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

REPUBLIC OF THE PHILIPPINES SUPREME COURT Manila En Banc KNIGHTS OF RIZAL,

G.R. No. 213948 Petitioner,

-versusDMCI 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. x-----------------------------------------------------------------------------------------x

MEMORANDUM “Monuments are for the living, not for the dead.” – Frank Wedekind “Our heroes don’t need monuments. We do.” – Dominic Galicia Respondents NATIONAL MUSEUM (NM) and NATIONAL COMMISSION FOR CULTURE AND THE ARTS (NCCA), by counsel, in compliance with this Honorable Court’s directive during the 1 September 2015 oral arguments, respectfully submit their Memorandum and state: I. PREFATORY STATEMENT This case presents issues central to the rule of law—fidelity to the Constitution and the proper enforcement of laws. Fidelity. The rule of law requires that norms embodied in the fundamental law of the land be given effect, with a view to avoiding results completely opposite to the Constitution’s conservationist and protectionist policies. Between the permanent destruction and private appropriation of the sightline of the Rizal Monument and the removal of the cause of that

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impairment, the Constitution’s policy is unquestionably in favor of conservation and protection. Propriety. The rule of law also requires that courts step in to invalidate acts done contrary to the clear mandate of the law and prevent erring parties from benefiting from their illegal acts. The Honorable Court is not without power to pierce the veil of void permits that were used to construct Torre de Manila, unlawfully creating “facts on the ground” which are now being used as practical justification against the proper application of the law. II. PROCEDURAL POSTURE The present case was originally a petition for injunction with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction filed by petitioner Knights of Rizal (KOR) before this Honorable Court seeking to halt the construction of the Torre de Manila condominium project of private respondent DMCI Homes, Inc. (DMCI) in the City of Manila.1 The petition sought the immediate and complete demolition of the said Torre de Manila condominium project,2 and the issuance by this Honorable Court of a Writ of Pamana (Heritage) or a Writ of Kasaysayan (History) “as a legal remedy for the protection of the citizen’s right to ‘all the country’s artistic and historic wealth [which] constitutes the cultural treasure of the nation’.”3 In a Resolution dated 25 November 2014, this Honorable Court resolved to treat the petition as one for mandamus under Rule 65 of the Rules of Court and impleaded the City of Manila, the NCCA, the NM and the National Historical Commission of the Philippines (NHCP) as respondents in the case. III. STATEMENT OF RELEVANT FACTS AND OTHER RELEVANT PROCEEDINGS 1. On 1 September 2011, respondent DMCI acquired a 7,716.60 square meter (sq.m.) lot in Taft Avenue, Ermita, Manila for its condominium project, the Torre de Manila. This building is situated between the former Manila Jai-Alai Building on Taft Avenue and the Adamson Walkway, and about sixty (60) meters from the Rizal Park, Manila.

1 2 3

Petition, at 25. Id. Id. at 3.

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2. On 19 June 2012, the City of Manila’s City Planning and Development Office (CPDO) issued DMCI a zoning permit (locational clearance), a one-page document which states that the Torre de Manila is within the “University Cluster Zone.” The zoning permit also provides that the Torre de Manila has a proposed floor area of 97,549 sq.m. and a land area of 7,475 sq. m. 3. Amidst the mounting objections by the public to the construction of the Torre de Manila, the Manila City Council formed a joint committee to look into the controversy. The Manila City Council invited the NHCP Chair or her duly authorized representative to a hearing on the Torre de Manila condominium project, “considering the fact that it was constructed near the statue of our national hero Dr. Jose P. Rizal, which is a historical and heritage site.”4 4. During the 22 June 2012 hearing, it was reported that NHCP made representations that the Torre de Manila violated the NHCP Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and Other Personages (NHCP Guidelines).5 OSG’s Consolidated Comment dated 12 January 2015. The report was made in the online news portal Rappler last 6 November 2013, long before the present petition was filed. Available at http://www.rappler.com/nation/43012-nhcpbacks-off-torre-de-manila-issue, last accessed on 12 September 2015. Relevant parts of the report narrate— 4

5

NHCP flipflops When NHCP attended the June 22, 2012 hearing on Torre de Manila, their position was clear: Torre de Manila violates NHCP guidelines on monuments honoring national heroes. In fact, according to Bagatsing who was present at the hearing, the NHCP representatives Wilkie Delumen and Crisanto Lustre presented the guidelines as basis for why DMCI's project should not push through. … … … But 6 months after the presentation, NHCP changed its stance. NHCP Chairperson Maria Serena Diokno wrote to DMCI consultant Alfredo Andrade that DMCI need not worry about NHCP condemning the project. “Your project site is outside the boundaries of the Rizal Park and well to the rear of the Rizal National Monument, hence it cannot possibly obstruct the front view of the said National Monument,” she wrote in the Nov 6, 2012 letter obtained by Rappler. But in the next line, Diokno recommended that Manila City Hall enact “an ordinance designating a buffer zone around Rizal Park and prescribing guidelines building development” to prevent the recurrence of a similar “dilemma” in the future. Bagatsing, who was counting on NHCP to support a dialogue between DMCI

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5. While the hearings conducted by the Manila City Council were ongoing, DMCI filed its application for a building permit before the City of Manila’s Office of the Building Official (Building Official) on 5 July 2012, which the Building Official granted on the same date. The building permit allowed DMCI to construct a “Forty Nine (49) Storey [Building] w/ Basement & 2 Penthouse Res’l/Condominium.” 6. On 24 July 2012, the Manila City Council adopted Resolution No. 121, series of 2012, enjoining the Building Official to temporarily suspend the building permit issued to DMCI until an “acceptable development design is approved upon proper compliance with the standards and policy guidelines set by the National Historical Commission.” Resolution No. 121 noted that the Torre de Manila “ruin[ed] the line of sight of the Rizal Shrine from the frontal Roxas Boulevard vantage point.” 7. On 22 August 2012, DMCI Vice President Gerard S. Ancheta wrote to NHCP, requesting for a certification that the Torre de Manila project is “not part of the Heritage Zone[,] thus exempting it from the guidelines and provisions stipulated in Republic Act No. 10066-National Cultural Heritage Act of 2009” (NHCP Certification). 8. On 30 August 2012, Building Official Melvin Balagot sought the Manila City Legal Officer’s opinion on whether he was bound to comply with Resolution No. 121. 9. In a legal opinion dated 12 September 2012, Manila City Legal Officer Renato G. Dela Cruz stated that the building permit’s temporary suspension was unjustified inasmuch as: (1) the Torre de Manila project lies outside the Luneta Park; (2) the Luneta Park has not been declared as an anthropological or archaeological area, a heritage zone, a cultural property, a historical landmark, or a national treasure; (3) the Rizal Monument is not listed in the NCCA’s Registry of Philippine Cultural Property; and (4) the concerned cultural agencies have not yet issued a cease and desist order against the Torre de Manila’s construction. 10. In a letter dated 26 September 2012 addressed to NHCP, Ancheta reiterated DMCI’s request for the NHCP Certification.

and stakeholders, was baffled by the agency’s sudden backing off. To pursue the issue, he called NHCP Executive Director Ludovico Badoy but only got exasperated. “I called him and asked, ‘Sir, what’s your take on this project?’ I got shocked because he said he was for it,” Bagatsing told Rappler.

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11. On 10 October 2012, then Officer-in-Charge of the CPDO Resty A. Rebong wrote to DMCI, stating that while the latter exceeded the maximum Floor-Area Ratio (FAR) under Ordinance No. 8119, the CPDO granted DMCI a zoning permit because the “provision on height limitations and/or FAR provisions in [Ordinance No. 8119] were suspended by the executive branch, for it opted to follow the National Building Code.” 12. A day after, NHCP received an Indorsement from the Presidential Action Center, Office of the President, referring DMCI Consultant Alfredo Andrade’s letter dated 13 September 2012, which asked for assistance in its request for the NHCP Certification. 13. On 19 October 2012, the NHCP Board decided to advise the City of Manila to designate a buffer zone around the Rizal Park. The Board, however, agreed that it has no basis to prevent the construction of the Torre de Manila since it does not obstruct the Rizal Monument’s front view. 14. On 6 November 2012, NHCP Chair Maria Serena Diokno wrote to Andrade to say that— The NHCP’s Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and Other Personages seek to preserve the prominence and dominance of monuments, partly by keeping “vista points and visual corridors to monuments clear for unobstructed viewing appreciation and photographic opportunities.” Your project site is outside the boundaries of the Rizal Park and well to the rear (789 meters, according to Mr. Achite) of the Rizal National Monument; hence it cannot possibly obstruct the front view of the said National Monument. To prevent a recurrence of a similar dilemma in the future, the NHCP will recommend to the City Government of Manila the enactment of an ordinance designating a buffer zone around Rizal Park and prescribing guidelines regulating building development.

15. In a letter dated 7 November 2012 to Building Official Balagot, NHCP Executive Director Ludovico D. Badoy reiterated Chair Diokno’s position that the Torre de Manila is “outside the boundaries of the Rizal Park and well to the rear (789 meters) of the Rizal National Monument; hence it cannot possibly obstruct the front view of the said National Monument.” Badoy further recommended to the City of Manila “the enactment of an ordinance designating a buffer zone around Rizal Park and prescribing guidelines regulating building development.” 16. On 21 March 2013, the Manila City Council enacted Ordinance No. 8310, series of 2013,6 or the “Historical and Cultural Monuments Preservation and Protection Ordinance of the City of Manila,” which aims to regulate any construction and/or development that would impair and/or ruin the vicinity or 6

City of Manila’s Position Paper dated 15 July 2015.

