Professional Documents
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KNIGHTS OF RIZAL vs. DMCI
GR 213948 | April 25, 2017 | Carpio BECAUSE OF AN ONLINE PETITION, RESO 146
Self-executory provisions REITERATING RESO 121 WAS ISSUED
Torre de Manila On 26 November 2013, following an online petition
FACTS against the Torre de Manila project that garnered about
7,800 signatures, the City Council of Manila issued
(KOR filed a petition for injunction against the Resolution No. 146, reiterating its directive in
construction of Torre de Manila. SC said no legal right Resolution No. 121 enjoining the City of Manila's
violated, no GADALEJ, so dismissed the petition. See building officials to temporarily suspend DMCI-PDI's
Separate Opinions on p. 4 for mentions of Art. 2) Building Permit.
DMCI BOUGHT LOT WHERE IT WILL CONSTRUCT A DMCI PRES SOUGHT CLARIFICATION FROM MAYOR
CONDO ESTRADA
On 1 September 2011, DMCI Project Developers, Inc. In a letter to Mayor Estrada, DMCI-PIDI President
(DMCI-PDI) acquired a 7,716.60-square meter lot in the Austria sought clarification on the controversy
City of Manila, located near Taft Avenue, Ermita, beside surrounding its Zoning Permit.
the former Manila Jai-Alai Building and Adamson
University. The lot was earmarked for the construction MANILA ZONING BOARD RECOMMENDED THE
of DMCI-PDI's Torre de Manila condominium project. APPROVAL OF DMCI’S APPLICATION FOR VARIANCE
On 23 December 2013, the Manila Zoning Board of
DMCI SECURED THE NECESSARY PERMITS: Adjustments and Appeals (MZBAA) issued Zoning Board
1. Barangay Clearance to start the construction of Resolution No. 06, Series of 2013, recommending the
its project. approval of DMCI-PDI's application for variance. ;The
2. Zoning Permit from the City of Manila's City MZBAA noted that the Torre de Manila project "exceeds
Planning and Development Office the prescribed maximum Percentage of Land Occupancy
3. City of Manila's Office of the Building Official (PLO) and exceeds the prescribed Floor Area Ratio (FAR)
granted DMCI-PDI a Building Permit, allowing it as stipulated in Article V, Section 17 of City Ordinance No.
to build a "Forty-Nine (49) Storey w/Basement 8119[.]" However, the MZBAA still recommended the
& 2 penthouse Level Res'l./Condominium" on approval of the variance subject to the five conditions set
the property. under the same resolution. Condition c) was later on
amended.
RESO. 121 WAS ISSUED W/C TEMPORARILY
SUSPENDED THE BUILDING PERMIT MANILA ADOPTED THE ZONING BOARD RESO AND
On 24 July 2012, the City Council of Manila issued CONFIRMED THE PERMITS OF DMCI
Resolution No. 121 enjoining the Office of the Building On 16 January 2014, the City Council of Manila issued
Official to temporarily suspend the Building Permit of Resolution No. 5, Series of 2014, adopting Zoning Board
DMCI- PDI, citing among others, that "the Torre de Resolution Nos. 06 and 06- A. The City Council resolution
Manila Condominium, based on their development states that "the City Council of Manila find[ s] no cogent
plans, upon completion, will rise up high above the reason to deny and/or reverse the aforesaid
back of the national monument, to clearly dwarf the recommendation of the [MZBAA] and hereby ratif[ies]
statue of our hero, and with such towering heights, and confirm[s] all previously issued permits, licenses
would certainly ruin the line of sight of the Rizal Shrine and approvals issued by the City [Council] of Manila for
from the frontal Roxas Boulevard vantage point[.]" Torre de Manila[.]"
DUDA SI BUILDING OFFICIAL SO HE SOUGHT LEGAL KOR FILED A PETITION FOR INJUNCTION AGAINST
ADVICE; DMCI AND CITY OF MANILA SOUGHT THE THE CONSTRUCTION OF TORRE DE MANILA
OPINION OF THE NATIONAL HISTORICAL On 12 September 2014, the KOR, a "civic, patriotic,
COMMISSION cultural, nonpartisan, non-sectarian and non-profit
1. The City Legal Officer stated that there is "no legal organization" created under Republic Act No. 646, filed
justification for the temporary suspension of the Building
Permit since the construction "lies outside the Luneta Park"
a Petition for Injunction seeking a temporary restraining
and is "simply too far to be a repulsive distraction or have order, and later a permanent injunction, against the
an objectionable effect on the artistic and historical construction of DMCIPDI's Torre de Manila
significance" of the Rizal Monument. He also pointed out
that "there is no showing that the [area of] subject property condominium project. The KOR argues:
has been officially declared as an anthropological or 1. that the subject matter of the present suit is one of
archeological area. Neither has it been categorically "transcendental importance, paramount public interest, of
designated by the National Historical Institute as a heritage overarching significance to society, or with far-reaching
zone, a cultural property, a historical landmark or even a implication" involving the desecration of the Rizal
national treasure." Monument.
