
103. 131 Phil. 719, 725 (1968).
104. Zamora v. Wright, 53 Phil. 613, 629 (1929).
105. Sanson v. Barrios, 63 Phil. 198, 201 (1936).
106. Case v. Board of Health, 24 Phil. 250, 277 (1913).

107. Pascua v. Tuason , 108 Phil. 69, 73 (1960), citing Zamora v. Wright , supra note 104;
Sanson v. Barrios, supra note 105; Pabico v. Jaranilla, 60 Phil. 247 (1934).
108. From the untitled poem written by Jose Rizal given to his family the night before his
execution in 1896 <https://en.wikipedia.org/wiki/Mi_%C3%BAltimo_adi%C3%B3s>
(accessed on 16 February 2017). The poem was later given the title Mi Ultimo Adios by
Mariano Ponce. <http://www.joserizal.ph/pm03.html> (accessed on 16 February 2017).
109. From Pahimakas ni Dr. Jose Rizal , Tagalog translation of Rizal's Mi Ultimo Adios by
Andres Bonifacio <https://en.wikipedia.org/wiki/Mi_%C3%BAItimo_adi%C3%B3s>
(accessed on 16 February 2017).
110. English translation by Charles Derbyshire
<http://en.wikipilipinas.org/index.php/Mi_Ultimo_Adios> (accessed on 24 April 2017).
1 1 1 . Were Rizal's Burial Wishes Honored? Dr. Pablo S. Trillana,
<http://newsinfo.inquirer.net/554367/were-rizals-burial-wishes-honored> (accessed on
16 February 2017).
VELASCO, JR., J., concurring:
1 . The petition was actually originally led against respondent DMCI Homes, Inc. (DMCI-HI).
However, DMCI-HI was substituted in the present suit by DMCI-PDI.
2. See page 25 of the Petition for Injunction.
3. Dated November 25, 2014.
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4. Section 3 of Rule 65 of the Rules of Court.
5. See Section VII of RA No. 10066.
6. See page 7 of the Dissenting Opinion of Justice Jardeleza.
7. See pages 7-16 of the Dissenting Opinion of Justice Jardeleza.
8. Page 16 of the Dissenting Opinion of Justice Jardeleza.
9. See pages 18-22 of the Dissenting Opinion of Justice Jardeleza.
10. See pages 32-34 of the Dissenting Opinion of Justice Jardeleza.
1 1 . Indeed, at least two (2) of the country's most revered monuments the Bonifacio
Monument in Caloocan City and the Ninoy Aquino Monument in Makati City already
stand in highly urbanized settings and completely surrounded by high buildings and/or
billboards. See "Examples of Monuments of Other Filipino National Heroes,"
Memorandum of the NHCP.
12. Opinion of City Legal O cer of the City of Manila dated September 12, 2012, Annex E,
Position Paper of the City of Manila.
13. That is, metering equipment, transformer boxes, power lines, conduit, equipment boxes,
piping, wireless communication towers and other utility equipment.
14. See Sections 7 and 8 of Ordinance No. 8119. See also Zoning Map, Annex B, Ordinance No.
8119.
15. Chapter IX of Presidential Decree (PD) No. 1096.
16. See Chapter XX of PD No. 1096.
17. See page 11 of the Petition.
18. Philippine Coconut Authority v. Primex Coco Products, G.R. No. 163088, July 20, 2006, 495
SCRA 763.
PERLAS-BERNABE, J., concurring:
1. See rollo, Vol. I, pp. 3-28.
2. Original respondent, DMCI Homes, Inc., was subsequently substituted by respondent DMCI
Project Developers, Inc., as the owner and developer of the Torre de Manila project (see
Manifestation and Motion of DMCI-PDI dated October 14, 2014; rollo, Vol. I, pp. 240-242).
Later on respondents the City of Manila, the National Historical Commission of the
Philippines, the National Museum and the National Commission on Culture and the Arts
were impleaded as respondents to this case (see Court's Resolution dated November 25,
2014; id. at 418-C-418-D).
3. Systems Plus Computer College v. Local Government of Caloocan City , 455 Phil. 956, 962
(2003), citing Section 3, Rule 65 of the Rules of Court.
4. Special People, Inc. Foundation v. Canda, 701 Phil. 365, 369 (2013); underscoring supplied.
5. Carolino v. Senga, G.R. No. 189649, April 20, 2015, 756 SCRA 55, 70; Calim v. Guerrero , 546
Phil. 240, 252 (2007); and Manila International Airport Authority v. Rivera Village Lessee
Homeowners Association, Inc., 508 Phil. 354, 371 (2005); emphasis and underscoring
supplied.

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6 . Special People, Inc. Foundation v. Canda , supra note 4, at 386; emphasis, italics, and
underscoring supplied.
7. Carolino v. Senga, supra note 5, at 70-71; emphases and underscoring supplied.
8 . Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve,
promote, and popularize the nation's historical and cultural heritage and resources, as
well as artistic creations.
9. Sec. 16. All the country's artistic and historic wealth constitutes the cultural treasure of the
nation and shall be under the protection of the State which may regulate its disposition.
10. See rollo, Vol. I, pp. 15-16.
11. See ponencia, pp. 8 and 9.

12. Particularly: (1) Republic Act No. (RA) 4846 entitled "AN ACT TO REPEAL ACT NUMBERED
THIRTY EIGHT HUNDRED SEVENTY FOUR, AND TO PROVIDE FOR THE PROTECTION
AND PRESERVATION OF PHILIPPINE CULTURAL PROPERTIES," otherwise known as
"CULTURAL PROPERTIES PRESERVATION AND PROTECTION ACT" (June 18, 1966); (2)
RA 7356 entitled "AN ACT CREATING THE NATIONAL COMMISSION FOR CULTURE AND
THE ARTS, ESTABLISHING A NATIONAL ENDOWMENT FUND FOR CULTURE AND THE
ARTS, AND FOR OTHER PURPOSES," otherwise known as "LAW CREATING THE
NATIONAL COMMISSION OF CULTURE AND THE ARTS" (April 3, 1992); and (3) RA
10066 entitled "AN ACT PROVIDING FOR THE PROTECTION AND CONSERVATION OF
THE NATIONAL CULTURAL HERITAGE, STRENGTHENING THE NATIONAL COMMISSION
FOR CULTURE AND THE ARTS (NCCA) AND ITS AFFILIATED CULTURAL AGENCIES, AND
FOR OTHER PURPOSES," otherwise known as the "NATIONAL CULTURAL HERITAGE
ACT OF 2009," approved on March 26, 2010. (See rollo, Vol. I, pp. 16-17.)
13. Ponencia, p. 12.
14. See rollo, Vol. I, pp. 19-20.

15. Ponencia, pp. 17-18.


16. See ponencia, pp. 9-10.
17. See Dissenting Opinion of Justice Francis H. Jardeleza.
18. See Carolino v. Senga, supra note 5, at 70; emphases and underscoring supplied.
19. Anchangco, Jr. v. Ombudsman , 335 Phil. 766, 771-772 (1997); emphases and underscoring
supplied.
20. During the oral arguments, it was established that the granting of a variance is neither
uncommon for irregular. On the contrary, current practice has made granting the
variance the rule rather than the exception. (See ponencia, pp. 19-20, citing TSN, August
25, 2015, pp. 18-22.)
21. Rollo, Vol. I, p. 172.
22. See DMCI-PDI's Comment Ad Cautelam dated November 11, 2014; id. at 301-302; emphasis
and underscoring supplied.
23. Id. at 302; emphasis and underscoring supplied.
24. See id. at 329-332.

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25. See Special People, Inc. Foundation v. Canda, supra note 4, at 386.