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line of sight/view/vista of all historical and cultural sites/monuments situated in the City of Manila. However, the same was vetoed by Mayor Alfredo Lim on 12 April 2013 “for being ultra vires,” without any further explanation. 17. On 15 April 2013, NHCP declared the Rizal Monument as a National Monument that must be protected and preserved as part of the national patrimony.7 On 14 November 2013, NM declared the Rizal Monument in the Rizal Park as a National Cultural Treasure through Museum Declaration No. 9-2013. 18. On 26 November 2013, during the administration of incumbent Mayor Joseph Ejercito Estrada, the Manila City Council passed Resolution No. 146, series of 2013,8 urgently enjoining the City Building Official of Manila to “temporarily suspend the building permit of the highly controversial Torre de Manila condominium project, in the light of the recent public outcry of nearly 8,000 concerned citizens, in order to give due course to their meritorious submitted petition.” 19. According to the Manila City Council, the local Oversight Ad Hoc committee found zonal law violations under City Ordinance No. 8119, pertaining to floor area ratio and height restrictions within a University/Institution Cluster Zone, and, inspite of enacted measures of the City Council, such as Resolution No. 121, series of 2012, to curtail its construction, DMCI had brazenly continued to build their proposed 41-storey Torre de Manila condominium and pre-sell some units.9

7

NHCP Resolution No. 5, series of 2013. City of Manila’s Position Paper dated 15 July 2015. 9 The relevant portions of Resolution No. 5, series of 2012, provides: 8

WHEREAS, the Park is a main tourist attraction of the City of Manila, where tourists, both local and foreign, flock in droves to bask in the park’s many features, including the most important Rizal Monument, the primal focal point and central destination; WHEREAS, DMCI Homes, one of the largest construction conglomerate in South East Asia, was hastily granted a building permit by the City Building Official of Manila on July 5, 2012 whilst in the middle of an ongoing City Council investigation and amidst serious protest from the National Historical Commission (NHC), the Department of Tourism (DOT), the National Parks Development Committee (NPDC), the Knights of Rizal, and concerned heritage/conservation groups; WHEREAS, DMCI Homes began to build the 41-storey Torre De Manila Condominium Complex in Taft Avenue and has already started preselling units in advance months ago;

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20. On 18 December 2013, DMCI President Alfredo R. Austria wrote to Mayor Joseph E. Estrada, requesting the latter not to suspend DMCI’s building permit pending compliance with the required procedure. He explained that had DMCI’s “application for zoning permit been denied, [DMCI] could have gone through the process of appealing to the local zoning board, if any was then constituted, and applied for an exemption from the city council.” 21. Mr. Austria added: “[n]evertheless, should it be necessary that we comply, we are willing to undertake the necessary steps to conform therewith. We humbly request your good office, however, not to suspend our building permit pending our compliance with the required procedure.” 22. There appears to be nothing on record to show that DMCI undertook the necessary steps under City Ordinance No. 8119 to seek an exemption. 23. On 23 December 2013, the Manila Zoning Board of Assessment and Appeals (MZBAA), acting on the abovementioned request-letter, issued Resolution No. 6, series of 2013, recommending the exemption of the Torre de Manila from the FAR limit. On 8 January 2014, the MZBAA issued Resolution No. 06-A, amending the conditions set forth in Resolution No. 06. Parts of the resolution state— WHEREAS, the CPDO Evaluation Worksheet for Zoning Permit Processing reveals that the Project exceeds the prescribed maximum Percentage of Land Occupancy (PLO) and exceeds the prescribed Flor Area Ratio (FAR) as stipulated in Article V, Section 17 of City Ordinance No. 8119.

24. On 16 January 2014, the Manila City Council issued Resolution No. 5, series of 2014: (1) adopting MZBAA Resolution Nos. 06 and 06-A, and (2) ratifying all permits, licenses, and approvals previously issued by the City of Manila for the construction of the Torre de Manila. 25. On 6 August 2014, Senator Pia Cayetano filed Senate Resolution No. 824, directing the appropriate Senate committee to look into, in aid of legislation, the construction of the Torre de Manila in the City of Manila. A series of committee hearings were conducted on 27 August, 4 September, and 25 September 2014. Among the resource persons invited during the course of the Senate hearings were the respective heads of respondents NCCA, NHCP, and NM. 26. In a Position Paper dated 27 August 2014 submitted to the Senate Joint Committees on Education, Arts & Culture and Urban Planning, NHCP Chair Diokno admitted that while the Torre de Manila “visually obstructs the

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vista” of the Rizal Monument in Rizal Park, Manila,” the NHCP nonetheless could not find “a legal leg to stand on in stopping [its] construction.” Thus: In the case of the Torre de Manila Condominium, the visual corridor is adversely affected but the structure is well outside any conceivable buffer area. The Torre condominium stands about 450 meters from the end of the Rizal Park facing Taft Ave., way beyond the standard 10meter radius. We do not have a buffer zone as large as 450-meter radius and cannot imagine any local government agreeing to a buffer area this large. The issue is which takes precedence: the visual corridor or the buffer zone? If the first, then no tall building could ever be constructed because, as in the case of Torre de Manila, the structure could stand 100 meters fa[r]ther away from its present site or even farther, and it would still be seen. Even as we wish to uphold the vista, however, there would still have to be a zone area. Otherwise, we would have to legislate categorically that no tall buildings are ever and forever allowed in identified areas. At the moment, obviously, no such law exists. For this reason, the Commission could not block the construction of the Torre condominium, not because of any lack of appreciation of the vista—the Commission does find that the condominium structure visually obstructs the vista and adds an unattractive sight to what was once a lovely public image—but because the NHCP could not find a legal leg to stand on in stopping the construction.10

27. On 12 September 2014, the Knights of Rizal (KOR) filed a Petition for Injunction before the Honorable Court, seeking to enjoin the construction of the Torre de Manila on the grounds that: (a) the Rizal Monument is entitled to full protection of the law as a declared National Cultural Treasure; (b) the Torre de Manila is a nuisance per se that should be summarily abated; and (c) the Torre de Manila is being constructed in bad faith and in blatant violation of Ordinance No. 8116. 28. In a Resolution dated 25 November 2014, the Honorable Court treated the Petition for Injunction as one for mandamus, and impleaded the City of Manila, NHCP, NM, and NCCA as respondents. 29. On 25 January 2015, NCCA issued a Ceast and Desist Order against DMCI-Holdings, Inc. from constructing the Torre de Manila “until such time as the commission can make the declaration of whether or not there [is] actual destruction and if such destruction warrants a permanent cease and desist order.”

10

Emphases supplied.

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30. In a Resolution dated 16 June 2015, the Honorable Court, voting 8-5, issued a Temporary Restraining Order against the construction of the Torre de Manila, and set the case for oral arguments on 30 June 2015. 11

31. In an Advisory received by the OSG on 10 July 2015, the Honorable Court, among others, required the parties to submit their respective Position Papers addressing the issues enumerated therein not later than 15 July 2015. 32. On 15 July 2015, the OSG moved that the deadline for filing the Position Paper be extended to 14 August 2015, and the oral arguments be reset at least thirty (30) days from the 21 July 2015 schedule. 33. Prior to the filing of its Position Paper on 30 July 2015, the OSG met with the NHCP, NCCA, and NM to inform them that the OSG had taken a second look at the merits of the case and had decided to reconsider the government’s position. Notably, while NM and NCCA agreed with the government’s reconsidered position, NHCP Chair Diokno maintained that the NHCP, as a matter of law, cannot do anything about the Torre de Manila. 34. On 30 July 2015, the Solicitor General wrote to Chair Diokno requesting, among others, for a resolution from the NHCP Board officially objecting to the government’s official position so that the proper manifestation may be filed with the Honorable Court. 35. On 3 August 2015, the OSG received a letter from the NHCP Board, officially expressing that it is maintaining the position stated in the OSG’s Consolidated Comment dated 19 December 2014. On 4 August 2015, the OSG filed a Manifestation, praying that the NHCP Board’s letter be noted. 36. On 7 August 2015, NHCP filed an Entry of Appearance with Urgent Motion for Clarification praying that: (1) the entry of appearance of Attys. Jose Manuel I. Diokno and Jose Y. Dalisay, III, as counsel for NHCP, be recognized; and (2) the Solicitor General’s representation of NHCP and the status of the OSG’s Consolidated Comment be clarified. On 11 August 2015, the Honorable Court required the OSG to comment on NHCP’s Urgent Motion for Clarification within five (5) days.

11

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

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37. In its Manifestation in lieu of Comment dated 14 August 2015, the OSG stated that: (1) it “can neither represent the NHCP in this case, nor can it collaborate with the NHCP’s counsel” because the NHCP’s position is contrary to the interests of the government; and (2) the OSG’s Position Paper dated 30 July 2015 amends, mutatis mutandis, the Consolidated Comment it filed on 12 January 2015. IV. ISSUES A.

WHETHER THE SIGHTLINE OF THE RIZAL MONUMENT IS LEGALLY PROTECTED

B.

WHETHER THE PERMITS OBTAINED BY DMCI ARE VALID

C.

WHETHER MANDAMUS MAY ISSUE V. ARGUMENTS

A.

B.

THE SIGHTLINE OF THE RIZAL MONUMENT IS LEGALLY PROTECTED—IT CONSTITUTES PART OF THE CULTURAL COMMONS OF THE REPUBLIC 1.

NHCP has already declared that the sightline of the Rizal Monument has been impaired.

2.

The Constitution’s conservationist and protectionist policies constitute broad mandates to conserve and protect cultural artifacts.

3.

R.A. No. 10066, §25 and R.A. No. 10086 cover the protection of sightlines.

THE PERMITS OBTAINED BY DMCI ARE VOID 1.

DMCI’s zoning permit is void.

2.

DMCI’s building and business permits are void.

3.

Manila City Council Resolution No. 5 cannot ratify DMCI’s void permits.

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4. C.

DMCI knew its permits were void.

MANDAMUS MAY ISSUE VI. DISCUSSION

A.

THE SIGHTLINE OF THE RIZAL MONUMENT IS LEGALLY PROTECTED—IT CONSTITUTES PART OF THE CULTURAL COMMONS OF THE REPUBLIC 1.

NHCP has already declared that the sightline of the Rizal Monument has been impaired.

38. The government entirely agrees with the position of NHCP on factual matters within its competence—(a) the determination of the existence of the sightline (or vista, vista points, or visual corridor) of the Rizal Monument, and (b) the question whether that sightline has been impaired by the presence of the Torre de Manila. 39. In its Position Paper dated 27 August 2014 submitted to the Senate Joint Committees on Education, Arts & Culture and Urban Planning, NHCP Chair Diokno took the position that the Torre de Manila “visually obstructs the vista” of the Rizal Monument in Rizal Park, Manila: In the case of the Torre de Manila Condominium, the visual corridor is adversely affected but the structure is well outside any conceivable buffer area. The Torre condominium stands about 450 meters from the end of the Rizal Park facing Taft Ave., way beyond the standard 10meter radius. We do not have a buffer zone as large as 450-meter radius and cannot imagine any local government agreeing to a buffer area this large. … … … For this reason, the Commission could not block the construction of the Torre condominium, not because of any lack of appreciation of the vista—the Commission does find that the condominium structure visually obstructs the vista and adds an unattractive sight to what was once a lovely public image—but because the NHCP could not find a legal leg to stand on in stopping the construction.12

40. The position of NHCP before the Senate therefore presents its complete position on the Torre de Manila controversy, and explains away the

12

Emphases supplied.

