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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

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standards can never be applied outside the In the mid-1950s, the Jose Rizal National Centennial
boundaries of Rizal Park. Commission (JRNCC) formulated a plan to build an
Educational Center within the Rizal Park. In July 1955,
Also, to declare that the City of Manila failed to the KOR proposed the inclusion of a national theater on
consider the standards under Ordinance No. 8119 the site of the Educational Center. The JRNCC adopted
would involve making a finding of fact. In such a case, the proposal.
it is the Regional Trial Court which has the jurisdiction
to hear the case, receive evidence, make a proper finding However, several sectors voiced their objections to the
of fact, and determine whether the Torre de Manila construction for various reasons. Among them, the need
project properly complied with the standards set by the to preserve the open space of the park, the high cost of
ordinance. construction, the desecration of the park's hallowed
grounds, and the fact that the proposed cultural
NO GRAVE ABUSE OF DISCRETION IN THIS CASE center including the 129.25 meter high national
In exceptional cases, the Court has granted a prayer for theater proposed by the KOR would dwarf the 12.7
mandamus to compel action in matters involving meter high Rizal Monument. The JRNCC revised the
judgment and discretion, only "to act, but not to act lone plan and only the National Library - which still stands
way or the other," and only in cases where there has today - was built.
been a clear showing of grave abuse of discretion,
manifest injustice, or palpable excess of authority. According to the NHCP, the KOR even proposed to build
a Rizal Center on the park as recently as 2013.81 The
In this case, there can be no determination by this Court proposal was disapproved by the NHCR and the
that the City of Manila had been negligent or remiss in its Department of Tourism.
duty under Ordinance No. 8119 considering that this
determination will involve questions of fact. DMCI- PDI Torre de Manila is Not a Nuisance Per Se.
had been issued the proper permits and had secured all
approvals and licenses months before the actual It can easily be gleaned that the Torre de Manila is not a
construction began. Even the KOR could not point to nuisance per se. The Torre de Manila project cannot be
any law that respondent City of Manila had violated considered as a "direct menace to public health or
and could only point to declarations of policies by safety."
the NHCP and the Venice Charter which do not
constitute clear legal bases for the issuance of a writ On the other hand, the KOR now claims that the Torre de
of mandamus. Manila is a nuisance peraccidens.

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.