26. Carolino v. Senga, supra note 5, at 70.


LEONEN, J., concurring:
1. The penultimate paragraph was cited in rollo, p. 2491, National Historical Commission of the
Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum,
Annex C, citing Jose Rizal's letter to his family, " A mi familia," undated, believed to have
been written in Fort Santiago in December 1896, National Library of the Philippines.
Translation by Jose Rizal National Centennial Commission (1964).
For the original text, see rollo, p. 2491, National Historical Commission of the Philippines
Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing
Documentos Rizalinos (Manila: Imprenta Publica, 1953), pp. 89-90. See also Cartas
Entre Rizal y Los Miembros de la Familia, available at
<http://www.cervantesvirtual.com/descargaPdf/caras-entre-rizal-y-los-miembros-de-la-
familia-segunda-parte-780268>. (Last accessed on May 22, 2017). The Spanish text
reads:
A mi familia
Os pido perdn del dolor que os ocasiono, pero un dia u otro yo tenia que morir y ms
vale que muera hoy en toda la plenitud de mi conciencia.
Queridos padres y hermanos: Dad gracias a Dios que me conserva la tranquilidad, antes
de mi muerte. Muero resignado, esperando que con mi muerte os dejen en paz. Ah! es
major morir que vivir sufriendo. Consolos.
Os recomiendo que os perdoneis, unos a otros las pequeeces de la vida y tratad de vivir
unidos en paz y en buena armonia. Tratad nuestros ancianos padres como quisirais
ser tratados por vuestros hijos despus. Amadlos mucho, en memoria mia.
Enterradme en tierra, ponedme una piedra encima y una cruz. Mi nombre, la fecha de mi
nacimiento y la de mi muerte. Nada ms. Si quereis despus rodear mi fosa con un
cerco, lo podreis hacer. Nada de aniversarios. Preferio Paang Bundok.
Tened compasin de la pobre Josefina.
2. Integrated Bar of the Philippines v. Zamora , 392 Phil. 618, 632 (2000) [Per J. Kapunan, En
Banc], citing Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994), citing
Luz Farms v. Secretary of the Department of Agrarian Reform , 192 SCRA 51 (1990);
Dumlao v. Commission on Elections , 95 SCRA 392 (1980); and, People v. Vera , 65 Phil.
56 (1937).
3. Id.
4. Id.
5. Id.
6. Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 632-633 (2000) [Per J. Kapunan,
En Banc], citing Joya v. Presidential Commission on Good Government, 225 SCRA 568,
576 (1993).

7. Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000) [Per J. Kapunan, En
Banc], citing Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663, 678 (1962).
8. Lozano v. Nograles, 607 Phil. 334, 343-344 (2009) [Per C.J. Puno, En Banc].
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9 . Funa v. Villar , 686 Phil. 571, 586 (2012) [Per J. Velasco. Jr., En Banc]. citing David v.
Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 161.
10. Id.
11. Id.
12. Id.
13. Araneta v. Dinglasan, 84 Phil. 368, 373 (1949) [Per J. Tuason, En Banc].
14. CORP. CODE, sec. 36 (1) provides:
SECTION 36. Corporate Powers and Capacity . Every corporation incorporated under
this Code has the power and capacity:
1. To sue and be sued in its corporate name.
15. CORP. CODE, sec. 23 provides:
SECTION 23. The Board of Directors or Trustees . Unless otherwise provided in this
Code, the corporate powers of all corporations formed under this Code shall be
exercised, all business conducted and all property of such corporations controlled and
held by the board of directors or trustees to be elected from among the holders of stocks,
or where there is no stock, from among the members of the corporation, who shall hold
office for one (1) year until their successors are elected and qualified.
Every director must own at least one (1) share of the capital stock of the corporation of
which he is a director, which share shall stand in his name on the books of the
corporation. Any director who ceases to be the owner of at least one (1) share of the
capital stock of the corporation of which he is a director shall thereby cease to be a
director. Trustees of non-stock corporations must be members thereof. A majority of the
directors or trustees of all corporations organized under this Code must be residents of
the Philippines.
16. See The Executive Secretary v. Court of Appeals , 473 Phil. 27, 51 (2004) [Per J. Callejo, Sr.,
Second Division].
17. Rollo, p. 36, Secretary's Certificate.
18. Id. at 35, Secretary's Certificate.
19. Id. at 2575-2576, Memorandum for Petitioner.
20. 392 Phil. 618 (2000) [Per J. Kapunan, En Banc].
21. Id. at 633.
22. Id. at 633-634.
23. See Justice Ynares-Santiago's Dissenting Opinion in People v. Lacson , 459 Phil. 330, 372
(2003) [Per J. Callejo, Sr., En Banc].
24. See Ynot v. Intermediate Appellate Court, 232 Phil. 615, 621 (1987) [Per J. Cruz, En Banc].
25. For instance, on page 17-19 of its Petition for Injunction, petitioner Knights of Rizal raises
the issue of whether the Torre de Manila is a nuisance per se. See Ramcar, Inc. v. Millar ,
116 Phil. 825, 828-829 (1962) [Per J. J.B.L. Reyes, En Banc] where this Court held that "
[w]hether a particular thing is or is not a nuisance is a question of fact[.]"

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26. Ponencia, p. 15.
27. Kalipunan ng Mahihirap, Inc. v. Robredo , G.R. No. 200903, July 22, 2014 [Per J. Brion, En
Banc].
28. See People v. Cuaresma, 254 Phil. 418, 426-428 (1989) [Per J. Narvasa, First Division].
2 9 . G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2015/january2015/205728.pdf> [Per J. Leonen, En Banc].
30. Id. at 14.
31. Reyes v. Diaz, 73 Phil. 484, 486 (1941) [Per J. Moran, En Banc].
32. See Bokingo v. Court of Appeals , 523 Phil. 186, 196-197 (2006) [Per J. Callejo, Sr., First
Division].
33. Batas Blg. 129, sec. 19 (1) provides:
SECTION 19. Jurisdiction in Civil Cases. Regional Trial Courts shall exercise exclusive
original jurisdiction:
(1) In all civil actions in which the subject of the litigation is incapable of pecuniary
estimation.
34. J. Jardeleza's Dissenting Opinion.

35. 668 Phil. 1 (2011) [Per J. Carpio, En Banc].


36. 343 Phil. 539 (1997) [Per J. Torres, Jr., En Banc].
37. 209 Phil. 1 (1983) [Per J. Gutierrez, Jr., En Banc].
38. Petitions for declaratory relief involve subject matters incapable of pecuniary estimation
and, therefore, are under the exclusive original jurisdiction of the Regional Trial Courts.
See City of Lapu-Lapu v. Philippine Economic Zone Authority , G.R. No. 184203,
November 26, 2014, [Per J. Leonen, Second Division].
39. Gamboa v. Teves , 668 Phil. 1, 36 (2011) [Per J. Carpio, En Banc]; Salvacion v. Central Bank
of the Philippines, 343 Phil. 539, 556 (1997) [Per J. Torres, Jr., En Banc]; Alliance of
Government Workers v. Minister of Labor and Employment , 209 Phil. 1, 12 (1983) [Per J.
Gutierrez, Jr., En Banc].
40. Republic v. Estipular, 391 Phil. 211, 218 (2000) [Per J. Panganiban, Third Division].
41. Id.
42. Id.

43. De Castro v. Judicial and Bar Council, 629 Phil. 629, 705 (2010) [Per J. Bersamin, En Banc].
44. Id.
45. Id.
46. Id.
47. Id.
48. J. Jardeleza's Dissenting Opinion.

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49. J. Jardeleza's Dissenting Opinion.
50. J. Jardeleza's Dissenting Opinion.