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vagueness of its letter dated 6 November 2012 where it stated that Torre de Manila “cannot possibly obstruct the front view” of the Rizal Monument.13 41.

The clear import of the NHCP’s Position Paper is two-fold: a) the Rizal Monument has a sightline; and b) Torre de Manila impairs the sightline of the Rizal Monument, whatever its metes and bounds may be.

42. First, the factual determination of NHCP that the Rizal Monument has a sightline is crucial because not all monuments have sightlines.14

13

During the 1 September 2015 Oral Arguments, Justice De Castro and Atty. Diokno had the following exchange: JUSTICE DE CASTRO: I noticed that there were two letters sent, two separate letters sent by your Commission. On November 6 you wrote Mr. Andrade, the consultant of DMCI and you had a very clear idea on what the issue was all about. You mentioned it’s not about obstructing the front view because the issue was about the background, the back view of the monument and you also said that the issue is not about if it is within the boundary of a historical site, that is not the issue you mentioned so you knew what the problem was all about and yet you did not deal with the problem. You did not say anything about the issue of Torre de Manila obstructing the background of the Rizal Monument when you precisely knew that that was the conflict and the position of the City of Manila was that, at that time, was that it will ruin the image of the Rizal Monument. But you did not mention anything about it. You did not make any opinion. Even if your opinion is not binding, why did you not make an opinion? In the same way that you sent an opinion to the Senate and if you only gave an opinion, the same opinion you gave to the Senate, the City would have backed off from issuing or from ratifying the building permit. But you didn’t say, you only said that for the future, you think that the City of Manila should identify a buffer zone. ATTY. DIOKNO: May I respond to that? JUSTICE DE CASTRO: We understand that it is not for you to dictate but when your opinion is asked as the National Historical Commission is mandated to issue guidelines, don’t you think it was your duty to render an opinion as to the issue that you were precisely able to identity in your letter to DMCI? 14

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

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43. Second, there is a need to highlight the importance of these conclusions by NHCP if only to underscore the fact that there is no need for the Honorable Court to determine the metes and bounds of the sightline of the Rizal Monument.15 Thus, for purposes of this litigation, the Honorable Court is Triangle.The monument, surrounded by tall, prominent buildings that have existed long before it was made, was clearly meant to have no sightline. 15

During the 1 September 2015 Oral Arguments, Associate Justice Carpio and Solicitor General Hilbay had the following exchange: JUSTICE CARPIO: How far from where you stand to the monument is protected? SOLICITOR GENERAL HILBAY: Again your Honor, what we are saying is there is no need for the Court to determine the metes and bounds of the sightline. But when you stand in front of that sightline, you can... JUSTICE CARPIO: What if now the Rizal Park will construct a tall building across the street of the Rizal Monument? Does that mar the sightline? SOLICITOR GENERAL HILBAY: Again, your Honor... JUSTICE CARPIO: If because... there is Roxas Boulevard. SOLICITOR GENERAL HILBAY: Yes, your Honor. JUSTICE CARPIO: Now if the Rizal Park Management will put up a building on the other side of the street is that a violation of the sightline? SOLICITOR GENERAL HILBAY: Well your Honor, certainly not because it doesn’t impair the sightline of the Rizal Monument which is front facing. JUSTICE CARPIO: So you – when you say sightline, when you are standing just – SOLICITOR GENERAL HILBAY: In front of the Rizal Monument. JUSTICE CARPIO: In front. How far in front? SOLICITOR GENERAL HILBAY: Your Honor, the ordinary person looking at the Rizal Monument would stand in front of it. I think the physics of the monument itself allows you a certain leeway where you can stand in front of the monument – JUSTICE CARPIO: How far? Because you are now saying it is protected by law but the law has to be specific. How far?

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bound to respect the NHCP’s affirmative, categorial answer to the question whether the Rizal Monument’s sightline has been impaired. 44. To be sure, the Court is not being asked in this case to legislate— as if it were the Congress—for future purposes, the boundaries of the sightline of the Rizal Monument. That is the function of the City of Manila and of the concerned national agencies, consistent with their existing mandate. 45. Instead, the Honorable Court is only being asked, in this actual case and controversy, to adjudicate the specific legal question whether, given the NHCP’s finding of fact that the sightline of the Rizal Monument has already been impaired, R.A. No. 10066 and R.A. No. 10086 provide legal bases for the Court to issue an appropriate legal relief to remedy that impairment. 46. In any case, for the avoidance of error, the government agrees with the NHCP’s findings of fact even as it emphatically disagrees with the NHCP’s position that the situation we are in is damnum absque injuria—that there is no law that can be invoked to remedy the impairment of the sightline of the Rizal Monument. It is the position of the government that this legal selfimmolation is an abject refusal to perform a legal mandate and constitutes grave abuse of discretion. 47. As was repeatedly stated by the government during the oral arguments in this case, there is a clear need to distinguish the competence of NHCP over matters of fact and its lack of competence over pure questions of law, in particular, the meaning of the statute passed by Congress to implement constitutional policy. The NHCP, after all, is not a legal department. Whether, under the Constitution and our heritage laws, a legal remedy exists to undo the SOLICITOR GENERAL HILBAY: The law your Honor doesn’t say... JUSTICE CARPIO: Yes. SOLICITOR GENERAL HILBAY: It cannot in fact say. JUSTICE CARPIO: The law when it says physical integrity, you, you’re saying physical integrity includes sightlines. But there are no standards how far the sightline should be, correct? SOLICITOR GENERAL HILBAY: In this particular case, your Honor, given the Rizal Monument’s properties, you have to stand in front of the Rizal Monument and when you stand in front of the Rizal Monument, there can be no doubt that your view is marred and impaired.

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impairment to the sightline of the Rizal Monument is a question of law for the Honorable Court to decide. 2.

The Constitution’s conservationist and protectionist policies constitute broad mandates to conserve and protect cultural artifacts.

48. The Constitution declares 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.”16 The accompanying mandate is for the State to “conserve, promote, and popularize the nation’s historical and cultural heritage and resources.”17 49. From the sparse language of these twin provisions, we can distill conservationist and protectionist policies that are unique to the 1987 Constitution.18 50. The conservationist and protectionist policies of the Constitution, existing as they do at a level of abstraction that makes them non selfexecutory,19 are not, however, meaningless. While hortatory, they are, nonetheless and at once, a source of legal insight and political meaning.

16

CONST., Art. XIV, §16. CONST., Art. XIV, §15. 18 Compared with the 1935 and the 1973 Constitutions, only the 1987 Constitution contains an express provision with respect to the conservation and promotion of historical and cultural heritage. The 1935 Constitution is silent on this matter while Art. XV, § 9 (2) of the 1973 Constitution broadly states that the “Filipino culture shall be preserved and developed for national identity.” 19 During the 1 September 2015 Oral Arguments, Associate Justice Jardeleza and Solicitor General Hilbay had the following exchange: 17

JUSTICE JARDELEZA: My first question is, I don’t think you made a categorical statement on the status of Article XV of the Constitution. Is it or is it not a self-implementing provision? SOLICITOR GENERAL HILBAY: We do not believe, your Honor, that it is a self-implementing provision of the Constitution. JUSTICE JARDELEZA: And if it is not self-implementing, what implements Section 15? SOLICITOR GENERAL HILBAY: What implements Section 15 are all the heritage laws that we have right now, in particular 10066, 10086, and all other related laws. JUSTICE JARDELEZA:

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51. Constitutional policies perform very important functions: they admonish all government institutions, in particular, Congress, to enact enabling law to transform such policies into detailed enforceable mandates; they provide both meaning and interpretive direction to the language of the law; they declare a sense of national priority; and they instill a sense of normative consciousness, even duty, on citizens. 52. Thus, as a matter of principle, even in the absence of a statute, the constitutional mandate to protect the country’s historic wealth and conserve the nation’s historical and cultural heritage exists in relation to the Rizal Monument, a cultural artifact that is undoubtedly part of the cultural treasure of the nation. The existence of an implementing statute only serves to provide the practical mechanisms for such conservationist and protectionist policies—it provides details to the Constitution’s marching orders. 53. It also follows that the presence of a statute should entrench even more the Constitution’s conservationist and protectionist policies, providing greater justification for the practical implementation of the Constitution’s mandate. 54. Whereas the Honorable Court has, in some cases, directly enforced constitutional provisions that would otherwise have been interpreted as non-self-executory, as in Oposa v. Factoran,20 Manila Prince Hotel v. GSIS21 and Gamboa v. Teves,22 the government in this case is only asking that the Honorable Court interpret a statute consistent with the Constitution’s conservationist and So, your position would be 15 is not self-implementing and it is being implemented in terms of a statute passed by Congress – all the heritage laws – and I call your attention to Republic Act 10066 and Section 25. Your theory is “physical integrity” includes the protection of the sightline. SOLICITOR GENERAL HILBAY: Our theory, your Honor, is that as a general principle we can and we should interpret Section 25 to include in certain cases the protection of the sightline of a monument when it comes to the protection of its physical integrity, as, again, as a general matter. And as, as applied to this particular case, given that the Rizal Monument has a sightline, that general application should be made with respect to the Rizal Monument. JUSTICE JARDELEZA: Yes, so... again just to clarify, again the sequence is: you’re not staking a claim that Section 15 is self-executing. SOLICITOR GENERAL HILBAY: No, your Honor, in fact we believe that the law itself has been passed and that law sufficiently implements Section 15. 20

G.R. No. 101083, 30 July 1993. G.R. No. 122156, 3 February 1997. 22 G.R. No. 175579, 28 June 2011. 21

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protectionist policies in order to remedy what is undoubtedly a disaster for cultural and historical conservation. 55. It would indeed be ironic if the Honorable Court, after having directly implemented certain abstract policies of the Constitution, would end up interpreting that the various implementing laws enacted by Congress were not up to the task in this very important case for heritage conservation. 3.

