REPUBLIC OF THE PHILIPPINES SUPREME COURT Manila En Bane KNIGHTS OF RIZAL, Petitioner, -versus- G.R. No. 213948 DMCI HOMES, INC., DMCI PROJECT DEVELOPERS, INC., CITY OF MANILA, NATIONAL COMMISSION FOR CULTURE AND THE ARTS, NATIONAL MUSEUM, AND NATIONAL HISTORICAL COMMISSION OF ‘THE PHILIPPINES, Respondents. POSITION PAPER (FOR THE ORAL ARGUMENTS) The Office of the Solicitor General (OSG), to this Honorable Court, in compliance with this Honorable Court’s directive in the Advisory [for the Oral Arguments in the above-entitled case, scheduled on July 21, 2015}, respectfully submits its position paper on the following issues: ‘A. PROCEDURAL 1. Whether petitioner has legal standing to sue. ‘The Honorable Court has ruled that when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.! Section 7 of R.A. No. 73567 imposes a duty on citizens to preserve and conserve Filipino historical and cultural heritage and resources.” This is sufficient to confer legal standing on petitioner to seek Kapatiran ng mga Naglilingkod sa Pilipinas v. Tan, G.R. No. 81311, 30 June 1988; Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, GR. No. 183591, 14 October 2008; and David v. Macapagal-Arroyo, G.R. No. 171396, 3 May 2006. 2 Law Creating the National Commission for Culture and the Arts. 3 Section 7. Preservation of the Filipino Heritage. It is the duty of every citizen toPOSITION PAPER (FOR ORAL ARGUMENTS) Page 2 of 10 Knights of Rizal vs. DMCI Homes, Inc, et al. GR No. 213948 adjudication on whether the construction of Torre de Manila impairs the physical integrity of the Rizal Monument in Luneta. In any event, this case involves questions of transcendental public importance which necessitate the relaxation of the rule on standing.* 2. Whether petitioner is the real-party-in-interest. A party who has legal standing does not need to be a real party-in- interest. In Kilosbayan y. Morato,* this Honorable Court held that the more liberal rule on legal standing applies in cases involving constitutional issues, and not the rule on real party-in-interest applicable to private litigation. In any event, in view of the Office of the Solicitor General’s position in this case, this Honorable Court may resolve the case on the merits. 3. Whether direct resort to this Court violates the doctrine of hierarchy of courts and exhaustion of administrative remedies, Petitioner’s direct recourse before the Honorable Court is justifiable as an exceptional circumstance that warrants immediate action from this Honorable Court. While the doctrines of hierarchy of courts and exhaustion of administrative remedies prevent a party from directly invoking the Honorable Court’s original jurisdiction, these rules admit of exceptions, such as when the issues involved are of transcendental public importance,’ “when dictated by public welfare and the advancement of public policy”, and “when demanded by the broader interest of justice.”” 4. Whether mandamus will lie against National Historical Commission of the Philippines (NHCP), National Museum (NM), and the City of Manila. Yes, under the facts of this case. With respect to the NHCP, Section 25 of R.A. No. 10066 provides that “[w]hen 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.” With respect to the City of Manila, Section 25 of R.A. No. 10066 also provides that “[tJhe local government unit which has the jurisdiction over the site where the immovable cultural property is located shall report the same preserve and conserve the Fi ino historical and cultural heritage and resources. The retrieval and conservation of artifacts of Filipino culture and history shall be vigorously yursued. Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, 15 August 2000. 5 GR. No. 118910, 16 November 1995. © Chavez v. PEA-Amari, G.R. No. 133250, 9 July 2002. 7 SAMELCO II v. Seludo, G.R. No. 173840, 25 April 2012; Republic v. Caguioa, G.R. No. 174385, 20 February 2013.POSITION PAPER (FOR ORAL ARGUMENTS) Knights of Rizal vs. DMCI Homes, Ine,, et al. GRNo. 213048 pas Page 3 of 10 to the appropriate cultural agency immediately upon discovery and shall promptly adopt measures to secure the integrity of such immovable cultural property.” 5. Whether the NCCA has jurisdiction to issue a cease and desist order against DMCT Homes, Inc.'s construction and development of Torre de Manila, Under Section 25 of R.A. No. 10066, the appropriate cultural agency shall immediately issue a Cease and Desist Order ex parte suspending all activities that will affect the cultural property when the physical integrity of national cultural treasures or important cultural properties are found to be in danger of destruction or significant alteration from its original state. 6. What are the legal bases for the (a) remedies, and (b) reliefs sought by petitioner. The impairment of the Rizal Monument’s physical integrity warrants the declaration by this Honorable Court that the construction of the Torre de Manila is illegal. The relevant interrelated provisions are: Article XIV, Sections 14 and 15 of the Constitution and Section 25 of R.A. No. 10066. The Constitution enacts conservationist and protectionist policies with respect to the cultural treasure of the nation. Meanwhile, the statutory mandate to protect the physical integrity of cultural artifacts necessarily includes the protection of the sightline of the Rizal Monument. 