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As we have time and again held, courts generally hesitate 4. The NHCP Guidelines is neither law nor an enforceable
regulation. It appears that it has never been published nor
to review discretionary decisions or actions of
filed with the Law Center of the University of the
administrative agencies in the absence of proof that such Philippines. Moreover, like the Venice Charter, the NHCP
decisions or actions were arrived at with grave abuse of Guidelines appears to be merely hortatory.
discretion amounting to lack or excess of jurisdiction.
The inquiry of the minority, however, did not stop there.
In sum, bearing in mind the Court does not intervene in According to the minority, even though no national law
discretionary acts of the executive department in the categorically guarantees a view of dominance to any of
absence of grave abuse of discretion, and considering the nation's cultural properties, there exists a local
that mandamus may only be issued to enforce a clear and Manila legislation that actually extends such a guarantee
certain legal right, the present special civil action for to at least the city's historical sites and facilities.
mandamus must be dismissed and the TRO issued
earlier must be lifted. I remain convinced that there is no law, whether
national or local, that protects the view of
DISPOSITIVE dominance of the Rizal Monument.
WHEREFORE, the petition for mandamus is DISMISSED
for lack of merit. The Temporary Restraining Order
issued by the Court on 16 June 2015 is LIFTED effective PERLAS-BERNABE, J., concurring:
immediately.
In this case, the clarity and completeness of petitioner's
RE: ART. 2 legal right to the compulsion prayed for — i.e., to stop
the construction of the Torre de Manila — remains
VELASCO, JR., J., concurring: suspect in view of the present lack of established and
binding legal standards on the protection of sightlines
The first argument (of KOR) is premised on the claim and vistas of historical monuments, as well as heritage
that the Torre de Manila building — visible as it is in the sites and/or areas.
backdrop of the Rizal Monument to anyone facing such
monument at or from a certain distance — had impaired Primarily, petitioner cites Sections 15 and 16, Article
the view of dominance of the Rizal Monument in relation XIV of the 1987 Constitution as basis for the relief
to its background (view of dominance), which view is prayed for.
supposedly protected by the following laws and
guidelines: However, it is quite apparent that these are not self-
1. Sections 15 and 16, Article XIV of the Constitution, executing provisions; thus, Congress must first enact
2. Republic Act (RA) Nos. 4846, 7356 and 10066, a law that would provide guidelines for the regulation
3. the Venice Charter, and
4. the 2012 NHCP Guidelines on Monuments Honoring of heritage conservation, as well as the penalties for
National Heroes, Illustrious Filipinos and Other Personages violations thereof. Otherwise stated, there is a need for
(NHCP Guidelines). supplementary statutory implementation to give effect
to these provisions.
As to the first argument, the minority essentially held
that the view of dominance of the Rizal Monument is not LEONEN, J., concurring:
afforded any legal protection under: (a) Sections 15 and
16 of Article XIV of the Constitution, (b) RA Nos. 4846,
1. With petitioner Knights of Rizal having no direct
7356 and 10066, (c) the Venice Charter or (d) the NHCP
and personal interest in this case, it has no legal
Guidelines. The minority elucidated thusly:
standing. On this ground alone, this Petition
should have been dismissed outright.
1. Sections 15 and 16 of Article XIV of the Constitution are
not self- executing provisions; both are mere 2. This Court also has no subject matter
expressions of general state policies and so, by jurisdiction over this case.
themselves and without the aid of any enabling law, 3. Even if the present Petition is treated as one for
they cannot be the source of any enforceable right or mandamus, it does not satisfy the requirements
claim of protection.
2. Though RA Nos. 4846, 7356 and 10066 all implement to under Rule 65, Section 3 of the Rules of Court.
some extent the broad policies of Sections 15 and 16 of There is no law that "specifically enjoins as a
Article XIV of the Constitution, none of the said statutes duty" the protection of sightlines and settings of
provides any clear and definite protection to a view of historical or cultural properties.
dominance for any of the country's historical and cultural
sites, let alone one for the Rizal Monument.
3. The Venice Charter does not rise to the level of The following are required for mandamus to lie: first,
enforceable law. There is no showing that the Philippines "the plaintiff has a clear legal right to the act demanded";
has legally committed to observe such charter. Neither was
it established that the principles contained therein are second, "it must be the duty of the defendant to perform
norms of general or customary international law. At any the act, because it is mandated by law"; third, "the
rate, the Venice Charter, by its own words, only seems to be defendant unlawfully neglects the performance of the
hortatory. duty enjoined by law"; fourth, "the act to be performed

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is ministerial, not discretionary"; and, lastly, "there is no standards too general to serve as basis for courts to
appeal or any other plain, speedy and adequate remedy grant any relief to petitioner Knights of Rizal. To attempt
in the ordinary course of law." to operate with these general substantive standards will
"propel courts into uncharted ocean of social and
The first requisite is absent in this case. Petitioner economic policy making," encroaching on the functions
Knights of Rizal has no clear legal right to an injunction properly belonging to the legislative and executive
against the construction of Torre de Manila. Petitioners branches.
failed to point to a law that specifically prohibits the
construction of any structure that may obstruct the I do not agree, however, in making distinctions
sightline, setting, or backdrop of a historical or cultural between self-executing and non- self-executing
heritage or resource. provisions.

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.

As examples of other non-self-executing provisions in There are no second-order provisions in the


the Constitution, the dissent enumerates Sections 11, Constitution. We create this category when we classify
12, and 13, Article II; Sections 1 and 13, Article XIII; the provisions as "self-executing" and "non-self
and Sections 1 and 2, Article XIV. executing." Rather, the value of each provision is implicit
in their normative content.
Further cited is Kilosbayan v. Morato where, according
to the dissent, this Court held that the provisions in For instance, Sections 14, 15, 16, and 17, Article XIV of
Article II on the Declaration of Principles and State the Constitution must be read as provisions that
Policies were not self-executing. contribute to each other's coherence. That is, we must
interpret them holistically to understand the concepts
Sections 15 and 16, Article XIV of the Constitution are labeled as culture and history. None of these provisions
not legal bases for stopping the construction of Torre de deserve to be read in isolation.
Manila. Textually, nothing in Sections 15 and 16
indicates that the sightlines and setting surrounding a Section 14 reads:
historical and cultural heritage or resource is subject to
protection. Sections 15 and 16 contain substantive