R.A. No. 10066, §25 and R.A. No. 10086 cover the protection of sightlines. a. The Broad Concept of Conservation.

56. The conservationist and protectionist policies of the Constitution are implemented by the various heritage laws enacted by Congress. This includes R.A. No. 10066, §25 of which states: When the physical integrity of the national cultural treasures or cultural properties are found to be in danger of destruction or significant alteration from its original state, the appropriate cultural agency shall immediately issue a Cease and Desist Order ex parte suspending all activities that will affect the cultural property…

57. This coercive power under §25 of R.A. No. 10066 should be read in relation to the conservationist mandate of the same law which defines broadly the concept of conservation— 3(i) “Conservation” shall refer to all the processes and measures of maintaining the cultural significance of a cultural property including, but not limited to, preservation, restoration, reconstruction, protection, adaptation or any combination thereof.

58. Of crucial note is the NHCP’s charter, R.A. No. 10086, and its remarkably even more expansive definition of conservation compared to §3(i) of R.A. No. 10066— 3(c) “Conservation” refers to all processes and measures of maintaining the cultural significance of a cultural property including, but not limited to, physical, social, legal preservation, restoration, reconstruction, protection, adaptation, or any combination thereof.

59. The addition of the phrase “physical, social, legal” to all manner of conservation—“preservation, restoration, reconstruction, protection, adaptation, or any combination thereof”—indicates the legislative intent to promote the broadest possible conception of conservation, consistent with the policy of the Constitution, and without a doubt, to legally empower cultural agencies.

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60. Even more important, the logical consequence of the addition of the phrase “physical, social, legal” to the conservationist and protectionist mandate of the NHCP is that it is a textual rejection of DMCI’s and NHCP’s position23 equating “physical integrity” with mere “physical structure.” 61. The plain language of the law indicates that the mandate of conservation of the NHCP goes well-beyond merely protecting the physical structure of cultural artifacts. This is as it should be, considering that the maintenance of the cultural significance of cultural property cannot simply be equated with “preserving” the physical structure of an artifact. 62. In the case of the Rizal Monument, its cultural significance cannot be equated with the existence of the Motto Stella. The special quality of the Rizal Monument in Luneta—as opposed to all the other Rizal monuments all over the world24—is precisely its hallowed location, a sacred secular space if there ever was one. When outraged, shocked, and indignant Filipinos vent their fury over the loss of the sightline of the Rizal Monument, they are simply protesting that a part of the cultural commons they used to enjoy, admire, respect, and reflect on has been appropriated for private use and profit. 63. Indeed, the additional clear evidence of this broad, if pragmatic, conception of conservation is found in relation to the definition of “preservation” in the charter of the NHCP, a concept defined in the NCHP charter, not anywhere else— (q) “Preservation” refers to all activities that employ means to control, minimize or prevent damage or deterioration to cultural property.

64. Thus, both DMCI and NHCP clearly mistake the distinction between conservation and preservation, as embodied in the language of the statute and consistent with both logic and the normative goals of conservation. 65. Whereas preservation may very well be limited only to the idea of preserving the physical structure of a cultural property, conservation is obviously a much broader concept. Whereas preservation is about “prevent[ing] damage or deterioration to cultural property,” conservation includes preventing the “significant alteration [of a cultural property] from its original state.” Put otherwise, preservation is simply a sub-category of conservation. 23

As stated by its private counsel, Atty. Jose Manuel I. Diokno during the oral arguments dated 1 September 2015. 24 # There are 118 monuments and statues of Jose Rizal in the Philippines and 10 more abroad. Available at: http://www.gmanetwork.com/news/story/314079/lifestyle/travel/pinoy-visits-118-rizalmonuments-in-phl; http://globalnation.inquirer.net/news/breakingnews/view/20090619211392/10-Rizal-monuments-around-the-worldGordon, last accessed 27 July 2015.

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66. Considering the broad conservationist mandate of the NHCP, it is the government’s position that the protection of sightlines is certainly and necessarily included in that mandate. When the law speaks of “physical, social, legal preservation, restoration, reconstruction, protection, adaptation, or any combination thereof,” it means any conceivable form of conservation. 67. This means that when NHCP declared—both in its Position Paper before the Senate and during oral arguments—that the sightline of the Rizal Monument has been impaired, but has no legal justification to remedy such damage to that cultural artifact, it acted outside of its jurisdiction because it acted contrary to the conservationist and protectionist mandate of its own charter. b. The Concept of Physical Integrity. 68. The position of NHCP is that the impairment of the sightline of the Rizal Monument is a problem of the City of Manila25 and, insofar as it is the concerned cultural agency in this case, damnum absque injuria and thus can no longer be remedied. The government disagrees with this jurisdictional handwashing. 69. Part and parcel of the NHCP’s conservationist and protectionist mandate is its overlapping jurisdiction with local governments, which is implicit in the structure of laws relating to heritage, and expressed in both the Local Government Code and in §25 of R.A. No. 10066. The fact assumes greater import when we consider that the Rizal Monument is a National Monument and a National Cultural Treasure. 70. This concept of overlapping jurisdiction has for its obvious purpose a double layer of protection to ensure the conservation of our cultural and artistic wealth. Section 25 thus consigns to both the appropriate cultural 25

During the 1 September 2015 Oral Arguments, Dr. Diokno stated— DR. DIOKNO: May I respond, Your Honor? Let me first clarify. The property that we are talking about here, the site of the Torre de Manila, is privately-owned property. That entire swat of land is not part of the Rizal Park that was declared as a National Heritage Site in 1995. It is well beyond. That’s fact 1. Fact 2, the National Historical Commission has been very strict about constructions on the park...but the property that was being constructed upon is well outside the park. 450 meters from Taft Avenue when the legal buffer zone is 5 meters. Therefore, it was very clear to the Board of the Commission that any decision with respect to that portion was well outside the jurisdiction of the National Historical Commission. That had to be determined by zoning ordinance or some regulation enacted by the City Government...”

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agency and the local government the matter of issuing preventive reliefs in the form of a cease and desist order. Thus— Section 25. Power to Issue a Cease and Desist Order.—When the physical integrity of the national cultural treasures or important cultural properties are found to be in danger of destruction or significant alteration from its original state, the appropriate cultural agency shall immediately issue a Cease and Desist Order ex parte suspending all activities that will affect the cultural property. The local government unit which has the jurisdiction over the site where the immovable cultural property is located shall report the same to the appropriate cultural agency immediately upon discovery and shall promptly adopt measures to secure the integrity of such immovable cultural property. Thereafter, the appropriate cultural agency shall give notice to the owner or occupant of the cultural property and conduct a hearing on the propriety of the issuance of the Cease and Desist Order. The suspension of the activities shall be lifted only upon the written authority of the appropriate cultural agency after due notice and hearing involving the interested parties and stakeholders.

71. Necessarily, the NHCP’s power to issue a cease and desist order when the physical integrity of a national cultural treasure or an important cultural property is in danger of destruction or significant alteration from its original state must be read in relation to its broader conservationist and protectionist mandate. A cultural agency’s general license to conserve should therefore be aided by its specific power to protect through the issuance of a cease and desist order. 72. Further, if the NHCP’s general legal mandate to conserve includes, in approriate instances, the protection of sightlines, it only follows that such mandate should be performed in particular cases, such as in the case of the Rizal Monument. 73. This is as it should be considering that the demands of conservation depend on the nature or the physics of the cultural artifact being protected. Precisely because heritage comes in many shapes, sizes, and forms, the legal meaning of the phrase “physical integrity” must be up to par, so to speak, to accommodate a cultural object’s myriad needs. 74. Following this concept, it becomes readily apparent that the demands of conservation of monuments require, in certain cases, the protection of its sightline which is integrated into its physics. This is because the (generally) immovable character of monuments make them part of the setting to which they are attached or in which they are situated. 75. Monuments blend with their setting or landscape and, in some cases, influence the character—the relationship between mass and space—of

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

26

27

26

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

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76. The fact that these monuments have dominated the view of the area is reflected in the shape of the park in which they are situated. One cannot therefore separate the monuments from their vista which are integrated. The integrity of their physics that require conservation demand the protection of the monuments and their accompanying vista which is the cultural artifact. c. The Torre de Manila impairs the sightline of the Rizal Monument. 77. The NHCP itself has made the determination that “[i]n the case of the Torre de Manila Condominium, the visual corridor is adversely affected” and that “the condominium structure visually obstructs the vista and adds an unattractive sight to what was once a lovely public image.”28 78. This is consistent with the NHCP’s own Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos & Other Personages, the relevant parts of which provide— 1. DOMINANCE Monuments are landmarks of our cities, towns and provinces. They must be honored, preserved and protected. Monuments should be given due prominence since they symbolize national significance. For the purposes of these guidelines, the Rizal National Monument in Luneta (Rizal Park, Manila) and the Bonifacio National Monument (Caloocan City) are established as objects of reference. The monument should preferably be the focal point of a city or town center… … … … Measures by which dominance could be achieved are the following: … … … b. Keep vista points and visual corridors to monuments clear for unobstructed viewing appreciation and photographic opportunities; … … … g. Use strong contrast between the monument and its background. This will enhance the monument as a focal point of the site; … … … … 2. SITE AND ORIENTATION A. SITE/SETTING – the area or territory where a monument is found or located. The setting is not only limited with the exact area that is directly occupied by the monument, but it extends to the surrounding areas whether open space or occupied by other structures as may be defined by the traditional or juridical expanse of the property.

28

Emphases supplied.

MEMORANDUM Knights of Rizal v. DMCI Homes, Inc., et al. G.R. No. 213948 Page 23 of 46 The International Charter for the Conservation and Restoration of Monuments and Sites (The Venice Charter) further defines SETTING in the following: ARTICLE 1. The concept of an historic monument embraces not only the single architectural work but also the urban or rural setting in which is found the evidence of a particular civilization, a significant development or an historic event. This applies not only to great works of art but also to more modest works of the past which have acquired cultural significance with the passing of time; and, ARTICLE 6. The conservation of a monument implies preserving a setting, which is not out of scale. Wherever the traditional setting exists, it must be kept. No new construction, demolition or modification, which would alter the relations of mass and color, must be allowed.