7. Whether or not the compulsory condemnation, or possible expropriation, of the building is a matter of judicial prerogative that this Court must adjudicate or a matter to be resolved in a dialogue amongst relevant national and local agencies of the government. On the assumption that the Honorable Court finds that the presence of Torre de Manila at its intended height or at any height beyond what is ordinarily allowed by the relevant ordinances of the City of Manila impairs the physical integrity of the Rizal Monument, the Honorable Court is certainly constitutionally empowered to issue any relief to make that judgment enforceable and effective. Whether Torre de Manila should be condemned (reduced in height or destroyed without compensation) or expropriated (reduced in height or destroyed with compensation) depends both on the legal justification for such forcible destruction and the presence of good or bad faith on the part of respondent DMC. 8 Whether or not the issues raised in the petition are substantially matters of policy not subject to judicial review.POSITION PAPER (FOR ORAL ARGUMENTS) Page 4 of 10 Knights of Rizal vs. DMCI Homes, Ine., etal GRNo, 213948 x x The issues in this case require a judicial determination of the applicability and proper interpretation of the provisions of the Constitution on heritage and culture, various heritage laws, and the powers of the City of Manila insofar as they implicate the construction of the Torre de Manila. The petition raises the question regarding the constitutional status of the Rizal Monument as a National Cultural Treasure® and its relevance with the constitutional mandate to “conserve, promote and popularize the nation’s historical and cultural heritage.” It also seeks a determination of the relationship between the various heritage laws, on one hand, and the Torre de Manila, on the other. Lastly, the petition puts in issue the question of whether the Torre de Manila was constructed in violation of the relevant zoning ordinance of the City of Manila. B. SUBSTANTIVE 1. Whether the threshold and purely legal issue on the definition of the Constitutional mandate to conserve, promote and popularize the nation’s historical and cultural heritage and resources, includes, in the case of the Rizal Monument, the preservation of its prominence, dominance, vista points, vista corridors, sightlines and setting. Yes. The Constitutional mandate to conserve, promote, and popularize the nation’s historical and cultural heritage and resources includes, in the case of the Rizal Monument, the preservation of its sightlines. The Rizal Monument, as a sui generis cultural artifact protected by the Constitution and our heritage laws, exists physically as a whole. Its status as a national cultural treasure lies in its visual presence. This includes not only the obelisk and its accompanying bronze sculpture—the Motto Stella—but the ground and the space in which it is located. Its physical value as a National Cultural Treasure requires the preservation of its sightlines. In fact, with specific reference to the present controversy, the only way to “conserve” the Rizal Monument is by removing the impairment to its sightline: the presence of Torre de Manila. 2. Whether the Congress can legally limit the definition of the above constitutional mandate to ensuring only the physical integrity of the cultural heritage and resources. SR.A. No. 4846, Section 3(c) defines a national cultural treasure as “a unique object found locally, possessing outstanding historical, cultural, artistic and/or scientific value which is highly significant and important to this country and nation.” R.A. No. 10066, Section 3(bb) meanwhile defines a national cultural treasure as “a unique cultural property found locally, possessing outstanding historical, cultural, artistic and/or scientific value which is highly significant and important to the country and nation, and officially declared as such by pertinent cultural agency.” The Rizal Monument was declared by the National Museum as a National Cultural Treasure by virtue of Museum Declaration No. 9-2013.POSITION PAPER (FOR ORAL ARGUMENTS) Knights of Rizal vs. DMCI Homes, Ine., et al. GR No. 213948 x Page 5 of 10 In the area of heritage conservation, the concept of “physical integrity” has a flexible attribute. While in general, the idea of conserving a cultural artifact (such as a painting or a talisman) means that such works can be preserved even if they were displayed from one place to another so long as the paint is not peeled off the canvass or the metal parts of the talisman are cleaned of rust, in other cases (such as with respect to the Rizal Monument), the conservation of the cultural artifact may very well require the preservation of the location in which the work is situated. Thus, the conservationist policy of the Constitution is deemed complied with once we accord the necessary attribute of flexibility to the term “physical integrity” as enacted by Congress. This is as it should be considering the various and changing demands of the practice of conservation. The foregoing is also consistent with the idea that between two interpretations of an act of Congress, one that may not be constitutionally compliant and another that is so, that reading of the statute that saves it from the vice of unconstitutionality should be preferred. 