51. CONST. art. II, sec. 11 provides:


SECTION 11. The State values the dignity of every human person and guarantees full
respect for human rights.
Basco v. Philippine Amusement and Gaming Corporation , 274 Phil. 323, 343 (1991) [Per
J. Paras, En Banc].
52. CONST. art. II, sec. 12 provides:
SECTION 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from conception. The natural and
primary right and duty of parents in the rearing of the youth for civic e ciency and the
development of moral character shall receive the support of the Government.
Basco v. Philippine Amusement and Gaming Corporation , 274 Phil. 323, 343 (1991) [Per
J. Paras, En Banc].
53. CONST. art. II, sec. 13 provides:
SECTION 13. The State recognizes the vital role of the youth in nation-building and shall
promote and protect their physical, moral, spiritual, intellectual, and social well-being. It
shall inculcate in the youth patriotism and nationalism, and encourage their involvement
in public and civic affairs.
Basco v. Philippine Amusement and Gaming Corporation , 274 Phil. 323, 343 (1991) [Per
J. Paras, En Banc].
54. CONST. art. XIII, sec. 1 provides:
SECTION 1. The Congress shall give highest priority to the enactment of measures that
protect and enhance the right of all the people to human dignity, reduce social,
economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.
Tolentino v. Secretary of Finance , G.R. No. 115455, August 25, 1994, 235 SCRA 630, 685
[Per J. Mendoza, En Banc].
55. CONST. art. XIII, sec. 13 provides:
SECTION 13. The State shall establish a special agency for disabled persons for
rehabilitation, self-development and self-reliance, and their integration into the
mainstream of society.
Basco v. Philippine Amusement and Gaming Corporation , 274 Phil. 323, 343 (1991) [Per
J. Paras, En Banc].
56. CONST. art. XIV, sec. 1 provides:
SECTION 1. The State shall protect and promote the right of all citizens to quality
education at all levels and shall take appropriate steps to make such education
accessible to all.
Tolentino v. Secretary of Finance , G.R. No. 115455, August 25, 1994, 235 SCRA 630, 685
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[Per J. Mendoza, En Banc].
57. CONST. art. XIV, sec. 2 provides:
SECTION 2. The State shall:
(1) Establish, maintain, and support a complete, adequate, and integrated system of
education relevant to the needs of the people and society;
(2) Establish and maintain a system of free public education in the elementary and high
school levels. Without limiting the natural right of parents to rear their children,
elementary education is compulsory for all children of school age;
(3) Establish and maintain a system of scholarship grants, student loan programs,
subsidies, and other incentives which shall be available to deserving students in both
public and private schools, especially to the underprivileged;
(4) Encourage non-formal, informal, and indigenous learning systems, as well as self-
learning, independent, and out-of-school study programs particularly those that respond
to community needs; and
(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics,
vocational efficiency, and other skills.
58. 316 Phil. 652 (1995) [Per J. Mendoza, En Banc], cited by Justice Jardeleza in his Dissenting
Opinion.
59. Justice Feliciano's Separate Concurring Opinion in Oposa v. Factoran, G.R. No. 101083, July
30, 1993, 224 SCRA 792, 818 [Per J. Davide, Jr., En Banc].
60. Manila Prince Hotel v. Government Service Insurance System , 335 Phil. 82, 102 (1997) [Per
J. Bellosillo, En Banc].

61. Id.
62. Id.
63. Id.
64. Rollo, p. 2491, National Historical Commission of the Philippines Historical Notes on the
Rizal Monument and Park, NHCP Memorandum, Annex C, citing Jose Rizal, letter to his
family, "A mi familia," undated, believed to have been written in Fort Santiago in
December 1896, National Library of the Philippines; translation by Jose Rizal National
Centennial Commission, 1964.
65. Id. at 2492, National Historical Commission of the Philippines Historical Notes on the Rizal
Monument and Park, NHCP Memorandum, Annex C, citing Asuncion Lopez Bantug, Lolo
Jose (Manila: Asuncion Lopez Bantug, Vibal Foundation, Inc., and Intramuros
Administration, 2008), p. 165.
66. Id. at 2492, National Historical Commission of the Philippines Historical Notes on the Rizal
Monument and Park, NHCP Memorandum, Annex C, citing Bantug, pp. 168-169 and
"Jose Rizal (Remains Interred)," in National Historical Institute, Historical Markers, Metro
Manila (Manila: National Historical Institute, 1993), p. 274.
67. An Act granting the right to use public land upon the Luneta in the city of Manila upon
which to erect a statue of Jose Rizal, from a fund to be raised by public subscriptions,
and prescribing as a condition the method by which such subscription shall be collected
and disbursed.
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68. An Act Appropriating Fifteen Thousand Dollars, United States Currency, for the Purpose of
Contributing to the Erection of the Rizal Monument, and Authorizing the Insular
Treasurer to Deposit the Funds Already Collected in a Bank to Draw Interest.

69. Rollo, p. 2492, National Historical Commission of the Philippines Historical Notes on the
Rizal Monument and Park, NHCP Memorandum, Annex C, citing Act No. 243 (1901) and
Act No. 893 (1903).
70. Id. at 2492, National Historical Commission of the Philippines Historical Notes on the Rizal
Monument and Park, NHCP Memorandum, Annex C.
71. Id. at 2492, National Historical Commission of the Philippines Historical Notes on the Rizal
Monument and Park, NHCP Memorandum, Annex C, citing "Prize Winners," Manila
Times, 8 January 1908; "The Rizal Monument: Story of its Own Erection," Philippines
International 8, 2 (June-July 1964): 4-8 and Ambeth R. Ocampo, "Much Ado about Torre:
Rizal Asked Only for Cross on Tombstone," Philippine Daily Inquirer, 23 August 2015, A1.
72. Id. at 2492-2493, National Historical Commission of the Philippines Historical Notes on the
Rizal Monument and Park, NHCP Memorandum, Annex C, citing Prize Winners," Manila
Times, 8 January 1908; Ambeth R. Ocampo, "Much Ado about Torre: Rizal Asked Only
for Cross on Tombstone," Philippine Daily Inquirer, 23 August 2015, A1; and Juan F.
Nakpil and Sons, Proposed Improvement of the Rizal Monument, Sheet A-l, Set 1/3, 20
April 1961, NHCP Library.
73. Id. at 2493, National Historical Commission of the Philippines Historical Notes on the Rizal
Monument and Park, NHCP Memorandum, Annex C, citing Ambeth R. Ocampo, "Much
Ado about Torre: Rizal Asked Only for Cross on Tombstone," Philippine Daily Inquirer, 23
August 2015, A1; Bantug, p. 169; footnote to "De Rizal a su familia (sin rma ni fecha)"
in O cina de Bibliotecas Publicas, Documentos Rizalinos Regalados Por El Pueblo
Espaol Al Pueblo Filipino (Manila: Imprenta Publica, 1953), p. 91; Austin Craig, Rizal's
Life and Minor Writings (Manila: Philippine Education Co., Inc., 1927), p. 215; and
Sunday Times, 28 December 1947, p. 12.
74. Id. at 2493, National Historical Commission of the Philippines Historical Notes on the Rizal
Monument and Park, NHCP Memorandum, Annex C, citing The Manila Times, 16 April
1963; The Chronicle magazine, 27 April 1963; and Juan F. Nakpil and Sons, Proposed
Improvement of the Rizal Monument, Sheet A-l, Set 1/3, 20 April 1961, NHCP Library.
75. Id. at 2494, National Historical Commission of the Philippines Historical Notes on the Rizal
Monument and Park, NHCP Memorandum, Annex C, citing A. Ocampo, "Torre de Manila,
Flap Repeats Itself," Philippine Daily Inquirer, 30 August 2015.
76. Id.
77. Id. at 2494, National Historical Commission of the Philippines Historical Notes on the Rizal
Monument and Park, NHCP Memorandum, Annex C, citing NHCP Board Resolution No. 5
s. 2013, "Declaring the Rizal Monument in Rizal Park a National Monument," 15 April
2013, NHCP Records Section.
78. Id. at 2494, National Historical Commission of the Philippines Historical Notes on the Rizal
Monument and Park, NHCP Memorandum, Annex C, citing National Museum,
Declaration No. 9 2013, "Declaration of the Monument to Dr. Jose Rizal in Rizal Park,
City of Manila as a National Cultural Treasure," 14 November 2013.
79. Rep. Act No. 4846, sec. 2.
80. Taada v. Tuvera, 230 Phil. 528, 535 (1986) [Per J. Cruz, En Banc].
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81. ADM. CODE, Book VII, Chapter 2, sec. 3 (1) provides:
SECTION 3. Filing. (1) Every agency shall le with the University of the Philippines Law
Center three (3) certi ed copies of every rule adopted by it. Rules in force on the date of
effectivity of this Code which are not led within three (3) months from that date shall
not thereafter be the basis of any sanction against any party or persons.
82. CONST. art. VII, sec. 21 provides:
SECTION 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.