79. The NHCP is, of course, bound by its own Guidelines, regardless of its binding effect on others, and its Position Paper and its own findings that the Torre de Manila obstructs the vista or adversely affects the visual corridor of the Rizal Monument is a legitimate factual finding. 80. These pronouncements make sense because the Rizal Monument was intended to be, and has always been, seen with a clear sightline (or vista or visual corridor). One cannot therefore divorce the Motto Stella from the park in the same way that one cannot divorce the Motto Stella from the sightline. 81. The physics of the Rizal Monument is such that the obelisk, the bronze sculpture, and its sightline constitute a single piece of cultural heritage. Stated differently, the sightline of the Rizal Monument—a front-facing monument—is part of its physics. It therefore only follows that when that sightline is impaired, the physical integrity of the Rizal Monument is likewise impaired. 82. As a piece of art and as part of the nation’s history, the image most Filipinos have of the monument is with its characteristic background of clear sky. Pictures of the monument are often taken from its base—its viewing platform—facing Rizal. To pay homage to (or simply just appreciate) the monument is to stand in front of it. 83. This framed view of the monument is both historic and iconic. It is the image Filipinos call to mind when thinking of the monument. It has been memorialized in our postage stamps, in our history books, our currency, and in the countless photographs by the millions of guests who have visited the monument over the last hundred years. This framed view has always been part of the aesthetic experience of the public, which makes it part of the cultural commons of the Republic. This view, now gone, is part of the cultural treasure of the nation.

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84. It is also this “original state” of the Rizal Monument that has been subjected to “significant alteration” by the presence of Torre de Manila. So when we speak of the Rizal Monument as a cultural artifact that the Constitution seeks to conserve and protect, we are talking about the Rizal Monument as we used to see it.

29

85. In other words, when people say that the Rizal Monument has been desecrated or ruined by the presence of Torre de Manila, the statutory equivalent of that outrage is that the Rizal Monument has been significantly altered from its original state due to the impairment to its sightline. 86. The sightline of the Rizal Monument is legally protected because it is part of how those who view (offline and online) the Rizal Monument appreciate the monument itself as a cultural artifact. And again, converting public outrage into the language of the law, it cannot be said that the impairment to the sightline of the Rizal Monument is damnum absque injuria because, in legal contemplation, the construction of the Torre de Manila is nothing less than the private appropriation of a part of the cultural commons of the Republic. 87. If the words “cultural treasure of the nation” and “cultural heritage” mean anything, it means that the Constitution has consigned to the 29

Decena, Ferdinand. Rizal Monument. 2 December 2006. Available at https://www.flickr.com/photos/ironwulf/1408078866/, last accessed on 12 September 2015.

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present generation the stewardship of the cultural commons of the Republic. With particular reference to this case, it is therefore our legal obligation to ensure that present and future generations be able to view the Rizal Monument as it was meant to be seen and as it has always been seen, until the construction of the Torre de Manila. 88. This is because what we bestow to future generations of citizens of the Republic in the form of cultural heritage is not simply the Motto Stella, but the transcendent experience of that particular Rizal Monument situated in Luneta. Lest we forget, the Rizal Monument, and the park that cradles it, was at the heart of the master urban architectural plan of Daniel Burnham for the Philippines, which was meant to match the aspirations of the country as an emerging player in world affairs.30 d. The government’s interpretation is both reasonable and practical. 89. In arguing for the protection of the monument’s sightlines, respondents are simply forwarding an interpretation of our heritage laws, consistent with the Constitution’s conservationist and protectionist policies. Choosing this interpretation is not controversial. The Honorable Court has, in many cases, chosen to give the law a similar reasonable and practical interpretation to enforce a constitutional policy or to promote a higher-level policy. 90. In Risos-Vidal v. COMELEC,31 the Honorable Court rejected a rigid and inflexible reading of Articles 36 and 41 of the Revised Penal Code as “it will defeat or unduly restrict the power of the President to grant an executive clemency.” 91. In Manila Prince Hotel v. GSIS,32 the Honorable Court, given a narrow interpretation of the term “national patrimony”, chose instead to interpret the term to include Filipino cultural heritage in order to promote the Filipino First policy of the Constitution. 92. The Honorable Court also chose to give a flexible reading to §15 of Article VII of the Constitution in De Castro v. JBC33 in order to strengthen the independence of the judiciary.

“The Centenary of the Rizal Monument”, http://www.gov.ph/rizal-monument/, last accessed on 14 September 2015. 31 G.R. No. 206666, 21 January 2015. 32 Supra note 21. 33 G.R. No. 191002, 17 March 2010. 30

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93. In Gamboa v. Teves,34 the Honorable Court interpreted the term “capital” in §11, Article XII of the Constitution to include only shares of stock entitled to vote in the election of directors in order to give meaning to the broader state policy to develop a self-reliant and independent national economy effectively controlled by Filipinos. 94. In the instant case, the Honorable Court should choose the government’s interpretation because: a) This is the interpretation consistent with the physics of the Rizal Monument as an integrated unit, a unified piece of cultural artifact; b) This is the interpretation that will give practical meaning to the conservationist and protectionist policies of the Constitution; and

c) Applying the Precautionary Principle in environmental law by analogy, “when human activities may lead to threats of serious and irreversible damage to [cultural heritage], actions shall be taken to avoid or diminish that threat.”35 e. On the national hero’s wishes and the monument erected in his honor. 95.

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

“Bury me in the ground, place a stone and cross over it. My name, the date of my birth and of my death. Nothing more. If you later wish to surround my grave with a fence, you may do so. No anniversaries. I prefer Paang Bundok [the area where the Manila North and Chinese Cemeteries now stand]”36

96. Rizal’s wish for a simple grave and apparent distaste for anniversaries to commemorate his death indicates an acute foreknowledge of his martyrdom and reflects his knowledge of history. They are the measures of the man we consider our national hero. His will, however, also bears no relevance to this case. 97. The issue in this case is whether the monument built in honor of Rizal has a legally-protected sightline, a part of our cultural heritage or cultural 34

Supra note 22. A.M. No. 09-6-8-SC (Rules of Procedure for Environmental Cases). 36 Ocampo, Ambeth R. “Much ado about Torre: Rizal asked only for cross on tombstone”, Philippine Daily Inquirer, Commentary, 23 August 2015, http://opinion.inquirer.net/87853/muchado-about-torre-rizal-asked-only-for-cross-on-tombstone, last accessed on 05 September 2015. 35

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commons of the Republic. The Honorable Court is being asked to interpret constitutional and statutory language, and choose between competing interpretations. It is not here empaneled, as if in testate proceedings, to enact Rizal’s will. 98. The patent logical disconnect between the attempt to relate the legal question in the present case with Rizal’s will is such that if we were to follow his will, we might even have to destroy the monument he did not wish for himself. The apparent suggestion to turn the Rizal Monument towards the east is even more disjointed, though perhaps reflective of a droll sense of priority and progress. 99. The reality is that the Rizal Monument was built by a grateful nation in honor of a humble man who was selfless enough to sacrifice an otherwise magnificently well-lived existence. The monument is an invocation to Rizal as a national symbol—it is not about him, but about us: it is about our gratitude to the First Filipino and how his life continues to profoundly inspire and exemplify our hopes and dreams as a people. The generation Rizal left behind was impelled to embody this symbol in stone and metal, framed by the bloodied ground of Bagumbayan and its expansive horizon. 100. The monument has stood for more than a century. By legal fiat and with the passage of time, it has acquired power and value independent of the final wishes of Rizal the man, regardless of how the monument may allegedly embody historical inaccuracies. 101. The monument was erected more than a hundred years ago by popular subscription.37 The people wished for a monument and funded it with their donations.38 This subscription is renewed everyday by those who pay homage to the monument, and who can no longer enjoy its sightline that has been marred by a condominium. 102. In this case, the Honorable Court is simply being asked by the government to provide legal relief to the private appropriation by DMCI of what is otherwise public—the cultural commons of the Republic. B.

THE PERMITS OBTAINED BY DMCI ARE VOID 1.

37

DMCI’s zoning permit is void.

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

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a. On its face, DMCI’s zoning permit violates the FAR limit under Ordinance No. 8119. 103. Section 63 of Ordinance No. 8119 provides— SEC. 63. Zoning Permit (Locational Clearance).—All lot/land owners/land developers and business establishments shall secure a zoning permit (locational clearance) from the City Planning and Development Officer for all conforming uses and, in cases of variances and exceptions from the Sangguniang Panlungsod as per recommendation from the Manila Zoning Board of Adjustments and Appeals (MZBAA) through the Committee on Housing, Urban Development and Resettlements prior to conducting any business activity or construction on their property/land.

104. Section 63 establishes the jurisdictional divide between the CPDO and the Sangguniang Panlungsod, such that “for all conforming uses” it is the former which is legally empowered to issue the zoning permit while, on the other hand, for non-conforming uses—variances and exceptions—it is the Sangguniang Panlungsod which is the issuing authority. 105. Obviously, if the CPDO issues a zoning permit for a nonconforming use of property—as it did in this case—such permit is void, because it has been issued without authority. This is even more obvious in this case because the determination of the FAR does not even require expertise, given the simple formula involved. 106. In relation to this, §17 of Ordinance No. 8119 provides that buildings within the Institutional University Zone, such as the Torre de Manila, shall have a maximum Percentage of Land Occupancy (PLO) of 0.6 and a maximum FAR of 4. 107. The Torre de Manila has a floor area of 97,549 sq. m. and a land area of 7,475 sq. m. 108. On the face of the one-page zoning permit issued by the CPDO to DMCI, that permit was patently beyond the maximum FAR of 4, as in fact its FAR is 13.05 based on the simple formula of Total Floor Area/Total Lot Area = FAR. 97,549 sq. m. ---------------------7,475 sq. m.