2. the NHCP maintained that the Torre de Manila project site 2. completed Torre de Manila structure will "[stick] out like a
is outside the boundaries of the Rizal park and well to the sore thumb, [dwarf] all surrounding buildings within a
rear of the Rizal Monument, and thus, cannot possibly
obstruct the frontal view of the National Monument.
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radius of two kilometer/s" and "forever ruin the sightline of mandamus is available only to compel the performance of a
the Rizal Monument in Luneta Park ministerial duty. 47
3. The Rizal Monument, as a National Treasure, is entitled to 3. The construction of the Torre de Manila did not violate any
"full protection of the law" and the national government existing law.
must abate the act or activity that endangers the nation's
cultural heritage "even against the wishes of the local ISSUE
government hosting it."
4. The project is a nuisance per se because "[t]he despoliation
Can the Court issue a writ of mandamus against the
of the sight view of the Rizal Monument is a situation that officials of the City of Manila to stop the construction of
annoy's or offends the senses' of every Filipino who honors DMCI-PDI's Torre de Manila project? (NO)
the memory of the National Hero Jose Rizal.
5. The Torre de Manila project violates the NHCP's Guidelines
on Monuments Honoring National Heroes, Illustrious HELD
Filipinos and Other Personages, which state that historic
monuments should assert a visual "dominance" over its
surroundings, as well as the country's commitment under
THE PETITION FOR MANDAMUS LACKS MERIT AND
the International Charter for the Conservation and MUST BE DISMISSED.
Restoration of Monuments and Sites, otherwise known as the 1. There is no law prohibiting the construction of the Torre de
Venice Charter. Manila.
6. The DMCI-PDI's construction was commenced and 2. Mandamus does not lie against the City of Manila.
continues in bad faith, and is in violation of the City of 3. The KOR is Estopped from Questioning the
Manila's zoning ordinance. Torre de Manila Construction.
4. Torre de Manila is Not a Nuisance Per Se.
5. The TRO must be lifted.
Arguments of DMCI-PDI
1. The Court has no original jurisdiction over actions for
injunction. There is no law prohibiting the construction of the
a. KOR's petition is in actuality an opposition' or Torre de Manila.
appeal from the exemption granted by the City of
Manila's MZBAA, a matter which is also not
In Manila Electric Company v. Public Service
within the jurisdiction of the Court.
b. since the Rizal Monument has been declared a Commission,the Court held that "what is not expressly
National Treasure, the power to issue a cease and or impliedly prohibited by law may be done, except
desist order is lodged with the "appropriate when the act is contrary to morals, customs and I
cultural agency" under Section 25 of Republic Act
public order."
No. li0066 or the National Cultural Heritage Act of
2009.
c. KOR availed of the wrong remedy since an action In this case, there is no allegation or proof that the Torre
for injunction is not the proper remedy for de Manila project is "contrary to morals, customs, and
abatement of a nuisance.
public order" or that it brings harm, danger, or hazard to
2. KOR has no standing to institute this proceeding because it
is not a real party in interest in this case. The purposes of the community. On the contrary, the City of Manila has
the KOR as a public corporation do not include the determined that DMCI-PDI complied with the standards
preservation of the Rizal Monument as a cultural or set under the pertinent laws and local ordinances to
historical heritage site. The KOR has also not shown that it
construct its Torre de Manila project.
suffered an actual or threatened injury as a result of the
alleged illegal conduct of the City of Manila. If there is any
injury to the KOR at all, the same was caused by the private There is one fact that is crystal clear in this case. There is
conduct of a private entity and not the City of Manila. no law prohibiting the construction of the Torre de
3. The Torre de Manila is not a nuisance per se. DMCI-PDI
Manila due to its effect on the background "view, vista,
reiterates that it obtained all the necessary permits,
licenses, clearances, and certificates for its construction. sightline, or setting" of the Rizal Monument.