83. J. Jardeleza's Dissenting Opinion.


84. J. Jardeleza's Dissenting Opinion.
85. J. Jardeleza's Dissenting Opinion.
86. De Castro v. Judicial and Bar Council , 629 Phil. 629, 707 (2010) [Per J. Bersamin, En Banc],
citing Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490 SCRA 273.
87. Id.
88. Manila Ordinance 8119, sec. 60 provides:
SEC. 60. Deviations. Variances and exceptions from the provisions of this Ordinance
may be allowed by the Sangguniang Panlungsod as per recommendation from the
Manila Zoning Board of Adjustment and Appeals (MZBAA) through the Committee on
Housing, Urban Development and Resettlements only when all the following terms and
conditions are obtained/existing:
1. Variance all proposed projects which do not conformed with the prescribed
allowable Land Use Intensity Control (LUIC) in the zone.

a. The property is unique and different from other properties in the adjacent locality and
because of its uniqueness, the owner/s cannot obtain a reasonable return on the
property.
This condition shall include at least three (3) of the following provisions:
- Conforming to the provisions of the Ordinance will cause undue hardship on the part of
the owner or occupant of the property due to physical conditions of the property
(topography, shape, etc.), which is not self created.
- The proposed variance is the minimum deviation necessary to permit reasonable use of
the property.
- The variance will not alter the physical character of the district/zone where the property
for which the variance sought is located, and will not substantially or permanently injure
the use of the other properties in the same district or zone.
- That the variance will not weaken the general purpose of the Ordinance and will not
adversely affect the public health, safety, and welfare.
- The variance will be in harmony with the spirit of this Ordinance.
89. J. Jardeleza's Dissenting Opinion.
90. TSN dated August 11, 2015, pp. 48-54.

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91. RULES OF COURT, Rule 58, sec. 5 partly provides:
SECTION 5. Preliminary Injunction Not Granted Without Notice; Exception. No
preliminary injunction shall be granted without hearing and prior notice to the party or
person sought to be enjoined. If it shall appear from facts shown by a davits or by the
veri ed application that great or irreparable injury would result to the applicant before
the matter can be heard on notice, the court to which the application for preliminary
injunction was made, may issue ex parte a temporary restraining order to be effective
only for a period of twenty (20) days from service on the party or person sought to be
enjoined, except as herein provided. Within the said twenty-day period, the court must
order said party or person to show cause, at a speci ed time and place, why the
injunction should not be granted, determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly issue the corresponding order.
JARDELEZA, J., dissenting:
1 . About World Heritage, UNESCO World Heritage Centre, <http://whc.unesco.org/en/about/>
(last accessed June 14, 2016).
2. 348 U.S. 26, 33 (1954).
3. Rollo, p. 3.
4. Id. at 23.
5. Id. at 27-28.
6 . Alliance of Government Workers v. Minister of Labor and Employment , G.R. No. L-60403,
August 3, 1983, 124 SCRA 1, 9-10.
7. CONSTITUTION, Art. VIII, Sec. 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and
habeas corpus; x x x.
8. Rollo, pp. 308-309 citing Bank of the Philippine Islands v. Hong , G.R. No. 161771, February
15, 2012, 666 SCRA 71.
9. Uy Kiao Eng v. Lee, G.R. No. 176831, January 15, 2010, 610 SCRA 211, 216-217.

10. Henares, Jr. v. Land Transportation Franchising and Regulatory Board , G.R. No. 158290,
October 23, 2006, 505 SCRA 104, 115 citing University of San Agustin, Inc. v. Court of
Appeals, G.R. No. 100588, March 7, 1994, 230 SCRA 761, 771.
11. G.R. No. 100588, March 7, 1994, 230 SCRA 761.
12. Id. at 771-772.
13. Uy Kiao Eng v. Lee, supra at 217.
14. Rollo, pp. 1229-1230.
15. G.R. No. 176579, June 28, 2011, 652 SCRA 690.
16. Id. at 705-706.

17. Id. at 706-709.


18. G.R. No. 94723, August 21, 1997, 278 SCRA 27.
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19. G.R. No. L-60403, August 3, 1983, 124 SCRA 1.
20. Salvacion v. Central Bank of the Philippines, supra at 39-40.
21. Alliance of Government Workers v. Minister of Labor and Employment, supra at 9-10.
22. 85 Phil. 101 (1949).
23. G.R. No. L-40004, January 31, 1975, 62 SCRA 275.
24. Biraogo v. Philippine Truth Commission of 2010 , G.R. No. 192935, December 7, 2010, 637
SCRA 78, 149-150 citing David v. Macapagal-Arroyo , G.R. No. 171396, May 3, 2006, 489
SCRA 160, 216.
25. G.R. No. 208566, November 19, 2013, 710 SCRA 1, 99. (Citations omitted.)
26. Arigo v. Swift, G.R. No. 206510, September 16, 2014, 735 SCRA 102, 128.
27. David v. Macapagal-Arroyo , G.R. No. 171396, May 3, 2006, 489 SCRA 160, 217-218 citing
People v. Vera, 65 Phil. 56 (1937).
28. Tolentino v. Commission on Elections, G.R. 148334, January 21, 2004, 420 SCRA 438, 452.
29. An Act to Convert the "Orden de Caballeros de Rizal" into a Public Corporation to be known
in English as "Knights of Rizal" and in Spanish as "Orden de Caballeros de Rizal," and to
Define its Purposes and Powers, Sec. 2. See also Rollo, p. 5.
30. Republic Act No. 646, Sec. 2.
31. TSN, July 21, 2015, pp. 13-14.

32. TSN, July 21, 2015, pp. 13-14:


JUSTICE JARDELEZA : Now, do you organize and hold programs to commemorate the
birth and death of Dr. Jose Rizal?
ATTY. JASARINO : Yes, Your Honor, we do.
JUSTICE JARDELEZA : And where do you hold these programs?

ATTY. JASARINO : Rizal Park, Your Honor.


JUSTICE JARDELEZA : You have been there yourself.
ATTY. JASARINO : Yes, Your Honor.
JUSTICE JARDELEZA : How often do you do this?
ATTY. JASARINO : Talking of nativity and martyrdom, at least, twice a year.
JUSTICE JARDELEZA : And how does, again, the Torre injure you or the organization in
the [discharge] of this specific corporate purpose?
ATTY. JASARINO : I cannot imagine having the celebrations, the programs with Torre at
the back. I cannot imagine that activity to be inspiring, to be reminding us of Rizal, of his
works, of his ideals while looking at Torre marring the background that we used to have,
the panorama that is unhampered, that is unobstructed. (Underscoring supplied.)
33. 405 U.S. 727 (1972).
34. Id. at 734.
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35. Id. at 735.
36. Oposa v. Factoran, Jr., G.R. No. 101083, July 30, 1993, 224 SCRA 792, 802.
37. Bagong Alyansang Makabayan v. Zamora , G.R. No. 138570, October 10, 2000, 342 SCRA
449, 480.
38. Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform ,
G.R. No. 78742, July 14, 1989, 175 SCRA 343, 364-365.
39. Tolentino v. Commission on Elections, supra at 453-454.
40. Gamboa v. Teves, supra note 15, at 713.
41. Rollo, pp. 15-16.
42. See Oposa v. Factoran, Jr., supra at 816-817 (Feliciano, J., concurring).
43. Manila Prince Hotel v. Government Service Insurance System , G.R. No. 122156, February 3,
1997, 267 SCRA 408, 431-432.
44. G.R. No. 91649, May 14, 1991, 197 SCRA 52.
45. G.R. No. 115455, August 25, 1994, 235 SCRA 630.
46. Id. at 684-685.
47. G.R. No. 118910, July 17, 1995, 246 SCRA 540.
48. Id. at 564.
49. G.R. No. 118295, May 2, 1997, 272 SCRA 18.

50. Id. at 54.


51. Agabon v. National Labor Relations Commission , G.R. No. 158693, November 17, 2004, 442
SCRA 573, 688 (Tinga, J., concurring).
52. Oposa v. Factoran, Jr., supra note 36, at 817.
53. Id. at 817-818.

54. See Agabon v. National Labor Relations Commission, supra (Tinga, J., concurring).
55. IV RECORD, CONSTITUTIONAL COMMISSION 558-560 (September 11, 1986).
56. Id.
57. Rollo, pp. 19-20.
5.10 This PROJECT blatantly violates the National Historical Commission of the
Philippines' "Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos
and Other Personages" which guidelines have the force of law. The said guidelines
dictate that historic monuments should assert a visual "dominance" over the
surroundings by the following measures, among others:
DOMINANCE
(i) Keep vista points and visual corridors to monuments clear for unobstructed viewing
and appreciation and photographic opportunities;
(ii) Commercial buildings should not proliferate in a town center where a dominant
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monument is situated;

SITE AND ORIENTATION


(i) 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 modi cation, which would alter the relations of mass and color, must be
allowed.
(ii) 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 expense of the property.
5.11 The PROJECT also runs afoul of an international commitment of the Philippines, the
International Charter for the Conservation and Restoration of Monuments and Sites,
otherwise known as the Venice Charter.
That agreement says, in part, as follows:
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 signi cant development or a 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;
xxx xxx xxx
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 modi cation which would alter the relations of mass and colour, must be
allowed. (Underscoring in the original.)
58. Taada v. Tuvera, G.R. No. L-63915, December 29, 1986, 146 SCRA 446, 453-454.
59. ADMINISTRATIVE CODE, Book VII, Chapter 2, Sec. 3.