=

13.05

109. Given a maximum FAR of 4, DMCI’s FAR of 13.05 clearly indicates that its use is “non-conforming” and therefore the CPDO had no

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authority to issue the zoning permit it issued. Having obtained a permit from an office without authority to do so, DMCI’s zoning permit is therefore void. b. Mayor Lim had no authority to suspend the local zoning ordinance, assuming he did in fact suspend the zoning ordinance. 110. In a letter dated 10 October 2012 addressed to DMCI, the CPDO justified post facto its grant of the zoning permit on the ground that the “provision on height limitations and/or FAR provisions in [Ordinance No. 8119] were suspended by the executive branch, for it opted to follow the National Building Code. ” However, the CPDO failed to cite any legal basis to support this supposed action by Mayor Lim. 111. Even on the assumption that Mayor Lim did “suspend” Ordinance No. 8119, such act is clearly unlawful. It is basic that a mayor, as an executive arm of a local government unit, has no authority to suspend the effectivity of a local law. A mayor has even less authority to suspend a zoning ordinance considering that the enactment of zoning rules are core prerogatives of the city council under the Local Government Code.39 112. Under §455 of the Local Government Code, the City Mayor is mandated to enforce all laws and ordinances relative to the governance of the city. He may issue an executive order, but only for the faithful and appropriate enforcement and execution of laws and ordinances. Moreover, §48 of the Local Government Code is very clear that the local legislative power shall be exercised by the Sangguniang Panlungsod. DMCI cannot possibly rely on a patently illegal order that may not have been issued. 113. That Mayor Lim does not have the authority to suspend the zoning ordinance is bolstered by §707 of the National Building Code IRR which expressly provides that the applicable law in determining the FAR limit is the more restrictive law between the National Building Code and the local zoning ordinance. The relevant provisions state: Section 707. Maximum Height of Buildings 1. The maximum height and number of storeys of proposed building shall be dependent upon the character of use or occupancy and the type of construction, considering end-user population density, light and ventilation, width of RROW/streets particularly of its roadway/carriageway component, building bulk, off-street cum off-site parking requirements, etc. and in relation to local land use plan and zoning regulations as well as other environmental considerations, e.g., geological, hydrological, meteorological, 39

See LOCAL GOVERNMENT CODE, Art. 3, §458(a)(2)(9).

MEMORANDUM Knights of Rizal v. DMCI Homes, Inc., et al. G.R. No. 213948 Page 30 of 46 topographical, prevailing traffic conditions, the availability and capacity of public utility systems, etc. (Refer to Guidelines on Building Bulk at the end of this Rule) 2. Determination of Building Height: The Building Height Limit (BHL) of any proposed building/structure shall only be as allowed under this Rule (as shown in table below) or under the duly approved city/municipal (local) zoning ordinance, whichever is more restrictive.40

2.

DMCI’s building and business permits are void.

114. The defects in the zoning permit also taint the validity of DMCI’s building and business permits. Under §69 of Ordinance No. 8119— SEC. 69. Building Permit./Business Permit.—No building and business permit shall be issued by the Local Building Officer and Business Promotion and Development Officer, respectively, without a valid zoning permit (locational clearance) in accordance with this Ordinance.

115. The prohibitory language of §69 can only mean that DMCI’s void zoning permit cannot be used as justification for its building and business permit. Therefore, DMCI’s building and business permits are also void. 116. Morever, the clear import of §69 is to impose an independent obligation on the part of the Local Building Officer and Business Promotion and Development Officer to ascertain the validity of the zoning permit. These officers therefore cannot issue the building and business permits on the sole ground that a zoning permit had already been issued. Thus, the issuance of building permit and a business permit in the face of a patently invalid zoning permit constitutes a second and third violation of the law. DMCI is therefore in a situation where all three permits—zoning, building, and business—are independently void. 117. The foregoing series of illegal acts is only worsened by the inexplicable haste with which the Building Official granted the building permit to DMCI—the permit was issued on 5 July 2012,41 or the same day it was applied for, and despite the ongoing public hearings conducted by the Manila City Council on the very issue of the construction of the Torre de Manila. 3.

Manila City Council Resolution No. 5 cannot ratify DMCI’s void permits. a. The variance is void for procedural defects.

40

Emphases supplied. DMCI’s Petition for Prohibition before the Regional Trial Court (RTC) of Makati.

41

MEMORANDUM Knights of Rizal v. DMCI Homes, Inc., et al. G.R. No. 213948 Page 31 of 46

118. DMCI’s argument that the issuance of Resolution No. 5, series of 2014, allowed it to construct beyond the FAR and height limit is incorrect. Under §61 of Ordinance No. 8119, “[a] written application for variance… shall be filed with the [MZBAA] through the CPDO citing the section of [the] Ordinance under which the same is sought and stating the ground/s thereof.”42 119. DMCI, however, never applied for a variance before the MZBAA through the CPDO. Instead, on 18 December 2013, DMCI President Alfredo R. Austria merely wrote Mayor Joseph Estrada to (a) seek clarification and assistance on the Torre de Manila project, and (b) request Mayor Estrada not to suspend DMCI’s building permit pending its compliance with the required procedures.43 120. The following also militate against the claim that the 18 December 2013 letter is an application for variance within the contemplation of §61, Ordinance No. 8119: (a) nowhere in the letter is it mentioned that DMCI was applying for a variance; (b) DMCI failed to cite the provision in Ordinance No. 8119 upon which the variance is sought and the grounds to support its application, assuming there was any; and (c) DMCI did not mention that it was writing Mayor Estrada in his capacity as a member of the MZBAA.44 121. Despite the clear absence of an application for variance from DMCI, the MZBAA issued Resolution Nos. 06 and 06-A recommending the exemption of the Torre de Manila from the FAR limit.

42

Section 61 of Ordinance No. 8119 provides the procedures for filing applications for variances and exceptions, as follows: Sec. 61. Procedures for Granting Variances and Exceptions. - The procedure for the granting of exception and/or variance is as follows: 1. A written application for an exception for variance and exception shall be filed with the Manila Zoning Board of Adjustment and Appeals (MZBAA) through the CPDO citing the section of this Ordinance under which the same is sought and stating the ground/s thereof. 2. Upon filing of application, a visible project sign, (indicating the name and nature of the proposed project) shall be posted at the project site. 3. The CPDO shall conduct studies on the application and submit report within fifteen (15) working days to the MZBAA. The MZBAA shall then evaluate the report and make a recommendation and forward the application to the Sangguniang Panlungsod through the Committee on Housing, Urban Development and Resettlements. 4. A written affidavit of non-objection to the project/s by the owner/s of the properties adjacent to it shall be filed by the applicant with the MZBAA through the CPDO for variance and exception. 5. The Sangguniang Panlungsod shall take action upon receipt of the recommendation from MZBAA through the Committee on Housing, Urban Development and Resettlements. 43 City of Manila’s Position Paper dated 15 July 2015. 44 See Ordinance No. 8119, §79.

MEMORANDUM Knights of Rizal v. DMCI Homes, Inc., et al. G.R. No. 213948 Page 32 of 46

122. Meanwhile, the Sangguniang Panlungsod issued on 16 January 2014 Resolution No. 5, series of 2014, adopting MZBAA Resolution Nos. 06 and 06-A and ratifying all permits, licenses, and approvals previously issued by the City of Manila for the construction of the Torre de Manila.45 123. MZBAA Resolution No. 6 mentions that the CPDO “elevated the application for zoning appeal regarding the special use permit…to the MZBAA.” However, no formal application for a variance allegedly filed by DMCI with the MZBAA, through the CPDO, has been presented. 124. Apparently, this appears to have been done by the CPDO, upon the instance of Mayor Estrada, who instructed him to help DMCI.46 125. Even assuming that the letter dated 18 December 2013 is a formal application for variance, the same was belatedly filed. As mentioned, §63 of Ordinance 8119 expressly mandates that the application for variance should have been done “prior to conducting any business activity or construction on the[ir] property/land.” b. DMCI’s void permits cannot be ratified. 126. DMCI contends that Resolution No. 5 ratifies all the permits previously issued by the City of Manila. This argument flies in the face of the fact that a void act is not subject to ratification. It also conflates ratification from the effects of obtaining a variance under the ordinance.

45

DMCI’s Comment Ad Cautelam in Case No. NCCA-1-2015-6. During the 18 August 2015 Oral Arguments, Associate Justice Jardeleza and Manila City Planning and Development Officer Dennis Lacuna, Jr. had the following exchange: 46

JUSTICE JARDELEZA: You are the one who approached [Mayor Estrada], or not really approach, during one of your daily lunches? CPDO LACUNA: Yes, Your Honor. JUSTICE JARDELEZA: You told him, Mr. President Mayor, there is a request for assistance... CPDO LACUNA: Yes, Your Honor. JUSTICE JARDELEZA: What did the President Mayor tell you? CPDO LACUNA: To help the developer [DMCI] to make sure that they go through the process.

MEMORANDUM Knights of Rizal v. DMCI Homes, Inc., et al. G.R. No. 213948 Page 33 of 46

127. In the first place, even assuming that the variance is valid, the zoning, building, and business permits are void from inception and thus cannot be ratified. A void permit cannot be the source of a legal right or duty because it is non-existent in contemplation of law. Put plainly, DMCI never had any valid zoning, building, or business permits. 128. In the second place, the issuance of a zoning permit and a variance refers to two distinct and independent processes under Ordinance No. 8119. Hence, a variance cannot ratify a defective zoning permit. If at all, obtaining a variance only means that for the first time a valid zoning permit is had by the grantee. Its force is prospective, not retroactive. 129. A zoning permit as an ordinary locational clearance is issued on the premise that the building is compliant with the maximum FAR prescribed by Ordinance No. 8119. In contrast, a variance as a special locational clearance “grants a property owner relief from certain provisions of Zoning Ordinance where, because of the particular, physical surrounding, shape or topographical conditions of the property, compliance on height, area, setback, bulk and/or density would result in a particular hardship upon the owner, as distinguished from a mere inconvenience or a desire to make more money.”47 130. A zoning permit is for compliant use, while a variance (or special location clearance) is for non-conforming use. A zoning permit cannot substitute for a variance, while a variance cannot ratify a void zoning permit. 131. Thus, the only meaning that may be attached to Resolution No. 5 (on the assumption that it is valid) is that it was only on 16 January 2014 that DMCI may be said to have finally obtained a (special) locational clearance. 4.

DMCI knew its permits were void, but constructed Torre de Manila anyway.