3. Whether the State can validly restrict an owner's right to exploit his property in furtherance of the preservation and conservation of 4 national cultural property. ‘Yes. As a matter of constitutional law, public restriction of private rights can be justified either under police power or eminent domain. The enactment of conservationist policies under the Constitution provides greater justification for the exercise of the inherent powers of government to protect national cultural property. Under Section 3(0) of R.A. No. 10066, cultural property is referred to as “alll products of human creativity by which a people and a nation reveal their identity, including churches, mosques and other places of religious worship, schools and natural history specimens and sites, whether public or privately-owned, movable or immovable, and tangible or intangible.” 4, Whether the Torre de Manila project is within the geographical area of a declared Heritage Zone pursuant to Republic Act No. 10066. Section 3(q) of R.A. No. 10066 states: “*Heritage zone’ shall refer to historical, anthropological, archaeological, artistic geographical areas and settings that are culturally significant to the country, as declared by the Na- tional Museum and/or the National Historical Institute.” To date, there is no existing declaration from the National Museum and/or the National Historical Institute (now NHCP) that the Rizal Park andPOSITION PAPER (FOR ORAL ARGUMENTS) Page 6 of 10 Knights of Rizal vs. DMCI Homes, Ine, et al GR.No. 21948 x x Rizal Monument are heritage zones. Thus, the Torre de Manila is not within the geographical area of a declared heritage zone. 5. Whether or not the power to issue a CDO under R.A. No. 10066 extends to prevent the obstruction of a cultural property's sightline. Yes. Section 25 of R.A. No. 10066 states that the power of the appropriate cultural agencies to issue a CDO extends to situations in which the physical integrity of the national cultural treasure or important cultural property is found to be in danger of destruction or significant alteration from its original state. The term “physical integrity” is broad enough to cover such characteristics of a protected cultural artifact as are necessary to preserve its cultural value. With particular reference to the Rizal Monument, its physical characteristics include its sightline because— 1) that is the interpretation consistent with the physics of the Rizal Monument as an integrated unit, a single piece of visual phenomenon; 2) that is the interpretation that will give practical meaning to the conservationist and protectionist policies of the Constitution; and 3) 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.”® 6. What are the specific laws, statutes, ordinances and international covenants that private respondent breached as a result of the construction of the Torre de Manila and how does the said tower become a nuisance per se; and what are the legal consequences of the violation of any of these laws? The construction of the Torre de Manila impairs the Rizal Monument’s physical integrity, in violation of R.A. No. 10066 in relation to the Constitution’s conservationist and protectionist policies. The City of Manila also violated Ordinance No. 8119 for issuing zoning and building permits despite the Torre de Manila’s non-compliance with the floor-area ratio (FAR) limit. The act of the City of Manila in granting an exemption to DMCI from the FAR limit constitutes grave abuse of discretion because such exemption leads to the impairment of the physical integrity of the Rizal Monument. 7. Which of the public respondents are mandated by law to regulate such violations? ° A.M. No. 09-6-8-SC (RULES OF PROCEDURE FOR ENVIRONMENTAL CASES).POSTTION PAPER (FOR ORAL ARGUMENTS) Page 7 of 10 Knights of Rizal vs. DMCI Homes, Ine,, et al. G.R.No. 213048 Section 25 of R.A. No. 10066 provides that “[w]hen 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.” Which among the cultural agencies may issue the CDO depends on the categorization of the cultural property involved. Notably, Section 31 of R.A. No. 10066 provides that the cultural agencies, in conformity with their respective charters and mandates, shall define and delineate their respective areas of responsibility. Section 25 of R.A. No. 10066 also empowers the local government unit which has the jurisdiction over the site where the immovable cultural property is located to “promptly adopt measures to secure the integrity of such immovable cultural property.” To that extent, the City of Manila is also mandated by law to regulate any violation of the physical integrity of the Rizal Monument. 8 Whether or not Torre de Manila significantly altered the physical integrity of the Rizal Monument as may be defined by law. The Torre de Manila significantly alters the physical integrity of the Rizal Monument. In the case of the Rizal Monument, its physical integrity necessarily includes its sightline. First, As a national cultural treasure or cultural property, the Rizal Monument was intended to be, and has always been, seen with a clear sightline. One cannot divorce the obelisk and the statue—the Motto Stella— from the park in the same way that one cannot divorce the obelisk and the statue from the sightline. The sightline is as much a part of the Rizal Monument because it is a visual phenomenon. Second. The physics of the Rizal Monument is such that the obelisk, the statue, and its sightline constitute an integrated unit. Its visual presence which has made it a transcendent cultural artifact is possible precisely because its parts—the obelisk, the statue, and its sightline—are seen as an integrated whole. The integrity of its physics that requires preservation is the unity of those parts that create the visual phenomenon that is now the Rizal Monument. 