60. Republic v. Pilipinas Shell Petroleum Corporation , G.R. No. 173918, April 8, 2008, 550 SCRA
680, 689.
61. S ee Pharmaceutical and Health Care Association of the Philippines v. Duque , G.R. No.
173034, October 9, 2007, 535 SCRA 265.
62. The NHCP Guidelines, for example, reads in pertinent part:
11. DEVELOPMENT OF THE VICINITY (EXISTING AND FUTURE)
It is highly recommended that towns and cities formulate zoning guidelines or local
ordinances for the protection and development of monument sites and the promotion of
a clean and green environment, and strictly implement these laws, especially in places
where important monuments and structures are located.
A buffer zone should be provided around the vicinity of monuments/sites, and should be
made part of the respective city or municipal land use and zoning regulations through
local legislation.
Height of buildings surrounding or in the immediate vicinity of the monument/site should
be regulated by local building code regulation or special local ordinance to enhance the
prominence, dominance and dignity of the monument, more importantly, the national
monuments.
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63. Xi'an Declaration on the Conservation of the Setting of Heritage Structures, Sites and Areas,
par 1. [hereinafter "Xi'an Declaration"]

64. ICOMOS Guidance on Heritage Impact Assessments for Cultural World Heritage Properties,
par. 5-3.
65. Xi'an Declaration, par. 2.
66. Xi'an Declaration, par. 9.

67. UNESCO Recommendation concerning the Safeguarding of the Beauty and Character of
Landscapes and Sites (1962). See International Charter for the Conservation and
Restoration of Monuments and Sites (1964 Venice Charter), UNESCO Recommendation
concerning the Preservation of Property Endangered by Public or Private Works (1968),
Recommendation concerning the Protection, at National Level, of the Cultural and
Natural Heritage (1972), UNESCO Convention concerning the Protection of the World
Cultural and Natural Heritage, otherwise known as the World Heritage Convention (1972),
Declaration of Amsterdam (1975), UNESCO Recommendation concerning the
Safeguarding and Contemporary Role of Historic Areas (1976), ICOMOS Committee for
Historic Gardens (1981), Charter for the Conservation of Historic Towns and Urban Areas
(1987), among others.
68. See Takahiro Kenjie C. Aman & Maria Patricia R. Cervantes-Poco, What's in a Name?:
Challenges in De ning Cultural Heritage in Light of Modern Globalization , 60 ATENEO
L.J. 965 (2016).
6 9 . BLACK'S LAW DICTIONARY 1200 (1995). See Laurence H. Tribe, I AMERICAN
CONSTITUTIONAL LAW 60 (2000). See also Dante Gatmaytan, LEGAL METHOD
ESSENTIALS 46 (2012) citing Francisco, Jr. v. House of Representatives, G.R. No.
160261, November 10, 2003, 415 SCRA 44.
70. See Vera v. Avelino, 77 Phil. 192 (1946).
71. An Act to Establish a National Historical Commission, to De ne Its Powers and Functions,
Authorizing the Appropriation of Funds Therefor, and for Other Purposes (1965).
72. Republic Act No. 4368, Sec. 4 (e).
73. Republic Act No. 4846, Sec. 2.
74. Law Creating the National Commission for Culture and the Arts (1992).
75. Republic Act No. 7356, Sec. 2.
76. Republic Act No. 7356, Sec. 12 (b).
77. National Museum Act of 1998.
78. Republic Act No. 8492, Sec. 3.
79. Republic Act No. 6541, Chapter 10.06, Sec. 10.06.01: General
(a) No signs or signboards shall be erected in such a manner as to confuse or obstruct
the view or interpretation of any official traffic sign signal or device.
(b) No signboards shall be constructed as to unduly obstruct the natural view of the
landscape, distract or obstruct the view of the public as to constitute a traffic hazard, or
otherwise de le, debase, or offend the aesthetic and cultural values and
traditions of the Filipino people. (Emphasis supplied.)
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80. National Cultural Heritage Act of 2009.
81. Strengthening Peoples' Nationalism Through Philippine History Act (2009).
82. Republic Act No. 10066, Sec. 2 and Republic Act No. 10086, Sec. 2.
83. Rollo, p. 435.
84. Id. at 2428.
85. Id. at 2440.

86. Id. at 3213.


87. Id. at 1279.
88. Id.
89. Considering the pendency of Civil Case No. 15-074 (before the Regional Trial Court in
Makati City) and G.R. No. 222826 (before this Court), we shall refrain from discussing
the matter of the propriety of the NCCA's issuance of a CDO at this time.
90. Republic Act No. 7160, Sec. 20 (c).
91. The pertinent portions of the Local Government Code provide:
Sec. 458. Powers, Duties, Functions and Compensation. The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances,
approve resolutions and appropriate funds for the general welfare of the city
and its inhabitants pursuant to Section 16 of this Code and in the proper exercise
of the corporate powers of the city as provided for under Section 22 of this Code, and
shall:
(1) Approve ordinances and pass resolutions necessary for an e cient and effective city
government, and in this connection, shall:
xxx xxx xxx
(ix) Enact integrated zoning ordinances in consonance with the approved comprehensive
land use plan, subject to existing laws, rules and regulations; establish re limits or
zones, particularly in populous centers; and regulate the construction, repair or
modi cation of buildings within said re limits or zones in accordance with the
provisions of the Fire Code;
xxx xxx xxx
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare
xxx xxx xxx. (Emphasis supplied.)
9 2 . Donald G. Hagman & Julian Conrad Juergensmeyer, URBAN PLANNING AND LAND
DEVELOPMENT CONTROL LAW 55 (1986) [hereinafter "HAGMAN & JUERGENSMEYER"].
93. 272 U.S. 365 (1926).
94. Id. at 386.
95. Id. at 386-387.
96. Gancayco v. City Government of Quezon, G.R. No. 177807, October 11, 2011, 658 SCRA 853;
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Social Justice Society v. Atienza, Jr. , G.R. No. 156052, February 13, 2008, 545 SCRA 92;
United BF Homeowners Association, Inc. v. City Mayor of Paraaque , G.R. No. 141010,
February 7, 2007, 515 SCRA 1; Sangalang v. Intermediate Appellate Court , G.R. No.
71169, December 22, 1988, 168 SCRA 634; People v. De Guzman , 90 Phil. 132 (1951):
Tan Chat v. Municipality of Iloilo , 60 Phil. 465 (1934); Seng Kee & Co. v. Earnshaw , 56
Phil. 204 (1931); People v. Cruz, 54 Phil. 24 (1929).
97. G.R. No. L-21183, September 27, 1968, 25 SCRA 192 cited in Smart Communications, Inc. v.
Municipality of Malvar, Batangas, G.R. No. 204429, February 18, 2014, 716 SCRA 677.
98. Solicitor General v. Metropolitan Manila Authority , G.R. No. 102782, December 11, 1991, 204
SCRA 837, 842.
99. Id.
100. Ordinance No. 8119, Sec. 47 (7).
101. Ordinance No. 8119, Sec. 47 (9).
102. Rollo, p. 10.
103. Id. at 12.
104. Id. at 13.
105. Id. at 23.
106. Ordinance No. 8119, Sec. 48 (2).
107. Ordinance No. 8119, Sec. 48 (8).
108. Rollo, p. 13.
109. Id. at 172.