4. It did not act in bad faith when it started construction of its
Torre de Manila project. Bad faith cannot be attributed to it Mandamus does not lie against the City of Manila.
since it was within the "lawful exercise of [its] rights."
5. DMCI-PDI opposes the KOR's application for a Temporary
Restraining Order (TRO) and writ of preliminary injunction. The Rules on Civil Procedure are clear that mandamus
DMCI-PDI asserts that the KOR has failed to establish "a only issues when there is a clear legal duty imposed
clear and unmistakable right to enjoin I the construction of upon the office or the officer sought to be compelled to
Torre de Manila, much less request its demolitior."
perform an act, and when the party seeking mandamus
has a clear legal right to the performance of such act.
Arguments of the City of Manila
1. The writ of mandamus cannot issue "considering that no
In the present case, nowhere is it found in Ordinance No.
property or substantive rights whatsoever in favor of [the 8119 or in any law, ordinance, or rule for that matter,
KOR] is being affected or x x x entitled to judicial that the construction of a building outside the Rizal
protection[.]"45 Park is prohibited if the building is within the
2. The "issuance and revocation of a Building Permit background sightline or view of the Rizal Monument.
undoubtedly fall under the category of a discretionary act or Thus, there is no legal duty on the part of the City of
duty performed by the proper officer in light of his
meticulous appraisal and evaluation of the pertinent
Manila "to consider," in the words of the Dissenting
supporting documents of the application in accordance with Opinion, "the standards set under Ordinance No.
the rules laid out under the National Building Code [and] 8119" in relation to the applications of DMCI-PDI for the
Presidential Decree No. 1096," while the remedy of Torre de Manila since under the ordinance these
THE VENICE CHARTER IS NOT A TREATY, IT ONLY The authority to decide when a nuisance exists is an
PROVIDES GUIDELINES authority to find facts, to estimate their force, and to
The Venice Charter is merely a codification of guiding apply rules of law to the case thus made. This Court has
principles for the preservation and restoration of no such authority. It is not a trier of facts. The task to
ancient monuments, sites, and buildings. It brings I receive and evaluate evidence is lodged with the trial
together principles in the field of historical conservation courts. The question, then, of whether the Torre de
and restoration that have been developed, agreed upon, Manila project is a nuisance peraccidens must be settled
and and laid down by experts over the years. Each after due proceedings brought before the proper
country, however, remains "responsible for applying the Regional Trial Court. The KOR cannot circumvent the
plan within the framework of its own culture and process in the guise be protecting national culture and
traditions." heritage.
The Venice Charter is not a treaty and therefore does not The TRO must be lifted.
become enforceable as law. The Philippines is not legally
bound to follow its directive, as in fact, these are not Injunctive reliefs are meant to preserve substantive
directives but mere guidelines - a set of the best rights and prevent further injury until final adjudication
practices and techniques that have been proven over the on the merits of the case. In the present case, since the
years to be the most effective in preserving and legal rights of the KOR are not well-defined, clear,
restoring historical monuments, sites and buildings. and certain, the petition for mandamus must be
dismissed and the TRO lifted.
The KOR is Estopped from Questioning the
Torre de Manila Construction. In this case, DMCI-PDI already acquired vested rights in
The KOR is now estopped from questioning the the various permits, licenses, or even variances it had
construction of the Torre de Manila project. The KOR applied for in order to build a 49-storey building which
itself came up with the idea to build a structure right is, and had been, allowed by the City of Manila's zoning
behind the Rizal Monument that would dwarf the Rizal ordinance.
Monument.
Petitioner Knights of Rizal mainly argues that the A self-executing provision of the Constitution is one
sightlines and setting of the Rizal Monument are "complete in itself and becomes operative without the
protected under Sections 15 and 16, Article XIV of aid of supplementary or enabling legislation." It
the Constitution: IDSEAH "supplies [a] sufficient rule by means of which the right
it grants may be enjoyed or protected." "[I]f the nature
SECTION 15. Arts and letters shall enjoy the patronage and extent of the right conferred and the liability
of the State. The State shall conserve, promote, and imposed are fixed by the constitution itself, so that they
popularize the nation's historical and cultural heritage can be determined by an examination and construction
and resources, as well as artistic creations. of its terms, and there is no language indicating that the
subject is referred to the legislature for action," the
SECTION 16. All the country's artistic and historic wealth provision is self-executing.
constitutes the cultural treasure of the nation and shall
be under the protection of the State which may regulate On the other hand, if the provision "lays down a general
its disposition. principle,” or an enabling legislation is needed to
implement the provision, it is not self-executing.