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SECTION 14. The State shall foster the preservation, as judicially enforceable rights." In the subsequent case
enrichment, and dynamic evolution of a Filipino national of Kilosbayan, Inc. v. Morato, we held that the provisions
culture based on the principle of unity in under Article II (Declaration of State Principles and
Policies) of the Constitution are not self-executing
The second and third requisites for the issuance of a provisions, "the disregard of which can give rise to a
writ of mandamus are likewise absent in this case. cause of action in the courts. They do not embody
Respondents have no legal duty to petitioner judicially enforceable constitutional rights but
Knights of Rizal. guidelines for legislation." In Tañ ada v. Angara, we
affirmed that far from being provisions ready for
Likewise absent is the fourth requisite. The act sought to enforcement through the courts, the sections found
be performed in this case is not ministerial. under Article II are there to be "used by the judiciary as
aids or as guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws."
4. There were other plain, speedy, and adequate
remedies in the ordinary course of law available
to petitioner Knights of Rizal. To determine whether a provision is self-executory,
the test is to see whether the provision is "complete
in itself as a definitive law, or if it needs future
JARDELEZA, J., dissenting: legislation for completion and enforcement." In
other words, the provision must set forth "a specific,
Petitioner KOR invokes Sections 15 and 16, Article XIV operable legal right, rather than a constitutional or
of the Constitution as bases for its claim that there is a statutory policy." Justice Feliciano, in his Separate
constitutional "obligation of the State" to protect the Opinion in the landmark case of Oposa v. Factoran,
Rizal Monument. The Court has consequently identified explained: (asked by Dean last meeting!!!)
the threshold legal issue to be whether Sections 15 and
16, Article XIV of the Constitution extend protection It seems to me important that the legal right which is an
to the Rizal Monument and/or its prominence, essential component of a cause of action be a specific,
dominance, vista points, vista corridors, sightlines, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that
and setting. To me, the resolution of this issue largely
unless the legal right claimed to have been violated or
depends on whether these sections are self-executing disregarded is given specification in operational terms,
and thus judicially enforceable "in their present form." defendants may well be unable to defend themselves
intelligently and effectively; in other words, there are due
process dimensions to this matter.
In constitutional construction, it is presumed that
constitutional provisions are self-executing. The
The second is a broader-gauge consideration — where a
reason is that "[i]f the constitutional provisions are specific violation of law or applicable regulation is not
treated as requiring legislation instead of self-executing, alleged or proved, petitioners can be expected to fall back
the legislature would have the power to ignore and on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the
practically nullify the mandate of the fundamental law."
Constitution x x x.
This, however, does not make all constitutional
provisions immediately self-executing.
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
In Basco v. Philippine Amusement and Gaming combined with remedial standards as broad ranging as "a
grave abuse of discretion amounting to lack or excess of
Corporation, we held that Sections 11 (Personal
jurisdiction," the result will be, it is respectfully submitted,
Dignity), 12 (Family), and 13 (Role of Youth) of to propel courts into the uncharted ocean of social and
Article II; Section 12 (Social Justice and Human economic policy making. At least in respect of the vast area
Rights) of Article XIII and Section 2 (Educational of environmental protection and management, our courts
Values) of Article XIV of the 1987 Constitution are have no claim to special technical competence and
experience and professional quali􏰀cation. Where no
merely statements of principles and policies. They speci􏰀􏰀c, operable norms and standards are shown to
are not self-executing and would need a law to be exist, then the policy making departments — the
passed by Congress to clearly define and effectuate legislative and executive departments — must be given a
real and effective opportunity to fashion and promulgate
such principles.
those norms and standards, and to implement them before
the courts should intervene. (Emphasis supplied.)
Three years later, in the 1994 case of Tolentino v.
Secretary of Finance, we held that the constitutional Following this test, I am of the view that Sections 15
directives under Section 1, Article XIII (Social Justice and and 16, Article XIV of the Constitution invoked by
Human Rights) and Section 1, Article XIV (Education) to petitioner KOR are not self-executing provisions.
give priority to the enactment of laws for the These provisions relied upon by KOR, textually and
enhancement of human dignity, the reduction of social, standing alone, do not create any judicially enforceable
economic and political inequalities, and the promotion right and obligation for the preservation, protection or
of the right to "quality education" were put in the conservation of the "prominence, dominance, vista
fundamental law "as moral incentives to legislation, not