110. Id.
111. Rollo, p. 22.
112. Id. at 23.
113. CONSTITUTION, Art. II, Sec. 16.
114. The Rizal Park is described by the National Parks Development Committee, the entity
tasked with Rizal Park's maintenance and development, as "the Philippine's premier
open space, the green center of its historical capital" and the "central green of the
country." NATIONAL PARKS DEVELOPMENT COMMITTEE, PARKS FOR A NATION 11
(2013).
115. The record shows that an Environmental Compliance Certi cate was issued by the DENR
to the City of Manila. (Rollo, p. 385) However, the record does not contain the
Environmental Impact Statement (EIS) on which the ECC was based, and whether the EIS
considered the impact of the Torre de Manila on the Rizal Park land and the Rizal
Monument, under the terms of Sections 45 and 53. It is well to remember that it was the
concern of the Environmental Management Bureau-National Capital Region, over the
impact of the Torre de Manila on the setting of the Rizal Park and the Rizal Monument
that triggered the rst contact of DMCI-PDI with NHCP. The ECC refers to an Initial
Environmental Examination (IEE) Checklist which was submitted and intended to protect
and mitigate the Torre de Manila's adverse impacts on the environment. The IEE
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Checklist Report, which the DENR uses for projects to be located within Environmentally
Critical Areas (ECA), is not itself part of the record. The IEE Checklist Report form requires
the DENR to consider, under Environmental Impacts and Management Plan, "possible
environmental/social impacts" in the form of "impairment of visual aesthetics." The
record is bereft of information on how this possible impact to the visual aesthetics of the
Rizal Park and the Rizal Monument was considered or handled.
116. Supra note 2. See Terence H. Benbow & Eugene G. McGuire, Zoning and Police Power
Measures for Historic Preservation: Properties of Nonpro t and Public Bene t
Corporations, 1 PACE L. REV. 635 (1981).
117. Berman v. Parker, supra note 2, at 32-33.
118. Id.
119. HAGMAN & JUERGENSMEYER, supra note 92, at 378-388, 446-472.
120. Id. at 13-14.
121. Id. at 14-16.
122. Id. at 16.
123. Id.
124. Id. at 17.

125. Id.
126. Id. at 18-24.
127. Richard West Sellars, Pilgrim Places: Civil War Battle elds. Historic Preservation, and
America's First National Military Parks, 1863-1900 , 2 CRM: THE JOURNAL OF HERITAGE
STEWARDSHIP 45-47 (2005) [hereinafter "SELLARS"].
128. HAGMAN & JUERGENSMEYER, supra note 92, at 461.
129. Seth Porges, The Surprising Story of How Mount Vernon Was Saved from Ruin, FORBES,
January 14, 2016, <http://ift.tt/1SkfcVp> (last accessed April 5, 2017).
130. 160 U.S. 668 (1896).
131. Id. at 682. The US Supreme Court held:
Upon the question whether the proposed use of this land is public one, we think there can
be no well founded doubt. And also, in our judgment, the government has the
constitutional power to condemn the land for the proposed use. x x x
The end to be attained by this proposed use, as provided for by the act of Congress, is
legitimate, and lies within the scope of the Constitution. The battle of Gettysburg
was one of the great battles of the world. x x x Can it be that the government
is without power to preserve the land and properly mark out the various sites upon
which this struggle took place? Can it not erect the monuments provided for by these
acts of Congress, or even take possession of the eld of battle in the name and
for the bene t of all the citizens of the country for the present and for the
future? Such a use seems necessarily not only a public use, but one so
closely connected with the welfare of the republic itself as to be within the
powers granted Congress by the Constitution for the purpose of protecting
and preserving the whole country . x x x (Id. at 680-682. Emphasis supplied.)
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132. SELLARS, supra at 46-47.
133. J. Peter Byrne, Hallowed Ground: The Gettysburg Battle eld in Historic Preservation Law ,
GEORGETOWN LAW FACULTY WORKING PAPERS, Paper 91 (2008),
<http://scholarship.law.georgetown.edu/fwps_papers/91> (last accessed July 25,
2016). See also SELLARS, supra.
134. HAGMAN & JUERGENSMEYER, supra note 92, at 378.
135. Pub. L. No. 91-190, 83 Stat. 852, codified at 42 U.S.C 4321-4361.
136. 42 USC 4331.

137. Id.
138. HAGMAN & JUERGENSMEYER, supra note 92, at 382.
139. Larry W. Canter, ENVIRONMENTAL IMPACT ASSESSMENT 35 (1996).
140. Establishing an Environmental Impact Statement System Including Other Environmental
Management Related Measures and for Other Purposes.
141. See HAGMAN & JUERGENSMEYER, supra note 92, at 385-386:
Alternatives are at the heart of the EIS [requirement]. All reasonable alternatives are to be
described and analyzed for their environmental impacts. Alternatives include
abandonment of the project and delay for further study. Even those alternatives which
are not within the preparing agency's powers are to be discussed. x x x
Properly utilized, the EIS process achieves two goals. First, it forces agencies to consider
the environmental effect of their decisions. Second, it provides a disclosure statement
showing both the environmental consequences of the proposed action and the agency's
decision-making process.
142. Aesthetic Purposes in the Use of the Police Power, 9 DUKE L.J. 299, 303 (1960).
143. Robert J. DiCello, Aesthetics and the Police Power, 18 CLEV. MARSHALL L. REV. 384, 387
(1969) [hereinafter "DICELLO"].
144. James Charles Smith, Law, Beauty, and Human Stability: A Rose is a Rose is a Rose , 78
CAL. L. REV. 787, 788 (1990) [hereinafter "SMITH"] reviewing John Costonis, ICONS AND
ALIENS: LAW, AESTHETICS, AND ENVIRONMENTAL CHANGE (1989).
145. Id. at 788-789.
146. Id. at 789.
147. Id. at 790-791.
148. Aesthetic Purposes in the Use of the Police Power, 1960 DUKE L.J. 299, 301.
149. DICELLO, supra at 380-390.
150. Id. at 390 citing Paul Sayre, Aesthetics and Property Values: Does Zoning Promote the
Public Welfare? , 35 A.B.A. J. 471 (1949).
151. Id.
152. See John Costonis, ICONS AND ALIENS: LAW, AESTHETICS, AND ENVIRONMENTAL
CHANGE (1989).
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153. See SMITH, supra at 793.
154. See Mark Bobrowski, Scenic Landscape Protection Under the Police Power, 22 B.C. ENVTL.
AFF. L. REV. 697 (1995).
155. Id.
156. See also J.J. Dukeminier, Jr., Zoning for Aesthetic Objectives: a Reappraisal, 20 LAW &
CONTEMPORARY PROBLEMS 218 (1955), which confronts squarely the problem raised
by the subjective quality of the central element of aesthetics: what is beauty?:
Now it seems fairly clear that among the basic values of our communities, and of any
society aboriginal or civilized, is beauty. Men are continuously engaged in its creation,
pursuit, and possession; beauty, like wealth, is an object of strong human desire. Men
may use a beautiful object which they possess or control as a basis for increasing their
power or wealth or for effecting a desired distribution of any one or all of the other basic
values of the community, and, conversely, men may use power and wealth in an attempt
to produce a beautiful object or a use of land which is aesthetically satisfying. It is solely
because of man's irrepressible aesthetic demands, for instance, that land with a view
has always been more valuable for residential purposes than land without, even though
a house with a view intruding everywhere is said to be terribly hard to live in. Zoning
regulations may, and often do, integrate aesthetics with a number of other community
objectives, but it needs to be repeatedly emphasized that a healthful, safe and e cient
community environment is not enough. More thought must be given to appearances if
communities are to be really desirable places in which to live. Edmund Burke-no wild-
eyed radical-said many years ago, "To make us love our country, our country ought to be
lovely." It is still so today.
xxx xxx xxx
Furthermore, in specifying and evaluating indices of attractive environments, it is
important that community decision-makers judges and planning o cials realize
that they must promote land use which in time will succeed in appealing to people in
general. In public planning that environment is beautiful which deeply satis es the
public; practical success is of the greatest signi cance. In the long run, what the people
like and acclaim as beautiful provides the operational indices of what is beautiful so far
as the community is concerned. All popular preferences will never be acceptable to
connoisseurs who urge their own competence to prescribe what is truly beautiful, yet it
seems inescapable that an individual's judgment of beauty cannot be normative for the
community until it is backed with the force of community opinion. History may be of
some comfort to the connoisseurs: widely acknowledged great artists and beautiful
architectural styles produced popular movements and not cults. A great age of
architecture has not existed without the popular acceptance of a basic norm of design.
(Emphasis in the original.)

157. 32 Phil. 580 (1915).