9. — What is the effect of permits, licenses and opinions issued by public respondents as regards the validity of the construction of the Torre de Manila project? Public respondents NHCP, NCCA, and NM had no direct participation in the granting of permits, licenses, certificates, and/or exemptions thatPOSITION PAPER (FOR ORAL. ARGUMENTS) Page 8 of 10 Knights of Rizal vs. DMC Homes, Inc, etal GRNo. 213048, x paved the way for the construction of the Torre de Manila. In fact, public respondents NHCP, NCCA, and NM were not included by DMCI Project Developers, Inc. in the list'' outlined in its Comment dated November 11, 2014 of government agencies and local government offices that gave clearances, permits, certificates, and/or exemptions to DMCI Project Developers, Inc., in connection with the construction of the Torre de Manila. 10. What is the total damage to be sustained by private respondents, including the workers, the subcontractors, the investors, and the buyers of the project, in case the building is demolished? The pecuniary amount of damages is a factual matter, but whether private respondent is entitled to compensation depends on whether it acted in good faith. 11. What will be the effect of our ruling on already erected Shrines and monuments that have towers in their line of sight? None. This case specifically pertains only to the protection and conservation of the Rizal Monument in Luneta. Any ruling made by this Honorable Court in this case will have no effect on other shrines and monuments. Whether or not structures affecting the sightline of other erected shrines and monuments should also be demolished would have to be resolved on a case-to-case basis, depending on the circumstances of each case, in particular, (1) the status of the cultural artifact; (2) the physical characteristics of the cultural artifact; and (3) the need to preserve the sightline of the monument or shrine. 12, Whether DMCI has secured all requisite government permits to construct the building. DMCI appears to have secured all the formal government permits. Whether those permits are defective is a separate matter. 13. Whether NCCA has jurisdiction to issue the CDO. Please refer to answer in question no. 5 under Procedural Issues. 14, Whether the permanent cessation of the construction and the building’s demolition constitute taking of private property for public use requiring payment of just compensation. On the assumption that the Honorable Court decided that the presence of the Torre de Manila impairs the physical integrity of the Rizal Monument, such declaration carries with it the assumption that the construction is in violation of either the heritage laws or the Constitution, or both. The national 1! DMCI Project Developers, Inc.'s Comment dated 11 November 2014, at 39-40, par. 93.fe POSITION PAPER (FOR ORAL ARGUMENTS) Page 9 of 10 Knights of Rizal vs. DMCI Homes, Ine, et al. G.RNo. 213948 x government is therefore not required to compensate private parties for the exercise of acts that are illegal or unconstitutional. Whether or not the private respondent is entitled to compensation from the City of Manila is a different matter. C. ON THE TEMPORARY RESTRAINING ORDER ae Whether the TRO should be lifted or maintained until decision on the merits. The TRO should be maintained until decision on the merits. RESPECTFULLY SUBMITTED. Makati City for Manila, 30 July 2015. . IBA) Solicitor General, Rofl No. 44957, IBP LRN 08505 MCLE Exemption No. IV-001068, 5/14/2013 ‘VIDA G. SAN VICENTE Assistant Solicitor General Roll No. 33995, IBP LRN 09503 MCLE Exemption No. V-000426, 5/28/2015 MARIE cnr NOLASCOSIMENEZ StateSolicitor Roll No. 47419, IBP Lifetime No. 08702 MCLE Compliance No. IV-0009070, November 13, 2012 La IVAN M. BANDAL Associate Solicitor Roll No. 60070, IBP No. 0987316, 1/7/2015, MCLE Compliance No. IV-0016068, 04/10/2013POSITION PAPER (FOR ORAL ARGUMENTS) Page 10 of 10 Knights of Rizal vs. DMCI Homes, Inc,, et al. GR.No. 213948 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.phs Email: docket@osg.gov-ph Copies furnished: NATIONAL COMMISSION FOR CULTURE AND THE ARTS (NCCA) 633 General Luna Street, Intramuros 1002 Manila NATIONAL HISTORICAL COMMISSION OF THE PHILIPPINES (NHCP) NHCP Building, T.M. Kalaw St. Ermita, Manila NATIONAL MUSEUM (NM) P. Burgos St. cor. Finance Road Ermita, Manila ATTY, WILLIAM L. JASARINO Counsel for Petitioner Penthouse Suite, J Centre 926 P. Herrera, Aguho Pateros 1620, Metropolitan Manila ATTY. JOSEPH M. GO II CASTILLO LAMAN TAN PANTALEON & SAN JOSE Counsel for DMCI Project Developers, Inc. am, 34, 4, 5" & 9" Floors, The Valero Tower 112 Valero Street, Salcedo Village, Makati City DMCI HOMES, INC. No. 1321 Apolinario Street Barangay Bangkal, Makati City THE INCUMBENT OFFICER Office of the City Legal Officer Rm. 214 Manila City Hall, Manila