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points, vista corridors, sightlines and setting" of the Rizal project. The Venice Charter provides, in general terms,
Park and the Rizal Monument. the steps that must be taken by State Parties for the
conservation and restoration of monuments and sites,
Similar to those constitutional provisions we have including these properties' setting. It does not, however,
previously declared to be non- self-executing, Sections rise to a level of an enforceable law. There is no
15 and 16 are mere statements of principle and policy. allegation that the Philippines has legally committed to
The constitutional exhortation to "conserve, promote, observe the Venice Charter. Neither am I prepared to
and popularize the nation's historical and cultural declare that its principles are norms of general or
heritage and resources," lacks "specific, operable norms customary international law which are binding on all
and standards" by which to guide its enforcement. states. I further note that the terms of both the NHCP
Enabling legislation is still necessary to define, for Guidelines and the Venice Charter appear hortatory and
example, the scope, permissible measures, and possible do not claim to be sources of legally enforceable rights.
limitations of the State's heritage conservation mandate. These documents only urge (not require) governments
Congress, in the exercise of its plenary power, is alone to adopt the principles they espouse through
empowered to decide whether and how to conserve and implementing laws.
preserve historical and cultural property. As in the
situation posed by Justice Feliciano, Sections 15 and 16, TIJAM, J., concurring:
by themselves, will be of no help to a defendant in an
actual case for purposes of preparing an intelligent and It is, thus, essential to the issuance of a writ of mandamus
effective defense. These sections also lack any that the applicant should have a clear, certain and well-
comprehensible standards by which to guide a court in defined legal right to the thing demanded, and it must be
resolving an alleged violation of a right arising from the the clear and imperative duty of the respondent to
same. perform the act required.

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 de􏰀ne 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
speci􏰀c 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.

Judicial power includes the duty of the courts of justice to


settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
(Emphasis supplied)

When substantive standards as general as "the right to a


balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a
grave abuse of discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully submitted,
to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area
of environmental protection and management, our courts
have no claim to special technical competence and
experience and professional qualification.Where no
specific, operable norms and standards are shown to exist,
then the policy making departments — the legislative and
executive departments — must be given a real and
effective opportunity to fashion and promulgate those
norms and standards, and to implement them before the
courts should intervene. (Emphasis supplied.)

Similarly, in his Separate Opinion in Agabon v. National


Labor Relations Commission, J. Dante O. Tinga explained
why "the right to security of tenure, while recognized in
the Constitution, cannot be implemented uniformly
absent a law prescribing concrete standards for its
enforcement," thus:

x x x However, to declare that the constitutional provisions


are enough to guarantee the full exercise of the rights
embodied therein, and the realization of ideals therein
expressed, would be impractical, if not unrealistic. The
espousal of such view presents thedangerous tendency of
being overbroad and exaggerated. The guarantees of "full
protection to labor" and "security of tenure," when
examined in isolation, are facially unqualified, and the
broadest interpretation possible suggests a blanket shield
in favor of labor against any form of removal regardless of
circumstance. This interpretation implies an
unimpeachable right to continued employment — a
utopian notion, doubtless — but still hardly within the
contemplation of the framers. Subsequent legislation is
still needed to define the parameters of these guaranteed
rights to ensure the protection and promotion, not only the
rights of the labor sector, but of the employers' as well.
Without specific and pertinent legislation, judicial bodies
will be at a loss, formulating their own conclusion to
approximate at least the aims of the Constitution.

Thus, the constitutional mandate expressed in Sections


15 and 16, Article XIV of the Constitution cannot, on its
own, be the source of the avowed right to the

CHAN GOMASAN OF SITO BERDE