158. Id. at 608.
159. 104 Phil. 443 (1958).
160. Id. at 447-448.
161. G.R. No. 161107, March 12, 2013, 693 SCRA 141.
162. Id. at 160.

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163. 1935 CONSTITUTION, Art. XIII, Sec. 4.
164. 1973 CONSTITUTION, Article XV, Sec. 9 (2).
165. Supra note 36.
166. Comprehensive Zoning Ordinance for the National Capital Region (1981).
167. II MANILA COMPREHENSIVE LAND USE PLAN AND ZONING ORDINANCE 2005-2020, Sec.
3. "Imageability" was de ned as "that quality in a physical object which gives it a high
probability of evoking a strong image in any given observer."
168. Ordinance No. 161 (2006).
169. Ordinance No. 2012-102.

170. Ordinance No. SP-2200, S-2013.


171. Metropolitan Bank and Trust Company v. Reynado , G.R. No. 164538, August 9, 2010, 627
SCRA 88, 106.
172. Civil Service Commission v. Department of Budget and Management , G.R. No. 158791,
July 22, 2005, 464 SCRA 115, 133-134.
173. See M.A. Jimenez Enterprises, Inc. v. Ombudsman , G.R. No. 155307, June 6, 2011, 650
SCRA 381, 399; Corpuz v. Sandiganbayan , G.R. No. 162214, November 11, 2004, 442
SCRA 294, 308; Civil Service Commission v. Department of Budget and Management ,
supra. See also Licaros v. Sandiganbayan , G.R. No. 145851, November 22, 2001, 370
SCRA 394, 411; Angchangco, Jr. v. Ombudsman , G.R. No. 122728, February 13, 1997,
268 SCRA 301, 306; Antiquera v. Baluyot, 91 Phil. 213, 220 (1952).
174. 34 Phil. 818 (1916).
175. Id. at 823-824. See also Eraa v. Vera, 74 Phil. 272 (1943).
176. De Castro v. Salas, supra at 823-824.
177. 91 Phil. 450 (1952).
178. Id. at 455. See also Rene de Knecht v. Desierto , G.R. No. 121916, June 28, 1998, 291 SCRA
292 and Eraa v. Vera , supra (where the Court held that a mistaken or erroneous
construction of the law may be a ground for the issuance of a writ of mandamus).
179. Ordinance No. 8119, Sec. 47.
180. Ordinance No. 8119, Sec. 6 (f).
181. Rollo, p. 434.
182. See interpellations by Justices Diosdado Peralta and Francis Jardeleza, among others.
TSN. August 11, 2015, pp. 6-7, 20-36, 48-52, 65-67; TSN, August 18, 2015, pp. 26-
onwards.
183. Ordinance No. 8119, Sec. 3.
184. Rollo, p. 302. (Emphasis supplied.)
185. G.R. No. 213181, August 19, 2014, 733 SCRA 279.
186. Id. at 427 (Brion, J., concurring).
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187. Aquilino Pimentel, Jr., THE LOCAL GOVERNMENT CODE REVISITED 70 (2011).
188. Ordinance No. 8119, Sec. 75. Responsibility for Administration and Enforcement. This
Ordinance shall be enforced and administered by the City Mayor through the City
Planning and Development O ce (CPDO) in accordance with existing laws, rules and
regulations. For effective and e cient implementation of this Ordinance, the CPDO is
hereby authorized to reorganize its structure to address the additional mandates
provided for in this Ordinance.
189. Social Justice Society v. Atienza, G.R. No. 156052, March 7, 2007, 517 SCRA 657, 665-666.
190. Id. at 666 citing Dimaporo v. Mitra , Jr. , G.R. No. 96859, October 15, 1991, 202 SCRA 779,
795.

191. Miguel v. Zulueta, G.R. No. L-19869, April 30, 1966, 16 SCRA 860, 863.
192. See Social Justice Society v. Atienza Jr., supra at 665-666.
193. Angchangco, Jr. v. Ombudsman , G.R. No. 122728, February 13, 1997, 268 SCRA 301, 306
citing Kant Kwong v. Presidential Commission on Good Government , G.R. No. L-79484,
December 7, 1987, 156 SCRA 222, 232-233.
194. See De Castro v. Salas, supra note 174, at 823-824 (1916).
195. Ordinance No. 8119, Sec. 3 (2).
196. Ordinance No. 8119, Sec. 3 (3).
197. Namely: high density residential/mixed use; medium intensity commercial/mixed use; high
intensity commercial/mixed use; industrial; general institutional; university cluster;
general public open space; cemetery; utility; water, and overlay. (Ordinance No. 8119,
Sec. 7.)
198. The LUIC ratings are in the form of prescribed percentage of land occupancy and oor
area ratio maximums.

199. HAGMAN & JUERGENSMEYER, supra note 92, at 82.


200. Id. at 83.
201. Ordinance No. 8119, Sec. 27. Height Regulations. Building height must conform to the
height restrictions and requirements of the Air Transportation O ce (ATO), as well as
the requirements of the National Building Code x x x.
202. NATIONAL BUILDING CODE, Sec. 3.01.07.
203. See HAGMAN & JUERGENSMEYER, supra note 92, at 114-129.
204. 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 led 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 ling 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 fteen
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(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 a davit of non-objection to the project/s by the owner/s of the properties
adjacent to it shall be led 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.
Sec. 62. Approval of the City Council. Any deviation from any section or part of the
original Ordinance shall be approved by the City Council.
205. TSN, August 11, 2015, pp. 25-26.
206. See also following interpellation by Justice Marvic Leonen:
JUSTICE LEONEN:
x x x Okay, now, in the zoning permit if you look at the oor area, it says, "97,549 square
meters," do you confirm this counsel?
ATTY. LAZATIN:
I confirm that, Your Honor.
JUSTICE LEONEN :
And the land area is 7,475 square meters. I understand that this includes right of way?
ATTY. LAZATIN :
That's correct, Your Honor, until an additional lot was added that made the total project
area to be 7,556.
JUSTICE LEONEN :
Okay. So, the oor area divided by the land area is 13.05, is that correct? You can get a
calculator and compute it, it's 13.05 correct?
ATTY. LAZATIN :
That's correct, Your Honor.
JUSTICE LEONEN :
That is called the FAR?
ATTY. LAZATIN :
Yes, Your Honor. (TSN, August 11, 2015, pp. 48-49).
207. TSN, August 15, 2015, pp. 22-24.
208. TSN, August 15, 2015, p. 21.
209. TSN, August 11, 2015, pp. 30-31.
210. TSN, August 11, 2015, pp. 52-53.
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JUSTICE LEONEN:

Did you sell your property before the action of the Sangguniang Panlungsod?
ATTY. LAZATIN :
Your Honor, there is a difference between the approval of the . . . (interrupted)
JUSTICE LEONEN :
Did you build prior to the approval of the Sangguniang Panlungsod as per
recommendation of the Manila Zoning Board of Adjustment Appeals?
ATTY. LAZATIN :
Your Honor, if I may be allowed to . . .?
JUSTICE LEONEN :
No, I have a pending question, did you build prior to the issuance of that resolution or
ordinance allowing the variance?
ATTY. LAZATIN :
We build, Your Honor, in accordance with what was permitted, Your Honor.
JUSTICE LEONEN :
I am again a bit curious. Section 3 (J) of Republic Act 3019, the Anti-graft and Corruption
Practices Law, it says, "knowingly approving or granting any license, permit, privilege or
bene t in favor of any person not quali ed for or not legally entitled to such license,
permit, privilege or advantage," that's a crime, correct?
ATTY. LAZATIN :
Your honor, may I be allowed to explain?
JUSTICE LEONEN :
No, I'm just confirming if there is such a Section 3, paragraph (J)?
ATTY. LAZATIN:

Your Honor, right now I cannot confirm that, Your Honor.


JUSTICE LEONEN :
Okay.
211. DMCI Handout on the Computation of Building Height Limit.
212. According to Architect Cuntapay, this is because the GFA computation in the IRR of the
Building Code excludes non-habitable areas such as covered areas for parking and
driveways, among others. (Rollo, pp. 2749-2750.)
213. Id. at 2884.
214. Id. at 2974-2977.