It is argued that Sections 15 and 16, Article XIV of the
Constitution are not self- executing provisions and, To my mind, the distinction creates false second-
therefore, cannot be made basis to stop the order constitutional provisions. It gives the
construction of Torre de Manila. The dissenting impression that only self-executing provisions are
opinion considers that Sections 15 and 16 "do not create imperative.
any judicially enforceable right and obligation for the
preservation, protection or conservation of the All constitutional provisions, even those providing
'prominence, dominance, vista points, vista corridors, general standards, must be followed. Statements of
sightlines and setting of the Rizal Park and the Rizal general principles and policies in the Constitution are
Monument." It adds that Sections 15 and 16 are "mere frameworks within which branches of the government
statements of principles and policy" and that "[t]he are to operate. The key is to examine if the provision
constitutional exhortation to 'conserve, promote, and contains a prestation and to which branch of the
popularize the nation's historical and cultural heritage government it is directed. If addressed either to the
and resources' lacks 'specific, operable norms and legislature or the executive, the obligation is not for this
standards' by which to guide its enforcement." Court to fulfill.
The view that Sections 15 and 16 are not self-executing Petitioner anchored its petition on Sections 15 and 16,
provisions is, in fact, supported by the deliberations of Article XIV of the 1987 Constitution. The foregoing
the Constitutional Commission, insofar as they reveal an constitutional provisions mandate the conservation,
intent to direct Congress to enact a law that would promotion and protection of historical and cultural
provide guidelines for the regulation as well as penalties heritage and resources, but do not specify a clear
for violations thereof. In particular, during the legal right to the protection of the vista, sightline and
interpellation of Commissioner Felicitas Aquino, one of setting thereof.
the proponents of the provision on heritage
conservation, she conceded that there is a need for Broadly written, the provisions use the words
supplementary statutory implementation of these "conserve," "promote," "popularize" and "protect" which
provisions. are open to different interpretations, as demonstrated
no less by the parties' conflicting positions on their
Petitioner KOR also claimed that the Torre de Manila breadth and scope when applied to the construction of
project (1) "violates" the National Historical the Torre de Manila. The provisions further refer to but
Commission of the Philippines (NHCP) "Guidelines on do not define what constitutes the nation's "historical
Monuments Honoring National Heroes, Illustrious and cultural heritage and resources," "artistic creations,"
Filipinos and Other Personages" which "guidelines have and "artistic and historic wealth." The authority given to
the force of law" and (2) "runs afoul" an "international the State to regulate the disposition of the country's
commitment" of the Philippines under the International artistic and historic wealth also indicates that further
Charter for the Conservation and Restoration of government action is intended to enforce the
Monuments and Sites, otherwise known as the Venice constitutional policy of conserving and protecting our
Charter. heritage resources.
I disagree. The NHCP Guidelines is neither law nor an Legislation is, thus, necessary to supply the norms
enforceable rule or regulation. Publication and filing and standards and dene the parameters for the
with the Law Center of the University of the Philippines implementation of the constitutional protection of
are indispensable requirements for statutes, including historical and cultural heritage and resources.
administrative implementing rules and regulations, to
have binding force and effect. As correctly pointed out by In this regard, J. Florentino P. Feliciano's separate
respondent DMCI-PDI, no showing of compliance with concurring opinion in the landmark case of Oposa v.
these requirements appears in this case. The NHCP Factoran, Jr. is illuminating:
Guidelines cannot thus be held as binding against
respondent. It seems to me important that the legal right which is an
essential component of a cause of action be a specific,
Similarly, neither can the Venice Charter be invoked operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that
to prohibit the construction of the Torre de Manila unless the legal right claimed to have been violated or
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disregarded is given specification in operational terms, preservation of the vista, sightline and setting of the
defendants may well be unable to defend themselves
Rizal Park and Rizal Monument.
intelligently and effectively; in other words, there are due
process dimensions to this matter.
The ensuing question, therefore, is whether
The second is a broader-gauge consideration — where a legislation enacted pursuant to said mandate
specic violation of law or applicable regulation is not provide for specific and operable norms and
alleged or proved, petitioners can be expected to fall back
standards that extend the constitutional protection
on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the to the vista, sightline and setting of historical and
Constitution which reads: cultural heritage and resources. An examination of
Philippine statutes relating to heritage preservation
Section 1. . . . reveals no such norms or standards.