SolGen Hilbay asks SC to order demolition of Torre de Manila

By: Jerome Aning - 9 years ago

PHOTO BY MARIANNE BERMUDEZ

“If the way to conserve a painting is by controlling the temperature of its environment, the way to conserve the monument is by preserving its sightline.”

Solicitor General Florin Hilbay on Tuesday called on the Supreme Court to order property developer DM Consunji Inc. (DMCI) Homes to demolish the 49-story Torre de Manila condominium not only for ruining the sightline of the Rizal Monument but also for building it with undue haste using invalid permits.

Speaking to the court on the fifth round of oral arguments on the case, Hilbay called the Rizal Monument one of the most important cultural treasures of the country that the Constitution required the State to protect and conserve.

“We take it as a given that the cultural artifact that is the Rizal Monument in Luneta is part of the ‘cultural treasure of the nation’ regardless of any formal declaration.

“There can be no doubt that of all the monuments of our national hero—and perhaps even of all monuments in the country—the Rizal Monument in Luneta is primus inter pares. It is sui generis [unique],” Hilbay said.

The solicitor general, who represents the government in the case filed by the Knights of Rizal against DMCI, pointed to the monument being one of the most recognizable historic sites in the country and an almost-mandatory stop for all visitors from the provinces and even those from abroad.

Covered by Constitution

“Our desire to protect it is so overwhelming it is guarded seven days a week by the Philippine Marines. It is the site where our national hero’s remains are buried… These facts undeniably make the Rizal Monument a prime object of the Constitution’s conservationist and protectionist policies under Article XIV,” Hilbay added.

He said that while his office had initially recommended the dismissal of the Knights of Rizal’s petition, the temporary restraining order issued by the court and the ongoing oral arguments “[have] given us the opportunity to take a second look at the merits and eventually reconsider the government’s position.”

‘Physics’ impaired

Hilbay said the “physics,” or physical integrity of the monument, was impaired by the presence of Torre de Manila because for the government, the physical integrity does not only pertain to the monument itself.

“The Rizal Monument is a visual phenomenon that exists as an integrated unit. This includes not only the bronze sculpture and the accompanying obelisk—the ‘Motto Stella’—but also the ground and the space in which it is located,” he said. [The monument was originally called Motto Stella, Latin for guiding star, the original name of the monument.]

Artwork, clear sightline

“The monument as an artwork, was intended to be and has always been, seen with a clear sightline. One cannot therefore divorce the Motto Stella from the park in the same way that one cannot divorce the Motto Stella from the sightline.

“The physics of the Rizal Monument is such that the obelisk, the bronze sculpture and its sightline constitute a single piece of cultural heritage,” Hilbay added.

The Supreme Court, Hilbay said, may either interpret the physical integrity of the monument by just referring to the Motto Stella, a restrictive interpretation, or to the Motto Stella and its accompanying sightline, which is a broad interpretation.

The high tribunal, Hilbay said, should choose the latter interpretation because of the following:

— It is consistent with the physics of Rizal as an integrated unit.

— It gives practical meaning to the conservationist and protectionist policies of the Constitution.

— Like in environment cases, when human activities may lead to threats of serious and irreversible damage, actions may be taken by the State to avoid or diminish such threats.

Permits invalid

Hilbay also pointed out that the zoning and building permits of DMCI were issued ultra vires (beyond authority) by the city government.

He said the City Planning and Development Office (CPDO) had no authority to issue them because of Ordinance No. 8119 that limited the agency’s authority to issue zoning only for “all conforming uses.”

Floor-to-area ratio

“DMCI’s zoning permit is invalid because it goes way beyond the floor-to-area ratio. Whereas the ordinance allows only a floor-to-area ratio of four, the zoning permit allowed 13. Whereas Torre de Manila should have been entitled to a maximum of seven floors, its application was for 49 floors. This is 42 floors beyond the authority of the CPDO,” Hilbay said.

The ordinance stated that the City Council—upon recommendation of the Manila Zoning Board of Adjustment Appeals and through the committee on housing, urban development and resettlements—had the sole authority to issue the permission for variance or exception from the ordinary zoning rules.

“Following [the] ordinance, this should have been done prior to conducting any business activity or construction on the[ir] property/land,” Hilbay said.

He also noted that the issuance of a zoning permit was no guarantee of its validity as the ordinance provided that the issuance of one “shall not be construed as an approval or authorization to the permittee to disregard or violate any of the provisions of this ordinance.”

Validity tainted

Hilbay added that the defects in the zoning permit also “taint[ed]” the validity of the building permit and business permit issued to DMCI.

The ordinance, according to him, states that no such permits may be issued by the local building official and the Business Promotion and Development Officer without a valid zoning permit [adopted] in accordance with the ordinance.

Undue haste

“Given these facts and conclusions of law, what is apparent is that DMCI was less-than-prudent both in securing the required permits and in building Torre de Manila. A diligent developer would have gone through the required processes under the ordinance; it would not have built the Torre de Manila with undue haste,” he said.

Hilbay said his task was to call for the application of the law “to the meager, but undisputed facts of this case, and not to impute any illicit motives on our public officials and on DMCI.”

“Nonetheless, with respect to the Torre de Manila project, we can only say, perhaps generously, that DMCI has assumed the risks to which it is now exposed. Had it actually followed the rule of law, it would not be facing the danger of loss it now confronts,” he said.

Asked by Justice Francis Jardeleza, the assigned writer of the court opinion on the case, on whether he thought the court was empowered to issue an order directing the demolition of the Torre, Hilbay replied, “Yes, if it is an illegal construction it would be strange if the Supreme Court cannot give appropriate relief.”

Sightline not defined

Jardeleza asked what the proper sightline was that Hilbay wanted to protect aside from the portion obstructed by the building, to which Hilbay replied: “The court is not required to determine metes and bounds of the sightline, but take judicial notice that the sightline has already been impaired. The monument is meant to be forward facing. Any reasonable person will not argue that the sightline has not been impaired.”

Justice Antonio Carpio, in his interpellation, said the court would have to come up with a ruling that would guide the developers, adding, “You want us to legislate the sightline but not how far.”

For his part, Justice Presbitero Velasco said there was a presumption that City Hall had performed its job in issuing the zoning and building permits in accordance with the law and other regulations.

“Once a zoning permit is issued, it is assumed that the issuing office scrutinized it and that it complied with the zoning ordinance. DMCI is saying that it relied on the zoning permit. If not for official reliance on CPDO then it wouldn’t have continued,” the justice said.

However, Hilbay said that “the moment an office issues a document that is on its face void, then there is no presumption [of regularity].”

Chief Justice Ma. Lourdes Sereno focused on the term sightline, which is not defined under the Cultural Heritage Act.

Hilbay replied, “What we are saying is that the law was passed in consideration of the practice of conservation which covers in some cases the protection of the sightline.”

Sereno also asked if the court would have to require sightlines for other monuments; Hilbay said that the law did not for all of them and that the Rizal Monument was a sui generis case.

Justice Marvic Leonen instructed Hilbay to include in his memorandum on the case the story about Rizal having written a letter before he died stating that he wanted to be buried at La Loma Cemetery and wanted a simple fenced grave with just a cross and a stone tombstone.

Sereno adjourned the oral arguments at 7:15 p.m. The sixth round was set for Sept. 1 at 2 p.m.