132. DMCI violated Ordinance No. 8119 and knew about it. 133. DMCI, a leading and experienced project developer in the country, is duty-bound to know the law. It has successfully completed over 500 projects and has built numerous landmark infrastructure such as the Manila Hotel, the Cultural Center of the Philippines, and the Makati Shangri-La,

47

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

MEMORANDUM Knights of Rizal v. DMCI Homes, Inc., et al. G.R. No. 213948 Page 34 of 46

among others.48 DMCI Holdings, Inc., through DMCI Project Developers, Inc., has investments in infrastructure and real estate project development.49 134. DMCI simply cannot use its supposed ignorance of zoning laws as an excuse. It is expected to have expertise on the requirements and rudiments of seeking permits for the construction of condominium buildings, not just because it is the law but, more important, because having such knowledge is an indispensable requirement of its business. It chose to obtain an invalid permit from the CPDO, perhaps to avoid the difficulty of having to actually obtain a valid permit in the form of a special locational clearance or a variance from the Sangguniang Panglungsod which, at the time, was clearly opposed to the Torre de Manila project as it even issued an ordinance to prevent the construction of the condominium. 135. That DMCI clearly went forum-shopping for purposes of convenience is shown by the contrast between the ease with which it was able to obtain its void permits from the City of Manila’s executives and the vigorousness with which the City of Manila’s legislators opposed the Torre de Manila project. The purpose of this forum-shopping is obvious: to avoid the City Council which, under the Ordinance No. 8119, is the institution empowered to grant DMCI a valid zoning permit. 136. The fact that DMCI knew its permits were defective is a matter of record. 137. First. During the 27 August 2014 Senate Committee Hearing,50Atty. Roel Pacio, the Vice President for Legal Services of DMCI, admitted that DMCI had full knowledge of its violation of prescribed FAR under Ordinance 8119 at the time of the application for zoning and building permits: THE CHAIRPERSON (SEN. P. CAYETANO). Did you know that you exceeded the height requirement? ... ... ... MR. PACIO.On the basis of the zoning permit, when we checked it out, ma’am, it appears that we exceeded the height limit. But using the same permit, we went to the city building official to verify if we can apply for a building permit, of which they granted us a building permit.

48

http://www.dmcihomes.com/about-us.php?company-history¸ last accessed on 7 September 2015. 49 https://www.dmciholdings.com/our_businesses/page/residential-development, last accessed on 7 September 2015. 50 Joint Committee Hearing of the Senate Committees on Education, Arts & Culture and Urban Planning.

MEMORANDUM Knights of Rizal v. DMCI Homes, Inc., et al. G.R. No. 213948 Page 35 of 46 THE CHAIRPERSON (SEN. P. CAYETANO). Do you have documentation to show the exchange of information and the details leading to the issuance of permit? Because if I [were] the lawyer and I know that on its face, my application exceeds the requirement, the ordinance, the set requirement, then I will ask for something in writing to ensure me that if I move forward, I’m not violating anything para hindi ako mabalikan at sabihing, “Bakit nag-violate ka?” So do you have anything other than this zoning permit that shows that after your explanations or after further discussions, “You are hereby allowed and this is what you’re going to do”? MR. PACIO. We have the building permit, ma’am.51

138. Second. The letter dated 18 December 2013 likewise shows the clear intent and design of DMCI to circumvent Ordinance No. 8119: The zoning permit was issued after we have submitted the required development plans. As the former city planning and development officer did not deny the applicant, we continued on with the application for the building permit of the project. Had our application for zoning permit been denied, we could have gone through the process of appealing to the local zoning board, if any was then constituted, and applied for an exemption from the city council.52

139. Third. The letter of Chair Diokno dated 6 November 2012 to Mr. Andrade of DMCI— As you may be aware, the matter of the construction of the Torre de Manila project of DMCI Homes has been attended by some controversy, starting on 25 May 2012 when some residents of Sta. Ana, Manila complained that the construction of high-rise buildings in the area will violate the existing zoning ordinance. Acting on that complaint, the City Council of Manila declared that the issuances to DMCI by the City Planning and Development Office and the Office of the Building Official of a Zoning Permit and a Building Permit, respectively, were in gross violation of Ordinance No. 8119 (Zoning Regulations of 2006) and that the issuing officials may have committed grave abuse of discretion in the process, which the City Council undertook to investigate in aid of legislation.

140. It would be the height of impunity to allow DMCI to use as an excuse its own violation of the law, just as it would be injurious to the rule of law to allow a violator to profit from the illegality of one’s acts. Section 65 of Ordinance No. 8119 expressly provides that “[t]he issuance of a Zoning Permit (Locational Clearance) shall not be construed as an approval or authorization to the permittee to disregard or violate any of the provisions of this Ordinance.” 51

Minutes of the 27 August 2014 Senate Joint Committee on Education, Arts & Culture and Urban Planning Hearing, pp. 82-83. 52 Position Paper of the City of Manila dated 15 July 2015.

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141. As is obvious from a casual reading of §63 of Ordinance No. 8119, the proper procedure for DMCI should have been to secure a variance from the Sangguniang Panlungsod through the MZBAA, and not to apply with the CPDO. 142. Whether DMCI knew that it would not have gotten the required variance from the Sangguniang Panlungsod, given its expressed opposition to the Torre de Manila is, of course, a different matter. But it certainly taxes one’s credulity to believe DMCI sought its permit from the CPDO because it was ignorant of the legal requirements. Either way, it cannot use its ignorance or bad faith as an excuse. 143. Finally, DMCI cannot claim that it erroneously relied on the CPDO’s letter dated 10 October 2012.53 It bears emphasis that the CPDO issued this letter several months after the issuance of the void zoning permit on 19 June 2012. C.

MANDAMUS MAY ISSUE 1.

The Honorable Court should directly order DMCI to demolish the Torre de Manila, at its own expense.

144. Judgment Should Include an Order to Demolish. Considering that respondent DMCI constructed the Torre de Manila in violation of R.A. No. 10066, R.A. No. 10086, and Ordinance No. 8119, DMCI should be ordered to demolish the Torre de Manila. An order of demolition is a natural consequence of the finding that the Torre de Manila was built in violation of national and local laws. 145. Under §5 (d), Rule 135 of the Rules of Court, courts have an inherent power “[t]o compel obedience to its judgments, orders and processes, and to the lawful orders of a judge out of court, in a case pending therein.”54 146. DMCI should not be allowed to take advantage of its own illegal acts. Plainly, from the facts of the case, there can be no doubt that DMCI had no right to begin construction of the Torre de Manila on 5 July 2012, the day it obtained its building permit. 147. With full knowledge of the defects in its permits, amidst the public clamor, without due regard to resolutions from the City Council of Manila, in the face of opposition from the NM and the NCCA, and unmindful of a Senate investigation, DMCI proceeded with undue haste to construct the Torre de Manila. 53

DMCI’s Comment Ad Cautelam in Case No. NCCA-1-2015-6. RULES OF COURT, Rule 135, §5 (c).

54

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148. A crucial date that the Honorable Court must consider is 16 January 2014, the day DMCI was able to obtain a variance from the City of Manila. On the assumption that this variance is valid, this date is the only point in time when DMCI may reasonably claim to have complied with the zoning ordinance. All acts prior to this date are, without a doubt, unlawful and done with full knowledge of their unlawfulness. 149. This date is crucial because, in between the date when DMCI obtained its void zoning permit (as well as its building and business permits) and 16 January 2014, the Rizal Monument has already been declared a National Monument on 15 April 2013 by NHCP55 and a National Cultural Treasure on 14 November 2013 by the National Museum.56 150. More important, had DMCI actually followed the law (on the assumption that it had a valid permit by 16 January 2014), it would not have been able to build as high as 39 floors by 16 June 2015. 151. The Honorable Court should therefore not consider itself especially burdened by the responsibility of having to order the demolition of the Torre de Manila, given that the danger of loss DMCI now confronts is entirely self-imposed—it has assumed the risks to which it is now exposed. 152. For the Honorable Court to feel otherwise would be to allow DMCI to create facts on the ground and unjustly benefit from the multiple layers of violations it committed in this case. This idea is entirely corrosive to the rule of law and incompatible with elementary notions of fair play. 153. In practical terms, had DMCI begun construction works on its lot only after 16 January 2014, it would most likely not have been able to build beyond (or way beyond) seven floors by the time this Honorable Court issued its TRO on 16 June 2015. Instead, with the use of a void building permit (issued 5 July 2012), it was able to build illegally—and apparently with undue haste—for about one and a half years (or until 16 January 2014). 154. In other words, had DMCI started construction works on its lots only after 16 January 2014 (and stopped on 16 June 2015), this Honorable Court would be faced with only the purely legal question whether the Torre de Manila can theoretically go beyond seven floors. Instead, the Honorable Court is being sold a fait accompli, a situation entirely of DMCI’s making. 155. Given these circumstances, it is imperative that the Honorable Court issue the appropriate, just relief not because it wants to send a message to anyone—even as it may be a necessary consequence thereof—but simply because it has to apply the law.

55 56

Resolution No. 05, series of 2013, dated 15 April 2013. Museum Declaration 9-2013 dated 14 November 2013.

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156. DMCI is Entitled to Only Seven Floors Under Ordinance No. 8119. At the very least, the Honorable Court should order DMCI to demolish the Torre de Manila, at its own expense, insofar as it exceeds the maximum allowable number of floors under Ordinance No. 8119. 157. The formula for computing the maximum allowable number of floors is as follows— Formula: Prescribed Maximum FAR x Total Lot Area = Maximum Allowable Gross Floor Area Prescribed Maximum PLO x Total Lot Area = Maximum Allowable Building Footprint Maximum Allowable Gross Floor Area / Maximum Allowable Building Footprint = Maximum Allowable Floors of the Building As applied: FAR of 4 x 7,475 sq. m. = 29,900 sq. m. PLO of 0.6 x 7,475 sq. m. = 4,485 sq. m. 29,900 sq. m. ---------------------4, 485 sq. m.

=

6.6 or 7 maximum allowable floors of the Torre de Manila

158. Clearly, what DMCI would have been normally entitled to under Ordinance No. 8119 is merely seven floors. This computation was generally accepted by counsel for DMCI, Atty. Lazatin, during interpellation with Justice Diosdado Peralta.57 57

During the 11 August 2015 Oral Arguments, Associate Justice Peralta and DMCI’s counsel Atty. Lazatin, had the following exchange: JUSTICE PERALTA: Under Ordinance No. 8119, the university cluster zone, the maximum allowable gross floor area is computed as follows: ATTY. LAZATIN: That’s accurate your honor. JUSTICE PERALTA: FAR, FAR is 4 and your lot area is 7,475 square meters, right? ATTY. LAZATIN: That’s correct your Honor. JUSTICE PERALTA: So you come out with 29,900 square meters as gross floor area, am I correct? Still accurate?