215. ADMINISTRATIVE CODE, BOOK VII, Chapter 1, Sec. 2 (5). "Contested case" means any
proceeding , including licensing, in which the legal rights, duties or privileges asserted
by speci c parties as required by the Constitution or by law are to be determined after
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hearing . (Emphasis supplied.)
216. ADMINISTRATIVE CODE, BOOK VII, Chapter III, Sec. 11. Notice and Hearing in Contested
Cases.
(1) In any contested case, all parties shall be entitled to notice and hearing. The notice
shall be served at least ve (5) days before the date of the hearing and shall state the
date, time and place of the hearing.
(2) The parties shall be given opportunity to present evidence and argument on all issues.
If not precluded by law, informal disposition may be made of any contested case by
stipulation, agreed settlement or default.
(3) The agency shall keep an official record of its proceedings.
217. See Alliance for the Family Foundation, Philippine, Inc. v. Garin , G.R. No. 217872, August
24, 2016.
218. 69 Phil. 635 (1940).
219. Supra.
220. Gudani v. Senga, G.R. No. 170165, August 15, 2006, 498 SCRA 671, 698-699.
221. Decision, p. 9.
222. Decision, pp. 11, 12-13.
223. Supra note 49.
224. Id. at 54.
2 2 5 . Agabon v. National Labor Relations Commission , supra note 51, at 634 (Puno, J.,
dissenting).
226. See Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co. ,
Inc., G.R. No. L-31195, June 5, 1973, 51 SCRA 189.
TIJAM, J., concurring:
1. Star Special Watchman and Detective Agency, Inc., et al. v. Puerto Princesa City , et al., G.R.
No. 181792, April 21, 2014, citing Uy Kiao Eng vs. Nixon Lee, G.R. No. 176831, January
15, 2010.
2. Ibid.
3. Villanueva v. Judicial and Bar Council , G.R. No. 211833, April 7, 2015. Ongsuco v. Malones ,
G.R. No 182065, October 27, 2009.
4. On Education, Science and Technology, Arts, Culture and Sports.
5. Subsequently applied in Pamatong v. COMELEC, G.R. No. 161872, April 13, 2004.
6. G.R. No. 101083, July 30, 1993.
7 . Subsequently applied in Tondo Medical Center Employees Association , et al. v. Court of
Appeals, et al., G.R. No. 167324, July 17, 2007.
8. G.R. No. 158693, November 17, 2004.
9. See Separate Opinion of J. Dante O. Tinga in Agabon v. NLRC; Id.
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10. 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 signi cant 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.
11. Section 7, RA 10086.
1 2 . Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and other
Personages, Supra Note 1.
13. Supra Note 2.
14. Ibid.
15. Sections 3, 4 and 5, Chapter 2 of Book VII of the Administrative Code; Quezon City PTCA
Federation, Inc. v. Department of Education , G.R. No. 188720, February 23, 2016;
Republic v. Pilipinas Shell Petroleum Corporation, G.R. No. 173918, April 8, 2008.
1 6 . Republic v. Pilipinas Shell Petroleum Corporation , Id., citing National Association of
Electricity Consumers for Reforms v. Energy Regulatory Board , G.R. No. 163935,
February 2, 2006.
17. Republic v. Pilipinas Shell Petroleum Corporation, Id.
1 8 . Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and other
Personages, item no. 1.
19. Supra Note 11.
20. Supra Note 1 and 11.
21. Item no. 11 of the Guidelines is captioned "Development of the Vicinity (Existing and
Future)".
2 2 . Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and other
Personages, item no. 2.
23. Supra Note 8.
24. Section 7, RA 8492.
25. Section 31 of RA 10066 provides that: (a) The Cultural Center of the Philippines shall be
responsible for signi cant cultural property pertaining to the performing arts; (b) The
National Archives of the Philippines shall be responsible for signi cant archival
materials; (c) The National Library shall be responsible for rare and signi cant
contemporary Philippine books, manuscripts such as, but not limited to, presidential
papers, periodicals, newspapers, singly or in collection, and libraries and electronic
records; (d) The National Historical Institute shall be responsible for signi cant movable
and immovable cultural property that pertains to Philippine history, heroes and the
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conservation of historical artifacts; (e) The National Museum shall be responsible for
signi cant movable and immovable cultural and natural property pertaining to
collections of ne arts, archaeology, anthropology, botany, geology, zoology and
astronomy, including its conservation aspect; and (f) The Komisyon sa Wikang Filipino
shall be responsible for the dissemination development, and the promotion of the
Filipino national language and the conservation of ethnic languages.
26. Section 12 (b) (3), RA 7356.
27. Section 23 (b), RA 7356.
28. Espina, et al. v. Zamora, et al., G.R. No. 143855, 21 September 2010.
29. Uy Kiao Eng v. Lee, G.R. 176831, January 15, 2010.
30. ABAKADA Guro Party List O cers/Members Samson S. Alcantara, et al. v. Purisima , et al.,
G.R. No. 166715, August 14, 2008; Equi-Asia Placement, Inc. v. Department of Foreign
Affairs, et al., G.R. No. 152214, September 19, 2006.
31. Carolino v. Senga, et al., G.R. No. 189649, April 20, 2015.
32. Bases Conversion and Development Authority v. Commission on Audit , G.R. No. 178160,
February 26, 2009.
33. Canet v. Mayor Decena, G.R. No. 155344, January 20, 2004.
34. Supra, note 32.
35. Star Special Watchman and Detective Agency, Inc., et al. v. Puerto Princesa City , et al.,
supra, citing Uy Kiao Eng v. Nixon Lee, supra, note 28.
36. Uy Kiao Eng v. Lee, supra, note 28.
37. Ongsuco v. Malones, supra note 3.
38. Ibid.
39. Under Section 60 of Ordinance No. 8119, variances by reason of non-conformity with the
Percentage of Land Occupancy and Floor Area Ratio provisions (which determine the
height restriction) may be allowed by the City Council upon recommendation of the
Manila Zoning Board of Adjustment and Appeals, subject to the following quali cations:
(1) conformity will cause undue hardship due to the physical conditions of the property
(topography, shape, etc.) which are not self-created; (2) the proposed variance is the
minimum deviation necessary to permit reasonable use of the property; (3) the variance
will not alter the physical character of the district/zone where the property is located, and
will not substantially or permanently injure the use of other properties therein; (4) the
variance will not weaken the general purpose of the Ordinance and will not adversely
affect public health, safety and welfare; and (5) the variance will be in harmony with the
spirit of the Ordinance.
40. Hipolito v. Cinco, G.R. No. 174143, November 28, 2011.
41. Planters Products, Inc. v. Fertiphil Corporation , G.R. No. 166006, March 14, 2008. Ongsuco
v. Malones, supra note 3.
4 2 . Anillo v. Commission on the Settlement of Land Problems, et al. G.R. No. 157856,
September 27, 2007; Section 4, Rule 65, Rules of Court.
43. Special People, Inc. v. Canda, et al., G.R. No. 160932, January 14, 2013.
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44. In Re Supreme Court Judicial Independence v. Judiciary Development Fund , UDK-15143,
January 21, 2015; Biraogo v. The Philippine Truth Commission of 2010 , G.R. No.
192935, December 7, 2010.
45. In Re Supreme Court Judicial Independence v. Judiciary Development Fund , UDK-15143
(Resolution), supra, note 43, citing David, et al. v. Macapagal-Arroyo, et al. , G.R. No.
171396, May 3, 2006.
46. Galicto v. Aquino, et al., G.R. No. 193978, February 28, 2012.
47. Ibid.
48. Southern Hemisphere Engagement Network, Inc., et al. v. Anti-Terrorism Council , et al., G.R.
No. 178552, October 5, 2010.
49. Ibid.
50. Lozano v. Nograles, G.R. No. 187883, June 16, 2009.
51. G.R. No. 187883, June 16, 2009, citing the Dissent of then Associate Justice Reynato S.
Puno in Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, 5 May 1994.
52. G.R. No. 193978, February 28, 2012, citing Velarde v. Social Justice Society , G.R. No.
159357, April 28, 2004.
53. Ibid.

54. Article VIII of the Constitution provides:


Sec. 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and
habeas corpus.
(2) x x x
55. Lozano v. Nograles, supra, note 49.
56. G.R. No. 207246, November 22, 2016.
57. The Province of North Cotabato v. The Government of the Republic of the Philippines Peace
Panel on Ancestral Domain, et al., G.R. No. 183591, October 14, 2008.
58. Ibid.

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