MEMORANDUM Knights of Rizal v. DMCI Homes, Inc., et al. G.R. No. 213948 Page 39 of 46

ATTY. LAZATIN: That’s correct, Your Honor

... ... ...

JUSTICE PERALTA: Now let’s go to maximum allowable building footprint, okay. The PLO is fixed which is 0.6, the PLO is percentage of land occupancy. ATTY. LAZATIN: That’s correct. JUSTICE PERALTA: The PLO times lot area which is 7,475 square meters, you have 4,485 square meters. ATTY. LAZATIN: That’s correct your honor. JUSTICE PERALTA: That is your maximum allowable building footprint. ATTY. LAZATIN: That’s correct your honor. JUSTICE PERALTA: Allowable stories, you have gross floor area divided by building footprint or 29,900 square meters in slide no. 4 over 4,485 square meters, you are only allowed to build 6.6 stories, rounded up to 7 stories, my computation is still correct? ATTY. LAZATIN: On the assumption that your building footprint is 4,485 your Honor, meaning your building is fat and squat, that’s correct your Honor. JUSTICE PERALTA: The 0.6 is fixed by law and you get the building footprint times the area of your lot, did you change the area of your lot? ATTY. LAZATIN: That is the maximum building footprint your Honor. JUSTICE PERALTA: 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 yung maximum eh unless you want to lower it down, where will you get the figure, yun na ang maximum eh, so you get 6.6 stories rounded up to 7 stories, 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 meaning it can be less. JUSTICE PERALTA: That’s correct.

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159. However, DMCI attempts to confuse the Honorable Court on the maximum allowable floors prescribed by Ordinance No. 8119 by substituting the maximum allowable building footprint with the actual building footprint of the Torre de Manila— Since actual building footprint of the Torre de Manila is 1,639 sq.m., then the computation of maximum allowable floors is— 29,900 sq. m. ---------------------1,639 sq. m.

=

18.24 or 18 maximum allowable floors of the Torre de Manila

#

160. DMCI’s computation is misleading. The maximum allowable building footprint is a fixed variable that is determined by multiplying the Prescribed Maximum PLO and the Total Lot Area. DMCI cannot substitute the Maximum Allowable Building Footprint, a higher value, with the Actual Building Footprint, a smaller value, in order to increase the Maximum Allowable Floors of the Building. DMCI clearly muddles the computation of the Torre de Manila’s maximum allowable floors in an attempt to hide its blatant non-compliance with Ordinance No. 8119. 161. DMCI further attempts to confound the Honorable Court by claiming that the Torre de Manila’s actual total lot area is 7,556 sq. m. This is contrary to the zoning permit which shows that it is merely 7,475 sq. m. 162. Assuming that the total lot area is indeed 7,556 sq. m., DMCI cannot just increase the size of the total lot area of the Torre de Manila without informing the City of Manila beforehand, as it did in this case, for the simple reason that any alteration of the building project’s total lot area would change its actual FAR. Necessarily, this would affect the validity of zoning and building permits whose issuance was based on the assumption that the Torre de Manila’s total lot area is 7,475 sq. m. Otherwise, developers may conveniently circumvent the prescribed FAR in the Zoning Ordinance by simply altering the total lot area of the building project after the issuance of zoning and building permits. 2.

The Honorable Court may order the City of Manila, by way of mandamus, to cause the demolition of the Torre de Manila.

ATTY. LAZATIN: If it is less, then the tower or the building can be higher.

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163. Given that the construction of the Torre de Manila is illegal, the Honorable Court may also order the City of Manila to cause the demolition of the Torre de Manila by way of mandamus. 164. In particular, the Honorable Court may require the City Mayor of Manila: (1) to require DMCI to make necessary changes in the construction of the Torre de Manila, or (2) to demolish the same to the extent that it impairs the sightline of the Rizal Monument. 165. The duty of the City Mayor of Manila to cause the demolition of the Torre de Manila finds support in §455 (b) (3) (vi) of the Local Government Code58— Section 455. Chief Executive; Powers, Duties and Compensation. … … … (b) For efficient, effective and economical governance the purpose of which is the general welfare of the city and its inhabitants pursuant to Sec. 16 of this Code, the city mayor shall: … … … (3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities… … … … (iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance; … … … (vi) Require owners of illegally constructed houses, buildings or other structures to obtain the necessary permit, subject to such fines and penalties as may be imposed by law or ordinance, or to make necessary changes in the construction of the same when said construction violates any law or ordinance, or to order the demolition or removal of said house, building or structure within the period prescribed by law or ordinance.

166. Section 455 (b) (2) (ii) of the Local Government Code additionally provides that the City Mayor has the duty to “[e]nforce all laws and ordinances relative to the governance of the city,” and to “[i]ssue such executive orders for the faithful and appropriate enforcement and execution of laws and

58

Emphasis supplied

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ordinances.” These duties become mandatory once the Honorable Court declares the illegality of the construction of the Torre de Manila. 59 167. In the recent case of Aquino v. Municipality of Malay, Aklan,60 the Honorable Court upheld the power of Local Government Units to issue demolition orders or to close and remove illegally constructed establishments for failure to secure the necessary permits. 168. In that case, petitioner did not secure the necessary permits prior to construction, expansion and operation of a hotel. Notably, petitioner started the construction of the hotel while its application for zoning compliance was still pending before the Office of the Mayor. Thus, the Honorable Court affirmed the power of the mayor to order closure and demolition of the entire illegal construction concerned.

3.

The Honorable Court may also order NHCP and NCCA by way of mandamus to oversee the demolition of the Torre de Manila

169. Section 5 of R.A. No. 10086 mandates NHCP to, among others, “undertake and prescribe the manner of restoration, conservation and protection of the country’s historical movable and immovable objects”61 and to “manage, maintain, and administer national shrines, monuments, historical sites, edifices and landmarks of significant historical-cultural value.”62 170. NHCP, as the primary legal custodian of monuments, such as the Rizal Monument, has the duty to prescribe its manner of conservation and protection. Since the NHCP determined that the Torre de Manila has impaired the visual corridor of the Rizal Monument, then it should have prescribed the manner for its conservation and its protection and not relinquish its mandate to the City of Manila.

59

In Special People, Inc. v. the Secretary of the DENR, 688 SCRA 403 [2013], the Honorable Court clarified as to when a writ of mandamus may be issued to compel the performance of a duty, viz.: A key principle to be observed in dealing with petitions for mandamus is that such extraordinary remedy lies to compel the performance of duties that are purely ministerial in nature, not those that are discretionary. A purely ministerial act or duty is one that an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of its own judgment upon the propriety or impropriety of the act done. The duty is ministerial only when its discharge requires neither the exercise of official discretion or judgment. 60

G.R. No. 211356, 29 September 2014. Republic Act No. 10086, §5(e). 62 Republic Act No. 10086, §5(d). 61

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171. In this case, the clear remedy to the impairment of the sightline of the Rizal Monument is the demolition of the Torre de Manila. The NHCP believes that such “manner of restoration, conservation and protection” is not contemplated in its charter. Therefore, a finding by this Honorable Court that such position constitutes grave abuse of discretion means that it can also order the NHCP, by way of mandamus, to restore, conserve, and protect the sightline of the Rizal Monument within the parameters of the decision of this Honorable Court. 172. Given NHCP’s position on this matter, there may be a need for an alternative method of enforcing reliefs coming from this Honorable Court. Thus, this Honorable Court may likewise order the NCCA, by way of mandamus, to oversee the demolition of Torre de Manila and to prescribe policies for its conservation and preservation in coordination with other national cultural agencies. 173. Section 8 of Republic Act No. 7356, or the “Law Creating the National Commission for Culture and the Arts” provides, thus: “A National Commission for Culture and the Arts is hereby created to formulate policies for the development of culture and arts; implement these policies in coordination with affiliated cultural agencies; coordinate the implementation of programs of these affiliated agencies; administer the National Endowment Fund for Culture and Arts (NEFCA); encourage artistic creation within a climate of artistic freedom; develop and promote the Filipino national culture and arts; and preserve Filipino cultural heritage. The Commission shall be an independent agency. It shall render an annual report of its activities and achievements to the President and to Congress.”

174. One of the specific mandates of the NCCA is to conserve and promote the nation’s historical and cultural heritage63 and to support and promote the establishment and preservation of cultural and historical monuments.64 175. Thus, to carry out its mandate, the NCCA may promulgate rules, regulations and undertake any and all measures as may be necessary to implement the Act,65 create committees and other mechanisms to help expedite the implementation of its plans and strategies,66 and call upon and coordinate with other government and non-government art and cultural institutions and agencies such as the NM and the NHCP for assistance in any form.

63

Republic Act No. 7356, §12 (b). Id., §12 (b) (3). 65 Id., §13 (k). 66 Id., §13 (d). 64

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176. The NCCA is also specifically empowered to regulate activities inimical to the preservation/conservation of national cultural heritage/properties67 and investigate such inimical activities in conjunction with the proper government agencies, such as the Department of Interior and Local Government, the National Historical Institute, the NM and other agencies, with the aim of prosecuting such activities and recommending other actions such as legislation, executive issuances and other appropriate actions.68

PRAYER WHEREFORE, premises considered, it is respectfully prayed of this Honorable Court to: (1)

DECLARE that the sightline of the Rizal Monument in the Rizal Park is legally protected under R.A. No. 10066 and R.A. No. 10086;

(2)

ORDER respondent DMCI to demolish the Torre de Manila, at its own expense, or to ISSUE a WRIT OF MANDAMUS to respondent City of Manila to cause the demolition of the Torre de Manila, at DMCI’s expense; and

(3)

ISSUE a WRIT OF CONTINUING MANDAMUS to respondents NHCP and NCCA to: (a) oversee the demolition of the Torre de Manila; (b) prescribe policies for the conservation and preservation of the Rizal Monument in coordination with the National Museum; and (c) submit quarterly reports on the progress of the execution of the Honorable Court’s judgment in this case.

Other reliefs as may be just and equitable under the premises are likewise prayed for. Makati City for Manila, 21 September 2015. OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo St., Legaspi Village, 1229 Makati City Tel. No.: 8186301 to 09 (Trunkline) Fax No.: 8176037 Website: www.osg.gov.ph; Email: [email protected]

67

Id., §3 (d). Amended Implementing Rules and Regulations of Republic Act. No. 7356, 4 February 2010, §18.2. 68